Properties in Constitutional Systems

Abstract

Adrian Vermeule’s The System of the Constitution provides the first thoroughgoing application of insights from the burgeoning study of complex systems to core problems in constitutional theory. Complex systems are characterized by system effects — properties of the system that are not properties of any individual system component, as liquidity may be a property of a volume of water while no individual H2O molecule is itself liquid. System effects arise from the complex interactions of system components with each other and exogenous factors. Vermeule maintains that a constitutional order can be described as a complex “system of systems,” with individual agents aggregated into institutions, which are in turn aggregated into the larger system. I argue that this new account advances constitutional theory by suggesting needed analytic connections between individual-level accounts such as attitudinal models of judicial decision-making and institution-level claims about dynamics like the political safeguards of federalism; and by reshaping the research program by motivating new, more nuanced descriptive constitutional theory work that accounts for system effects and their implications. Finally, I explore the exciting possibility that a systems theory account of law may provide new approaches to some of the most basic questions in general jurisprudence — it suggests, among other things, that some legal norms themselves may arise as system effects.

Keywords: constitution, complexity, systems theory, constitutional law, constitutional theory, system effects, Vermeule