Entrenched rules bind even without continuing functional justification
Evidence
For example, it seems unlikely that Americans writing on a blank slate would recreate the rule of equal state representation in the Senate; yet that rule would now be formidably difficult to dislodge. Even very popular Presidents do not run for third terms or dissolve Congress. In these and other respects, constitutional rules and rights appear to create effective constraints on political preferences. — Daryl Levinson and Benjamin I. Sachs, Political Entrenchment and Public Law, 470
Categorization
- XREF: The equal-Senate-representation example is a clean test case for the reader’s model: a rule that would not be recreated de novo yet resists repeal — sticky despite thin current functional rationale. — connects to: Rules that always yield to rule-free optimization cease to function as rules — Frederick Schauer, Thinking Like a Lawyer, 222; Rules function as rules only if they tolerate some suboptimal outcomes — Frederick Schauer, Thinking Like a Lawyer, 223; Functional entrenchment can be legitimate when it insulates sound policies against short-term reversal — Daryl Levinson and Benjamin I. Sachs, Political Entrenchment and Public Law, 393 (+2 more)
Broader Connections
- Structural constitutional rules resist change despite eroding functional justification
#exemplifies(0.90) - Rules function as rules only if they tolerate some suboptimal outcomes
#corroborates(0.88) — Frederick Schauer, Thinking Like a Lawyer, 223 - Rules that always yield to rule-free optimization cease to function as rules
#expands(0.84) — Frederick Schauer, Thinking Like a Lawyer, 222 - Functional entrenchment can be legitimate when it insulates sound policies against short-term reversal
#qualifies(0.82) — Daryl Levinson and Benjamin I. Sachs, Political Entrenchment and Public Law, 393 - Functional political entrenchment works without changing formal legal rules
#exemplifies(0.76) — Daryl Levinson and Benjamin I. Sachs, Political Entrenchment and Public Law, 173