Parchment and politics: The positive puzzle of constitutional commitment

Harvard Law Review

Volumn 124, Issue 3, 2011, Pages 657-746

  Levinson, Daryl J ^a  

^a NEW YORK UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 79951690171     PISSN: 0017811X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (522)

1. This skeptical question dates back at least to Thomas Hobbes, who doubted whether Leviathan could be bound by any kind of law. Hobbes's logic is simple and still compelling (though far from dispositive): "For [Leviathan] having power to make, and repeale Lawes, he may when he pleaseth, free himselfe from that subjection, by repealing those Lawes that trouble him, and making of new.... [H]e that is bound to himselfe onely, is not bound."
2. THOMAS HOBBES, LEVIATHAN 184 (Richard Tuck ed., Cambridge Univ. Press rev. student ed. 1996) (1651).
3. See Richard H. Fallon, Jr., Constitutional Constraints, 97 CALIF. L. REV. 975, 977 (2009) (noting the normative orientation of constitutional theorists and their lack of attention to the general topic of "constitutional constraints").
4. See JON ELSTER, ULYSSES UNBOUND 88-174 (2000);
5. STEPHEN HOLMES, PASSIONS AND CONSTRAINT 134-77 (1995).
6. See I BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS (1991) [hereinafter Ack-ERMAN, FOUNDATIONS]; 2 BRUCE ACKERMAN, WE THE PEOPLE: TRANSFORMATIONS (1998).
7. See United States v. Carolene Prods. Co., 304 U. S. 144, 152 n. 4 (1938);
8. JOHN HART ELY, DEMOCRACY AND DISTRUST (1980).
9. See Scott J. Shapiro, Ulysses Rebound, 18 ECON. & PHIL. 157, 161 (2002).
10. See MARK TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE COURTS 95-128 (1999).
11. Matthew C. Stephenson, "When the Devil Turns... ": The Political Foundations of Independent Judicial Review, 32 J. LEGAL STUD. 59, 60 (2003);
12. see also KEITH E. WHITTINGTON, POLITICAL FOUNDATIONS OF JUDICIAL SUPREMACY 26 (2007) (observing that "[t]he Court cannot stand outside of politics and exercise a unique role as guardian of constitutional verities" because "the Court's judgments will have no force unless other powerful political actors accept the... priority of the judicial voice").
13. THE FEDERALIST NO. 48, at 305 (James Madison) (Clinton Rossiter ed., 2003).
14. Letter from James Madison to Thomas Jefferson (Oct. 17, 1788), in JACK N. RAKOVE, DECLARING RIGHTS 160, 161 (1998).
15. Id. at 163. Madison's illustration was prescient: "Should a Rebellion or insurrection alarm the people as well as the Government, and a suspension of the [writ of habeas corpus] be dictated by the alarm, no written prohibitions on earth would prevent the measure."
16. Id.
17. Further limits were suggested by Madison's skepticism about the capacity of political actors for moral self-restraint: It was futile, he argued, to expect restraint from ordinary legislators who typically sought office for ambition and self-interest.... Even less faith could be placed in the people at large. Experience taught that neither "a prudent regard" for the general good nor "respect for character" nor even religion could deter an impassioned or interested majority from pursuing "unjust violations of the rights and interests of the minority, or of individuals."
18. JACK N. RAKOVE, JAMES MADISON AND THE CREATION OF THE AMERICAN REPUBLIC 55 (Oscar Handlin ed., 2d ed. 2002) (quoting Madison).
19. The classic statement of this general concern is Madison's The Federalist No. 10.
20. See The Federalist No. 10 (James Madison), supra note 9, at 75-76;
21. see also AKHIL REED AMAR, THE BILL OF RIGHTS at xii-xiii (1998).
22. THE FEDERALIST NO. 51 (James Madison), supra note 9, at 320.
23. Madison's view was based in large part on the experience of state governments in the decade leading up to the Constitutional Convention. JACK N. RAKOVE, ORIGINAL MEANINGS 290, 313-16 (1996).
24. Letter from James Madison to Thomas Jefferson, supra note 10, at 161-62.
25. Id. at 161.
26. See infra p. 668 Other Federalists shared Madison's view.
27. See GORDON S. WOOD, THE CREATION OF THE AMERICAN REPUBLIC, 1776-1787, at 376-82 (1969) (recounting Noah Webster's rollicking argument to the same effect). as Roger Sherman put the basic point: "No bill of rights ever yet bound the supreme power longer than the honeymoon of a new married couple, unless the rulers were interested in preserving the rights...."
28. Roger Sherman, A Countryman, II., NEW HAVEN GAZETTE (Nov. 22, 1787)
29. reprinted in ESSAYS ON THE CONSTITUTION OF THE UNITED STATES 218, 219 (Paul Leicester Ford ed., Brooklyn, Historical Printing Club 1892) (emphases omitted).
30. Letter from James Madison to Thomas Jefferson, supra note 10, at 162.
31. See AMAR, supra note 13, at 3-133.
32. Letter from James Madison to Thomas Jefferson, supra note 10, at 162. This assumption might seem peculiar given that, throughout history, minority rule-by means of superior wealth, arms, or organization-has probably been the norm. Still, the assumption that the majority would ultimately win out, through force if not politics, has been a common and important premise of much political and legal theory.
33. See Adrian Vermeule, The Force of Majority Rule (Harvard Law Sch. Pub. Law & Legal Theory Research Paper Series, Working Paper No. 08-48, 2008), available at http://papers.ssrn.com/sol3/papers.cfm?abstract-id=1280201.
34. Letter from James Madison to Thomas Jefferson, supra note 10, at 162.
35. THE FEDERALIST NO. 31 (Alexander Hamilton), supra note 9, at 192.
36. THE FEDERALIST NO. 10 (James Madison), supra note 9, at 78.
37. Id. Madison explained: Extend the sphere and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength and to act in unison with each other.
38. Id.
39. see also THE FEDERALIST NO. 51 (James Madison), supra note 9, at 321 ("[T]he society itself will be broken into so many parts, interests and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority.").
40. THE FEDERALIST NO. 51 (James Madison), supra note 9, at 321.
41. THE FEDERALIST NO. 57 (James Madison), supra note 9, at 348.
42. THE FEDERALIST NO. 10 (James Madison), supra note 9, at 76;
43. see also Cass R. Sunstein, Interest Groups in American Public Law, 38 STAN. L. REV. 29, 41-42 (1985).
44. James Madison, Speech to the Virginia Constitutional Convention (1829), in SELECTED WRITINGS OF JAMES MADISON 354, 355 (Ralph Ketcham ed., 2006).
45. THE FEDERALIST NO. 51 (James Madison), supra note 9, at 319. Courts and constitutional theorists continue to believe that the competition between the legislative and executive branches results in a self-enforcing balance of power.
46. See Daryl J. Levinson, Empire-Building Government in Constitutional Law, 118 HARV. L. REV. 915, 950-51 (2005).
47. See THE FEDERALIST NO. 45 (James Madison), supra note 9, at 285-90. Here too, courts and constitutional theorists continue to believe that competition for power between the states and the federal government will create a self-enforcing set of "political safeguards" for federalism.
48. See Levinson, supra note 30, at 938-40.
49. THE FEDERALIST NO. 48 (James Madison), supra note 9, at 310.
50. THE FEDERALIST NO. 51 (James Madison), supra note 9, at 319.
51. See TUSHNET, supra note 7, at 95-96 (using "incentive compatibility" in this sense).
52. THE FEDERALIST NO. 51 (James Madison), supra note 9, at 318.
53. Id. at 319.
54. See Levinson, supra note 30, at 926-32, 950-53.
55. See infra notes 231-53 and accompanying text.
56. See Mark A. Graber, Enumeration and Other Constitutional Strategies for Protecting Rights: The View from 1787/1791, 9 U. PA. J. CONST. L. 357, 361-66 (2007) (explicating the Framers' belief that structural protection for constitutional rights and values would be more secure than enumerating rights, though without explaining the basis for this belief).
57. See JON ELSTER, Ulysses and the Sirens 65-77 (1979);
58. THOMAS C. SCHELLING, CHOICE AND CONSEQUENCE 83-87 (1984).
59. See Anthony T. Kronman, Contract Law and the State of Nature, 1 J. L. Econ. & Org. 5, 11-20 (1985).
60. see, e.g., Lisa Bernstein, Opting Out of the Legal System: Extralegal Contractual Relations in the Diamond Industry, 21 J. LEGAL STUD. 115 (1992);
61. Avner Greif, Contract Enforceability and Economic Institutions in Early Trade: The Maghribi Traders' Coalition, 83 AM. ECON. REV. 525 (1993);
62. Avner Greif et al., Coordination, Commitment, and Enforcement: The Case of the Merchant Guild, 102 J. POL. ECON. 745 (1994);
63. Paul R. Milgrom et al., The Role of Institutions in the Revival of Trade: The Law Merchant, Private Judges, and the Champagne Fairs, 2 ECON. & POL. 1 (1990).
64. See Finn E. Kydland & Edward C. Prescott, Rules Rather than Discretion: The Inconsistency of Optimal Plans, 85 J. POL. ECON. 473, 477 (1977). Kydland and Prescott offer this widely cited example: [S]uppose the socially desirable outcome is not to have houses built in a particular flood plain but, given that they are there, to take certain costly flood-control measures. If the government's policy were not to build the dams and levees needed for flood protection and agents knew this was the case, even if houses were built there, rational agents would not live in the flood plains. But the rational agent knows that, if he and others build houses there, the government will take the necessary flood-control measures. Consequently, in the absence of a law prohibiting the construction of houses in the flood plain, houses are built there, and the army corps of engineers subsequently builds the dams and levees.
65. Id.
66. See Daron Acemoglu, Why Not a Political Coase Theorem? Social Conflict, Commitment, and Politics, 31 J. COMP. ECON. 620, 633-38 (2003);
67. Timothy Besley & Stephen Coate, Sources of Inefficiency in a Representative Democracy: A Dynamic Analysis, 88 AM. ECON. REV. 139 (1998);
68. Joseph Stiglitz, The Private Uses of Public Interests: Incentives and Institutions, J. ECON. PERSP., Spring 1998, at 3, 8-11.
69. See James D. Fearon, Commitment Problems and the Spread of Ethnic Conflict, in THE INTERNATIONAL SPREAD OF ETHNIC CONFLICT 107 (David A. Lake & Donald Rothchild eds., 1998);
70. James D. Fearon, Rationalist Explanations for War, 49 INT'L ORG. 379, 401-09 (1995).
71. See, e.g., BRUCE ACKERMAN, BEFORE THE NEXT ATTACK 1-3 (2006);
72. GEOFFREY R. STONE, PERILOUS TIMES (2004).
73. See HOLMES, supra note 3, at 161-75.
74. See id. at 202-35.
75. We might view personal identity in the same way, as comprising multiple selves, and we might find it similarly problematic when an earlier self binds a future self, for example by becoming addicted to drugs.
76. See generally THE MULTIPLE SELF (Jon Elster ed., 1985);
77. DEREK PARFIT, REASONS AND PERSONS 199-347 (1984);
78. Richard A. Posner, Are We One Self or Multiple Selves? Implications for Law and Public Policy, 3 LEGAL THEORY 23 (1997).
79. See ELSTER, supra note 3, at 88-94.
80. See id. at 88-174;
81. HOLMES, supra note 3, at 134-77.
82. See JACK L. GOLDSMITH & ERIC A. POSNER, THE LIMITS OF INTERNATIONAL LAW (2005);
83. ANDREW T. GUZMAN, HOW INTERNATIONAL LAW WORKS (2008).
84. See David S. Law & Lawrence B. Solum, Judicial Selection, Appointments Gridlock, and the Nuclear Option, 15 J. CONTEMP. LEGAL ISSUES 51, 70-71 (2006).
85. See Peter Bernholz, On the Stability of Logrolling Outcomes in Stochastic Games, 33 PUB. CHOICE 65 (1978).
86. See infra p. 685.
87. Douglass C. North & Barry R. Weingast, Constitutions and Commitment: The Evolution of Institutions Governing Public Choice in Seventeenth-Century England, 49 J. ECON. HIST. 803 (1989).
88. Barry R. Weingast, The Economic Role of Political Institutions: Market-Preserving Federalism and Economic Development, 11 J. L. ECON. & ORG. 1 (1995).
89. DARON ACEMOGLU & JAMES A. ROBINSON, ECONOMIC ORIGINS OF DICTATORSHIP AND DEMOCRACY 23-30 (2006).
90. William M. Landes & Richard A. Posner, The Independent Judiciary in an Interest-Group Perspective, 18 J. L. & ECON. 875 (1975).
91. See RAN HIRSCHL, TOWARDS JURISTOCRACY (2004).
92. Howard Gillman, How Political Parties Can use the Courts to Advance Their Agendas: Federal Courts in the United States, 1875-1891, 96 AM. POL. SCI. REV. 511 (2002).
93. See RAN HIRSCHL, TOWARDS JURISTOCRACY (2004). (Pubitemid 33656658)
94. MCNOLLGAST, THE POLITICAL ECONOMY OF LAW: DECISION-MAKING BY JUDICIAL, LEGISLATIVE, EXECUTIVE, AND ADMINISTRATIVE AGENCIES (forthcoming 2010) (manuscript at 104) (on file with the Harvard Law School Library);
95. see also Terry M. Moe, The Politics of Structural Choice: Toward a Theory of Public Bureaucracy, in ORGANIZATION THEORY: FROM CHESTER BARNARD TO THE PRESENT AND BEYOND 116 (Oliver E. Williamson ed., 1990);
96. Kenneth A. Shepsle, Bureaucratic Drift, Coalitional Drift, and Time Consistency: A Comment on Macey, 8 J. L. ECON. & ORG. 111 (1992).
97. McNollgast, The Political Origins of the Administrative Procedure Act, 15 J. L. ECON. & ORG. 180 (1999).
98. See ALLAN DRAZEN, POLITICAL ECONOMY IN MACROECONOMICS 144 (2000);
99. Kenneth Rogoff, The Optimal Degree of Commitment to an Intermediate Monetary Target, 100 Q. J. ECON. 1169 (1985).
100. See Rachel Brewster, The Domestic Origins of International Agreements, 44 VA. J. INT'L L. 501, 511-24 (2004);
101. see also Tom Ginsburg, Locking in Democracy: Constitutions, Commitment, and International Law, 38 N. Y. U. J. INT'L L. & POL. 707 (2006);
102. Beth A. Simmons & Allison Danner, Credible Commitments and the International Criminal Court, 64 INT'L ORG. 225 (2010). As Brewster, among others, emphasizes, international delegations can be used to entrench policies that benefit specific interest groups as well as further more public-regarding or widely shared goals.
103. See Brewster, supra, at 542.
104. See DAVID STASAVAGE, PUBLIC DEBT AND THE BIRTH OF THE DEMOCRATIC STATE (2003) (complementing North and Weingast's theory by describing how the credibility of the British government's commitment to repay debt was contingent upon the political preferences of members of Parliament and patterns of coalition formation).
105. See Jonathan R. Macey, Transaction Costs and the Normative Elements of the Public Choice Model: An Application to Constitutional Theory, 74 VA. L. REV. 471, 496-98 (1988) (pointing out the omission in Landes and Posner's theory of any viable explanation of why judges would be inclined to uphold legislative bargains).
106. DOUGLASS C. NORTH, INSTITUTIONS, INSTITUTIONAL CHANGE AND ECONOMIC PERFORMANCE 3 (1990);
107. see also Stephen Skowronek, Order and Change, 28 POLITY 91, 93 (1995) (identifying the central characteristic of an "institution" as the persistence of its rules through time and the creation of "durable norms and dependable structures").
108. See Stephen D. Krasner, Sovereignty: An Institutional Perspective, 21 COMP. POL. STUD. 66, 81 (1988) (noting that one "task of an institutionalist perspective involves explaining how institutions persist over time, even though their environments may change");
109. Bo Rothstein, Political Institutions: An Overview, in A NEW HANDBOOK OF POLITICAL SCIENCE 133, 152 (Robert E. Goodin & Hans-Dieter Klingemann eds., 1996) ("If institutions changed as the structure of power or other social forces surrounding them changed, then there would simply be no need for a separate analysis of institutions." (citation omitted)).
110. See Barry R. Weingast, Political Institutions: Rational Choice Perspectives, in A NEW HANDBOOK OF POLITICAL SCIENCE, supra note 70, at 167, 175 (noting that "[m]ost studies of institutions ignore" the question of "what makes institutions resistant to change" by "assuming that institutions are fixed and hence cannot be altered by individuals").
111. See, e.g., Kenneth A. Shepsle & Barry R. Weingast, Structure-Induced Equilibrium and Legislative Choice, 37 PUB. CHOICE 503 (1981).
112. William H. Riker, Implications from the Disequilibrium of Majority Rule for the Study of Institutions, 74 AM. POL. SCI. REV. 432, 443-44 (1980);
113. see also KEITH KREHBIEL, INFORMATION AND LEGISLATIVE ORGANIZATION 31-34 (1991).
114. See ROBERT O. KEOHANE, AFTER HEGEMONY (1984);
115. INTERNATIONAL REGIMES (Stephen D. Krasner ed., 1983).
116. See John J. Mearsheimer, The False Promise of International Institutions, 19 INT'L SECURITY 5 (1994).
117. Weingast, supra note 57, at 3. Weingast goes on to provide some context-specific reasons for why systems of federalism became stabilized in several different countries during specific time periods.
118. Id. at 10-21;
119. see also MIKHAIL FILIPPOV, PETER C. ORDESHOOK & OLGA SHVETSOVA, DESIGNING FEDERALISM: A THEORY OF SELF-SUSTAINABLE FEDERAL INSTITUTIONS (2004) (developing an account of the stability of federal arrangements based on the structure of political parties).
120. See ACEMOGLU & ROBINSON, supra note 58, at 177-78.
121. See CARLES BOIX, DEMOCRACY AND REDISTRIBUTION 11 (2003) ("[I]t is not obvious why democracy rather than a commitment to more redistribution in the future is harder for the elite to reverse...."). Acemoglu and Robinson recognize the importance of this question in passing and gesture toward possible answers based on asset-specific investments and political feedback effects, along the lines discussed below.
122. See ACEMOGLU & ROBINSON, supra note 58, at 179.
123. Historians of the U. S. Constitution will immediately think of the failed attempt by the outgoing Federalist Party to entrench itself in the judiciary. Newly elected President Jefferson recognized the entrenchment strategy in terms similar to Hirschl's: "The Federalists have retired into the judiciary as a stronghold and from that battery all the works of republicanism are to be beaten down and erased." Gillman, supra note 61, at 521 (quoting Letter from Thomas Jefferson to John Dickinson (Dec. 19, 1801)). But of course Jefferson and his fellow Republicans had no intention of allowing this strategy to succeed. The Republican Congress promptly repealed the 1801 Judiciary Act, began impeaching Federalist judges, and successfully intimidated the Federalistcontrolled Supreme Court into political docility.
124. See id.
125. For two exceptionally ambitious efforts in this regard
126. see AVNER GREIF, INSTITUTIONS AND THE PATH TO THE MODERN ECONOMY (2006);
127. and DOUGLASS C. NORTH ET AL., VIOLENCE AND SOCIAL ORDERS (2009).
128. See PAUL PIERSON, POLITICS IN TIME 133-66 (2004) (surveying and supplementing the relevant literature to identify a number of general sources of "institutional resilience, "
129. id. at 151).
130. The precise game-theoretical logic could coincide with any of a number of games in the coordination family, including battle of the sexes, stag hunt, and hawk/dove. For a useful overview of coordination games and their application to law
131. see Richard H. McAdams, Beyond the Prisoners' Dilemma: Coordination, Game Theory, and Law, 82 S. CAL. L. REV. 209 (2009).
132. For examples of models along these lines
133. see Barry R. Weingast, The Political Foundations of Democracy and the Rule of Law, 91 AM. POL. SCI. REV. 245 (1997);
134. and James D. Fearon, Self-Enforcing Democracy 2 (Aug. 24, 2006) (unpublished manuscript) (on file with the Harvard Law School Library).
135. See GUZMAN, supra note 52, at 71-117.
136. See KEOHANE, supra note 74.
137. See ADAM PRZEWORSKI, DEMOCRACY AND THE MARKET 26 (1991).
138. See Weingast, supra note 57;
139. Rui J. P. de Figueiredo, Jr. & Barry R. Weingast, Self-Enforcing Federalism, 21 J. L. ECON. & ORG. 103 (2005).
140. See J. Mark Ramseyer, The Puzzling (In) Dependence of Courts: A Comparative Approach, 23 J. LEGAL STUD. 721 (1994);
141. Stephenson, supra note 8.
142. Of course, the availability of coordination or cooperative benefits is not sufficient to create political agreement. Among other barriers to agreement is the need to settle distributive disagreements over how to divide the surplus (or over which of a number of coordinating or cooperative arrangements, each with different distributive consequences, will be implemented).
143. See James D. Fearon, Bargaining, Enforcement, and International Cooperation, 52 INT'L ORG. 269, 274 (1998).
144. See NORTH, supra note 69, at 95;
145. PIERSON, supra note 81, at 24-25.
146. See PIERSON, supra note 81, at 148-49;
147. Paul Pierson & Shannon O'Neil Trowbridge, Asset Specificity and Institutional Development (2002) (prepared for delivery at the Annual Meeting of the American Political Science Association). As Karen Orren and Stephen Skowronek describe: Social interests that thrive by filling a niche within established institutional forms or by discovering a channel for action made available by them have little interest in seeking major changes in the governing arrangements that favor them; on the contrary, they can be expected to hold politics to the present path, pressing only for those adaptations that promise to maintain the current relationship between institutional politics and public policy.
148. KAREN ORREN & STEPHEN SKOWRONEK, THE SEARCH FOR AmeriCAN POLITICAL DEVELOPMENT 105 (2004).
149. See ACEMOGLU & ROBINSON, supra note 58, at 179;
150. ZACHARY ELKINS ET AL., THE ENDURANCE OF NATIONAL CONSTITUTIONS 20 (2009);
151. FILIPPOV ET AL., supra note 76, at 38-39.
152. Pierson & Trowbridge, supra note 91, at 22-23.
153. Compare the difficulty of moving after living somewhere for a year with the difficulty of uprooting after several decades.
154. The inverse effect is also possible: negative political feedback.
155. See infra p. 744 and sources cited infra notes 335-37 (discussing public backlash against the Supreme Court);
156. see also Mark J. Roe, Essay, Backlash, 98 COLUM. L. REV. 217 (1998) (describing the possibility that efficient economic arrangements will create self-defeating political backlashes);
157. Adrian Vermeule, Essay, Selection Effects in Constitutional Law, 91 VA. L. REV. 953, 991-95 (2005) (noting the possibility that liberal democratic tolerance of intolerant groups will be politically self-defeating).
158. See Hal R. Varian, An Opportunity to Consider if Homeowners Get Too Many Breaks, N. Y. TIMES, Nov. 17, 2005, at C3. Their commitment comes from some combination of material asset-specific investments and psychological endowment effects; their capability from both the greater resources and the enhanced collective action capacity that the entitlement itself provides. On political endowment effects
159. see Clayton P. Gillette, Lock-In Effects in Law and Norms, 78 B. U. L. REV. 813, 827-28 (1998);
160. and Paul Pierson, The New Politics of the Welfare State, 48 WORLD POL. 143, 144-46 (1996).
161. See PAUL PIERSONC, DISMANTLING THE WELFARE STATE? (1994);
162. Pierson, supra note 96;
163. cf. Jacob S. Hacker, Privatizing Risk Without Privatizing the Welfare State: The Hidden Politics of Social Policy Retrenchment in the United States, 98 AM. POL. SCI. REV. 243 (2004) (describing political strategies for welfare state retrenchment or subversion that have partially succeeded in the United States).
164. See Lucian Arye Bebchuk & Mark J. Roe, A Theory of Path Dependence in Corporate Ownership and Governance, 52 STAN. L. REV. 127, 157-60 (1999).
165. ERIC M. PATASHNIK, REFORMS AT RISK 179-80 (2008).
166. See id. at 110-35.
167. See generally Vermeule, supra note 95.
168. See Eugene Volokh, The Mechanisms of the Slippery Slope, 116 HARV. L. REV. 1026, 1116-18 (2003). These examples can be generalized to many municipal-level decisions about policy and public goods provision, given Tiebout sorting dynamics.
169. See id. at 1119.
170. This phenomenon is transparent when it happens through the legislative redistricting process, which effectively allows legislators to choose their voters. For a contrasting example
171. see Shaila Dewan, Gentrification Changing Face of New Atlanta, N. Y. TIMES, Mar. 11, 2006, at A1, quoting a community leader as saying that African American mayors of Atlanta have "cut [their] own throat[s]" by encouraging gentrification that has decreased the percentage of black voters in the city.
172. Id. at A12.
173. Edward L. Glaeser & Andrei Shleifer, The Curley Effect: The Economics of Shaping the Electorate, 21 J. L. ECON. & ORG. 1 (2005).
174. See Vermeule, supra note 95, at 976. Of course, groups can be effectively disenfranchised extrademocratically. The entrenchment effect of enfranchisement operates within a system of democracy but does not entrench the system itself.
175. See Michael J. Klarman, Majoritarian Judicial Review: The Entrenchment Problem, 85 GEO. L. J. 491, 509-28 (1997). (Pubitemid 127437011)
176. Daron Acemoglu et al., The Rise of Europe: Atlantic Trade, Institutional Change, and Economic Growth, 95 AM. ECON. REV. 546 (2005).
177. See LARRY M. BARTELS, UNEQUAL DEMOCRACY: THE POLITICAL ECONOMY OF THE NEW GILDED AGE (2008) (describing how this political-economic dynamic has worked in the contemporary United States).
178. See ERIC A. POSNER, THE PERILS OF GLOBAL LEGALISM 53-54 (2009).
179. See NORTH, supra note 69, at 95-96.
180. PIERSON, supra note 81, at 24.
181. See generally W. BRIAN ARTHUR, INCREASING RETURNS AND PATH DEPENDENCE IN THE ECONOMY (1994). The classic example is the "QWERTY" typewriter keyboard.
182. See Paul A. David, Clio and the Economics of QWERTY, 75 AM. ECON. REV. 332 (1985).
183. See generally Pierson, supra note 81, at 17-53.
184. See, e.g., JON ELSTER, SOUR GRAPES (1983);
185. Cass R. Sunstein, Legal Interference with Private Preferences, 53 U. CHI. L. REV. Pag 1129 (1986).
186. See, e.g., Daniel Kahneman et al., Anomalies: The Endowment Effect, Loss Aversion, and Status Quo Bias, 5 J. ECON. PERSP. 193 (1991).
187. See, e.g., ROBERTO MANGABEIRA UNGER, FALSE NECESSITY (1987).
188. Relevant in this regard is Madison's response in The Federalist No. 49 to Jefferson's call for frequent constitutional conventions: "[F]requent appeals [to the people] would, in great measure, deprive the government of that veneration which time bestows on everything, and without which perhaps the wisest and freest governments would not possess the requisite stability." The Federalist No. 49 (James Madison), supra note 9, at 311.
189. See Greif, supra note 80, at 189.
190. See id. at 189-94.
191. E. E. SCHATTSCHNEIDER, POLITICS, PRESSURES AND THE TARIFF 288 (1935) ("New policies create a new politics.");
192. see also THEDA SKOCPOL, PROTECTING SOLDIERS AND MOTHERS 57-60 (1992) (describing how "[p]olicies [t]ransform [p]olitics, "
193. id. at 57).
194. Here again, this analysis is agnostic toward the criteria that might be used to assess these outcomes. Such criteria could be self-interested and materialist or other-regarding and moralistic.
195. In some contexts, of course, political actors will in fact have intrinsic preferences about political decisionmaking processes. Where this is the case, such "processes" should be treated as substantive outcomes for purposes of this analysis.
196. In a brief discussion, Kenneth Shepsle emphasizes the relative uncertainty and riskiness of institutional change compared to policy change, though he does not spell out precisely why institutional uncertainty is greater or how uncertainty bears on the incentives of political actors.
197. See Kenneth A. Shepsle, Institutional Equilibrium and Equilibrium Institutions, in POLITICAL SCIENCE: THE SCIENCE OF POLITICS 51 (Herbert F. Weisberg ed., 1986) (recognizing the need to "drive a wedge between choice of policy and choice of institutional arrangements, "
198. id. at 69). Of course, policies also may have uncertain or unpredictable distributional consequences at the time of enactment. The comparison in the text is relative and on average.
199. See GEOFFREY BRENNAN & JAMES M. BUCHANAN, THE REASON OF RULES: CONSTITUTIONAL POLITICAL ECONOMY 33-36 (Liberty Fund 2000) (1985);
200. JAMES M. BUCHANAN & GORDON TULLOCK, THE CALCULUS OF CONSENT: LOGICAL FOUNDATIONS OF CONSTITUTIONAL DEMOCRACY 77-80 (1962);
201. RUSSELL HARDIN, INDETERMINACY AND SOCIETY 125 (2003);
202. see also JOHN RAWLS, A THEORY OF JUSTICE 118-23 (rev. ed. 1999). Note that Rawls's famous "veil of ignorance" shields decisionmakers not from knowledge of the distributive consequences of the basic structure they agree upon but from knowledge of their position in society and thus the distributional outcomes that they themselves will experience.
203. See Adrian Vermeule, Veil of Ignorance Rules in Constitutional Law, 111 YALE L. J. 399, 399 (2001).
204. For direct analogies
205. see Keohane, supra note 74, at 85-109 (viewing international regimes in this light);
206. and Barry R. Weingast & William J. Marshall, The Industrial Organization of Congress; or, Why Legislatures, like Firms, Are Not Organized as Markets, 96 J. POL. ECON. 132 (1988) (viewing the congressional committee system in this light).
207. See Roderick M. Hills, Jr., Federalism and Self-Restraint 140-45 (unpublished manuscript) (on file with the Harvard Law School Library) (suggestively conceptualizing constitutional principles as bundles of outcome commitments backed by coalitions of supporters of these outcomes).
208. To carry over the example, we should assume away tenure and imagine each appointment as reversible.
209. Entrenchment in this formal, legal sense is clearly a matter of degree - specifically, the degree of difficulty of legal change imposed by a given set of procedural requirements. One extreme of legal entrenchment is marked by the explicitly unamendable provisions of a constitution (for instance, Article V's requirement of equal state suffrage in the Senate). The other extreme in the U. S. legal system might be occupied by an executive decision or order issued and unilaterally revocable by the President. Somewhere in the middle, protected by various levels of procedural barriers to change, are amendable constitutional rules (subject to the Article V procedures), judicial decisions (subject to norms of stare decisis), and ordinary federal statutes (which can be changed through the Article I, Section 7 procedural gamut, supplemented by internal congressional rules and other intrabranch procedural hurdles). Legal theory invites confusion, therefore, when it describes some rule or arrangement as "entrenched" (full stop). This description must reflect an implicit comparison with some other, less cumbersome set of procedural requirements for effecting legal change. Sometimes the baseline is set by the procedural difficulty of enacting the same policy in the first place.
210. See Eric A. Posner & Adrian Vermeule, Essay, Legislative Entrenchment: A Reappraisal, 111 YALE L. J. 1665, 1667 (2002). When constitutional law is described as "entrenched", however, the implicit baseline must be the set of procedural requirements for creating or changing some other type of law. Constitutional law might be considered entrenched in this sense relative to federal statutes, just as U. S. statutes are entrenched relative to statutes in parliamentary systems such as Britain's (which do not present the obstacles of bicam-eralism or presentment) or to executive orders.
211. Like formal entrenchment, functional entrenchment is obviously a matter of degree. Also like formal entrenchment, the baseline for defining and measuring functional entrenchment might be set by the political difficulty of enacting the law or policy in the first place, or - more commonly, but also more ambiguously - by implicit reference to some "ordinary" level of difficulty of changing political course.
212. Recognizing the possibility of functional entrenchment makes longstanding normative debates about the constitutionality and democratic legitimacy of formal legislative entrenchments seem rather academic. Many constitutional theorists have argued that it would be unconstitutional and democratically illegitimate for a legislature to limit the legislative authority of its successors by passing a statute that declared itself to be unamendable or that required a special su-permajority to override it.
213. See, e.g., I LAURENCE H. TRIBE, AmeriCAN CONSTITUTIONAL LAW § 2-3, at 125 n. 1 (3d ed. 2000);
214. Julian N. Eule, Temporal Limits on the Legislative Mandate: Entrenchment and Retroactivity, 1987 AM. B. FOUND. RES. J. 379, 384-427. But given that functional entrenchment strategies are freely available to legislatures, it becomes difficult to explain why formal strategies that accomplish the same thing must be condemned. If Congress is free, for example, to structure farm subsidies in a way that strengthens powerful interest groups certain to resist any retrenchment, then what is so different about embedding these subsidies in a statute that requires a supermajority to be revoked?
215. See Posner & Vermeule, supra note 128, at 1705.
216. See David S. Law, Constitutions, in THE OXFORD HANDBOOK OF EMPIRICAL LEGAL RESEARCH (Peter Cane & Herbert M. Kritzer eds., forthcoming 2010)
217. See generally H. L. A. HART, THE CONCEPT OF LAW (2d ed. 1994).
218. H. L. A. Hart and subsequent legal positivists have had surprisingly little to say about what might motivate official and public acceptance of the ultimate rule (s) or practices of recognition.
219. See, e.g., JULES L. COLEMAN, THE PRACTICE OF PRINCIPLE 93 (2001) (recognizing in passing a wide and open-ended set of reasons for why people might benefit from committing to a legal system, but bracketing this question as beside the point of positivist analysis).
220. See generally THE RULE OF RECOGNITION AND THE U. S. CONSTITUTION (Matthew D. Adler & Kenneth Einar Himma eds., 2009) (bringing a Hartian perspective to bear on U. S. constitutional law and theory).
221. See Frederick Schauer, Amending the Presuppositions of a Constitution, in RESPONDING TO IMPERFECTION: THE THEORY AND PRACTICE OF CONSTITUTIONAL AMENDMENT 145 (Sanford Levinson ed., 1995).
222. Moreover, many of the formal amendments that have been enacted appear to have accomplished little more than memorializing changes in constitutional norms that occurred independently of the text. For example, the Thirteenth Amendment recognized the abolition of slavery that had been effected for all practical purposes by the Civil War.
223. See David A. Strauss, The Irrelevance of Constitutional Amendments, 114 HARV. L. REV. 1457, 1459, 1478-81 (2001). (Pubitemid 33638717)
224. See Elkins et al., supra note 92, at 38-47.
225. See Ernest A. Young, The Constitution Outside the Constitution, 117 YALE L. J. 408, 417-20 (2007) (showing how a "constitutive" criterion for functional constitutionality might encompass any number of formally ordinary legal instruments and political practices, such as those creating and regulating the administrative state, the electoral system, the internal organization of Congress, political parties, and the like);
226. see also KEITH E. WHITTINGTON, CONSTITUTIONAL CONSTRUCTION 9 (1999) (defining "constitutional subject matter" to include "organic structures [of government], the distribution of political powers, individual and collective rights, structures of political participation/citizenship, jurisdiction, the role of domestic government, and international posture").
227. Thus, Mark Tushnet defines a "constitutional order" or "regime" as "a reasonably stable set of institutions through which a nation's fundamental decisions are made over a sustained period, and the principles that guide those decisions. These institutions and principles provide the structure within which ordinary political contention occurs, which is why I call them constitutional rather than merely political." MARK TUSHNET, THE NEW CONSTITUTIONAL ORDER 1 (2003) (first and second emphases added) (footnote omitted).
228. See ACKERMAN, FOUNDATIONS, supra note 4;
229. Bruce Ackerman, The Living Constitution, 120 HARV. L. REV. 1737 (2007).
230. See Ackerman, The Living Constitution, supra note 140, at 1757-93.
231. 347 U. S. 483 (1954);
232. see Ackerman, The Living Constitution, supra note 140, at 1752.
233. Ackerman, The Living Constitution, supra note 140, at 1789.
234. William N. Eskridge, Jr. & John Ferejohn, Super-Statutes, 50 DUKE L. J. 1215 (2001). (Pubitemid 33651482)
235. Id. at 1270.
236. Id. at 1216.
237. K. N. Llewellyn, The Constitution as an Institution, 34 COLUM. L. REV. 1, 28-29 (1934).
238. Young, supra note 138, at 426.
239. Id. at 427.
240. In fact, during periods when these commitments were not embraced by politically empowered majorities, such as the post-Reconstruction era with respect to race, they ceased to be part of the operational constitution.
241. See supra p. 687. Here again, we should recognize the possibility that Social Security is hard to change simply because political support for the goal of providing financial security to people in old age has not diminished since the program's inception in 1935. Admittedly, the conceptual difference between persistent popularity of this kind and genuine political entrenchment can be slippery. Suppose Social Security persists in part because it has become more popular, as Americans have learned from their experience under the program about the solidaristic and other benefits of universally framed welfare programs. That dynamic would be an instance of political entrenchment through adaptation and endogenous preference change, as opposed to the kind of popularity that might persist or even grow for reasons exogenous to the enactment of the law itself - though disentangling causation along these lines is obviously difficult.
242. See supra pp. 687-90.
243. Ackerman, supra note 140, at 1788.
244. In his earlier work, Ackerman cast courts in the " preservationist" role of "block[ing] efforts to repeal established constitutional principles by the simple expedient of passing a normal statute", thus forcing constitutional reformers "to move onto the higher lawmaking track if they wish to question the judgments previously made by We the People."
245. Ackerman, Foundations, supra note 4, at 10. Unfortunately, Ackerman never explained what institutional incentives judges would have to play this role, or how they would be able to resist ordinary majoritarian political pressures for change.
246. See Jack M. Balkin & Sanford Levinson, Understanding the Constitutional Revolution, 87 VA. L. REV. 1045, 1083 (2001) (criticizing Ackerman for ignoring the possibility of "constitutional retrenchment" when the "dominant party starts losing Presidential elections", and thus "its grip on control of the judiciary"); (Pubitemid 33656658)
247. Barry Friedman, The Importance of Being Positive: The Nature and Function of Judicial Review, 72 U. CIN. L. REV. 1257, 1288 (2004) ("[Ackerman's j]udges would have to be superhuman to enforce a past set of commitments against a government set on its immediate policy.");
248. see also infra section IV. B, pp. 733-44.
249. This recurring dynamic is the focus of Patashnik, supra note 99. The book presents a number of case studies, including the Tax Reform Act of 1986
250. id. at 35-54, and the 1996 "Freedom to Farm" law
251. id. at 55-71. It is not difficult to envision a similar dynamic operating with respect to, for instance, the 2010 financial reform legislation.
252. See supra p. 688.
253. For an influential conceptualization of constitutional law as the second-level rules of a first-level political game
254. see Brennan & Buchanan, supra note 124, at 8-9, 19.
255. See Adam M. Samaha, Dead Hand Arguments and Constitutional Interpretation, 108 COLUM. L. REV. 606, 655-60 (2008) (surveying the contractarian account of U. S. constitutionalism).
256. Thomas Jefferson famously argued to Madison that no society can make a perpetual constitution.... The earth belongs always to the living generation. "
257. Letter from Thomas Jefferson to James Madison (Sept. 6, 1789), in 6 THE WORKS OF THOMAS JEFFERSON 3, 8-9 (Paul Leicester Ford ed., 1904).
258. See RONALD DWORKIN, LAW'S EMPIRE 206-08 (1986).
259. See John Rawls, Legal Obligation and the Duty of Fair Play, in LAW AND PHILOSOPHY 3 (Sidney Hook ed., 1964).
260. For a skeptical survey of possible justifications for the moral legitimacy of the Constitution and a corresponding duty to comply with it
261. see Richard H. Fallon, Jr., Legitimacy and the Constitution, 118 HARV. L. REV. 1787, 1796-1813 (2005). For a skeptical survey of approaches to legal obligation more broadly
262. see Leslie Green, Legal Obligation and Authority, in STANFORD ENCYCLOPEDIA OF PHILOSOPHY (2003), http://plato.stanford.edu/entries/legal- obligation. Some political philosophers conclude that there is no general moral obligation to obey the law.
263. See JOSEPH RAZ, THE AUTHORITY OF LAW: ESSAYS ON LAW AND MORALITY 233-49 (2d ed. 2009).
264. See generally A. JOHN SIMMONS, JUSTIFICATION AND LEGITIMACY (2001);
265. A. JOHN SIMMONS, MORAL PRINCIPLES AND POLITICAL OBLIGATIONS (1979);
266. ROBERT PAUL WOLFF, IN DEFENSE OF ANARCHISM (1970).
267. Oliver Wendell Holmes famously argued that law was designed for the amoral "bad man. " Oliver Wendell Holmes, Jr., The Path of the Law, 10 HARV. L. REV. 457, 459 (1897).
268. See Frederick Schauer, When and How (If at All) Does Law Constrain Official Action? (The Sibley Lecture), 45 GA. L. REV. (forthcoming 2010).
269. THE FEDERALIST NO. 51 (James Madison), supra note 9, at 319;
270. see also supra note 12. Kant's similar but stronger aspiration was to design a constitution that could make even "a nation of devils... inhibit one another in such a way that the public conduct of the citizens will be the same as if they did not have such evil attitudes."
271. IMMANUEL KANT, Perpetual Peace: A Philosophical Sketch, in KANT'S POLITICAL WRITINGS 93, 112-13 (Hans Reiss ed., H. B. Nisbet trans., 1970).
272. The most sustained work on constitutionalism as coordination is RUSSELL HARDIN, LIBERALISM, CONSTITUTIONALISM, AND DEMOCRACY 82-140 (1999).
273. See also Eric A. Posner, Constitutional Evolution (unpublished manuscript) (on file with the Harvard Law School Library) (modeling constitutional rules as coordination equilibria).
274. What counts as an interpretation of the constitutional text as opposed to a nontextual norm or convention depends on the operative theory of interpretation. Constitutional lawyers, judges, and theorists perpetually disagree about what that theory should be-whether interpreters should look to original understandings or expectations, subsequent historical understandings, traditional practices, moral philosophical analyses, functional inferences from our basic structure of government, or other sources of constitutional meaning-and therefore about which norms count as valid interpretations of the text and which should be understood as extratextual. Fortunately, nothing in the present discussion turns on the existence or location of the line between interpretation and extratextualism. For an introduction to the conceptual debate
275. see generally Thomas C. Grey, Do We Have an Unwritten Constitution?, 27 STAN. L. REV. 703 (1975).
276. Here again, which provisions are understood to be "reasonably clear and specific" and what these provisions "mean" or "say" depend on the operative approach to interpretation. Despite deep disagreements over how constitutional interpretation should proceed, however, there does appear to be overlapping consensus on the "plain meaning" of a fair number of constitutional provisions.
277. See Frederick Schauer, Easy Cases, 58 S. CAL. L. REV. 399 (1985).
278. See David A. Strauss, Common Law Constitutional Interpretation, 63 U. CHI. L. REV. 877, 906-08 (1996). (Pubitemid 126408724)
279. The constitutional system of the United Kingdom fits this description.
280. See COLIN TURPIN & ADAM TOMKINS, BRITISH GOVERNMENT AND THE CONSTITUTION 3-6 (6th ed. 2007).
281. See John M. Carey, Parchment, Equilibria, and Institutions, 33 COMP. POL. STUD. 735 (2000); Strauss, supra note 169, at 907-11.
282. See David A. Strauss, Common Law, Common Ground, and Jefferson's Principle, 112 YALE L. J. 1717, 1741-44 (2003).
283. Strauss, supra note 169, at 916;
284. see also id. at 916-19.
285. See Strauss, supra note 172, at 1741-43.
286. Id. at 1734-35.
287. Departing from the text will not necessarily sacrifice the benefits of constitutional coordination more generally, since there are other potential focal points besides the constitutional text: judicial precedents, well-established practices, and the status quo, among others.
288. Of course, political actors will often have further reasons for accepting constitutional rules and arrangements that correspond to the text of the Constitution: these rules and arrangements may be coincident with their substantive political interests or may have become politically entrenched through any of the mechanisms described above and elaborated below. But the same may be true of those rules and arrangements that cannot be plausibly derived from the text but are widely accepted as part of little-c constitutional law. We should be careful to distinguish the political entrenchment and stability of the big-C constitutional text from that of the rules and arrangements that correspond to textual provisions.
289. See Edmund W. Kitch, Regulation and the American Common Market, in REGULATION, FEDERALISM, AND INTERSTATE COMMERCE 9, 9-19 (A. Dan Tarlock ed., 1981).
290. See Weingast, supra note 83;
291. Barry R. Weingast, Self-Enforcing Constitutions: With an Application to Democratic Stability in America's First Century (Nov. 2005) (unpublished manuscript) (on file with the Harvard Law School Library), available at http://ssrn.com/abstract=1153527.
292. See Weingast, supra note 83, at 246-51.
293. See HOLMES, supra note 3, at 6-8.
294. See generally Stephen Holmes, Parables of Self-Restraint (unpublished manuscript) (on file with the Harvard Law School Library), available at http://www.law.nyu.edu/ecm-dlv1/groups/public/@nyu-law-website-academics- colloquia-constitutional-theory/documents/documents/ecm-pro-063857.pdf.
295. See id.
296. The prospects of success for groups that defect from constitutional bargains will depend on factors such as the size, power (economic or military), and capacity for independence of the relevant group, all of which will affect their bargaining power in renegotiations.
297. See DAVID J. SIEMERS, RATIFYING THE REPUBLIC: ANTIFEDERALISTS AND FEDERALISTS IN CONSTITUTIONAL TIME, at xiv-xvii (2002) (describing how "[f]ear induced stability" in the early Republic
298. id. at xvii). Of course, there are limits to how bad the bargain can be; at some point even violent secession becomes preferable. After the election of 1860, for example, Southerners determined that the costs of breaking from the Union, including both the short-term costs of war and the longer-term costs of foregone cooperation (particularly free trade) with the North, were still less than the anticipated costs of being forced to give up slavery.
299. See id. at 193-215.
300. Examples include the Washington Administration's suppression of the Whiskey Rebellion and the Adams Administration's use of the 1798 Sedition Act to suppress Jeffersonian opposition.
301. See STANLEY ELKINS & ERIC MCKITRICK, THE AGE OF FEDERALISM 461-88, 694-706 (1993). Another Federalist strategy was to use the appointment power of the federal government to generate political support through patronage.
302. See GORDON S. WOOD, EMPIRE OF LIBERTY: A HISTORY OF THE EARLY REPUBLIC, 1789-1815, at 107-08 (2009).
303. See sources cited supra note 92 and accompanying text. For a description of how political parties in the United States emerged and developed around the constitutional structure of government
304. see Larry D. Kramer, After the Founding: Political Parties and the Constitution (unpublished manuscript) (on file with the Harvard Law School Library).
305. See Elkins et al., supra note 92, at 19-20.
306. See id. at 90-91.
307. Recall the definitional distinction between political commitment, which entails intentionality (and therefore, at least from someone's perspective, functional efficacy), and entrenchment, which does not necessarily imply either intentionality or functional efficacy.
308. See supra p. 672. The obsolescence of the political commitments embodied in constitutions does not disentrench them.
309. SANFORD LEVINSON, OUR UNDEMOCRATIC CONSTITUTION 62 (2006).
310. See id. at 25-38, 49-62.
311. For general criticisms of the constitutional structure of government
312. see ROBERT A. DAHL, HOW DEMOCRATIC IS THE AmeriCAN CONSTITUTION? (2d ed. 2003);
313. and LEVINSON, supra note 192.
314. The same is true of nonconstitutional law. More than one-tenth of laws in effect in Britain at the beginning of the 1980s had been enacted before the reign of Queen Victoria in 1837.
315. See Richard Rose, Inheritance Before Choice in Public Policy, 2 J. THEORETICAL POL. 263, 266 (1990).
316. John Ferejohn & Lawrence Sager, Commitment and Constitutionalism, 81 TEX. L. REV. 1929, 1945 (2003).
317. Id. at 1948-49.
318. See Graber, supra note 39.
319. See supra notes 15-28 and accompanying text. A further argument made by Federalists against rights and in favor of structure was that the scope of rights could not be clearly specified in advance.
320. See THE FEDERALIST No. 84 (Alexander Hamilton), supra note 9, at 513 ("Who can give [a right] any definition which would not leave the utmost latitude for evasion?").
321. ELY, supra note 5, at 87.
322. Id. at 88.
323. Id.
324. HERBERT J. STORING, The Constitution and the Bill of Rights, in TOWARD A MORE PERFECT UNION 108, 128 (Joseph M. Bessette ed., 1995);
325. see also supra p. 717. For another example, consider Sanford Levinson's argument that a number of structural features of the Constitution (including bicameralism, equal state representation in the Senate, and the Electoral College system) are dysfunctional, yet also fixed in place by the Constitution and very difficult to change.
326. See LEVINSON, supra note 192, at 29-38, 49-62, 81-97. Levinson views constitutional rights, in contrast, as relatively unproblematic because "[i]t is always the case that courts are perpetually open to new arguments about rights - whether those of gays and lesbians or of property owners - that reflect the dominant public opinion of the day." Id. at 5.
327. A prerequisite to a full assessment of the relative stability of structure and rights would be to sort out some tricky definitional issues. Which parts of the Constitution count as "structural" and which count as "rights" is not self-evident. An immediate ambiguity arises in how to classify the constitutional powers of Congress and the President. Do these changes code as transformations of the structure of Congress and the presidency? Or should we follow the Federalists and view powers as more closely related to rights? (Federalist constitutional theory held that rights and powers were two sides of the same coin; rights began where powers ended. See The Federalist No. 84 (Alexander Hamilton), supra note 9, at 513.) Also complicating the classification, some nominal rights, particularly those that operate in the context of voting and elections, seem inseparable from what is conventionally understood to be part of the structural constitution. Ely's overlapping distinction between constitutional provisions governing "substance" versus "process" further muddies the water, as many nominal rights, such as procedural due process, criminal procedure protections, and voting rights, address political decisionmaking procedures and thus might be classified as structural.
328. Cf. Matthew D. Adler, Popular Constitutionalism and the Rule of Recognition: Whose Practices Ground U. S. Law?, 100 NW. U. L. REV. 719, 767-68 (2006) (noticing that groups that disagree about many other aspects of constitutional law share convergent understandings of authoritative government institutions, such as the President and Congress).
329. See supra pp. 713-15.
330. The central dynamic with respect to rights, of course, was the post-New Deal demise of antiregulatory, economic liberty rights, giving way to modern civil rights focused on racial equality, free speech, criminal procedure, religious liberty, and the like. For a richly textured historical account of how the political forces surrounding the state-building project of the Progressive and New Deal eras affected the development of modern civil rights
331. see KEN I. KERSCH, CONSTRUCTING CIVIL LIBERTIES (2004).
332. See MICHAEL J. KLARMAN, FROM JIM CROW TO CIVIL RIGHTS (2004).
333. See Michael J. Klarman, Brown and Lawrence (and Goodridge), 104 MICH. L. REV. 431, 443-45 (2005) (sexual orientation);
334. Michael J. Klarman, Rethinking the Civil Rights and Civil Liberties Revolutions, 82 VA. L. REV. 1, 9 (1996) [hereinafter Klarman, Rethinking] (gender). (Pubitemid 126408571)
335. See John C. Jeffries, Jr. & James E. Ryan, A Political History of the Establishment Clause, 100 MICH. L. REV. 279 (2001);
336. Klarman, Rethinking, supra note 209, at 15-16.
337. Klarman, Rethinking, supra note 209, at 35;
338. see also id. at 34-35.
339. See, e.g., ROBERT G. MCCLOSKEY, THE AmeriCAN SUPREME COURT 161-79 (1960) (offering a now-standard political account of the Supreme Court's repudiation of economic liberty rights).
340. But see BARRY CUSHMAN, RETHINKING THE NEW DEAL COURT (1998) (arguing against the primacy of political forces in explaining the Court's post-New Deal turn).
341. On the debates over slavery during the Convention, see generally Paul Finkelman, Slavery and the Constitutional Convention: Making a Covenant with Death, in BEYOND CONFEDERATION: ORIGINS OF THE CONSTITUTION AND AmeriCAN NATIONAL IDENTITY 188 (Richard Beeman et al. eds., 1987).
342. James Madison, Power of Congress to Prohibit the Slave Trade, Speech of James Madison at the Constitutional Convention (Aug. 25, 1787), in 10 THE PAPERS OF JAMES MADISON 157, 157 (Robert A. Rutland et al. eds., 1977).
343. MARK A. GRABER, DRED SCOTT AND THE PROBLEM OF CONSTITUTIONAL EVIL 114 (2006).
344. See id. at 101-06.
345. Id. at 102.
346. Id. at 126-27.
347. See JESSE T. CARPENTER, THE SOUTH as A CONSCIOUS MINORITY, 1789-1861, at 89-92 (Univ. of S. C. Press 1990) (1930).
348. See Graber, supra note 215, at 140-44;
349. Barry R. Weingast, Political Stability and Civil War: Institutions, Commitment, and American Democracy, in Robert H. Bates et al., ANALYTIC NARRATIVES 148, 153-55 (1998). Notice that the balance rule was motivated by a rather obvious political feedback effect: every free territory created the potential for a free state that could enter the Union and shift the balance of power in the Senate, allowing the North to dominate national politics and threaten slavery, or vice versa.
350. See Weingast, supra note 220, at 156-59.
351. See GRABER, supra note 215, at 137-40.
352. 42 ANNALS OF CONG. 2361 (1824)
353. quoted in GRABER, supra note 215, at 139-40.
354. CARPENTER, supra note 219, at 141.
355. JOHN C. CALHOUN, A DISQUISITION ON GOVERNMENT AND SELECTIONS FROM THE DISCOURSE 20 (C. Gordon Post ed., 1953).
356. See generally CARPENTER, supra note 219, at 77-126;
357. DAVID M. POTTER, THE SOUTH AND THE CONCURRENT MAJORITY (Don E. Fehrenbacher & Carl N. Degler eds., 1972).
358. See CARPENTER, supra note 219, at 94-95.
359. See id. at 98-99.
360. See, e.g., Adler, supra note 205, at 767;
361. Strauss, supra note 172, at 1741.
362. See supra pp. 709-11.
363. To the extent that the Framers chose to be more specific about structure than rights in the constitutional text, this decision might have been a reflection rather than a cause of their predictions about the relative stability of the two types.
364. See, e.g., MARTIN H. REDISH, THE CONSTITUTION as POLITICAL STRUCTURE 106 (1995) (emphasizing the importance of separating powers to give each of the branches the "tools necessary to limit the excesses of its rivals");
365. Abner S. Greene, Checks and Balances in an Era of Presidential Lawmaking, 61 U. CHI. L. REV. 123, 156 (1994);
366. Peter L. Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84 COLUM. L. REV. 573, 578 (1984).
367. This idea was originally advanced by Madison and other Federalists. See The Federalist Nos. 45-46 (James Madison). Herbert Wechsler's theory of "the political safeguards of federalism" reinvigorated the idea, which has served as perhaps the primary justification for the demise of serious judicial attempts to enforce constitutional federalism limitations after the New Deal.
368. See Herbert Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 COLUM. L. REV. 543 (1954);
369. see also Larry D. Kramer, Putting the Politics Back into the Political Safeguards of Federalism, 100 COLUM. L. REV. 215, 217 (2000) (describing the political safeguards argument as "the dominant post-New Deal theory of judicial review and federalism").
370. See supra pp. 670-71.
371. See Elena Kagan, Presidential Administration, 114 HARV. L. REV. 2245, 2314 (2001) ("The partisan and constituency interests of individual members of Congress usually prevent them from acting collectively to preserve congressional power - or, what is almost the same thing, to deny authority to the other branches of government.");
372. Terry M. Moe & William G. Howell, The Presidential Power of Unilateral Action, 15 J. L. Econ. & Org. 132, 144 (1999) (explaining that members of Congress will object to executive orders only if those orders are detrimental to their constituencies, and noting that the "fact that [the] order might well be seen as usurping Congress's lawmaking powers, or that it has the effect of expanding presidential power, will for most legislators be quite beside the point").
373. See Levinson, supra note 30, at 928.
374. For an extended version of the argument that follows, see Levinson, supra note 30.
375. See generally Jonathan R. Macey, Federal Deference to Local Regulators and the Economic Theory of Regulation: Toward a Public-Choice Explanation of Federalism, 76 VA. L. REV. 265 (1990).
376. See id. at 276-80.
377. See id. at 281-82.
378. See MALCOLM M. FEELEY & EDWARD RUBIN, FEDERALISM: POLITICAL IDENTITY AND TRAGIC COMPROMISE 107-09 (2008).
379. See Barry Friedman, Valuing Federalism, 82 MINN. L. REV. 317, 365-78 (1997). (Pubitemid 127423564)
380. See William N. Eskridge, Jr. & John Ferejohn, The Article I, Section 7 Game, 80 GEO. L. J. 523, 534-40 (1992);
381. Martin S. Flaherty, The Most Dangerous Branch, 105 YALE L. J. 1725, 1819-21 (1996);
382. cf. Gary Lawson, The Rise and Rise of the Administrative State, 107 HARV. L. REV. 1231, 1237-41 (1994).
383. See generally DAVID EPSTEIN & SHARYN O'HALLORAN, DELEGATING POWERS: A TRANSACTION COST POLITICS APPROACH TO POLICY MAKING UNDER SEPARATE POWERS 29-33 (1999) (surveying theories of delegation, benign and malign).
384. See HAROLD HONGJU KOH, THE NATIONAL SECURITY CONSTITUTION: SHARING POWER AFTER THE IRAN-CONTRA AFFAIR 123-33 (1990) (discussing the failure of the War Powers Resolution of 1973 to constrain the Executive).
385. See generally JOHN HART ELY, WAR AND RESPONSIBILITY: CONSTITUTIONAL LESSONS OF VIETNAM AND ITS AFTERMATH (1993).
386. ERIC A. POSNER & ADRIAN VERMEULE, TERROR IN THE BALANCE: SECURITY, LIBERTY, AND THE COURTS 47 (2007).
387. ELY, supra note 244, at ix.
388. Id. ("[T]he legislative surrender was a self-interested one....").
389. See POSNER & VERMEULE, supra note 245, at 47.
390. See ELY, supra note 244, at 52-54.
391. See KOH, supra note 244, at 133 (describing how, when President Reagan took military action in Grenada and Libya "without complying with the terms of the War Powers Resolution,... advocates of his policy decision remained quiet rather than contest his procedural violation");
392. see also ELY, supra note 244, at 175 n. 34 ("Separation of powers issues are not the sort voters get exercised about.").
393. Even so, many of the benefits of enhancing the power of the presidency will be externalized onto future occupants and spread among other policymaking officials in the executive branch.
394. See Kagan, supra note 234, at 2310 (pointing to the fact that "Congress repeatedly has failed to demonstrate sustained capacity for political leadership" as one explanation for the public pressure on modern Presidents to assert control over political decisionmaking).
395. See id. at 2310-11, 2335-36;
396. Moe & Howell, supra note 234.
397. It is telling that legal theorists in areas far removed from constitutional law (and the constitutional text) seem to share this intuition. For instance, Bernard Black and Reinier Kraakman offer a "self- enforcing" approach to corporate law for emerging capitalist economies in which judicial enforcement is unreliable. See Bernard Black & Reinier Kraakman, A Self-Enforcing Model of Corporate Law, 109 HARV. L. REV. 1911 (1996). Their basic strategy is to focus on "structural" rules creating corporate decisionmaking processes that empower minority shareholders and other vulnerable stakeholders to protect themselves through voting and other mechanisms.
398. Id. at 1932-37. Black and Kraakman contrast this approach with a "prohibitive model", which effectively grants these vulnerable stakeholders rights against particular corporate behaviors that create the potential for abuse.
399. Id. at 1929-31. The premise of the article is that rules about structure and process (for example, shareholder voting requirements) will constrain corporate insiders more effectively and command greater compliance than rights against specific corporate abuses. Whatever is supposed to account for the greater efficacy of rules related to structure and process in this setting, it cannot be the specificity of textual expression. Black and Kraakman are clear in their belief that rights are likely to be evaded or ignored even when they are specified in "considerable detail."
400. Id. at 1929.
401. See ANTHONY GILL, THE POLITICAL ORIGINS OF RELIGIOUS LIBERTY (2008).
402. A particularly striking example is the successful lobbying by copyright holders such as Disney for greater protection for their intellectual property. See JESSICA LITMAN, DIGITAL COPYRIGHT 23-24 (2001);
403. Lawrence Lessig, Copyright's First Amendment, 48 UCLA L. REV. 1057, 1065 (2001) (terming the Sonny Bono Copyright Term Extension Act of 1998 the "Mickey Mouse Protection Act").
404. See supra notes 121-25 and accompanying text.
405. See Carpenter, supra note 219, at 89-97.
406. See Weingast, supra note 220, at 154-55.
407. See GRABER, supra note 215, at 144-48;
408. id. at 155-56 (examining the demise of national parties' ability to maintain bisectionalism during the 1850s).
409. In 1861, in a last-ditch attempt to prevent more Southern states from seceding, Congress proposed, President Lincoln endorsed, and three states ratified a constitutional amendment (known as the Corwin Amendment) that made explicit Congress's lack of power to interfere with or abolish slavery in any state, and that prohibited any subsequent constitutional amendment to the contrary. Southerners were dismissive of this proposed thirteenth amendment, and it did nothing to prevent secession and war. See generally A. Christopher Bryant, Stopping Time: The Pro-Slavery and "Irrevocable" Thirteenth Amendment, 26 HARV. J. L. & PUB. POL'Y 501 (2003). Interestingly, Southerners had been much more receptive to the Crittenden Compromise, an earlier package of proposed "unamendable" amendments highlighted by a reinstatement and extension of the Missouri Compromise line that would have protected slavery in the Southern territories. The Crittenden Compromise was rejected by Republicans.
410. See DAVID M. POTTER, THE IMPENDING CRISIS, 1848-1861, at 531-35, 549-54 (Don E. Fehrenbacher ed., 1976).
411. Having been stripped of both the franchise and the rights they had briefly enjoyed during Reconstruction, Southern blacks must have been acutely aware of durability and political resilience as important variables in thinking about how to advance civil rights.
412. See Weingast, supra note 57; supra p. 677.
413. The discussion in this section will refer to the Supreme Court as shorthand for the entire judiciary. Much of what is said will be equally applicable to the highest or constitutional courts of other countries.
414. Judicial review as a constitutional commitment mechanism also depends on incentive compatibility: judges must be motivated to enforce constitutional rights instead of doing something else entirely. While the focus of this section is on institutional stability, some of what follows is also relevant to the question of judicial motivation.
415. See WHITTINGTON, supra note 8, at 26 ("[P]olitical actors must have reasons for allowing the Court to 'win.' [They]... must see some political value in deferring to the Court and helping to construct a space for judicial autonomy.");
416. Bernd Hayo & Stefan Voigt, Explaining de Facto Judicial Independence, 27 INT'L REV. L. & ECON. 269, 269-74 (2007) (emphasizing that the judiciary can serve as a constitutional commitment mechanism only if political actors maintain a higher-order commitment to judicial independence).
417. See Fallon, supra note 2, at 1016 (collecting examples);
418. see also WHITTINGTON, supra note 8, at 27 ("We can easily imagine presidents dismissing the authority of the Court and ignoring its opinions....").
419. See John A. Ferejohn & Larry D. Kramer, Independent Judges, Dependent Judiciary: Institutionalizing Judicial Restraint, 77 N. Y. U. L. REV. 962, 986-89 (2002).
420. Id. at 981-82.
421. 60 U. S. (19 How.) 393 (1857).
422. See BARRY FRIEDMAN, THE WILL OF THE PEOPLE 110-21 (2009) (discussing Dred Scott);
423. KLARMAN, supra note 208, at 385-421 (discussing Brown).
424. For a historical overview, see LARRY D. KRAMER, THE PEOPLE THEMSELVES (2004).
425. WHITTINGTON, supra note 8, at 11.
426. See MCCLOSKEY, supra note 212, at 224 ("[I]t is hard to find a single historical instance when the Court has stood firm for very long against a really clear wave of public demand.");
427. Robert A. Dahl, Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker, 6 J. PUB. L. 279, 285 (1957) ("[T]he policy views dominant on the Court are never for long out of line with the policy views dominant among the lawmaking majorities of the United States.").
428. See LEE EPSTEIN & JEFFREY A. SEGAL, ADVICE AND CONSENT: THE POLITICS OF JUDICIAL APPOINTMENTS 26-27, 47-66 (2005). Of course, federal judges serve for long periods of time, and their political preferences may fall out of line as different coalitions become dominant. Thus, Dahl predicted that the Court would come into serious conflict with the political branches only during rare periods of electoral instability, when a newly dominant electoral coalition confronted Justices appointed by their defeated ideological rivals. The New Deal was Dahl's paradigm case.
429. Dahl, supra note 274, at 285. This pattern seems to have held true less than Dahl expected, however.
430. See Whittington, supra note 8, at 12.
431. See Ferejohn & Kramer, supra note 268, at 994 ("Taken as a whole, the miscellaneous devices available to the political branches to obstruct the courts afford ample means to cow or even cripple the federal judiciary.");
432. see also RICHARD A. POSNER, HOW JUDGES THINK 375 (2008) (observing that Justices are constrained by "an awareness, conscious or unconscious, that they cannot go 'too far' without inviting reprisals by the other branches of government spurred on by an indignant public").
433. A growing empirical literature attempts to sort out the contributions of indirect selection and direct political control on judicial behavior. For recent surveys of (and contributions to) this debate, see Micheal W. Giles et al., The Supreme Court in American Democracy: Unraveling the Linkages Between Public Opinion and Judicial Decision Making, 70 J. POL. 293 (2008);
434. Christopher J. Casillas et al., How Public Opinion Constrains the U. S. Supreme Court (unpublished manuscript) (on file with the Harvard Law School Library).
435. See generally FRIEDMAN, supra note 271.
436. See Frederick Schauer, The Supreme Court, 2005 Term - Foreword: The Court's Agenda - and the Nation's, 120 HARV. L. REV. 4 (2006).
437. Conceivably, the Justices might lack the inclination because the Constitution simply does not speak to these salient and high-stakes political issues. as a purely legal matter, however, the constitutional case against executive power to detain enemy combatants in Guantánamo or the open-ended delegation of authority to the Secretary of the Treasury to manage the financial crisis seems at least as strong as the constitutional case against voluntary school integration, gendersegregated public colleges, or sodomy laws.
438. See LUCAS A. POWE, JR., THE WARREN COURT AND AmeriCAN POLITICS 489-94 (2000);
439. Klarman, Rethinking, supra note 209, at 16-17.
440. 410 U. S. 113 (1973).
441. 438 U. S. 265 (1978).
442. 531 U. S. 98 (2000) (per curiam).
443. See Michael J. Klarman, Bush v. Gore Through the Lens of Constitutional History, 89 CALIF. L. REV. 1721, 1749-50 (2001).
444. Dahl, supra note 274, at 293.
445. See Klarman, supra note 285, at 1750. While these decisions have been modestly countermajoritarian, it is still the case that substantial minorities of the country have supported them. For more detailed information about public opinion in each of these contexts
446. see PUBLIC OPINION AND CONSTITUTIONAL CONTROVERSY (Nathaniel Persily et al. eds., 2008).
447. Gregory A. Caldeira & James L. Gibson, The Etiology of Public Support for the Supreme Court, 36 AM. J. POL. SCI. 635, 636 (1992);
448. see also Barry Friedman, The Politics of Judicial Review, 84 TEX. L. REV. 257, 325-28 (2005) (surveying the political science literature on diffuse support).
449. Caldeira & Gibson, supra note 288, at 637.
450. On the political history of the New Deal Court-packing episode, see FRIEDMAN, supra note 271, at 195-236; and
451. WILLIAM E. LEUCHTENBURG, THE SUPREME COURT REBORN: THE CONSTITUTIONAL REVOLUTION IN THE AGE OF ROOSEVELT (1995). As Ely summarizes, "The message is mixed, but what now seems important about the episode is that an immensely popular President riding an immensely popular cause had his lance badly blunted by his assault on judicial independence."
452. ELY, supra note 5, at 46.
453. See FRIEDMAN, supra note 271, at 373-74 (noting this empirical deficit). Existing quantitative measures of judicial independence are highly imperfect. For an example of the state of the art
454. see Hayo & Voigt, supra note 266, at 279-80.
455. Even those who are inclined toward this extreme would grant that the frictions of the ordinary political process will generate at least some degree of slack. Justices serve for long periods, and redirecting the Court through appointments takes time. Political attacks on judicial independence require statutes, which can be blocked by a majority (or even a well-situated minority) in either chamber of Congress, or by the President's veto. Only during periods of strongly unified government can a single political party wage a successful partisan war against the Court. as for the public, collective action in defiance of the Court is hard to mobilize, and it requires a population that is well informed and intensely opposed to what the Court is doing. All of these factors will inevitably create at least a modest political buffer around the Court.
456. The disproportionate political influence of elites is one straightforward explanation for the Court's apparently countermajoritarian decisions with respect to free speech, gay rights, and school prayer. These decisions track public opinion among the affluent and well educated. See Michael J. Klarman, What's So Great About Constitutionalism?, 93 NW. U. L. REV. 145, 190-91 (1998).
457. More generally, the low salience of most judicial decisions allows diffuse support to persist until the public is informed and organized by political elites. See Barry Friedman, Mediated Popular Constitutionalism, 101 MICH. L. REV. 2596, 2617-20 (2003) (citing studies). Consequently, even strongly countermajoritarian decisions that serve the interests of elites may be insulated against public disapproval.
458. See FRIEDMAN, supra note 271;
459. GERALD N. ROSENBERG, THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? (1991);
460. Klarman, supra note 285, at 1749-50.
461. Planned Parenthood of Se. Pa. v. Casey, 505 U. S. 833, 865 (1992).
462. See KRAMER, supra note 272, at 230-31.
463. See, e.g., Casey, 505 U. S. at 865 ("The Court must take care to speak and act in ways that allow people to accept its decisions on the terms the Court claims for them, as grounded truly in principle, not as compromises with social and political pressures...."). For a discussion of the promiscuity of the term "legitimacy" in constitutional law and theory and a useful analytic parsing of its various meanings
464. see generally Richard H. Fallon, Jr., Legitimacy and the Constitution, 118 HARV. L. REV. 1787 (2005).
465. See KRAMER, supra note 272, at 229-31.
466. See Tom R. Tyler & Gregory Mitchell, Legitimacy and the Empowerment of Discretionary Legal Authority: The United States Supreme Court and Abortion Rights, 43 DUKE L. J. 703 (1994).
467. See Klarman, supra note 285, at 1722-23.
468. Letter from James Madison to Thomas Jefferson, supra note 10, at 162.
469. THE FEDERALIST No. 51 (James Madison), supra note 9, at 320;
470. see also supra p. 667.
471. See David S. Law, A Theory of Judicial Power and Judicial Review, 97 GEO. L. J. 723 (2009);
472. Weingast, supra note 83.
473. See Law, supra note 303, at 786.
474. Id. at 731.
475. For a survey of this evidence, see id. at 729-30 nn. 19-20. This account also resonates with anecdotal observations that the Court, during times of war and crisis, has been markedly more aggressive in standing up to unpopular and politically weak Presidents. See POSNER & VERMEULE, supra note 245, at 50-51.
476. See Levinson, supra note 30, at 971-72.
477. In the special context of voting and election law, where representatives have especially strong self-serving incentives, constitutional scholars have emphasized the strong normative case for judicial enforcement of agency-focused "anti-entrenchment" rules. See generally Klarman, supra note 107. The complementary descriptive observation is that public support for judicial enforcement of these rules will come naturally.
478. See supra notes 166-77 and accompanying text.
479. See Larry Alexander & Frederick Schauer, On Extrajudicial Constitutional Interpretation, 110 HARV. L. REV. 1359, 1377 (1997). (Pubitemid 127437500)
480. See ELKINS et AL., supra note 92, at 106-08.
481. Cf. RICHARD A. POSNER, BREAKING THE DEADLOCK 150-89 (2001) (defending the Court's intervention in Bush v. Gore as pragmatically necessary to avert a constitutional and political crisis).
482. Ramseyer, supra note 88; Stephenson, supra note 8.
483. See TOM GINSBURG, JUDICIAL REVIEW IN NEW DEMOCRACIES 21-33 (2003).
484. Here again, the value added by judicial review lies in coordinating actors' understandings and expectations of what counts as a constitutional violation. See Stephenson, supra note 8, at 68-70.
485. See Ramseyer, supra note 88, at 742-43.
486. On the apparent rise of judicial supremacy in recent decades, see KRAMER, supra note 272, at 219-26.
487. See WHITTINGTON, supra note 8, at 287-88;
488. Mark A. Graber, The Nonmajoritarian Difficulty: Legislative Deference to the Judiciary, 7 STUD. AM. POL. DEV. 35, 58-65 (1993);
489. Eli M. Salzberger, A Positive Analysis of the Doctrine of Separation of Powers, or: Why Do We Have an Independent Judiciary?, 13 INT'L REV. L. & ECON. 349 (1993);
490. Keith E. Whittington, "Interpose Your Friendly Hand": Political Supports for the Exercise of Judicial Review by the United States Supreme Court, 99 AM. POL. SCI. REV. 583, 584-86 (2005).
491. See WHITTINGTON, supra note 8, at 105-20.
492. See Whittington, supra note 318, at 589-91.
493. See WHITTINGTON, supra note 8, at 130-34.
494. See id. at 134-52;
495. Graber, supra note 318;
496. Whittington, supra note 318, at 591-93.
497. WHITTINGTON, supra note 8, at 147.
498. See Graber, supra note 318, at 46-50.
499. See FRIEDMAN, supra note 271, at 218-22;
500. WHITTINGTON, supra note 8, at 269-70. For another example, Klarman hypothesizes that one reason the Rehnquist Court "survive[d] Bush v. Gore reasonably unscathed, [was] because the remainder of the Court's constitutional jurisprudence has been such a political grab bag of results", including liberal decisions on abortion, school prayer, gender discrimination, and free speech. Klarman, supra note 285, at 1763;
501. see also THOMAS M. KECK, THE MOST ACTIVIST SUPREME COURT IN HISTORY 199-253 (2004) (describing the Rehnquist Court's activism in enforcing both liberal and conservative rights).
502. Adrian Vermeule, Essay, Political Constraints on Supreme Court Reform, 90 MINN. L. REV. 1154, 1162 (2006) (alterations in original)
503. (quoting Michael Nelson, The President and the Court: Reinterpreting the Court-Packing Episode of 1937, 103 Pol. Sci. Q. 267, 276 (1988)) (internal quotation marks omitted).
504. See James L. Gibson et al., Measuring Attitudes Toward the United States Supreme Court, 47 Am. J. Pol. Sci. 354, 364 (2003).
505. See James L. Gibson & Gregory A. Caldeira, Blacks and the United States Supreme Court: Models of Diffuse Support, 54 J. Pol. 1120 (1992). One interpretation is that this cohort has been slow to update its beliefs about the expected value of judicial review. Another is that the experience of the Warren Court reminds them of the potentially positive value of judicial review in the future.
506. See id. An analogous anecdotal observation is commonly made about law professors.
507. See, e.g., Laura Kalman, Border Patrol: Reflections on the Turn to History in Legal Scholarship, 66 FORDHAM L. REV. 87, 90 (1997) ("Because of the nation's experience with the Warren Court, legal liberalism has been linked to political liberalism since mid-century.").
508. See STEPHEN M. GRIFFIN, AmeriCAN CONSTITUTIONALISM: FROM THEORY TO POLITICS 98-99 (1996) ("Support, respect, and reverence for the Supreme Court remain strong today among American lawyers and constitute[] one of the main pillars of the Court's power."
509. Id. at 99.);
510. William G. Ross, The Resilience of Marbury v. Madison: Why Judicial Review Has Survived So Many Attacks, 38 WAKE FOREST L. REV. 733, 763 (2003).
511. See WILLIAM G. ROSS, A MUTED FURY 242-43, 302 (1994).
512. See FRIEDMAN, supra note 271, at 268-69.
513. See KLARMAN, supra note 285, at 1754-55.
514. See FRIEDMAN, supra note 271, at 171-87.
515. See supra note 95.
516. See Michael J. Klarman, Why Backlash? (Aug. 2010) (unpublished manuscript) (on file with the Harvard Law School Library).
517. See id.;
518. see also Robert Post & Reva Siegel, Roe Rage: Democratic Constitutionalism and Backlash, 42 HARV. C. R.-C. L. L. REV. 373 (2007) (surveying the literature on the political history of reaction to Roe and assessing the backlash hypothesis).
519. JOHN C. JEFFRIES, JR., JUSTICE LEWIS F. POWELL, JR. 358 (1994).
520. ELKINS et AL., supra note 92, at 1-2 (also noting the coincidence that nineteen years was Thomas Jefferson's proposed expiration date for constitutions, on the principle that the "dead should not govern the living, "
521. id. at 1 (quoting Letter from Thomas Jefferson to James Madison (Sept. 6, 1789)) (internal quotation marks omitted)).
522. See, e.g., sources cited supra note 4.