• Video

Why Do We Need a Structural Constitution?

Does the structure of the Constitution matter, or only the content? Professor Gary Lawson explains that a constitution has to be utilized and enforced by the people who administer it. The structure of the Constitution, which establishes a separation of powers, makes it difficult for any one group of people to use the government for their own purposes. The structure makes change difficult but protects against the abuse of power. https://youtube.com/watch?v=z4cDqErUorc


Why structure? Why not instead just come up with a document that lists 873 rights of the people and go from there? You could do it that way. You can have a document that lists 873 rights of people. You could even have a document that lists fewer rights, but does so in much more flowery language. You could have a whole series of provisions that say, "Do good, do real good. Don't do bad. Do great things." All of that could be written down and people could look at it and cheer. The problem is how is it actually going to work in practice? Constitutions, like everything else in the universe, are not self enforcing. Whatever institutions are created by a document are going to be staffed by people. Whatever rights are articulated are going to be interpreted or applied or not applied by people. If all you're doing is listing rights, you're relying on the goodness of the people who are applying that document to make it work. What a structural constitution does is minimizes the extent to which you have to rely on that. It does it through a fundamental strategy of divide and conquer. Don't put all the power in one place. If people are going to exercise power, make them assemble different groups of people. Maybe even different majorities, maybe even different super majorities across different constituencies in order to get anything done. That's essentially what separation of powers is all about. You don't have the same person making the laws, enforcing the laws, interpreting and applying the laws A structural constitution represents a risk aversion. You worry about what happens when the sorts of people who you know are out there in the world and the sorts of people who you know are going to be attracted to an institution of government actually get in control. What can they do? There is a cost to all of this. It makes law making less coherent, makes it more difficult. If you have a really, really great idea that you think will save the world, it makes it harder for your really great idea that you think will save the world to be implemented. There are trade offs on this, just like in an investment, you can invest in very high risk, very high return investments. You can invest in relatively low risk, very low return investments. The Constitution, a structural constitution represents a choice to take the relatively low risk, relatively low return route. That may be wise, may be unwise, also explains why a lot of people don't like the Constitution. Why a lot of people feel stifled by the Constitution. They may prefer the high risk, high reward approach because they're reasonably confident that they're the ones that will reap the reward and other people will bear the risks. That, at least I think, is the theory behind focusing on structure.

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