Emergent politics and constitutional drift: the fragility of procedural liberalism

Abstract

Purpose The purpose of this paper is to integrate classical elite theory into theories of constitutional bargains. Design/methodology/approach Qualitative methods/surveys/case studies. Findings Open-ended constitutional entrepreneurship cannot be forestalled. Constitutional entrepreneurs will almost always be social elites. Research limitations/implications The research yields a toolkit for analysing constitutional bargains. It needs to be used in historical settings to acquire greater empirical content. Need to be applied to concrete historical cases to do economic history. Right now it is still only institutionally contingent theory. Practical implications Formal constitutions do not, and cannot, bind. Informal constitutions can, but they are continually evolving due to elite pressure group behaviors. Social implications Liberalism needs another method to institutionalize itself! Originality/value Open-ended nature of constitutional bargaining overlooked in orthodox institutional entrepreneurship/constitutional economics literature.

The limits of generality for constitutional design

“…We can think about this in terms of the sources of constitutional drift (Salter, 2017; Salter and Furton, 2018) discussed in section ‘The limits of generality in constitutional design’ above. First consider the Ambiguity of Rules and, relatedly, the Time-Invariance Rules .…”

“…They can, by exerting direct or indirect influence on judicial review, lead to changes in the interpretation of unchanged text. While no formal Constitutional amendment occurs, political entrepreneurship can lead to constitutional capture in favour of certain special interests (Salter, 2017;Salter and Furton, 2018). 23 Consider the Seventeenth Amendment to the US Constitution.…”

“…Reality, though, is always somewhere between that first hand and the other: the extent to which beliefs are shared will vary. A Constitution can coordinate agents around a specific subset of the feasible norms and conventions (Salter and Furton, 2018; Young, 2019). 7 By providing a common point of reference, the codification increases the extent to which that specific subset of beliefs is shared 8…”

“… 23 Salter (2017) and Salter and Furton (2018) refer to constitutional drift , which is defined in terms of ‘informal constitutions – that is, the state's actual decision procedure, with drift the unintended results of political bargains among political elites’ (Salter, 2017: 569). Defined as such, constitutional drift differs from constitutional capture in that the latter represents intended results on the part of political entrepreneurs.…”

The pox of politics: Troesken’s tradeoff reexamined

“…Critical juncture theories are not meant to offer exclusive accounts of institutional change. Gradual institutional evolution (“drift”) is also at work (Salter & Furton, 2018 ). For instance, public health bureaucrats and political leaders may exert disparate influence during a pandemic, but their rule changes are subjected to judicial scrutiny (Gostin, 2008 ).…”