Daryl Levinson and Benjamin I. Sachs — Political Entrenchment and Public Law

133 published claims from this book.

• A single policy can both defund opponents and reward allies.
• Admitted states gave Republicans a lasting Senate majority core.
• Agencies self-regulate by raising procedural hurdles to make policy change harder for successors
• Agency design that empowers allied interest groups entrenches policy by mobilizing their future influence.
• Almost any political policy change can be framed as partisan entrenchment.
• An insulated judiciary raises the durability and value of legislative bargains.
• Balanced state admissions locked in the antebellum slavery status quo.
• Blocking formal entrenchment hydraulically increases functional substitutes
• Conservative incumbents treated restrictive labor law and poll taxes as interchangeable tools
• Constitutional amendment may be no harder than founding enactment.
• Constitutional and subconstitutional rules entrench through the same mechanisms
• Constitutional entrenchment is real only where not subject to judicial or interpretive change
• Constitutionalism is only one mechanism among several that lock political decisions in.
• Constitutions entrench policies through structure and rights much as legislation and elections do
• Courts cannot settle what counts as partisan entrenchment without an agreed baseline.
• Courts reason that binding successors harms the public by blocking adaptive response to change
• Courts suppress entrenchment indirectly by enforcing individual rights, not systemic values
• Damages caps both drain rival funding and attract industry donations
• Dead-hand control of the past pathologies applies equally to party and policy entrenchment
• Delegating to insulated agencies plus international agreements creates double entrenchment
• Democrats backed pro-union legislation partly to entrench their own electoral support.
• Disenfranchisement entrenched white Democratic supremacy in the South for nearly a century
• Economic and political self-interest jointly drove Southern anti-union law
• Electoral and legislative entrenchment form one larger insulating phenomenon
• Electoral entrenchment has two distinct forms requiring distinct review.
• Electoral rules have long served partisan entrenchment across American history
• Entrenched incumbents resist redistricting even as the same tools oppress others
• Entrenched policy outcomes can be locked in through either electoral or legislative means
• Entrenched rules bind even without continuing functional justification
• Entrenchment also works by relocating decision authority to insulated actors
• Entrenchment analysis must bracket preference formation and judge only barriers to present majority will
• Entrenchment can be functional, via empowered constituencies, not only formal legal rules
• Entrenchment can serve public ends like precommitment and stability, not just self-serving power
• Entrenchment can serve public-regarding precommitment, not only self-dealing.
• Entrenchment carries both benefits and costs depending on context
• Entrenchment differs from ordinary path dependence though the distinction remains theoretically unresolved.
• Entrenchment is defined only as obstacles blocking present majority will
• Entrenchment is intentional creation of legal impediments to change
• Entrenchment is not unusual but a defining feature of all extended democracy
• Entrenchment means past decision makers asymmetrically constrain future political choices.
• Entrenchment mechanisms work through groups with aligned preservation interests
• Entrenchment often arises from unintended path-dependent feedback, not strategic design
• Entrenchment pervades democratic politics far beyond legislative and election rules
• Entrenchment works by capturing politics’ basic ground rules.
• Even astute judges can miss familiar partisan entrenchment tactics.
• Formal and functional entrenchment are broadly substitutable in effect and moral valence.
• Formal and functional entrenchment do not differ in harm or benefit
• Formal entrenchment is almost always easier to identify than functional entrenchment.
• Formal-versus-functional entrenchment does not split cleanly into bad and good
• Framework statutes entrench policy through political costs rather than legal prohibitions.
• Functional entrenchment can be legitimate when it insulates sound policies against short-term reversal
• Functional entrenchment is hard to police because policy and entrenchment motives overlap inextricably
• Functional political entrenchment works without changing formal legal rules
• Gerrymandering converts transient majorities into durable control without added votes
• Governments can often accomplish indirectly what courts forbid them from doing directly
• High setup costs and sunk investment make institutional arrangements self-stabilizing.
• Ideologies can entrench without any deliberate design by their inventors
• Incumbents use policy to both neutralize opposition and mobilize supporters to entrench themselves.
• Insurance-company lobbyists dressed up compensation-law gutting as reform
• Intentionality is irrelevant to the constraining force of past decisions.
• Judges act as temporally extended representatives of their appointing party.
• Judges recognize partisan gerrymandering as a constitutional harm but lack an enforceable remedy
• Judging partisan entrenchment depends entirely on which baseline is chosen
• Judicial appointments extend a party’s influence beyond its control of elected branches.
• Labor law rules function as tools for partisan entrenchment
• Learning and adaptive preference shifts under a policy can themselves function as entrenchment
• Legal entrenchment always depends on political entrenchment of the rules
• Legal rules become binding only when supporters hold enforcement power
• Legal rules bind only when empowered constituencies have incentives to defend them
• Local officials can engineer their electorate with policy comfort and discomfort.
• Majority-supported U.S. policies pass only rarely, making countermajoritarian entrenchment tests unusable
• Mixed legislative motives block courts from cleanly screening laws for entrenchment.
• Naturalization policy in the 1800s was openly driven by electoral self-interest
• Naturalization timing disputes recur because citizenship changes electoral composition
• Neutralizing opponents and mobilizing supporters are interchangeable entrenchment tactics
• Nineteenth-century Republicans expanded court power to entrench economic nationalism against electoral defeat
• No existing framework bounds the entrenchment category once formality is dropped
• No reliable predictive model exists for whether major reforms will entrench
• Ohio passed its own paycheck protection bill in 2011 following Wisconsin’s example.
• Ordinary statutes can carry quasi-constitutional entrenchment power
• Paired state admissions let Congress lock in the national status quo on slavery.
• Parties entrench themselves by writing the rules of party structure and ballot access
• Partisan defunding incentives partly drove Republican adoption of tort reform
• Partisan state admissions during the Civil War entrenched Republican Senate power for decades.
• Party positions on naturalization are defended openly in electoral terms
• Policies can entrench themselves by weakening their own enemies’ political capacity
• Policies create their own supportive constituents and destroy their opponents
• Policies entrench by reshaping who holds political power.
• Policy persistence from popularity is not entrenchment; only nonresponsiveness to preference shifts is
• Political actors entrench power through functional mechanisms as readily as formal legal rules
• Political actors insulate favored policies by refashioning institutional context across many domains
• Political actors route around legal bans through substitute channels, not direct violation.
• Political barriers can entrench laws as effectively as formal constitutional impediments do.
• Political entrenchment is coextensive with history’s influence if defined by dead-hand sway
• Political entrenchment means making political change more difficult than it otherwise would be
• Political entrenchment operates through informal and coercive means, not only formal legal rules
• Political power matters mainly for what it produces in policy outcomes
• Politicians deliberately shape who votes by steering policy to select their own electorate.
• Private contracts can functionally entrench policy by making future change extremely expensive
• Public law mostly channels the means of politics rather than dictating its ends.
• Regulating entrenchment ignores functionally entrenched power with no reason to assume optimality.
• Restrictive labor laws entrench party advantage without any formal rule change.
• Scholars have documented many functional strategies to insulate policies
• Scholars treat legislative, electoral, and constitutional entrenchment as unrelated despite functional similarities
• Scholarship fails to see functional entrenchment as equal in democratic stakes to formal entrenchment
• Seemingly substantive policy domains conceal underlying partisan self-entrenchment battles.
• Some policies are self-consciously designed to entrench themselves and their creators.
• Some political entrenchment is deliberately designed, not merely incidental
• Southern congressional power depended on a small race-restricted electorate
• Southern Democrats entrenched power by disfranchising blacks and poor whites
• Southern Democrats used labor law to block CIO-driven voter realignment
• State admission policy can entrench policy by selectively admitting states.
• State-admission policy is a durable entrenchment tool that can lock in policy status quos.
• Statehood debates have consistently depended on the applicant’s anticipated partisanship.
• Statutory change often needs functional supermajorities despite majority-vote rhetoric
• Strategic policy choices can entrench outcomes without formal rule changes
• Structural constitutional rules resist change despite eroding functional justification
• Substantive policy choices produce entrenchment just as formal rule changes do
• Substantive policy entrenchment outlasts and outperforms partisan entrenchment in durability.
• Sunset provisions can function as hidden self-entrenchment duplicating irrepealability
• Targeted Southern Democrats carried anti-union lawmaking to Congress and HUAC
• Texas tort-reform strategy scaled from state to national Republican politics.
• The 1798 naturalization delay was Federalist entrenchment against Jeffersonians.
• Theorists split on whether constitutional and legislative entrenchment are normatively equivalent.
• Tort reform both defunded Democrats and mobilized Republican funders.
• Tort reform functions partly as partisan class entrenchment, not policy neutrality
• Tort reform targeted trial lawyers because they financed the Democratic Party.
• U.S. constitutional text treats entrenchment as restricted to constitutional amendment.
• Union poll tax campaigns could flip conservative Southern electoral outcomes
• Voters value electoral fairness independently of which policies result
• When formal entrenchment is blocked, policy actors substitute physical or functional barriers instead.
• When one entrenchment form is blocked, actors switch to the other
• Whether entrenchment is harmful or beneficial resists categorical judgments