国会程序的宪法性法律

IF 1.9 2区 社会学 Q1 LAW University of Chicago Law Review Pub Date : 2003-02-01 DOI:10.2139/SSRN.382461
Adrian Vermeule
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引用次数: 88

摘要

联邦宪法包含一套规则,我将其描述为国会程序的宪法性法律。这些规则规范了国会的内部决策程序;如果没有具体的宪法规定,他们将受制于每一议院“决定其议事规则”的权力。关于国会程序的宪法法律包括第一条第4-5款的一长串规定,其中包括立法机构的组建、官员的选拔和成员的纪律处分;投票和法定人数规则;关于审议和表决透明度的规则;以及一系列其他条款。它还包含了分散在第一和第二条款其他地方的其他重要规则,如起源条款,超级多数投票的特别法定人数规则,以及推翻总统否决权的特别程序。国会程序的宪法法律很少被作为一个完整的规则体来分析,这主要是因为政治科学和宪法相关领域的历史怪癖。本文的目的是将这些规则作为一个统一的主题来研究,这个主题是立法权宪法设计的核心。该项目是工具性和规范性的;这篇文章提出了一个问题:如何构建宪法规定的国会议事规则,以推进一系列广泛共享的目标。除其他外,相关规则应促进知情和认知不扭曲的国会审议,尽量减少立法代表中固有的委托-代理问题,并鼓励在技术上有效利用有限的立法资源,特别是时间。困难的工作不是说明设计良好的立法程序应该达到的目标,而是就它们之间不可避免的权衡进行谈判。第一部分调查了宪法制定者设计立法程序必须面对的方法问题,特别是立法程序规则是否以及何时应该在宪法本身中颁布,或者通过一般授予规则制定权而承诺给未来的国会自由裁量权的关键问题。第二部分依次考虑国会会议的时间安排、立法者的接纳和驱逐、立法官员的选择、投票和法定人数规则、立法审议和投票的透明度、禁止参议院提出税收法案的规则,以及国会是否可以制定有约束力的法规,规定两院分别采取的内部规则的问题。这一部分还考虑了出现在国家和外国宪法中的立法程序规则,而这些规则在我们自己的宪法中缺失,本身就构成了有趣的谜题。例如,一项法案在通过之前需要三读的规定,以及禁止在立法会议结束时提出或通过法案的规定。在整个第二部分中,目的是确定设计缺陷,评估在州和外国宪法中发现的替代方案和创新,并提出可能改善国会程序宪法法律的解释性选择或宪法改革。
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The Constitutional Law of Congressional Procedure
The federal constitution contains a set of rules that I will describe as the constitutional law of congressional procedure. These are rules that regulate the internal decisionmaking procedures of Congress; absent specific constitutional provision, they would be subject to the authority of each House to "determine the Rules of its Proceedings." The constitutional law of congressional procedure encompasses the long catalogue of provisions in Article I, Section 4-5, which includes rules for assembling the legislature, selecting its officers, and disciplining its members; voting and quorum rules; rules governing the transparency of deliberation and voting; and a range of other provisions. It also encompasses other important rules scattered elsewhere in Articles I and II, such as the Origination Clause, special quorum rules for supermajority voting, and the special procedures for overriding a presidential veto. The constitutional law of congressional procedure has rarely been analyzed as an integrated body of rules, largely because of historical quirks in the relevant sectors of political science and constitutional law. The article's project is to examine this body of rules as a unified topic that is central to the constitutional design of legislative power. The project is instrumental and prescriptive; the article asks how the Constitution's rules of congressional procedure might be structured to advance a congeries of widely-shared aims. The relevant rules should, among other things, promote congressional deliberation that is well-informed and cognitively undistorted, minimize the principal-agent problems inherent in legislative representation, and encourage technically efficient use of constrained legislative resources, especially time. The difficult enterprise is not stating the aims to which well-designed legislative procedure should conduce, but rather negotiating the inevitable tradeoffs between and among them. Part I surveys the methodological problems that constitutional framers designing legislative procedure must confront, especially the key problem whether and when rules of legislative procedure should be promulgated in the Constitution itself, or instead be committed to the discretion of future congresses through a general grant of rulemaking power. Part II considers in turn the timing of congressional sessions, the admission and expulsion of legislators, the selection of legislative officers, voting and quorum rules, the transparency of legislative deliberation and voting, the rule barring the Senate from originating revenue bills, and the question whether Congress may enact binding statutes that prescribe internal rules for the two Houses taken separately. This Part also considers rules of legislative procedure that appear in state and foreign constitutions, and whose absence from our own itself poses interesting puzzles. Examples are rules requiring three readings before a bill may be enacted, and rules that bar the introduction or enactment of bills at the close of the legislative session. Throughout Part II, the aim is to identify design defects, to evaluate alternatives and innovations found in state and foreign constitutions, and to propose interpretive choices or constitutional reforms that might improve the constitutional law of congressional procedure.
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期刊介绍: The University of Chicago Law Review is a quarterly journal of legal scholarship. Often cited in Supreme Court and other court opinions, as well as in other scholarly works, it is among the most influential journals in the field. Students have full responsibility for editing and publishing the Law Review; they also contribute original scholarship of their own. The Law Review"s editorial board selects all pieces for publication and, with the assistance of staff members, performs substantive and technical edits on each of these pieces prior to publication.
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