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

North Carolina Law Review, Vol. 77, 1998

Posted: 14 Dec 1998  

Todd J. Zywicki

George Mason University - Antonin Scalia Law School, Faculty; PERC - Property and Environment Research Center

Adam C. Pritchard

University of Michigan Law School

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.

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: https://ssrn.com/abstract=141857

Todd J. Zywicki (Contact Author)

George Mason University - Antonin Scalia Law School, Faculty ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States
703-993-8091 (Phone)
703-993-8088 (Fax)

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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