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Abstract

In this Article, the authors develop an economic theory of the constitutional amendment process under Article V, focusing particularly on the roles that Congress and interest groups play in that process. The authors construct a model to predict when an interest group will seek an amendment rather than a statute to further its interests, highlighting how interest group maintenance costs and anticipated opposition affect that choice. They then discuss the efficiency goals of constitutionalism—precommitment and reduction of agency costs—and argue that the structure of the amendment process under Article V prevents realization of these goals. The authors contrast the Bill of Rights amendments, which established precommitments and reduced the agency costs of government, with the latter seventeen amendments, which expanded the federal government and increased agency costs. They attribute the change in the nature of the amendments to the interest-group domination of the political process and Congress' control over the constitutional amendment agenda. The authors conclude that the Founders' intent to put the Constitution beyond the reach of factions backfired: although factions cannot control the content of the Constitution, neither can the majority. In fact, Article V prevents the majority from precommiting itself and hinders its ability to control the agency costs of government, as evidenced by the history of the failed amendments. Although the authors conclude that Article V thwarts the efficiency goals of constitutionalism, they predict that little can be done to remedy this flaw.

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