Jacobi, Tonja; Mittal, Sonia; Weingast, Barry R. --- "Judicial review as a self-stabilizing constitutional mechanism" [2018] ELECD 769; in Delaney, F. Erin; Dixon, Rosalind (eds), "Comparative Judicial Review" (Edward Elgar Publishing, 2018) 185

Book Title: Comparative Judicial Review

Editor(s): Delaney, F. Erin; Dixon, Rosalind

Publisher: Edward Elgar Publishing

ISBN: 9781788110594

Section: Chapter 10

Section Title: Judicial review as a self-stabilizing constitutional mechanism

Author(s): Jacobi, Tonja; Mittal, Sonia; Weingast, Barry R.

Number of pages: 19

Abstract/Description:

This chapter argues that the United States Constitution is self-stabilizing. A self-stabilizing constitution creates incentives for all relevant actors to abide by the rules. Drawing on earlier work, the authors argue that to be self-stabilizing, a constitution must: (1) lower stakes in politics for both ordinary citizens and powerful elite groups; (2) create focal points that facilitate citizen coordination against transgressions by government officials; and (3) enable adaptation over time. The Supreme Court—through powers of judicial review and institutional practices—has assumed an increasingly important role in maintaining constitutional stability. The chapter contends that the Court can lower the stakes, facilitate coordination and enable adaptation—strengthening the self-stabilizing characteristics of the Constitution—though it has not always done so. In so arguing, the authors offer a new framework for understanding the Court’s opinions, and ultimately, the work of the nation’s top judges.