The Limits of Generality for Constitutional Design
27 Pages Posted: 14 Sep 2022 Last revised: 23 Sep 2022
Date Written: September 1, 2022
James Buchanan was a fervent advocate of a non-discriminatory politics. However, he. translated his views on constitutional political economy into (de jure) constitutional design in an insufficiently thoughtful way. Simply writing non-discriminatory politics into a Constitution is unlikely to have the desired effect. All Constitutional language is open to interpretation; and political entrepreneurs will be ready to push interpretation in their favored directions. The history of US Constitutional law bears this out. This does not necessarily discount Buchanan’s quest for constitutionalized non-discriminatory politics. However, it does mean that it must be tempered by realistic concerns regarding constitutional design. With this in mind, I suggest that focusing on procedural, rather than substantive, Constitutional provisions may be more fruitful.
Keywords: generality principle; generality norm; non-discriminatory politics; constitutional political economy, constitutional drift, constitutional design
JEL Classification: D72, H11, O57
Suggested Citation: Suggested Citation