Entrenchment, Incrementalism, and Constitutional Collapse

42 Pages Posted: 13 Sep 2016 Last revised: 29 Jun 2017

See all articles by Michael D. Gilbert

Michael D. Gilbert

University of Virginia School of Law

Date Written: September 12, 2016

Abstract

Entrenchment is fundamental to law. Grand documents like the U.S. Constitution, and mundane ones like city and corporate charters, entrench themselves against change through supermajority rules and other mechanisms. Entrenchment frustrates responsiveness, but it promotes stability, a rule of law virtue extolled for centuries. It does so through a straightforward channel: Entrenched law is difficult to change. Scholars have long understood this idea, which can be called the first status quo bias of entrenchment. This Article shows that a second bias lurks: Entrenchment makes changes that do take place incremental. As entrenchment deepens, the scope of potential change to law collapses on the status quo. To restate the idea, when we entrench law, we prevent change, at least for a time, and we confine any changes that do take place to small steps. This has implications for constitutional law, especially the debate about Article V and the separation of powers, both of which shield the Constitution from change more than scholars realize. It also illuminates several questions, especially in comparative constitutional law, such as why constitutions remain unpopular after amendment. Finally, it generates a theory of constitutional failure. When voters’ preferences evolve consistently in one direction, entrenched law eventually becomes as unstable as ordinary law, only less popular. Thus, entrenchment buys neither stability nor responsiveness. Because entrenchment confines legal change to incremental steps, amendment cannot correct the problem. This recasts questions of legal design in new light, and it may explain why some constitutions endure while others collapse.

Keywords: entrenchment, constitutional amendment, constitutional design, constitutional failure, legal stability, originalism, judicial updating

Suggested Citation

Gilbert, Michael, Entrenchment, Incrementalism, and Constitutional Collapse (September 12, 2016). Virginia Law Review, Vol. 103, p. 631, 2017 , Virginia Law and Economics Research Paper No. 2016-14, Virginia Public Law and Legal Theory Research Paper No. 2016-53, Available at SSRN: https://ssrn.com/abstract=2837796

Michael Gilbert (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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