Subconstitutionalism

47 Pages Posted: 16 Jan 2010 Last revised: 26 Aug 2014

Tom Ginsburg

University of Chicago Law School

Eric A. Posner

University of Chicago - Law School

Date Written: 2010

Abstract

Subconstitutionalism refers to two-tiered constitutional systems where a superior state and a group of subordinate states exercise overlapping control of a single population. Federalism is a familiar version of subconstitutionalism but scholarship on federalism focuses on the design of the superior state’s constitution. Our focus is the design of the subordinate state’s constitution. Our question is, how does the constitution of an independent state change when it becomes subordinate to another state in a federalist or related subconstitutional system? Applying agency theory, we argue that because the superior state reduces agency costs as between the subordinate state’s government and its population, and because constitutional limits are best justified as means for reducing agency costs, it follows that subordinate state constitutions, or subconstitutions, should impose weaker restrictions on government (such as separation of powers), weaker rights protections, and weaker amendment procedures. We discuss evidence from the American states, the European Union, and the federalist systems of other countries.

Suggested Citation

Ginsburg, Tom and Posner, Eric A., Subconstitutionalism (2010). Stanford Law Review, Vol. 62, 2010. Available at SSRN: https://ssrn.com/abstract=1536722 or http://dx.doi.org/10.2139/ssrn.1536722

Tom Ginsburg

University of Chicago Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States

Eric A. Posner (Contact Author)

University of Chicago - Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States
773-702-0425 (Phone)
773-702-0730 (Fax)

HOME PAGE: http://www.law.uchicago.edu/faculty/posner-e/

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