The forms and limits of constitutions as political insurance

Abstract

Constitutional review, and constitutions more broadly, have been analyzed as providing political insurance for parties who risk declining power. This article develops a typology of risks against which insurance may be useful, and explains how each has its own distinctive institutional implications. It suggests that political elites may seek insurance against three distinct risks—to their power, person, and policies—and that each form of insurance implies somewhat different constitutional choices in terms of the jurisdiction, staffing, and access to courts. Furthermore, the article provides an account as to why insurance may be robust even in the face of downstream political change, addressing a key criticism of the original theory. The key idea is that insurance is more robust when it is “two-sided,” that is, consisting of mutual commitments from multiple parties. In this way, the article provides a general account of constitutions as a response to political risk and identifies specific conditions under which constitutions are likely to fulfill the aims or expectations of drafters for effective political insurance.