Posner, Eric A. --- "Constitutional Possibility and Constitutional Evolution" [2011] ELECD 242; in Zumbansen, Peer; Calliess, Gralf-Peter (eds), "Law, Economics and Evolutionary Theory" (Edward Elgar Publishing, 2011)

Book Title: Law, Economics and Evolutionary Theory

Editor(s): Zumbansen, Peer; Calliess, Gralf-Peter

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848448230

Section: Chapter 6

Section Title: Constitutional Possibility and Constitutional Evolution

Author(s): Posner, Eric A.

Number of pages: 25

Extract:

6. Constitutional possibility and constitutional
evolution
Eric A. Posner1

1. INTRODUCTION

This chapter uses evolutionary game theory to explore recurrent questions about consti-
tutionalism and the United States Constitution. These questions are: (1) what is a consti-
tution and how does it constrain a democratic government, if in fact it does; (2) does the
United States Constitution `evolve,' and if so, how does the Constitution, at any given
moment, differ from whatever popular attitudes prevail at that moment; (3) why does an
unelected Supreme Court have authority to enforce the Constitution in contradiction
of the will of the majority in a democratic state; and (4) what prevents Supreme Court
justices from implementing their political beliefs, if anything? The chapter argues that the
United States Constitution is a set of self-enforcing conventions that govern how people
interact in important ways. The Constitution constrains the government in the same sense
that conventions constrain individuals and prevent them from pursuing their immediate
self-interest. The Constitution evolves, but slowly and discontinuously, because conven-
tions, by virtue of the fact that they coordinate behavior, are `sticky.' The Supreme Court
has authority because, or to the extent that, people believe that it identifies and enforces
existing conventions or identifies hypothetical conventions that are superior to those that
exist. Supreme Court justices do not always implement their political preferences because
if they did, people would stop believing that the Supreme Court enforces conventions,
and then they would stop paying attention to what it says, in ...