Edited by Peer Zumbansen and Gralf-Peter Calliess
Chapter 6: Constitutional Possibility and Constitutional Evolution
6. Constitutional possibility and constitutional evolution Eric A. Posner1 INTRODUCTION 1. This chapter uses evolutionary game theory to explore recurrent questions about constitutionalism and the United States Constitution. These questions are: (1) what is a constitution and how does it constrain a democratic government, if in fact it does; (2) does the United States Constitution ‘evolve,’ and if so, how does the Constitution, at any given moment, differ from whatever popular attitudes prevail at that moment; (3) why does an unelected Supreme Court have authority to enforce the Constitution in contradiction of the will of the majority in a democratic state; and (4) what prevents Supreme Court justices from implementing their political beliefs, if anything? The chapter argues that the United States Constitution is a set of self-enforcing conventions that govern how people interact in important ways. The Constitution constrains the government in the same sense that conventions constrain individuals and prevent them from pursuing their immediate self-interest. The Constitution evolves, but slowly and discontinuously, because conventions, by virtue of the fact that they coordinate behavior, are ‘sticky.’ The Supreme Court has authority because, or to the extent that, people believe that it identifies and enforces existing conventions or identifies hypothetical conventions that are superior to those that exist. Supreme Court justices do not always implement their political preferences because if they did, people would stop believing that the Supreme Court enforces conventions, and then they would stop paying attention to what it says, in which case it would...
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