A legal world that promoted originalism would generate greater stability.
What makes for the stability of a constitution? In the United States, we take stability for granted, but “the median country faces violent political change about once every eight years.” So what promotes constitutional stability?
Over the past several years, Barry Weingast has argued (along with some other authors, especially Sonia Mittal) that there are three basic conditions that are needed for constitutional stability. Satisfying these conditions operates to promote a self stabilizing constitution.
1. The Limit Condition. The first condition concerns the fact that citizens are fearful of governments that pose a threat to their assets and well being. When a regime threatens citizens, they often will support extra constitutional actions to prevent the government from taking hostile actions. Self stabilizing constitutions address this problem by lowering “the stakes of politics . . . by placing limits on legitimate government actions.” In other words, if a constitution places significant limits on the actions that the government can take, then people have less to lose if the other party prevails. They will then have less incentive to take violent or extra-constitutional actions to prevent a government they fear from governing.
2. The Consensus Condition. The second condition allows citizens to unite together to remove officials and governments that violate the constitutional limits. Since diverse citizens may disagree amongst themselves as to what the appropriate limits are, it is important to have focal points that people will agree upon. Thus, the clearer the constitutional rules, the more likely there is to be agreement among the people and among the different branches of the government so that they check a government that exceeds its limits.
3. The Adaptation Condition. The third condition involves how the constitution responds to the shocks, such as technological innovations and demographic change, that all countries face. The constitution must allow for it to adapt to these changes so that the three conditions are successfully maintained over time.
This question of what makes for a stable constitution is one that most constitutional theorists have ignored. Yet, it is an essential issue for the development and maintenance of a successful, long term constitution. The U.S. Constitution does well in terms of these conditions. But, as I will argue in a future post, it does much better if it interpreted according to its original meaning.