Parchment and Politics: The Po

Constitutionalism is often analogized to Ulysses binding himself to the mast in order to resist the fatal call of the Sirens. But what is the equivalent of Ulysses’s ropes that might enable a political community to bind itself to constitutional rules? The positive puzzle of constitutionalism lies in explaining the willingness and ability of powerful political actors to make sustainable commitments to abide by and uphold constitutional rules even when these rules stand in the way of their immediate interests. Why, for example, would a popular President choose to abide by constitutional limitations on conducting what he and the majority of the country believe to be a vitally necessary war to preserve the Union or to fight terrorism, or a critical intervention to save the country from the Great Depression or the collapse of the financial system? The puzzle generalizes to how intertemporal political commitments of any sort are possible. We might wonder, along similar lines, how a political community can credibly and durably commit itself to repaying its debts, refusing to bail out financially reckless banks, or refraining from war.

A standard approach to answering such questions in both legal and political contexts is to invoke stable “institutions” of various kinds as reliable commitment mechanisms. Courts can enforce constitutional norms. Structural arrangements such as federalism, separation of powers, democracy, and delegation can raise the cost of political change or stack the deck in favor of particular outcomes. And of course constitutions are commonly cast as somehow self-enforcing guarantors of political commitments. But this explanatory approach just pushes the puzzle back to how these institutions become impervious to socio-political revision or override. Why should we expect institutional commitment devices to be any more stable than the first-order commitments they are supposed to facilitate?

Understanding how constitutions and other institutions can effectively constrain politics remains a fundamentally important theoretical challenge in law and the social sciences. This Article demonstrates the generality of that challenge and explores its implications for constitutional law and theory. The Article also attempts to make progress in explaining how, and in what contexts, successful legal and political commitment may be possible by consolidating a set of mechanisms through which legal and political arrangements — prominently including systems of constitutional law, the constitutional structure of government, and judicial review — can become entrenched against opposition and change.
124 Harv. L. Rev. 657 (2011) |