Substantive policy choices produce entrenchment just as formal rule changes do

Evidence

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 case law and scholarship has focused nearly exclusively on formal entrenchment: the 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 the political community, or by altering the structure of political decision making, political actors can achieve the same entrenching results without resorting to the kinds of formal rule changes that raise red flags. Recognizing the continuity of formal and functional entrenchment forces us to consider why public law 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. — Daryl Levinson and Benjamin I. Sachs, Political Entrenchment and Public Law, 2

Categorization

• DEFINE: Defines the formal/functional entrenchment distinction that structures the entire article.
• SEED: Could ground an essay on how ideologies embedded in ordinary policy survive precisely because they escape the red-flag scrutiny aimed at formal rule changes.
• XREF: connects to: Strategic policy choices can entrench outcomes without formal rule changes — Daryl Levinson and Benjamin I. Sachs, Political Entrenchment and Public Law, 508; Learning and adaptive preference shifts under a policy can themselves function as entrenchment — Daryl Levinson and Benjamin I. Sachs, Political Entrenchment and Public Law, 56; Functional political entrenchment works without changing formal legal rules — Daryl Levinson and Benjamin I. Sachs, Political Entrenchment and Public Law, 173 (+5 more)

Broader Connections

• Strategic policy choices can entrench outcomes without formal rule changes #expands (0.95) — Daryl Levinson and Benjamin I. Sachs, Political Entrenchment and Public Law, 508
• Functional political entrenchment works without changing formal legal rules #corroborates (0.88) — Daryl Levinson and Benjamin I. Sachs, Political Entrenchment and Public Law, 173
• Learning and adaptive preference shifts under a policy can themselves function as entrenchment #exemplifies (0.78) — Daryl Levinson and Benjamin I. Sachs, Political Entrenchment and Public Law, 56