Weingast B.R., Wittman D. The Oxford Handbook of Political Economy

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282 the judiciary and the role of law

Shugart 2003), by the judiciary’s control over its own budget and administration

(Russell 2001;Domingo2000), or by discipline and removal of judges (Abraham

2002). Scholars advocating an institutional approach to judicial independence focus

on either one particular institutional rule or a combination of rules which vary the

degree of judicial independence (see Epstein, Knight, and Shvetsova 2002).

Under the second approach to judicial independence, scholars disregard these

various institutional rules,

which vary among countries, and instead focus on the

ability of individual judges to exercise discretion in deciding particular cases. Fer-

ejohn (1999), the leading advocate of this approach, deﬁnes judicial independence

in the American legal system as “independent judges within a dependent judiciary”

(p. 381). For Ferejohn, judges are “independent” if they are free to make decisions

without fear of consequence. At the same time, Ferejohn, like Hamilton, recognized

that the federal judiciary is “institutionally dependent on Congress and the presi-

dent, for jurisdiction, rules, and execution of judicial orders” (p. 353). Despite the

Founding Fathers’ recognition of this important connection between the courts and

other branches of government, most legal and political scholars have focused on the

institutional approach to judicial independence.

The New Institutionalist and PPT literatures deﬁne judicial independence as an

outcome that emerges from strategic interactions among the judiciary, the legisla-

ture, and the executive. Indeed, using a model of the strategic analysis of the judi-

ciary with the separation-of-powers system, McNollgast (2006) argues that judicial

independence is not the automatic result of constitutional or statutory provisions

that establish life tenure for judges, nor is judicial independence limited by checks

and balances or legal traditions. Rather, judicial independence waxes and wanes with

changes in the political composition of our three branches of government.Thelogicof

this claim can be seen using Figure 15.1 above. The key observation is that the room

for judicial independence—the ability to make judicial determinations that are not

overturned by the political branches—is in part a function of the distance between

P and C: any judicial ruling in this region is a policy equilibrium since no legislation

can pass to overturn it; that is, any proposal that makes the president better oﬀ makes

Congress worse oﬀ,andviceversa.

This logic implies that, during periods of divided government, the space between

P and C is large. Therefore one chamber of the legislature or the executive branch

is likely to protect judicial independence by vetoing (or threatening to veto) leg-

islative actions that would overturn court decisions or, more aggressively, threaten

the judiciary. By contrast, McNollgast’s (1995) approach implies that uniﬁed control

of government weakens judicial independence, as the legislature and executive can

more easily coordinate on governmental changes that may undermine the judiciary’s

independence. Of course when there is not divided government, appointments to the

judiciary make the preferences of the judiciary close to those of P and C.

⁸ Although not oﬀering a concrete alternative approach, Stephenson 2001 and Cameron 2002 reject

deﬁning judicial independence in terms of institutional rules. Cameron 2002 asserts that “explicit

structural protections” may be only “parchment barriers to an aggressive executive or legislature

unconstrained by voters who value judicial independence” (p. 139).

mathew d. mC cubbins & daniel b. rodriguez 283

The foundation of these conclusions stem from what we call the courts’ Hamil-

tonian dilemma—Alexander Hamilton’s observation in Federalist 78 that courts, by

themselves, cannot implement their own orders or opinions. Although it is diﬃcult

for Congress and the president to overturn a court decision with which they disagree,

it is much more diﬃcult to get political oﬃcials to implement judicial decisions

that they oppose. In the PPT framework, judicial decisions are merely one form of

policy. And, as with other policies requiring enforcement and implementation, for

judicial orders and opinions to have an eﬀect, they must obtain compliance from

those to whom the orders and opinions are directed, including lower courts, executive

agencies, commissions, state and local governments, and their agencies, corporations,

and individuals. In this way, the limits on judicial independence are the direct results

of the relative impoverishment of judicial power and of the legislature and executive’s

ability to take advantage of the judiciary’s relative weakness.

Several conclusions follow from this insight. To begin with, the Supreme Court,

due to imperfect information and limited resources for hearing appeals, cannot

enforce perfect adherence to its judicial doctrines by its agents. By this view, doctrine

is not what the court believes is the best policy to pursue for its own sake, but rather

is an instrument to gain compliance from various agents. In areas where potential

case numbers are huge relative to the court’s ability to review cases, the court must set

a lax standard—as in Brown’s ambiguous message to school districts to desegregate

with “all deliberate speed.” In areas where the cases are relatively few and the policies

are ones that the judiciary values highly, such as abortion, the court can set a tight

standard. In this sense, doctrine is, at least in part, the strategic creation by the higher

courts in their eﬀorts to ensure a degree of judicial compliance.

A consequence of the courts’ Hamiltonian dilemma is that political actors can take

advantage of this situation by exacerbating the court’s scarcity, inﬂuencing judicial

doctrines by expanding the number and reach of executive agencies, commissions,

lower courts, and so on. By forcing the court to decide more cases, or by restricting

its ability to review cases, political oﬃcials indirectly aﬀect doctrine by forcing the

Supreme Court to widen or narrow the range of acceptable decisions. In this way,

elected oﬃcials create and use structure and process to inﬂuence judicial policy in

much the same way that they use administrative structure and process to inﬂuence

agency policy-making (McNollgast 1987, 1989).

McNollgast (1995) demonstrated how a united set of political branches opposing

a Supreme Court could force it to alter its doctrine in their favor by expanding the

lower judiciary and forcing the court to face many more potentially non-complying

lower courts. Lower court expansion exacerbates the Supreme Court’s compliance

problem, forcing it to expand the range of acceptable decisions—that is, in the

direction favored by political oﬃcials. Political oﬃcials, then, indirectly aﬀect the

⁹ On congressional overturns of court decisions, see Eskridge 1991 and Spiller and Tiller 1996.

¹⁰ As an illustration of the many enforcement diﬃculties that the judiciary faces, note how overseeing

compliance with school desegregation decrees, especially in the face of hostile school boards, is a lifetime

ambition for a court, one which necessarily precludes addressing other matters and one for which

compliance notoriously fades into the shadows once the spotlight no longer shines on the issue.

284 the judiciary and the role of law

agenda for the judiciary’s choice of doctrine by causing the court to shift its focus

in policy-making; courts are forced to leave some areas unattended, while using their

scarce resources to aﬀect doctrine in other areas. The main result is that the more

closely aligned and coordinated are the political branches, the more likely they are

to agree on policy outcomes, which then reduces the number of issues on which the

court can exercise meaningful independent discretion.

5 Conclusion

.............................................................................

The emerging PPT literature on the judiciary and the role of law stresses the political

nature of legal decision-making and the dynamic relationship among the legislative,

executive, and judicial branches. It also reinforces the wisdom of public law scholars

working within the tradition of Shapiro, Melnick, and others, who have stressed the

unavoidable and intentional role of courts in the policy process (see Rubin 2005 for

a useful recent account of this view). Yet, as a relatively new vein of scholarship in

the PPT tradition, there are many questions that require systematic attention. For

example, what is the precise relationship between political mechanisms of control and

legal doctrine? Despite the centrality of politically attentive judicial decision-making,

is there still something separate from ordinary politics that we can view as “the rule

of law?” How are the processes of judicial decision-making aﬀected by the structure

and organizational design of the state and federal judiciary? These, and other pressing

questions, rightly occupy the attention of scholars working within the PPT tradition.

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part v

..............................................................

CONSTITUTIONAL

THEORY

..............................................................

chapter 16

..............................................................

CONSTITUTIONALISM

..............................................................

russell hardin

There are two contrary schools of constitutional theory. These ground constitutions

in contracts, as in the long-standing contractarian tradition in political philosophy,

or in convention or coordination. The former theories are almost all at the normative

level; the latter are inherently explanatory or causal theories as well as, often, norma-

tive. I will canvass these two theoretical approaches and then I will turn to discussion

of what constitutions do. In modern contexts, virtually all constitutions are ostensibly

designed to secure democratic government. Arguably, the greatest failing of every

such constitution is its seeming incapacity to make institutional sense of democracy.

There is no clearly correct institutional structure for making democratic decisions;

sensibly diﬀerent systems will produce diﬀerent results. This is, however, a failure of

democratic theory and practice, and a failure of collective human capacities when

acting in very large groups. Arguably the most important aspect of constitutionalism

for modern nations, especially those that have had histories of autocracy, is in placing

limits on the power of government. In the view of many, this is the central point of

constitutionalism: limited government.

Much of contemporary work on constitutionalism takes up prior debates and

brings them into contemporary analytical frameworks, such as game theory, bar-

gaining theory, theories of commitment, and so forth. Most of it is comparative

and grounded very solidly in real-world examples. Some of it has been stimulated by

recent constitutional changes in newly democratizing nations, such as those of eastern

Europe, in redemocratizing nations, such as many in Latin America, and in South

Africa with the enfranchisement of blacks after the end of apartheid. And some of it

is now being stimulated by eﬀorts to understand suprastate constitutions, especially

that of the European Union.

∗

I wish to thank the editors for extremely careful readings and criticisms of an earlier draft.

290 constitutionalism

In general, it is absurd to assess the normative qualities of a constitution from its

content alone. The whole point of a constitution is to organize politics and society

in particular ways. For example, modern constitutions typically organize a state

apparatus, provide for representative democracy, deﬁne certain rights for citizens,

and sometimes provide for some degree of distributive justice (often through so-

called economic and social rights, as distinct from the historical political rights

of civil liberties). Hence, constitutions are inherently consequentialist devices. To

judge a constitution normatively requires attention to its actual consequences. Since

the consequences of a particular constitution are likely to depend to some extent on

the nature of the society it is to govern, what would count as a good constitution for

one society might be a disastrous constitution for another society. Purely abstract dis-

cussion of constitutions and constitutionalism is therefore pointless and misdirected.

Constitutionalism without social science is an arid intellectual pastime.

For many

theoretical enterprises, looking to speciﬁc examples is a necessary part of making sure

the theory is polished and adequate. In the discussion of constitutionalism, looking at

speciﬁc examples forces us to recognize that the theory is not unitary, but is fractured

and contingent on circumstances.

Crossing or underlying all of these discussions is a background methodological and

intentional theory: political economy (see Brennan and Hamlin 1995). The political

economy approach to politics and institutions is based on economic motivations,

somehow deﬁned. Thomas Hobbes says that if mere consent to living in justice

were suﬃcient, we would need no government “at all, because there would be peace

without subjection” (1651/1994,ch.17, 86/107). This claim is wrong for the reason that

undercuts others of Hobbes’s arguments; we would still need coordination on many

purposes and we would need collective actions in many contexts in which sponta-

neous provision, even by those who consent to live in justice, would be unlikely.

But Hobbes’s dismissal of the likelihood that people can be universally motivated by

commitment to justice is compelling. That dismissal and his arguments for the kinds

of motivations that people actually have make him an early political economist.

Against the assumptions of political economy, some moves in contemporary polit-

ical philosophy depend on attributing very strong motivations of fairness or public-

spiritedness to citizens. For example, Brian Barry supposes that if people have the

right motivations, contractualism (as discussed below) will work. But there is no

good reason to suppose that a population can be re-educated into having powerful

motivations of—in Barry’s hope—fairness rather than self-seeking. Constitutional

political economy seems bound to deal with cases in which interests often enough

trump, so that what we need are safeguards against each other. John Rawls supposes

that once we establish a just regime, that regime will educate future generations to

be just. Institutions “must be not only just but framed so as to encourage the virtue

of justice” (1971, 261; 1999, 231). He also says that once we have just institutions, the

initial condition of self-interest no longer applies and citizens and legislators have a

¹ Rawls shares this view (see 1971/1999,section42), as do most libertarians, as well as, of course, all

political economists, including Hume and Smith.

russell hardin 291

duty to support such institutions (1971, 334; 1999, 293–4). To design a constitutional

order on the assumption that such motivations will generally trump self-interest,

family interest, and narrow group interests of various kinds runs against experience

and against James Madison’s (1788/2001b, 268–9) and David Hume’s (1742/1985)view

that we should design the institutions themselves to be proof against abuse by oﬃce-

holders. Madison and Hume see liberalism as inherently grounded in distrust of

political oﬃce-holders, not in supposing that these leaders will generally work for

the public interest. Madison’s constitution is the pre-eminent constitutional response

to liberal distrust (on liberal distrust, see further Hardin 2002).

The central claim that grounds constitutionalism in political economy is that, in

general, it is to our mutual advantage to preserve social order because it is the interest

of each of us that it be preserved. There may, of course, be collective action problems

in preserving it, so that its serving mutual advantage does not guarantee its survival.

Indeed, mutual advantage can have more than one implication in cases of unequal

coordination and very commonly in cases of multiple possible coordinations that are

all more or less equally attractive, at least when viewed ex ante.

I will brieﬂy discuss the two main schools of constitutional theorizing before

turning to what constitutions can do for us. Then I focus on the two main problems

of modern constitutional democracy: the nature of representative democracy and the

problem of placing enforceable limits on government.

1 Contractarian Theories

.............................................................................

The metaphorical claim that government is established by contract is one of the main-

stays of traditional political theory. Against the metaphor, there are several objections

to the claim that a constitution is analogous to an ordinary contract in any useful

sense. These objections include the following. Contracts are typically enforceable by a

third party (usually the state); constitutions are not. Contracts typically govern a fairly

limitedquidproquobetweentheparties;itishardeventodeﬁnewhomightbethe

parties engaged in such an exchange when a constitution is drawn up. The exchanges

governed by a contract typically get completed and the contracts cease to govern

further; constitutions typically govern into the distant and unforeseeable future and

they have no project for “completion” in sight—they are never to be “fulﬁlled.”

Contracts require genuine agreement to make them binding; constitutions require

merely acquiescence to make them work. Contracts govern exchanges, which have

the strategic structure of a prisoner’s dilemma; constitutions govern coordination of

a population on a particular form of government and therefore have the strategic

structure of coordination games. Finally, note that, if a constitution is a contract,

then we must make a contract on what contract will mean. That may not be a logical

impossibility, but it is an oddly circular idea. Under our coordination constitution, we