To the thoughtful foundational essays written by Wilson & Gowdy and Elinor Ostrom, I suggest three questions. Because it is often helpful to have a concrete application in mind, I’ll phrase this commentary in terms of constitutional dynamics. Constitutions are particularly interesting for our study: they are sets of related rules, each clause formally independent, but informally tied together by a common constitutional culture. In addition, constitutions are both written and informal, as common law and doctrine; this duality is suggestive of the genotype/phenotype relationship in biology. High courts have recognized that it is the combination of written rules and constitutional conventions that creates the full Constitution. (In my own work I tend to narrow the focus even more, to federal constitutions, where the rules of interest are the “boundaries of federalism” that define the authorities of the federal and state governments, which may be exclusive or shared.)
I adopt Lin Ostrom’s definition of a rule as a behavioral prescription that therefore we need to think about three related elements: the rule itself; the agent’s response to the rule (behavior, perhaps also beliefs about others’ behavior); and the enforcement mechanism, which may be social or institutional. And perhaps most importantly, each rule is embedded in an institutional context, and so we ought to examine the inuence of other in- stitutions on the evolution of one.
The three questions I suggest for the institutional dynamics agenda are:
- How do constitutional innovations happen, and how is agent diversity related to innovation?
- How are constitutional changes constrained to be incremental?
- How does constitutional change spread across domains to create a general trend of peripheralization or centralization?
For each question, I’ll suggest a question from the institutional side and the behavioral side.
How Do Constitutional Innovations Happen?
Change requires two conditions: on the behavioral side, a new idea about how the rule might be different, and on the institutional side, the opportunity to implement that new idea. Behaviorally, we might ask: how often are innovations de novo rather than based upon some preexisting practice? In change requires a new idea about how the constitution might be different. Sometimes the idea can remain abstract and still inspire the public, as with cries for greater liberty and limited government. But often to acquire public acceptance, the constitutional idea should be put to practice; successful experience cre- ates confidence and acceptance, or conversely, alerts the public to unforeseen consequences, such as heightened border security, in the name of safety and order, infringing on privacy and liberty. Institutional imperfection opens a window for experimentation, and federalism, with the multiplicity of govern- ments, multiplies the opportunities.
On the behavioral side, we can use evolutionary theory to help us understand the source of innovations. Lin Ostrom points out that social systems differ from biological systems in that the rule changes occur by design. And yet the ideas that any individual or group might have to change the rules – to amend the constitution, say – are limited by their imaginations. They do not imagine the full universe of possibilities. Given this as a working assumption, we can ask: do we have a way to predict the innovations that one might propose? Humans tend to build from existing knowledge and often reapply solutions to new contexts, perhaps with some tweaking to fit a new circum- stance. Innovation is far more often the recombination of old ideas than the de novo invention, out of the blue.
To explain the source of constitutional innovation, the theory relies on the diversity of states and multiple institutions. With state diversity, diverse preferences lead to pushing against the existing boundaries of federalism in original ways. With several diverse institutions safeguarding that boundary, and each being imperfect and incomplete, some safeguards will permit policy experimentation, whether intentionally, because it accepts the constitutionality of the policy, or unintentionally, through institutional error. The diversity of agents leads to diversity of thresholds; means that the win- dow remains open for exploration, if even only temporarily. Disagreements between safeguards (such as when legislation is approved by Congress but challenged by state governors or its constitutionality is challenged in court) helps to inform the public. Some safeguards engage the public only passively, as observers (court), while with others – elected offcials, parties more broadly – the public is asked for its support.
How is change constrained to be incremental?
Second, a theory of change, of evolution, must also include a theory of continuity. Normatively, continuity is good practice for a political system: not all experimentation is healthy for the polity; abrupt transformations can be destabilizing. Therefore, a theory of robust constitutional dynamics should include a mechanism for constraining innovations so that change is incremental. Too rapid policy shifts upset the compact between the public and their government by making the government appear to be unreliable. One only need think of the rioting in Greece and Spain where severe cuts to social welfare programs in the name of austerity may be sound fiscal policy, but comes at the price of shattering the public’s vision of the government’s role in their lives.
Informal constitutional change is constrained to be incremental when safeguards – the enforcement mechanisms – are complementary. While each safeguard is itself incomplete and imperfect, opening up a window of op- portunity for innovation, if each safeguard responds to different types of experimentation, from different sources, and have aws that are independent (say, in the type of evidence that they consider), then safeguards grow increasingly likely to deter policy experimentation that pushes the boundaries of federalism too far, straining legal continuity.
I suspect that the theory of neutral mutations may be instructive in understanding how change can appear to be punctuated but actually be comprised of smaller incremental changes.
How are rules connected, so that change spreads across rules?
Third, constitutional change often becomes a dynamic trend. Historians of federations often refer to periods of “centralization” or “peripheralization”, implying a change to the balance of power between the federal and state governments. These different eras imply a change to the nature of the federal constitutional boundaries. The periods are not identified on the basis of one changed clause alone; the interpretation of individual clauses are related to changed interpretations of other clauses. A theory of constitutional dynamics should ask what force links these clauses.
These linkages are directly related to behavior. Again, bearing in mind that humans tend to reuse their ideas, distinct rules become linked by the behaviors of those governed by the rules. In simulations and in experiments, agents solve easier games first and then apply this solution to a more diffcult game (such as a coordination game), at least as an initial attempt. Trends develop based upon how the games are paired. In new work, we show that the trends are also dependent upon the sequence of introduction. Furthermore, agents select new games to play, in essence, select new rules, based upon their existing patterns of play.
Relating these connections back to constitutional dynamics, we can deduce hypotheses about the spread of authority migration in federations, leading to a more centralized or more decentralized federal era. Policies are linked as citizens relate one to another through new ideological frames. These are most likely to flow from policy domains of high consensus to those that are more contentious or ambiguous.
