The System of the Constitution PDF
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The System of the Constitution This page intentionally left blank The System of the Constitution A drian V ermeule 1 3 Oxford University Press, Inc., publishes works that further Oxford University’s objective of excellence in research, scholarship, and education. Oxford New York Auckland Cape Town Dar es Salaam Hong Kong Karachi Kuala Lumpur Madrid Melbourne Mexico City Nairobi New Delhi Shanghai Taipei Toronto With offi ces in Argentina Austria Brazil Chile Czech Republic France Greece Guatemala Hungary Italy Japan Poland Portugal Singapore South Korea Switzerland Th ailand Turkey Ukraine Vietnam Copyright © 2011 by Oxford University Press Published by Oxford University Press, Inc. 198 Madison Avenue, New York, New York 10016 www.oup.com Oxford is a registered trademark of Oxford University Press All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitt ed, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior permission of Oxford University Press. Library of Congress Cataloging-in-Publication Data Vermeule, Adrian. Th e system of the constitution / Adrian Vermeule. p. cm. Includes bibliographical references and index. ISBN 978-0-19-983845-5 (alk. paper) 1. Constitutional law—United States. 2. System theory—United States. I. Title. KF4550.V47 2011 342.73—dc22 2011010001 9 8 7 6 5 4 3 2 1 Printed in the United States of America on acid-free paper CONTENTS Introduction: A System of Systems 3 1. Systemic Analysis 14 2. Th e Structural Constitution 38 3. Dilemmas of the Invisible Hand 65 4. Systemic Feedback through Selection 101 5. Constitutional Judging 134 Conclusion: Two Degrees of Aggregation 175 Acknowledgments 179 Notes 181 Index 213 This page intentionally left blank The System of the Constitution This page intentionally left blank Introduction: A System of Systems T his book att empts to trace out the ultimate implications of a single premise: any complex constitutional order, including our own, is best understood as a s ystem of systems . Th e bare state- ment of the premise is delphic, but the idea is simple. Constitutional analysis examines the interaction among institutions, which are themselves equilibrium arrangements that result from the interac- tion of their individual members. So there are always two levels of aggregation in the picture: from individuals to institutions, and from institutions to an overall constitutional order. I use the term systems to designate such aggregates, whose properties are deter- mined by the interaction of their components; those components may themselves be institutions as well as individuals. Hence consti- tutional orders are aggregates of aggregates—nested systems of systems. For present purposes, the crucial feature of a system is that it may have emergent properties that diff er from the properties of its compo- nents. Some examples:
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