How Constitutions Fail

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The lecture is held by Prof. Mila Versteeg from the University of Virginia Law School as part of the Hamburg Lectures in Law and Economics.

Constitution-making is a frequent occurrence around the world. In many cases, constitution-making is intended to solve a crisis. Yet we show that new constitutions often fail to deliver on their central promises: deeper democracy, greater prosperity, and stronger rights protection. 

The problem is not constitutional change itself, but the distinctive risks of constitutional replacement. Crisis-driven constitution-making tends to encourage sweeping institutional redesign and expansive projects of social transformation. These ambitions rest on what we call the Founding Fallacy: the belief that a society’s deepest political and social problems can be solved by writing a new constitutional text. Drawing on comparative evidence and case studies, we identify three reasons new constitutions underperform. 

First, implementation problems arise because new institutions must be built, funded, staffed, and made functional. Second, liquidation problems arise because ambiguous constitutional provisions must acquire settled meaning, often amid strategic conflict. Third, transformation problems arise when constitutionalized political agendas polarize society, constrain correction, and empower executives to manipulate open-ended mandates. 

The book argues for constitutional caution: where possible, countries should pursue gradual change through amendment, interpretation, and ordinary politics, rather than wholesale replacement, and should reserve founding moments for truly unavoidable ruptures or political transitions.