Constitutions Unentrenched: Toward an Alternative Theory of Constitutional Design

Abstract

T his article highlights a gap between a great deal of constitutional theory and a great deal of the practice of democratic constitution-making. Drawing on data from democratic national and state constitutions, we challenge the consensus among constitutional theorists that a central purpose of constitutionalism is the entrenchment (the fortification against future change) of broad principles. The empirical reality is that the majority of democratic constitutions today are subject to frequent revision, and are therefore ill-equipped to facilitate the entrenchment of their contents. To explore the logic of these unentrenched documents, we identify the historical periods in which different geographic regions moved away from highly entrenched constitutions, and we examine the political contexts of these transformations. We find that, in each context, constitution-makers were attempting to limit the discretion of constitutional interpreters and implementers by drafting highly specific texts and by updating them in response to continually changing circumstances.

US State constitutional entrenchment and default in the 19th century

“…Alternatively, Versteeg and Zackin (2016: 664–665) actually point to 19 th -century US states as evidence that the unentrenched/specific model is conducive to credible commitments. The original impetus to include detailed policy instructions in state constitutions is often traced to the economic crisis of 1839, which revealed the fiscal blunders that many state legislatures had made, and motivated a wave of constitutional change designed to prevent legislatures from repeating these mistakes[.…”

“…Rather than specific rules, we estimate the effect of general dimensions of constitutional design on the likelihood of default. Two alternative models of constitutional design – entrenched/spare versus unentrenched/specific – motivate our choice of dimensions considered (Versteeg and Zackin, 2016).…”

“…Political agents have leeway to pursue protective and productive governance, but not predation and redistribution (Buchanan, 1975). As Versteeg and Zackin (2016: 658) observe: Entrenched constitutions are typically constructed as spare frameworks, rather than detailed policy directives, since highly specific documents are unlikely to remain relevant over long time horizons (Hammons 1999). As a result, along with rigidity, “generality and abstraction” are also widely considered to be defining features of written constitutions (Marmor 2007, 91–4) 9 …”

“…Alternatively, in the unentrenched/specific model the constitution aims at “limiting the latitude within which agents operate (through specificity) and relaxing the rigidity of the constitutional boundaries (increasing flexibility) to accommodate … increased scope and detail” (Versteeg and Zackin, 2016: 658).…”

“…These models offer different solutions to the same principal–agent problem (Versteeg and Zackin, 2016: 658). The unentrenched/specific model allows the governed to provide political agents with “ongoing constitutional micromanagement” (p. 660); this through numerous, specific directives that change frequently in response to the changing circumstances.…”