Abstract

http://ssrn.com/abstract=141857
 
 

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Finding the Constitution: An Economic Analysis of Tradition's Role in Constitutional Interpretation


Todd J. Zywicki


George Mason University School of Law; PERC - Property and Environment Research Center

Adam C. Pritchard


University of Michigan Law School


North Carolina Law Review, Vol. 77, 1998

Abstract:     
In recent years, the Supreme Court has increasingly looked to "tradition" as a source of constitutional values. Justice Scalia has articulated a majoritarian view of tradition that looks to the legislative practices of state legislatures. Justice Souter has articulated a model that looks to Supreme Court precedent as a source of tradition, so-called "common law constitutionalism." Both have also found recent academic adherents: Michael McConnell has defended Scalia?s model, and David Strauss has done the same for Souter. While Scalia, Souter, and their academic followers are correct in celebrating tradition as a source of constitutional values, they have celebrated the wrong traditions. In this paper, we develop a model of tradition and show how tradition, properly understood, can be a source of constitutional values. Tradition is compatible with constitutionalism in identifying widely-shared community values that should be subject to constitutional precommitment and can be an effective mechanism for constitutional change. "Constitutionally efficient" traditions are those that emerge from decentralized evolutionary processes over a long period of time, bubbling up from society. The sources of tradition articulated by Scalia and Souter lack these conditions for constitutional efficiency; hence, they should be rejected as sources of constitutional values. We offer an alternative model of constitutionally-efficient traditions. Our article is followed by a Comment by Professor John McGinnis of Cardozo Law School and a brief Reply to McGinnis.

Accepted Paper Series





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Date posted: December 14, 1998  

Suggested Citation

Zywicki, Todd J. and Pritchard, Adam C., Finding the Constitution: An Economic Analysis of Tradition's Role in Constitutional Interpretation. North Carolina Law Review, Vol. 77, 1998. Available at SSRN: http://ssrn.com/abstract=141857

Contact Information

Todd J. Zywicki (Contact Author)
George Mason University School of Law ( email )
3301 Fairfax Drive
Arlington, VA 22201
United States
703-993-8091 (Phone)
703-993-8088 (Fax)

George Mason Law School Logo

PERC - Property and Environment Research Center
2048 Analysis Drive
Suite A
Bozeman, MT 59718
United States

Adam C. Pritchard
University of Michigan Law School ( email )
625 South State Street
Ann Arbor, MI 48109-1215
United States
734-647-4048 (Phone)
734-647-7349 (Fax)

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