Issues

This Essay argues that there are two unappreciated aspects of U.S. constitutional design that have contributed to our country’s success. The first is the fact that the United States is divided into fifty rather than four states. This greatly strengthens the national government and renders secession almost impossible. The second is the formidable set of checks and balances set up on presidential power that makes it impossible for U.S. presidents to become dictators. The fact that thirty-nine of the fifty state governors are elected in off-year or midterm elections, elections in which the incumbent president’s party almost always loses ground to the opposition, greatly limits U.S. presidential power.

The U.S. Constitution has survived for over two centuries, despite the Civil War and numerous other crises. In contrast, most national constitutions last less than two decades. Why has the Constitution sustained a largely stable democratic system while so many others have failed? A self-stabilizing constitution creates incentives for all relevant actors to abide by the rules. Drawing on earlier work, we 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. But what is the role of constitutional text in creating such stability? Drawing on the example of the federal Takings Clause, we argue that in addition to their explicit roles in defining rights and powers of government, constitutional clauses often serve a deeper structural purpose: providing the foundations for long-term constitutional stability. In this Article we examine the role of the federal Takings Clause in helping to create a self-stabilizing constitution in the United States. We argue that the text of the Takings Clause was designed to work together with other provisions of the proposed Constitution to lower the stakes in politics for political stakeholders by protecting individual property rights— including, notably, property rights in slaves. This clause was also designed to create a focal point to facilitate coordination against government invasions of property rights, especially at a time when few state constitutions provided similar protections.

Political factions are rarely treated as normatively desirable entities in constitutional or international law. On the contrary, they are either regarded as forces that thwart the general welfare or as sources of chronic political instability. Thus, the conventional wisdom often focuses on how to deploy institutional or legal structures that minimize the influence of faction. By contrast, this Essay argues that the institutions of constitutional and international law that are forged by self-interested factions can create significant side benefits for the rest of the society. At bottom, such institutions are likely to be more durable and energetic than those created by disinterested or high-minded social designers. Thus, rather than focus on trying to curtail the influence of faction in shaping political institutions, it may make more sense to broaden the scope of such influence to be as inclusive as possible.

I will argue that in the administrative state, in contrast to classical constitutional theory, the abuse of government power is not something to be strictly minimized, but rather optimized. An administrative regime will tolerate a predictable level of misrule, even abuse of power, as the inevitable byproduct of attaining other ends that are desirable overall.

There are three principal grounds for this claim. First, the architects of the modern administrative state were not only worried about misrule by governmental officials. They were equally worried about “private” misrule—misrule effected through the self-interested or self-serving behavior of economic actors wielding and abusing power under the rules of the 18th-century common law of property, tort, and contract. The administrative state thus trades off governmental and “private” misrule. Second, the rate of change in the policy environment, especially in the economy, is much greater than in the late 18th century—so much greater that the administrative state has been forced, willy-nilly, to speed up the rate of policy adjustment. The main speeding-up mechanism has been ever- greater delegation to the executive branch, accepting the resulting risks of error and abuse. Third, the costs of enforcing legal rules against executive officials are necessarily positive and plausibly large, in part because any institutional monitors created to detect and punish abuses must themselves be monitored for abuse.

The architects of the administrative state believed that a government that always forms undistorted judgments, and that never abuses its power, will do too little, do it too amateurishly, and do it too slowly. In that sense, the administrative state constantly gropes towards an institutional package solution that embodies an optimal level of abuse of power.

A long-standing consensus exists that the arbitrary or excessive expropriation of private property by a country hurts its economic growth. Although constitutions can play an important role in protecting private property, remarkably little is known about how they actually restrict the power of eminent domain and whether such restrictions are associated with reduced de facto expropriation risks. This Essay fills that gap by presenting original data on the procedural and substantive protections in constitutional takings clauses from 1946 to 2013. Its main finding is that no observable relationship exists between de jure constitutional restrictions on the power of eminent domain and de facto expropriation risks.

This Essay explores two possible explanations for why constitutional restrictions on the power of eminent domain fail to make a difference in practice. The first is that countries adopt disingenuous promises to bolster their international reputation or to attract foreign aid. The second explanation holds that societal disagreements over the desired level of expropriation might be built into the constitution’s design. Such disagreements emerge when a portion of citizens believe they benefit more from expropriation than from the general benefits that flow from secure property rights.

This Essay finds empirical support for the second explanation. Specifically, it finds that real-world constitutional property regimes are often riddled with ambiguities. That is, constitutions often include strong procedural and substantive restrictions on the power of eminent domain but also include “fine print” that can undermine those restrictions. This Essay finds that when accounting for such fine print, constitutional restrictions on the power of eminent domain appear to be correlated with reduced expropriation risks. This finding suggests that the effectiveness of takings clauses might depend on the politics surrounding their adoption.