Why Do We Need a Structural Constitution? [No. 86]
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Why Do We Need a Structural Constitution? [No. 86]

October 18, 2019

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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