Constitutions entrench policies through structure and rights much as legislation and elections do
Evidence
This is clearly an oversimplification. Enumerated rights and other constitutional provisions operate to entrench policies in much the same way as legislative and electoral entrenchment. Thus, constitutional prohibitions on slavery and Jim Crow segregation effectively entrench a policy regime of racial integration and equality; the First Amendment entrenches a policy slant toward religious liberty and free speech; the constitutional protection of abortion rights prevents their reversal; the Second Amendment blocks the enactment of comprehensive gun control laws; and so on. Constitutional structure, too, can be understood as a means of generating and entrenching certain policy outcomes. The original design of the federal government was supposed to protect vulnerable minorities, including creditors, religious sects, and slaveholders, against hostile majorities, and to do so in a more durable way than rights and other mere “parchment” barriers. Whatever is left of that idea, constitutional structure continues to generate predictable policy outcomes, or at least general biases. For example, by providing for exit and inciting jurisdictional competition, constitutional federalism makes certain kinds of redistribution more difficult to accomplish than would be the case in a completely centralized system of government. See Weingast, supra note 163. To this extent, the policy consequences of constitutionally entrenched federalism will overlap in some predictable ways with the policy consequences of entrenching Republicans in office or legislatively entrenching lower tax rates.
— Daryl Levinson and Benjamin I. Sachs, Political Entrenchment and Public Law, 462
Categorization
DEFINE: Distinguishes parchment barriers from structurally-entrenched policy outcomes — key distinction for the reader’s sticky-ideology model.
XREF: Connects to the reader’s institutional persistence thread: Tushnet’s ‘constitution as interpretation’ debate and Levinson’s formalism-vs-functionalism literature. — connects to: Constitutional law defines governmental structure, powers, and limits — G. Alan Tarr, Judicial Process and Judicial…, 153; Scholars treat legislative, electoral, and constitutional entrenchment as unrelated despite functional similarities — Daryl Levinson and Benjamin I. Sachs, Political Entrenchment and Public Law, 34; Political actors entrench power through functional mechanisms as readily as formal legal rules — Daryl Levinson and Benjamin I. Sachs, Political Entrenchment and Public Law, 42 (+15 more)