Michael D. Gilbert (University of Virginia School of Law) has posted The Law and Economics of Entrenchment (Georgia Law Review, Forthcoming) on SSRN. Here is the abstract:
Should law respond readily to society’s evolving views, or should it remain fixed? This is the question of entrenchment, meaning the insulation of law from change through supermajority rules and other mechanisms. Entrenchment stabilizes law but frustrates democratic majorities. Scholars have long studied this tension but made little progress in resolving it. This Essay considers the problem from the perspective of law and economics. Three arguments follow. First, majority rule can systematically harm society — even when voters are rational (i.e., not passionate) and no intense minority is present. This is because of a collective action problem created by transition costs. Second, entrenchment is unnecessary when bargaining is easy but offers a second-best solution when bargaining is hard. This may explain why some laws are entrenched but not others. Third, the optimal degree of entrenchment depends on a distinction existing scholarship ignores: whether the transition costs associated with a change in law are variable or fixed. Given variable costs, the argument for entrenchment is even stronger than scholars realize. But given fixed costs, the argument weakens. To overcome fixed costs, outdated laws require major change, but entrenchment encourages only minor change. This mismatch relates to an age-old question: when, if ever, should judges update entrenched law through interpretation? In one circumstance, judges can beneficially update in a way that democracy cannot.
And from the paper:
Originalists and some others tend to support the demanding amendment rules in Article V, and they tend to oppose efforts by judges to sidestep those rules through interpretation.107 The analysis here provides some tools to assess this broad view. If the status quo the amendment rules protect is not too far from the ideal law (typically they present no evidence on this score), if transition costs are sufficiently high (same), and, critically, if those costs are mostly variable in character (a distinction they ignore), then their position is strong—stronger than they know. Under these facts, the deep entrenchment of Article V not only freezes most of the Constitution in place, it encourages amendments to be incremental, which is optimal given those variable costs. If these conditions fail to hold, then their position weakens. If transition costs are mostly fixed, then Article V encourages harmful changes and discourages beneficial changes.
Living constitutionalists and some others face the opposite criticism. Their calls for faster, grander legal change, whether through amendment or judicial interpretation, ring true when the status quo is far from today’s ideal law, transition costs are low, and, critically, those costs are mostly fixed. They usually offer no evidence on these scores. If transition costs are mostly variable, then legal change should be small and their prescription reversed. In that case, deep entrenchment—even as it protects an unpopular status quo, even as it promotes plodding legal change—gets it exactly right.
Highly recommended.