Structural Biases in Structural Constitutional Law

Abstract

Structural constitutional law regulates the workings of government and supplies the rules of the political game. Whether by design or by accident, these rules sometimes tilt the playing field for or against certain political factions—not just episodically, based on who holds power at a given moment, but systematically over time—in terms of electoral outcomes or policy objectives. In these instances, structural constitutional law is itself structurally biased.

This Article identifies and begins to develop the concept of such structural biases, with a focus on biases affecting the major political parties. Recent years have witnessed a revival of political conflict over the basic terms of the U.S. constitutional order. We suggest that this phenomenon, and a large part of structural constitutional conflict in general, is best explained by the interaction between partisan polarization and structural bias, each of which can intensify the other. The Article also offers a typology of structural biases, keyed to the contemporary United States but potentially applicable to any system. To date, legal scholars have lagged social scientists in investigating the efficiency, distributional, and political effects of governance arrangements. The concept of structural bias, we aim to show, can help bridge this disciplinary gap and thereby advance the study of constitutional design and constitutional politics.

Keywords: constitutional law; constitutional theory; institutional design; regulation; law and politics; law and political economy; Congress, courts, and agencies; polarization; parties