Ignacio Adrian Lerer has posted CONSTITUTIONAL PALEONTOLOGY: TRACING THE ANCESTOR’S TALE OF LEGAL DOCTRINES on SSRN. Here is the abstract:
Lawrence Solum’s interpretation-construction distinction revolutionized constitutional theory by identifying where judges exercise genuine discretion—the “construction zone” of textual underdeterminacy. But Solum’s framework is fundamentally synchronic: it maps the space of possible constructions at a given moment without explaining why some constructions persist across generations while others vanish. This Article integrates Solum’s spatial analysis with Richard Dawkins’ temporal methodology—the “Ancestor’s Tale” of reverse engineering evolutionary lineages—to develop a predictive theory of constitutional construction.
Using three computational tools (RootFinder, JurisRank, IusMorfos) validated across 62 labor law reforms in Argentina, Chile, Brazil and Spain (1991-2025), this study demonstrates that construction zone size predicts doctrinal lock-in with 74% explained variance (R²=0.74). Argentina’s vague constitutional language (“just wage,” “social protection”) created a large construction zone subsequently colonized by irreversible labor doctrines; Chile’s specific statutory enumeration created narrow zones permitting bidirectional reform. Critically, Chile successfully implemented both liberalizing reforms (2001-2017) and re-regulatory reforms (2022-2025, Boric administration), while Argentina cannot reform in any direction.
The finding challenges constitutional design orthodoxy: textual vagueness—conventionally praised for adaptability—actually invites memetic warfare that produces rigidity. The Article tries to contribute both theory (integrating Solum and Dawkins) and practice (quantitative tools for ex-ante assessment of reform feasibility). Constitutional paleontology could now be possible: trace any doctrine to its origins, measure fitness, predict persistence.
Recommended.