Document Type

Article

Publication Date

1999

Abstract

Professor John McGinnis has written a perceptive and provocative comment on our economic analysis of the role of tradition in constitutional interpretation.1 A brief summary of our areas of agreement and disagreement may help set the stage for this response. It appears that Professor McGinnis substantially agrees with the two central propositions of our article. First, he appears to agree with our definition of efficient traditions as those evolving over long periods of time from decentralized processes.2 Second, he explicitly agrees that Justices Scalia and Souter have adopted sub-optimal models of tradition because they rely on sources that lack the qualities which mark constitutionally-efficient traditions3 Given our substantial agreement on these issues, we will not discuss these points here. But McGinnis also has several penetrating critiques of our model worthy of further discussion. His critique proceeds along three general lines. First, McGinnis articulates a "strict constructionist" view of the Constitution, implicitly arguing that the process of legal change should be rooted in the states.4 Under this view, the primary role of the federal government is to protect federalism and state autonomy as a "precondition" for the operation of this system.5 Thus, McGinnis implicitly rejects any role for a federal bill of rights in limiting state discretion, except to the extent that such limitations help preserve the preconditions for robust interjurisdictional competition. Second, McGinnis argues that the need to create and enforce these preconditions limits the appropriate scope for spontaneous orders.6 According to McGinnis, a consciously designed constitutional structure is necessary to create the preconditions that enable spontaneous orders to develop. Third, McGinnis disagrees with our alternative model that looks to common law and state constitutional law as potential sources of constitutionally-efficient traditions--he lists three specific disadvantages of our model.7 We consider each of these critiques in turn.


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