REWRITING THE CONSTITUTION - AN ECONOMIC-ANALYSIS OF THE CONSTITUTIONAL-AMENDMENT PROCESS

In this Article, the authors develop an economic theory of the constit utional amendment process under Article V, focusing particularly on th e roles that Congress and interest groups play in that process. The au thors construct a model to predict when an interest group will seek an amendment rather than a statute to further its interests, highlightin g how interest group maintenance costs and anticipated opposition affe ct that choice. They then discuss the efficiency goals of constitution alism-precommitment and reduction of agency costs-and argue that the s tructure of the amendment process under Article V prevents realization of these goals. The authors contrast the Bill of Rights amendments, w hich established precommitments and reduced the agency costs of govern ment, with the latter seventeen amendments, which expanded the federal government and increased agency costs. They attribute the change in t he nature of the amendments to the interest-group domination of the po litical process and Congress' control over the constitutional amendmen t agenda. The authors conclude that the Founders' intent to put the Co nstitution beyond the reach of factions backfired: although factions c annot control the content of the Constitution, neither can the majorit y. In fact Article V prevents the majority from precommiting itself an d hinders its ability to control the agency costs of government, as ev idenced by the history of the failed amendments. Although the authors conclude that Article V thwarts the efficiency goals of constitutional ism, they predict that little can be done to remedy this flaw.