Subconstitutionalism

Tom Ginsburg & Eric A. Posner

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Many nation states have a two-tiered constitutional structure that establishes a superior state and a group of subordinate states that exercise overlapping control of a single population. The superior state (or what we will sometimes call the “superstate”) has a constitution (a “superconstitution”) and the subordinate states (which we will call “substates”) have their own constitutions (“subconstitutions”). One can call this constitutional arrangement “sub-national constitutionalism,” or, for short, “subconstitutionalism.”

Americans understand subconstitutionalism as federalism. The national government controls the superstate; each of the fifty states is a substate. Constitutions exist at both levels. Other countries, including Germany, Australia, Austria, Argentina, Brazil, Ethiopia, Switzerland, Mexico, Russia, Venezuela, Malaysia, and Canada, also have federalist or quasi-federalist systems with two-tiered constitutional structures. The integration of Europe has produced a quasi-federalist system. EU members have retained their constitutions even as they increasingly submit to a European government with its own constitution.

When scholars discuss federalism and related forms of decentralization, they typically focus on the constitution of the superstate—the source of the federal structure—and ignore the constitutional aspects of the substates’ organization. The justification for federalism is (in modern terms) that some public goods are better supplied at a local level than at a national level because the economies of scale for those goods are not that large, and people can better monitor their government at the local level. This justification is orthogonal to the question of the design of the substate’s constitution. To be sure, it implies that the substates must be quasi-independent on some policy dimensions; if they are not, and the superstate ultimately determines local policy, then the system is not federalist. But beyond this minimal level of constitutionalism, many design choices can be made. A subconstitution could contain many rights, or few; it could have a strong system of separation of powers or none at all; it could itself be federalist or not; and it could be easy to amend or difficult to amend.

Our interest is the relationship between the superconstitution and the design of the subconstitution. A number of hypotheses are possible. At one extreme, there might be nothing special about subconstitutionalism: the constitutions of substates might reflect the same policy judgments that determine the design of the constitutions of ordinary states. At the other extreme, subconstitutions could have distinctive features. For example, perhaps subconstitutions always mirror the superconstitution. No state in the United States has a parliament. All have three branches of government, modeled after the U.S. Constitution. But there is also a great deal of variation, for example in the types and number of rights, the procedures for amendment, and the independence of the judiciary.

To our knowledge, none of the work in the voluminous literature on constitutional design directly addresses this topic. Our contribution is to draw attention to the topic and provide a theoretical framework to address it. We use a simple theory based on a single assumption that distinguishes subconstitutions from ordinary constitutions: that the superior state in the two-tiered system reduces agency costs that would otherwise exist in the subordinate state. Agency costs refer to the costs that arise as a result of the fact that an agent (here, the government) typically has better information about its actions and their effects on outcomes than the principal (here, the public) does, and therefore can take actions that benefit the agent at the expense of the principal without fear that the principal will learn of that action and punish the agent. When agency costs decline, outcomes improve, and costly institutions designed to reduce agency costs may be discarded. If agency costs decline when a state becomes a substate, a subconstitution can be weaker than an ordinary constitution.

Consider a simple example. The U.S. Constitution guarantees a republican form of government for the states. Suppose, then, that the populations of the states can expect the national government to intervene if their republican institutions fail. If this is so, it is less urgent to establish subconstitutions that have strong rules that limit government. By contrast, no foreign state will intervene if the U.S. government loses its republican character, so the U.S. Constitution must impose stronger limits on the national government.

If this example can be generalized, it suggests that substates will have weaker limits on government than superstates do. Substates should have weaker government structures (such as separation of powers and federalism), weaker rights, or lowers hurdles to amendment. We examine a considerable body of evidence and find some support for our hypothesis. Surveying the American states, the member states of the European Union, and a few other examples, we find suggestive evidence that substates have weaker constitutional structures and easier amendment procedures. Substates often (although not always) concentrate power rather than maintain elaborate separation of powers, and almost always have weak federalist structures. We provide statistical evidence that amendment becomes more common after states undergo a transition to substate status, suggesting that amendment procedures become weaker, as predicted by the theory. In the area of rights, the story is more complex. Judicially enforceable rights have become more common in the last several decades, and this has been true even in substates. However, in most substates, amendment procedures are easy, indicating that the rights are not entrenched, so their inclusion is the result of normal politics than of constitutional design.

We offer our theory as a first effort to bring order to a complex and mostly neglected area of constitutional law. We make a number of assumptions that may turn out to be excessively strong, and we acknowledge that, at this point, the evidence is spotty and susceptible to alternative interpretations.

Acknowledgments:

Copyright © 2010 Stanford Law Review.

Tom Ginsburg is a Professor of Law at the University of Chicago Law School. Eric A. Posner is the Kirkland & Ellis Professor of Law at the University of Chicago Law School.

This Legal Workshop Editorial is based on the following Law Review Article: Tom Ginsburg & Eric A. Posner, Subconstitutionalism, 62 STAN. L. REV. 1583 (2010).


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