Games of public power: what economics teaches us about constitutions

Constitutions (and similar texts, as the EU treaties) exist to efficiently allocate rights and power. They reflect fundamental choices for reducing costs arising from private and public action. They attempt to establish a Pareto efficient, consensual long-term system of cooperative checks and balances by providing guarantees to individuals and by setting the institutional mechanics for the exercise of public authority. Economic analysis is useful for studying the optimal Constitution in terms of form, length, and rigidity and for assessing the advantages of constitutional interpretation over the amendment process. It helps understanding the strategic democratic game of public power and its various political/electoral forms and players (political/non-political, visible/invisible). In that light, separation of powers should be, not a formalistic, but a dynamic tool for establishing an efficient model of counterweights among competing actors in making and reviewing public decisions.