Examination
Comparative Constitutional Design
Tel Aviv University, December 2013
Prof Tom Ginsburg
EXAM: You have three hours to complete the exam. You should be able to finish before that time. The
exam is a closed book exam, but you can use dictionaries. However, electronic dictionaries are not
allowed.
PART I-MULTIPLE CHOICE
Instructions: choose only one answer, unless the question tells you to choose ALL that apply, in which
case you MAY choose more than one (but do not have to.)
1) Beate Sirota Gordon consulted the constitutions of which country in her drafting work in Japan?
(choose all that apply)
__ South Korea
_x_ Weimar Germany
_x_ United States of America
__ Egypt
2) Which of the following countries has had the MOST constitutions?
__Japan
__Israel
__United States
_x_Dominican Republic
3) How long did Thomas Jefferson think constitutions should endure?
__ 10 years
_x_19 years
__ 38 years
__ forever
4) How many times has the Japanese Constitution been amended?
_x_ 0
__ 1
Note: you could interpret the 1946 constitution as being an amendment of the 1889 constitution
so I did not downgrade you for marking 1
__ 2
__ 5
5) The Egyptian Constitution that has just been drafted in 2013 provides for which of the following
(choose all that apply)?
_x_ Islamic review by the Supreme Constitutional Court
__ freedom to form political parties on the basis of religion
_x_ military courts
__ a parliamentary system
PART II-SHORT ANSWER: Write 1-2 sentences to answer the question, explaining the concepts.
What are the three factors that Jon Elster says go into making constitutions?
Reason, passion and interest. Interests reflect the narrow self-interests of drafters, or groups
involved in constitution-making. Reason reflects the exercise of rational decision-making, the best
possible institutions. Passion reflects emotions, and a certain amount is needed to make sure
constitution gets passed.
What design factors help a constitution to endure?
Flexibility, inclusion and specificity. Flexibility is the idea that the document must be adjusted as
circumstances change; inclusion is the idea that many groups should feel a part of the process. Specificity
is the level of detail and the number of topics included.
What is the "counter-majoritarian difficulty?"
The idea that unelected courts are over-ruling decisions by majority as adopted in legislature. It
is used to criticize judicial review.
What is the “new commonwealth model” of constitutional review?
We considered examples in New Zealand, Canada and the UK. In each, there is a statutory bill of
rights; Courts can review legislation for conformity with ill of rights constitution/treaty but do not have
the last word. Legislators can over-rule the court under various conditions.
What is “post-conflict” federalism, and how is it different from traditional federalism?
Post conflict federalism involves resolving differences among ethnic groups that may not even
want to be in the same country. It confronts more profound problems than traditional federalism, which
is motivated by either economic/free trade goals or a bargain among constituent states.
PART III-SHORT ESSAY:
[Instruction: Try to be concise. I expect you can write at least a paragraph for each sub- question below,
but your overall answer should in no case exceed 3 single-spaced pages.]
The year is 2016, and the Knesset begins a project to design a constitution for Israel. Prime Minister Yair
Lapid comes to you for advice. “I’m told that there are many ways to design a constitution. Can you tell
me what we should do about the following questions? In answering, please do not take my political
views into account. I simply want the system that is best for the country. Tell me what you think, and
justify your argument.
1) Should we have a presidential, parliamentary, or semi-presidential system?
I expected you to define each of these basic systems and then offer an informed choice,
though the particular argument you made did not matter. Some argued that the costs of
changing systems were too high and so keeping the parliamentary system made sense;
others argued for a semi-presidential system as it would give a direct mandate to the leader.
Presidentialism is often seen as too prone to gridlock, but does have the advantage of giving
the leader a mandate to pursue mid-term policies.
2) How should we design the system of judicial review?
I was looking for a description of the basic design elements of judicial review. Should the
country adopt a centralized court or not? who should have access and standing? how long
should the terms of judges be? In addition, it was helpful to consider whether Israel should
adopt some version of the “New Commonwealth Model”. Again, the precise answer did not
matter so much as constructing a good argument.
3) How might we ensure that ethnic and other minorities are represented?”
Here there are several possible institutions that could be used. Federalism is sometimes an
approach, though may not make much sense for a small country like Israel. Ensuring
minority rights, for example to language or religion, at the center is another design option.
There might also be room for quotas in the electoral system, or affirmative action in either
politics or the employment context. Some discussed a right of secession as a possibility.