The Strategic Constitution

Abstract

When Tolstoy decided to write a novel about the "Decembrist Revolt" of 1825 against Tsar Nicholas, he began setting the stage by describing Napoleon's invasion of Russia in 1812. One thousand pages later at the end of War and Peace a minor character appears whom Tolstoy intended to be the main character in the original, unwritten novel. Life is what happens while you are planning something else.\nComparing the great to the small, I planned a book on public law and economics, the first two chapters of which would concern constitutional law and economics, but I could not summarize succinctly a field that barely exists. So I ended up writing this book, which is a systematic account of constitutional law and economics as it exists today. I develop an original conception of democracy while synthesizing the application of economics and political science to constitutional law. I try to write in a way that is accessible to students and scholars from different disciplines. The book should be suitable for use in a class for advanced undergraduates, law students, or graduate students. Each chapter contains problems and exercises to test and deepen the reader's understanding.\nI have taught parts of this book to students at Berkeley for several years. I have benefited from their comments, especially those by my teaching assistants Noah Baum and Neil Siegel. Winand Emons and Omri Yadlin, who taught from the book in successive years visiting Berkeley, gave me valuable comments and saved me from some errors.\nI participated in intensive discussions on comparative topics in constitutional law at a conference in Saarbrucken in 1995. I presented early drafts of parts of this book in 1996 and 1998 when I lectured to European doctoral students and faculty in Switzerland at Studienzentrum Gerzensee, Stiftung Der Schweizerischen Nationalbank. I have also benefited from discussions at the annual meeting of the European Association of Law and Economics, the Latin American and Caribbean Law and Economics Association, and annual meetings of the Comparative Law and Economics Forum.\nDiscussions with Geoffrey Brennan and Phillip Pettit during my visit at the Australian National University in July 1998 forced me to elevate the generality of my analysis. Bruno Frey prompted me to rethink my views about direct democracy. My thanks to Debby Kearney of the Boalt Library reference staff for being a master detective and finding many references based on few clues from me. Thanks for various comments and help along the way to Chris Swain, Dhammika Dhamapala, Eric Rasmussen, Sandy Hoffman, and Georg von Wangenheim. Finally, I wish to thank Geoffrey Garrett and Bruce Chapman, whose thoughtful reviews of the manuscript's first complete draft gave me a fresh perspective on my project, and also Peter Dougherty of Princeton University Press.\nOriginally printed in 2000Original Digital Version: posted September 2016