Steven Gow Calabresi
In their article, Against Design, Caryn Devins, Roger Koppl, Stuart Kauffman, and Teppo Felin argue that it is impossible for any lawmaker to successfully design a Constitution or a law so that it will produce the ends that the legislator wishes to enact. The authors argue that institutional design is impossible because every such design in law sets in motion a Spontaneous System of Order, which then develops the law or institution in ways the Framers of such laws and institutions could never have imagined. This is the case because changing circumstances and unforeseeable inventions and developments render all laws and institutions infinitely malleable. The authors thus challenge the use of Original Public Meaning in constitutional interpretation saying that the theory fails because the Framers never even imagined the complex inventions and technologies available to Americans today, nor did they anticipate the expansion of the country from thirteen to fifty states and the growth of its population from about 3 million people to 320 million people. Originalism is thus denounced as being impossible even if it were theoretically desirable, which it cannot be since it does not take into account radically changed circumstances.
The authors cite in support of their theory the centrally important work of the late economist Friedrich A. Hayek—work, which until now has been quite wrongly ignored in the institutional design and constitutional interpretation literature. They note that Hayek analogized the common law to languages and to the free market describing all these systems as being systems of spontaneous order. Such orders are characterized by the absence of a central planner and by their gradual evolutionary nature. Hayek argues that systems of spontaneous order like the common law, languages, and the free market are epistemically superior to systems of planned order because they draw on the crowd wisdom of countless numbers of people. The authors cite Hayek’s work as suggesting that not only is institutional design not desirable but that it is actually impossible. No matter what the framers say in designing a legal institution or in passing a constitution or law, unanticipated developments will produce countless outcomes the framers would not have liked nor which they could have anticipated. The authors conclusion is thus almost nihilistic in its opposition to institutional design or constitutionalism or law. No matter what the design, constitution, or law provides, it will eventually produce mainly unintended consequences.
I think the authors are overly pessimistic about the possibilities of successful constitutional design, in part, because they have not applied Hayek’s work as a whole, and, in part, because they overlook some of the most successful and enduring features of the U.S. constitutional design by focusing instead on the Commerce Clause and on procedural due process. I will address each of these two points briefly in the two sections, which follow below.