Political Entrenchment and Public Law

DARYL J. LEVINSON, BENJAMIN I. SACHS
YALE LAW JOURNAL (Forthcoming 2015)

Abstract: Courts and legal scholars have long been concerned with the problem of “entrenchment” — the ways that incumbents insulate themselves and their favored policies from the normal processes of democratic change. But this wide swath of caselaw and scholarship has focused nearly exclusively on the formal legal rules governing elections, the processes for enacting and repealing legislation, and the methods of constitutional adoption and amendment. This Article demonstrates that political actors also entrench themselves and their policies through an array of functional alternatives. By enacting substantive policies that strengthen political allies or weaken political opponents, by shifting the composition of political community, or by altering the structure of political decisionmaking, political actors can achieve the same entrenching results without resorting to the kinds of formal rule changes that would raise red flags from the perspective of public law. Recognizing the continuity of formal and functional entrenchment thus invites the question of why public law identifies and condemns the former while ignoring or pardoning the latter. Appreciating the prevalence of functional entrenchment also raises a broader set of questions about when impediments to political change should be viewed as democratically pathological and how we should distinguish entrenchment from ordinary democratic politics.