Constitutional Stickiness

Abstract

Continuity is a striking hallmark of the constitutional world. Empirical evidence shows that many constitutional amendment and replacement processes counterintuitively produce relatively little change in substance. During constitutional makeovers, existing provisions frequently “stick,” even where they are arbitrary, suboptimal, or anachronistic.

This paradox, which I call “constitutional stickiness,” has been neglected in the scholarship. American constitutional theorists have largely assumed that Article V’s high threshold for amendment is the primary culprit for lack of formal constitutional change and that significant alterations might follow with a lower threshold. With mounting calls by the states for a constitutional convention, this assumption has also prompted concerns about a “runaway convention” that could drastically alter the substance of the U.S. Constitution.

This Article challenges that assumption. Drawing on rational-choice theory and behavioral law and economics, it provides the first theoretical analysis of constitutional stickiness in descriptive and normative terms. Even with low amendment thresholds, the constitutional status quo exerts significant historical weight and the constitutional starting points constrain future choices in specific and systemic ways. The existing constitutional configurations therefore often depend, quite arbitrarily, on the historical starting point, rather than a rational assessment of all alternatives. As a result, relatively insignificant events in a country’s early constitutional history can have an enormous impact, whereas more dramatic events that occur later — such as a revolution or a major constitutional convention — are much less consequential than assumed. Ultimately, the Article aims to reorient the normative focus of constitutional scholarship to oft-neglected temporal and sequential considerations.

Keywords: Constitution, Constitutional Law, Comparative Constitutional Law, Article V, Constitutional Amendment, Constitutional Stickiness, Constitutional Change