Whether constitution-making should be constrained has long been debated, but little is known about whether it is possible. We make several contributions to this question. We start by providing a typology of three types of constraints on constitution-making: Substantive, Procedural, and Institutional. We next develop a positive theory of when these constraints are likely to influence drafters’ behavior. We then use a mixed-methods approach to explore these ideas in the context of Chile’s constitutional reform process. In a survey experiment conducted in Chile before citizens voted on the draft constitution, we find that most respondents supported constraints in the abstract, but that they also supported a popular policy initiative—nationalizing mines—that violated these same constraints. This suggests that popular opinion may not enforce constraints on constitution-making. However, in fieldwork conducted in Chile, we found evidence that Chilean political parties did rein in constitution-makers who wanted to ignore constraints. This suggests that constitution-making constraints may be more likely to be effective when enforced by political parties.
For the over half-million people currently homeless in the United States, the U.S. Constitution has historically provided little help: it is strongly...
It has been a big moment for court reform. President Biden has proposed a slate of important if vaguely defined reforms, including a new ethics regime...
Large language models (LLMs) now perform extremely well on many natural language processing tasks. Their ability to convert legal texts to data may...
At points in American history, there have been significant, even massive shifts in constitutional understandings, doctrines, and practices. Apparently...
Celebrating Charles Ogletree, Jr. comes naturally to so many people because he served not only as a tireless champion of equality and justice, but...
In recent years, several popularly elected leaders have moved to consolidate their power by eroding checks and balances. Courts are commonly the...
Does the U.S. Constitution protect the affirmative right to vote? Those focusing on the Constitution’s text say no. Yet, the Supreme Court has treated...
In their article, The “Free White Person” Clause of the Naturalization Act of 1790 as Super-Statute, Gabriel J. Chin and Paul Finkelman make a...
The recently enacted Respect for Marriage Act is important bipartisan legislation that will protect same-sex marriage if the Supreme Court overrules...
An upcoming Supreme Court case on Article III standing and disability presents critical questions about the future of litigation that promotes...
This chapter provides an overview of computational text analysis techniques used to study judicial behavior and decision-making. As legal texts become...
Moore v. United States raises the question whether unrealized gains, such as an increase in property value or a stock portfolio, constitute “incomes...
Gradualism should have won out in Dobbs v. Jackson Women’s Health, exerting gravitational influence on the majority and dissenters alike. In general...
The United States has granted reparations for a variety of historical injustices, from imprisonment of Japanese Americans during the Second World War...
Today, legal culture is shaped by One Big Question: should courts, particularly the US Supreme Court, have a lot of power? This question is affecting...
Research correlating stringency in land-use regulation to low housing supply, high housing costs, and segregation relies on surveys of planners about...
Constitutional review is the power of a body, usually a court, to assess whether law or government action complies with the constitution. Originating...
This chapter reflects on whether and how large-N empirical studies can help our understanding of constitutional identity. It argues that although we...