Strategies of Constitutional Scholarship

Abstract

At roughly the same time that economics made its way into legal scholarship, it also entered political science, to which it introduced the powerful metaphor of the political market in which laws and other government actions are goods that are bought and sold like any other commodity. A number of ideas followed. Individuals bound together by interest and circumstance overcome the free-rider problem and form interest groups that disproportionately influence legislation at the expense of the unorganized public. Officeholders maximize their chances of reelection by designing political institutions-congressional committees, voting rules, courts, agencies, parties-that shield incumbents against challengers. Candidates for public office compete for votes by adopting positions as close as possible to the attitudes of the median voter. These and related insights make up the scholarship known variously as public choice, positive political theory, and political economy. Law and politics have a deep and intricate relationship, and for that reason one might have predicted that the economic analysis of politics and the economic analysis of law would converge. Instead, the two fields of scholarship have traveled on separate paths, usually parallel and rarely intersecting. Political scientists have focused on how the power and preferences of constituents and the political environment determine political outcomes-legislative deals, agency projects, and other government actions.