About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

62 Fordham L. Rev. 111 (1993-1994)
Rewriting the Constitution: An Economic Analysis of the Constitutional Amendment Process

handle is hein.journals/flr62 and id is 125 raw text is: REWRITING THE CONSTITUTION: AN ECONOMIC ANALYSIS OF THE CONSTITUTIONAL AMENDMENT PROCESS DONALD J. BOUDRFAUX* & A.C. PRITCHARD In this Article, the authors develop an economic theory of the constitutional amendment process under Article V focusing particularly on the roles that Con- gress and interest groups play in that process. The authors construct a model to predict when an interest group will seek an amendment rather than a statute to further its interests, highlighting how interest group maintenance costs and antici- pated opposition affect that choice They then discuss the efficiency goals of con- stitutionalism-precommitment and reduction of agency costs--and argue that the structure of the amendment process under Article V prevents realization of these goals The authors contrast the Bill of Rights amendments, which estab- lished precommitments and reduced the agency costs of government, with the latter seventeen amendments, which expanded the federal government and in- creased agency cost They attribute the change in the nature of the amendments to the interest-group domination of the political process and Congress' control over the constitutional amendment agenda The authors conclude that the Foun- ders' intent to put the Constitution beyond the reach of factions backfired: although factions cannot control the content of the Constitution, neither can the majority. In fact, Article V prevents the majority from precommiting itself and hinders its ability to control the agency costs of government, as evidenced by the history of the failed amendments Although the authors conclude that Article V thwarts the efficiency goals of constitutionalism, they predict that little can be done to remedy this flaw. INTRODUCTION C ONSTITUTIONS establish the higher law of the land by estab- lishing the basic structural and procedural principles of government. In addition, they constrain governments' power to interfere with the rights and liberties that citizens regard as too precious to trust to their public officials. These constitutional constraints on public officials would be chimerical if they could be altered by ordinary polities. As Bruce Ackerman points out, all the time and effort required to push an initia- * Department of Legal Studies, Clemson University. M.A. New York University, Ph.D. Auburn University, J.D. University of Virginia. ** Office of the Solicitor General, United States Department of Justice. M.A. Uni- versity of Chicago, J.D. University of Virginia. The authors thank Lynn Baker, Lillian BeVier, Janis Cheezem, Sam Cooper, William Eskridge, Nathan Forrester, Wendy Gordon, Steve Hetcher, Randy Holcombe, Pam Karlan, Michael Klarman, Andy Kleit, Saul Levmore, Roger Meiners, Erin O'Hara. Dan Ortiz, Richard Posner, Russell Shannon, Bill Shughart, Stephen Smith, Bob Tollison, Julian Wright, J. Harvie Wilkinson, and Bruce Yandle, as well as seminar participants at George Mason University, for provocative comments and discussion. The authors also thank the Olin Foundation and the Institute for Humane Studies for generous research support. The views expressed here are ours alone and do not necessarily reflect the views of the Department of Justice.

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most