When Political Figures Reject Constitutions
With all of the discussion about the rise of constitutions around the world, we might sometimes forget that political figures reject constitutional options in favor of other forms of entrenchment. In the United States, for instance, we know that the Civil Rights Act and the Administrative Procedure Act are functionally constitutional, but formally statutory, and that there was at least some discussion of pushing for constitutional change in those situations, but the statutory option was considered a better choice. In my research for my government in opposition project, I have found that many political coalitions actually preferred having their relevance ensured not through constitutional provisions, but through legislative or other sorts of rules that guaranteed them certain positions of power in the various branches of government.
One interesting research question is why political figures might reject constitutions in favor of other forms of protection. The obvious answer is that constitutional change is usually harder to achieve, and that certainly explains the strategic decision to pursue change through non-constitutional means in many situations. But what might be some other reasons? My initial reaction based on my research is that some political figures might be skeptical of constitutional rules because they see them as rules to be enforced by judges appointed by triumphant political figures, while the enforcement of other sorts of rules might be less tied to who wins elections.
This is an important question for the study of constitutions. The seemingly universal academic consensus is that constitutions are spreading around the world, but there is also a tide of rejection of constitutions.