Depending on how people respond to it, a constitution can cause suffering on a vast scale or lay the foundation for a nation’s liberty, prosperity, and equality. As currently practiced, constitutional theory and interpretation especially concern the meaning, history, and philosophy of constitutional texts. These approaches cannot predict the responses of people to constitutions. Constitutional consequentialism, which I advocate, is a research program that aims to predict the effect of alternative forms and interpretations of constitutions on policy values, especially liberty, (...) prosperity, and equality. This paper discusses two constitutional processes. “Median democracy,” which empowers the median voter, is implemented by referenda and ballot initiatives, special districts, and winner-take-all elections. “Bargain democracy,” which lubricates bargaining among factions and regions, is implemented by legislatures, comprehensive governments, and proportional representation. I show that median democracy causes stability, whereas bargain democracy ideally causes efficiency and often causes corruption or instability. (shrink)

A doctor who lapses and injures her patient, and a driver who lapses and causes an accident, are liable under negligence law for the harm done. But lapse is not necessarily negligence, since reasonable people lapse from time to time. We show that tort liability for “reasonable” lapses distorts doctors’, drivers’, and manufacturers’ incentives to take care. Furthermore, such liability provides potential injurers with incentives to substitute activities which are less prone to lapses with activities which are more prone to (...) lapses, even if such substitution is inefficient. We propose several solutions to the inefficiencies that result from liability for lapses, and argue that under certain circumstances injurers should be entitled to invoke a “lapse defense.”. (shrink)

Basic liberty, according to Rawls's first principle of justice, is not to be sacrificed for other values such as wealth. And, according to his second principle of justice, the material well-being of the worst-off members of society is not to be sacrificed to benefit better-off members of society. These trade-offs would be unjust, according to Rawls, no matter how small the sacrifice or how large the offsetting benefit. A decision-maker conforming to Rawls's theory, who is unwilling to sacrifice some values (...) in favor of others, has lexical preferences. Lexical preferences, however, are not encountered in studies of consumer demand for market goods. Since goods trade off within the range of choices studied in demand theory, it seems to economists that political values ought to trade off as well. (shrink)