Wednesday, January 24, 2018

Constitutions as Basic Structure

Neil K. Komesar, University of Wisconsin Law School, Univ. of Wisconsin Legal Studies Research Paper No. 1435.

"How a constitution works is determined as much – likely much more – by the bottom-up forces of the dynamics of participation than by the explicit top-down design contained on the pages of a constitution. The formal institutional design of the original US Constitution has changed over time largely in a more open and democratic direction. But changes in the dynamics of participation are even more profound and likely have a greater role in determining the real constitutional structure of the United States. The direction of these changes is not so clearly democratic. My main purpose is to establish an analytical framework to pinpoint the determinants of constitutional structure and understand the dynamics of that structure. Constitutions like all law and public policy are about substance, but, especially for constitutions, substance must manifest primarily in issues of structure. To show why, the first section explores the advantages and disadvantages of confederation and contrasts the protection of slavery with another example of constitutional substance, the Bill of Rights. The second section confronts the profound questions surrounding the interaction between institutional design and the bottom-up forces of political participation including an examination of the choices made by the Framers of the US Constitution and the evolution of the US constitutional structure over time. The last section examines the limited and diminishing role of the courts and constitutional judicial review in the US constitutional structure and in constitutional structures in general."
Available for download at SSRN.