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Constitutions Unentrenched: Toward an Alternative Theory of Constitutional Design

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  • VERSTEEG, MILA
  • ZACKIN, EMILY

Abstract

T his article highlights a gap between a great deal of constitutional theory and a great deal of the practice of democratic constitution-making. Drawing on data from democratic national and state constitutions, we challenge the consensus among constitutional theorists that a central purpose of constitutionalism is the entrenchment (the fortification against future change) of broad principles. The empirical reality is that the majority of democratic constitutions today are subject to frequent revision, and are therefore ill-equipped to facilitate the entrenchment of their contents. To explore the logic of these unentrenched documents, we identify the historical periods in which different geographic regions moved away from highly entrenched constitutions, and we examine the political contexts of these transformations. We find that, in each context, constitution-makers were attempting to limit the discretion of constitutional interpreters and implementers by drafting highly specific texts and by updating them in response to continually changing circumstances.

Suggested Citation

  • Versteeg, Mila & Zackin, Emily, 2016. "Constitutions Unentrenched: Toward an Alternative Theory of Constitutional Design," American Political Science Review, Cambridge University Press, vol. 110(4), pages 657-674, November.
    • Handle: RePEc:cup:apsrev:v:110:y:2016:i:04:p:657-674_00
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    Cited by:

    1. Andrea Sáenz de Viteri Vázquez & Christian Bjørnskov, 2020. "Constitutional power concentration and corruption: evidence from Latin America and the Caribbean," Constitutional Political Economy, Springer, vol. 31(4), pages 509-536, December.
    2. Jeong, Daeyoung & Kim, Semin, 2023. "Stable constitutions," Games and Economic Behavior, Elsevier, vol. 142(C), pages 794-811.
    3. Tarabar, Danko & Young, Andrew T., 2021. "What constitutes a constitutional amendment culture?," European Journal of Political Economy, Elsevier, vol. 66(C).
    4. Pavlik, Jamie Bologna & Jahan, Israt & Young, Andrew T., 2023. "Do longer constitutions corrupt?," European Journal of Political Economy, Elsevier, vol. 77(C).
    5. Andrew T. Young, 2019. "How Austrians can contribute to constitutional political economy (and why they should)," The Review of Austrian Economics, Springer;Society for the Development of Austrian Economics, vol. 32(4), pages 281-293, December.
    6. Bennett, Daniel L. & Bjørnskov, Christian & Gohmann, Stephan F., 2019. "Coups, Regime Transitions, and Institutional Change," Working Paper Series 1281, Research Institute of Industrial Economics.
    7. Justin T. Callais & Andrew T. Young, 2024. "Revolutionary Constitutions: are they revolutionary in terms of constitutional design?," Public Choice, Springer, vol. 200(3), pages 423-455, September.
    8. Justin Callais & Andrew T. Young, 2022. "Does rigidity matter? Constitutional entrenchment and growth," European Journal of Law and Economics, Springer, vol. 53(1), pages 27-62, February.
    9. Justin Callais & Andrew T. Young, 2021. "Does constitutional entrenchment matter for economic freedom?," Contemporary Economic Policy, Western Economic Association International, vol. 39(4), pages 808-830, October.

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