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The Economic Origins of Entrenched Judicial Review

Published online by Cambridge University Press:  09 April 2015

Anna Harvey
Anna Harvey*
Affiliation:
New York University
*
anna.harvey@nyu.edu
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Abstract

This article proposes a new explanation for the origins of entrenched judicial review, or judicial review supported by supermajority constitutional amendment requirements. The explanation is based on ex ante levels of economic inequality: Where economic inequality is higher, economic elites have more to lose from the advent of majority rule. These elites will have both greater incentives and greater ability to resist or check institutions responsive to popular majorities. We may then be more likely to see the adoption of less democratically responsive institutions, like entrenched judicial review, where more unequal wealth and income distributions are threatened by majority rule. The theory is consistent with the qualitative historical record from several former British colonies, including that of the United States. It also finds considerable support in an econometric analysis of the presence of entrenched judicial review in the first year of continuous democracy for those former European colonies that had become democracies by 2008, where pre-independence European mortality rates are used as a proxy for pre-independence economic inequality. These findings suggest that the adoption of entrenched judicial review in democracies may have been motivated at least in part because of its anticipated protection for higher levels of economic inequality.

Type
Research Article
Information
Studies in American Political Development , Volume 29 , Issue 1 , April 2015 , pp. 1 - 22
Copyright
Copyright © Cambridge University Press 2015 

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48. By the time the council began to be debated on June 4, it had already been resolved that there would be a single executive; the inclusion of any number of judges that could guarantee the absence of ties on the council implied a judicial majority on that body. Ibid., vol. 2, 79.

49. Ibid., vol. 1, 21. South Carolina delegate Charles Pinckney also included a similarly constituted Council of Revision in his proposal to the convention on the same day that the Virginia Plan was proposed. Ibid., 23.

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52. Ibid., vol. 1, 98, 100, 108, 139, 140; vol. 2, 73, 74, 300.

53. Votes on the Council of Revision were held on June 4, June 6, and July 21. Madison proposed veto power in the Supreme Court on August 15. Ibid., vol. 2, 32–36, 198, 298.

54. Elbridge Gerry of Massachusetts. Ibid., vol. 1, 97. See also 109 and vol. 2 73, 76–78, 93.

55. Ibid., vol. 2, 399.

56. Ibid., vol. 1, 121–22.

57. Ibid., 123.

58. Ibid., vol. 2, 468.

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71. Some might question whether Southern elites genuinely preferred entrenched judicial review, given the opposition of some prominent Southerners to federal judicial review during the 1790s. However, the dominance of the federal judiciary by Federalists during that decade provides a plausible explanation for this later opposition. See, for example, Mayer, David N., The Constitutional Thought of Thomas Jefferson (Charlottesville: University Press of Virginia, 1994)Google Scholar.

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85. Rangaiya, “The Indian Constituent Assembly.”

86. Ibid.

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95. Logged pre-independence European mortality rates for former European colonies are reported by Acemoglu, Johnson, and Robinson in “The Colonial Origins of Comparative Development.” These mortality rates are generally from the first half of the nineteenth century. Because technologies for fighting the primary diseases contributing to these mortality rates (typically malaria and yellow fever) did not significantly improve until the twentieth century, early nineteenth-century mortality data should provide a good approximation of European mortality rates throughout the pre-independence period. While the original data used in “The Colonial Origins of Comparative Development” have been questioned in Albouy, David, “The Colonial Origins of Comparative Development: An Empirical Investigation: Comment,” American Economic Review 102 (2012): 3059–76Google Scholar, “The Colonial Origins of Comparative Development: Reply” reports a series of alternative measures of pre-independence European mortality that enable several robustness checks. Mortality rates are logged to reduce the influence of outliers.

96. “Northern” and “Southern” European mortality rates are reported in Curtin, Philip D., Death By Migration: Europe's Encounter with the Tropical World in the Nineteenth Century (New York: Cambridge University Press, 1989)Google Scholar; pre-independence labor force and inequality measures for the Southern and New England colonies are reported in Lindert and Williamson, “American Incomes Before and After the Revolution.”

97. Proportion European in 1900 is available from McEvedy, Colin and Jones, Richard, Atlas of World Population History (New York: Facts on File, 1975)Google Scholar; and Curtin, Philip D., Feierman, Steven, Thompson, Leonard, and Vansina, Jan, African History: From Earliest Times to Independence, 2nd. ed. (London: Longman, 1995)Google Scholar.

98. Milanovic, All the Ginis database.

99. Milanovic, Lindert, and Williamson, “Pre-Industrial Inequality.”

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101. Constitution Act, 1982, as amended to 2009, Part I, Section 33, World Constitutions Illustrated, Hein Online.

102. All constitutions were accessed through Hein Online.

103. The pre-independence European mortality rate for the United States used in Tables 3 and 4 is that for the Southern colonies, as reported by Curtin, Death By Migration. However, using the mortality estimate for the Northern colonies does not appreciably change results.

104. Latitude data are reported by Porta, Rafael La, Lopez-de-Silanes, Florencio, Shleifer, Andrei, and Vishny, Robert W., “The Quality of Government,” Journal of Law, Economics, and Organization 15 (1999): 222–79Google Scholar. Regional dummies are as constructed by Acemoglu, Johnson, and Robinson, “The Colonial Origins of Comparative Development.”

105. Indicators for colonial origin are taken from La Porta et al., “The Quality of Government.”

106. Data on malarial incidence are reported by Gallup, John L. and Sachs, Jeffrey D., “The Economic Burden of Malaria,” American Journal of Tropical Medicine and Hygiene 64 (2001): 85–96 Google Scholar. Data on yellow-fever-friendly habitats are reported by Oldstone, Michael B. A., Viruses, Plagues, and History (New York: Oxford University Press, 1998)Google Scholar, while historical data on yellow fever epidemics are available from Curtin, Death By Migration; and Curtin, Philip D., Disease and Empire: The Health of European Troops in the Conquest of Africa (New York: Cambridge University Press, 1998)Google Scholar.

107. This indicator is reported by Cheibub, Gandhi, and Vreeland, “Democracy and Dictatorship Revisited.”

108. Proportion of Europeans in 1975 is from McEvedy and Jones, Atlas of World Population History. The index of ethnolinguistic fragmentation is reported by Easterly, William and Levine, Ross, “Africa's Growth Tragedy: Policies and Ethnic Divisions,” Quarterly Journal of Economics 112 (1997): 1203–50Google Scholar. Data on religious affiliation are reported by La Porta et al., “The Quality of Government.”

109. These alternative measures are available from Acemoglu, Johnson, and Robinson, “The Colonial Origins of Comparative Development: Reply.”

110. Acemoglu, Johnson, and Robinson, “The Colonial Origins of Comparative Development”; Acemoglu and Robinson, Why Nations Fail.

111. Alesina and Glaeser, Fighting Poverty in the U.S. and Europe.