Entrenchment, Incrementalism, and Constitutional Collapse

Article — Volume 103, Issue 4

103 Va. L. Rev. 631
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Entrenchment is fundamental to law. Grand documents like the U.S. Constitution, and mundane ones like city and corporate charters, entrench themselves against change through supermajority rules and other mechanisms. Entrenchment frustrates responsiveness, but it promotes stability, a rule of law virtue extolled for centuries. It does so through a straightforward channel: Entrenched law is difficult to change. Scholars have long understood this idea, which can be called the first status quo bias of entrenchment. This Article shows that a second bias lurks: Entrenchment makes changes that do take place incremental. As entrenchment deepens, the scope of potential change to law collapses on the status quo. To restate the idea, when we entrench law, we prevent change, at least for a time, and we confine any changes that do take place to small steps. This has implications for constitutional law, especially the debate about Article V and the separation of powers, both of which shield the Constitution from change more than scholars realize. It also illuminates several questions, especially in comparative constitutional law, such as why constitutions remain unpopular after amendment. Finally, it generates a theory of constitutional failure. When voters’ preferences evolve consistently in one direction, entrenched law eventually becomes as unstable as ordinary law, only less popular. Thus, entrenchment buys neither stability nor responsiveness. Because entrenchment confines legal change to incremental steps, amendment cannot correct the problem. This recasts questions of legal design in new light, and it may explain why some constitutions endure while others collapse.

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  Volume 103 / Issue 4  

The Untenable Case for Perpetual Dual-Class Stock

By Lucian A. Bebchuk & Kobi Kastiel
103 Va. L. Rev. 585

Entrenchment, Incrementalism, and Constitutional Collapse

By Michael D. Gilbert
103 Va. L. Rev. 631

Do Your Duty (!)(?) The Distribution of Power in the Appointments Clause

By Daniel S. Cohen
103 Va. L. Rev. 673