“Constitutions and Commitment: The Evolution of Institutions Governing Public Choice in Seventeenth-Century England,”
by Douglass C. North and Barry R. Weingast
This article focuses on the political factors underpinning economic growth and the development of markets—not simply the rules governing economic exchange, but also the institutions governing how these rules are enforced and how they may be changed. A critical political factor is the degree to which the regime or sovereign is committed to or bound by these rules. Rules the sovereign can readily revise differ significantly in their implications for performance from exactly the same rules when not subject to revision. The more likely it is that the sovereign will alter property rights for his or her own benefit, the lower the expected returns from investment and the lower in turn the incentive to invest. For economic growth to occur the sovereign or government must not merely establish the relevant set of rights, but must make a credible commitment to them.
A ruler can establish such commitment in two ways. One is by setting a precedent of “responsible behavior,” appearing to be committed to a set of rules that he or she will consistently enforce. The second is by being constrained to obey a set of rules that do not permit leeway for violating commitments. We have very seldom observed the former, in good part because the pressures and continual strain of fiscal necessity eventually led rulers to “irresponsible behavior” and the violation of agreements. The latter story is, however, the one we tell. We attempt to explain the evolution of political institutions in seventeenth-century England, focusing on the fundamental institutions of representative government emerging out of the Glorious Revolution of 1688—a Parliament with a central role alongside the Crown and a judiciary independent of the Crown.
“Constitutional Stability and the Deferential Court,”
by Sonia Mittal and Barry R. Weingast
This paper casts the counter majoritarian difficulty in a different light, drawing on positive political theory to analyze the relationship between a deferential Supreme Court with powers of judicial review and a constitution’s ability to survive. Too often, normative studies of judicial review and the counter majoritarian difficulty take the constitutional stability of the American system for granted and do not enquire about how this stability—unique in the world—arises. Recent empirical work by Elkins et al. reveals that most new constitutions fail; in particular, the median democracy lasts only sixteen years.6 This means that constitutions that prove durable have special features. We argue that, to be sustained, a democratic constitution must be self-enforcing in the sense that actors with power to disrupt democracy choose not to do so.
The central questions of this paper are: how is American constitutional stability maintained, and how does the Supreme Court contribute to this stability? To address these questions, we develop a theory of the self-enforcing constitution.