DIXON, Rosalind GINSBURG, Tom. The Forms and Limits of Constitutions As Political Insurance.

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The forms and limits of

constitutions as political
insurance
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Rosalind Dixon* and Tom Ginsburg**
Constitutional review, and constitutions more broadly, have been analyzed as providing polit-
ical insurance for parties who risk declining power. This article develops a typology of risks
against which insurance may be useful, and explains how each has its own distinctive insti-
tutional implications. It suggests that political elites may seek insurance against three dis-
tinct risks—to their power, person, and policies—and that each form of insurance implies
somewhat different constitutional choices in terms of the jurisdiction, staffing, and access
to courts. Furthermore, the article provides an account as to why insurance may be robust
even in the face of downstream political change, addressing a key criticism of the original
theory. The key idea is that insurance is more robust when it is “two-sided,” that is, consist-
ing of mutual commitments from multiple parties. In this way, the article provides a general
account of constitutions as a response to political risk and identifies specific conditions under
which constitutions are likely to fulfill the aims or expectations of drafters for effective polit-
ical insurance.
1. Introduction
Constitutional review has spread all over the world in recent decades, to the point
where some three-quarters of all constitutional systems have it in some form.1 In
many settings, the practice of constitutional review raises a distinct political puzzle:
* Professor of Law, UNSW Sydney; rosalind.dixon@unsw.edu.au.

** Leo Spitz Professor of Law, University of Chicago and Research Associate, American Bar Foundation.
tginsburg@uchicago.edu.
The authors thank Erin Delaney, Mark Ramseyer, Mark Tushnet, and participants at the Northwestern
Pritzker School of Law Conference on Comparative Judicial Review, October 7–8, 2016, for help-
ful comments on prior versions of the paper. We also thank Melissa Vogt for outstanding research
assistance.
1
Tom Ginsburg & Mila Versteeg, Why Do Countries Adopt Constitutional Review?, 30(3) J. L. Econ. & Org. 587
(2013).
I•CON (2017), Vol. 15 No. 4, 988–1012 doi:10.1093/icon/mox080

The forms and limits of constitutions as political insurance 989
why would political elites agree to limit their power by empowering an independent
court to invalidate certain kinds of legislative action?2
One oft-used explanation for the existence of independent judicial review is the idea
of “political insurance”—i.e., the notion that political elites may use constitutions,
and constitutional judicial review in particular, to provide a form of insurance against
the risk that they will lose office and influence in future democratic elections.3 Thus
far, insurance has been characterized as a kind of unitary concept, without any exam-

ination of subtypes. In this article, we extend the insurance-based account of consti-
tutional review by providing a typology of the different varieties of insurance that
political elites may seek in moments of declining political influence.
There are, the article suggests, at least three discrete types of political risk
against which political elites may wish to insure themselves: first, the risk of
reduced access to political power; second, the risk of reduced policy influence; and
third, the risk of individual persecution or adverse treatment. Each of these dif-
ferent types of political risks generates different institutional responses, which we
elaborate in the article.
This complexity of insurance-based accounts of constitutional judicial review is
implicit in prior work on constitutions as political insurance.4 Different aspects of it
have also been explored by different proponents, as well as critics, of the idea of insur-
ance.5 But the aim of the article is both to refine and to make more explicit the various
different possible types of constitutional insurance, and how they relate to a variety
of substantive constitutional provisions, different styles of constitutional drafting,
requirements for constitutional amendment, and norms governing judicial appoint-
ments in different jurisdictions. We thus survey the recent literature and characterize
it according to our conceptual subtypes.
2
One answer relates to the problem of agency costs, or the principal–agent relationship: lower-level exec-
utive officials are not always faithful agents of their political masters, and judicial review of executive
action provides a relatively low-cost way for monitoring this kind of problem. See, e.g., Martin Shapiro,
Who Guards the Guardians? Judicial Control of Administration (1988). In most countries, however, prac-
tices of judicial review also extend to legislation.
3
Tom Ginsburg, Judicial Review in New Democracies: Constitutional Courts in Asian Cases (2003); see also Ran
Hirschl, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (2004); Jodi Finkel,
Judicial Reform as Political Insurance: Argentina, Peru, and Mexico in the 1990s (2008).
4
Brad Epperly, The Provision of Insurance? Judicial Independence and the Post-Tenure Fate of Leaders, 1(2) J. L.
Courts 247, 248 (2013).
5
See, e.g., Finkel, supra note 3; Dante Gatmaytan, Judicial Review of Constitutional Amendments: The
Insurance Theory in Post-Marcos Philippines, 1(1) Philippine L. & Soc. Rev. 74 (2011); Rosalind Dixon & Tom
Ginsburg, The South African Constitutional Court and Socio-economic Rights as “Insurance Swaps,” 4(1) S.
African Const. Ct. Rev. 1 (2011); Stefanus Hendrianto, The First Ten Years of the Indonesian Constitutional
Court: The Unexpected Insurance Role. IConnectBlog (Aug. 25, 2013), avialable at http://www.icon-
nectblog.com/2013/08/the-first-ten-years-of-the-indonesian-constitutional-court-the-unexpected-
insurance-role/; Silvia Inclan Oseguera, Judicial Reform in Mexico: Political Insurance or the Search for
Political Legitimacy?, 62(4) Pol. Res. Q. 753 (2009); Rodrigo Nunes, Politics Without Insurance: Democratic
Competition and Judicial Reform in Brazil, 42(3) Comp. Pol. 313 (2010); George Tridimas, Constitutional
Judicial Review as Political Insurance, 29 Eur. J. L. & Econ. 881 (2010); Mary L. Volcansek, Bargaining
Constitutional Design in Italy: Judicial Review as Political Insurance, 33(2) W. Eur. Pol, 280 (2010).
990 I•CON 15 (2017), 988–1012
Understood in this way, the idea of constitutions as a form of political insurance is

also broader than originally understood. Our account may not explain every instance
of constitutional change, or expansion in the scope of constitutional judicial review:
ideational factors clearly play an important role in the expansion or exercise of judi-
cial review in certain cases.6 Other complex political dynamics, including “signaling”
by political elites, and bottom-up processes of social movement activism, have like-
wise played a role in the creation of rights-based judicial review in some countries.7

In non-democracies, a turn to judicial review may represent an attempt to legitimize
the regime, rather than insure against any immediate threat of declining political
power.8 The expansion of judicial review is also inevitably shaped by a range of dis-
tinctive social and political conditions, many of which are quite locally and histori-
cally specific.9 But understood in this way, we suggest, the insurance idea does explain
a wide range of cases, especially in democratic contexts. Indeed, it may point to a
broader understanding of written constitutions as inherently an institution designed
to manage certain kinds of risk.
At the same time, the article suggests that the idea of political insurance may have
certain preconditions that, while identified in earlier work on the topic, merit further
examination: constitutional provisions designed to provide political insurance may
be canceled by elites who retain a greater than expected share of electoral power, or
else, nullified by newly dominant political elites. Consider the recent developments in
Eastern Europe, a region celebrated for its thorough adoption of constitutionalism and
the rule of law in the 1990s.10 In both Hungary and Poland, constitutional courts that
were celebrated as among the most progressive globally have found themselves under
sustained—and effective—attack. The prospect of constitutional “renegotiation” of
this kind may in some cases also undermine the willingness of elites to bargain over
constitutional insurance in the first place.11
The article, however, suggests two conditions under which political elites may have
the incentive to honor a prior commitment to constitutional insurance: (1) where
insurance is two-sided rather than one-sided in nature and (2) where courts them-
selves adopt a jurisprudence that is effectively two-sided in nature. By this we mean
decisions that are somewhat but not overly aligned with a prior political majority or
delivering some degree of ongoing insurance or benefit to both current and prior polit-
ical majorities.
6
See, e.g., Lisa Hilbink, Judges Beyond Politics in Dictatorship and Democracy (2008); Nunes, supra note 5.
7
See, e.g., Daniel A. Farber, Rights as Signals, 31(1) J. Leg. Stud. 83 (2002); Charles R. Epp, The Rights
Revolution: Lawyers, Activists, and Supreme Courts in Comparative Perspective (1998).
8
Compare Kirk A. Randazzo, Douglas M. Gibler, & Rebecca Reid, Examining the Development of Judicial
Independence, 69(3) Pol. Res. Q. 583 (2016).
9
See, e.g., Pasquale Pasquino & Frances Billi, The Political Origins of Constitutional Courts: Italy, Germany,
France, Poland, Canada, United Kingdom (2009).
10
Frank Emmert, Rule of Law in Central and Eastern Europe, 32 Fordham Int’l L.J. 551 (2008).
11
On constitutional renegotiation, see, e.g., Charlotte Twight, Constitutional Renegotiation: Impediments to
Consensual Revision, 3(1) Const. Pol. Econ. 89 (1992).
The idea that insurance can be limited is particularly important to understand in an

era of democratic backsliding. In the past decade, for the first time since the end of the
Cold War, the number of democracies has fallen each year. This raises questions of the
resilience of judicial review, and possibly constitutionalism itself. In examining both
the spread and limitations of constitutional judicial review in recent years, we draw
on examples from Asia, Africa, Latin America, and Europe.
We have divided the article into three sections. Section 2 sets out the three basic types

of constitutional insurance and how they respond to three distinct forms of political
risk. Section 3 considers the robustness of constitutional review as a form of political
insurance by looking at the possibility of renegotiation of the insurance “contract,”
and introduces the idea of one- versus two-sided insurance. Section 4 examines a dif-
ferent set of risks, those of “nullification” by a new political majority, or “cancella-
tion” by a continually dominant elite. In so doing we provide a refined account of the
conditions under which constitutional review can be effective. We then offer a brief
conclusion.
2. The idea of constitutions as political insurance—A typology

of risks
2.1. The origins and uses of insurance theory
The insurance theory arose as part of an effort to understand why political actors
would bind their own hands by empowering independent courts. The solution, ini-
tially suggested by Mark Ramseyer’s work on the Japanese judiciary, drew on ideas
of intertemporal uncertainty among political actors.12 Ginsburg, Hirschl, and
Stephenson each applied this framework to judicial review, suggesting that judicial re-
view was particularly attractive when a political party currently held power but fore-
saw that it might lose power in the future.13 In such circumstances, courts can reduce
the costs of losing elections by preserving an outgoing party’s future chances of win-
ning democratic elections, thereby preventing political “lockout.” Ginsburg’s version
of the argument was the most general, as it considered the moment of constitutional
negotiation as a discrete bargaining problem. Demand for insurance in this view was
not limited to departing hegemons but could also be found in situations where mul-
tiple small parties were involved in constitutional negotiations. Judicial empowerment
increased with the degree of political uncertainty facing key players. And while the
original theory focused on moments of constitutional formation, the logic extends to
instances of constitutional amendment.
12
Mark Ramseyer, The Puzzling (In)Dependence of Courts: A Comparative Approach, 23(2) J. Legal Stud. 721
(1994). For even earlier origins of the idea, see also William M. Landes & Richard Posner, The Independent
Judiciary in an Interest-Group Perspective, 18 J. L. Econ. 875 (1975).
13
Ginsburg, supra note 3; Hirschl, supra note 3; and Matthew C. Stephenson, “When the Devil Turns . . .”: The
Political Foundations of Independent Judicial Review, 32(1) J. Legal Stud. 59 (2003).
992 I•CON 15 (2017), 988–1012
This idea of multiple parties agreeing on a framework of mutual guarantees is an

example of what we characterize later as two-sided insurance. In Korea, three small
parties bargained for a constitution in a situation in which none could foresee vic-
tory; in Mongolia, a strong ex-communist party played a major role in constitutional
reform and kept the constitutional court somewhat subservient to the legislature by
providing for the possibility of legislative override of initial decisions. Taiwan was a
somewhat intermediate case in terms of the political hegemony of the ruling party

and in terms of judicial empowerment. The constitutional court, which had existed
prior to democratic reform, became more active in the democratic era, and seemed to
be a helpful institution for both sides of the political aisle.
Beyond these core cases, a number of scholars have also suggested that the idea
of political insurance provides a compelling way of understanding constitutional
reforms and expanding judicial review in a range of other cases. In Indonesia,
Stefanus Hendrianto notes the degree to which an insurance theory can help ex-
plain support for the creation of the constitutional court as part of the constitutional
reforms adopted in Indonesia between 2000 and 2003.14 In 2001, the Indonesian
“Consultative Assembly (MPR) voted to impeach President Wahid, in ways that made
it clear to the new president, Megawati Soekarnoputri, that it would be very difficult to
exercise strong presidential power. She thus joined with other proponents of the crea-
tion of a constitutional court as a means of gaining some additional insurance against
the dangers of improper or unwarranted impeachment.15
Other insurance accounts focus on instances in which it is unilaterally imposed. In the
Philippines, Dante Gatmaytan argues that insurance theory explains the post-democra-
tization role of courts, including in reviewing constitutional amendments themselves.16
The argument is that when temporal political forces seek to inappropriately entrench their
power in the constitution to dominate others, the courts can step in to preserve the spirit of
the original bargain. Gatmaytan further suggests that, in the transition from military rule
under Marcos, President Corazon Aquino actively supported the creation of a powerful
court of this kind, in part to guard against the risk that Marcos or his generals might seek
to reinstate military rule via a series of formal constitutional amendments.
In Mexico, Jodi Finkel suggests that judicial reform was part of an insurance strat-
egy for the long-dominant PRI (Institutional Revolutionary Party), which made sense
in an environment of heightened political competition in the early 1990s—particu-
larly at the state and local level.17 In South Africa, a number of scholars have noted
that the 1993 interim constitution offered a valuable form of insurance to the out-
going National Party (NP), against the risks of a permanent loss of national elec-
toral power.18 In Italy, Volcansek posits that the creation of the constitutional court
14
Stefanus Hendrianto, From Humble Beginnings to a Functioning Court: The Indonesian Constitutional
Court, 2003–2008 (2013) (unpublished Ph.D. Dissertation, University of Washington). See Simon Butt,
Meissa Crouch, & Rosalind Dixon, The First Decade of Indonesia’s Constitutional Court, 16(2) Australian
J. Asian l. 1 (2016).
15
Hendrianto, supra note 14.
16
Gatmaytan, supra note 5.
17
Finkel, supra note 3. But see Inclan Oseguera, supra note 5.
18
See Hirschl, supra note 3; Dixon & Ginsburg, supra note 5.
in the 1950s could equally be seen as a form of political insurance for the Christian
Democrats, against the threat of a decline in electoral influence.19 In Romania, Liviu
Damsa argues that the expanded role given to the constitutional court after 2003 is
usefully understood through the lens of insurance theory, and the fact that the long-
dominant Socialist Democratic Party (SDP) accurately predicted its declining influ-
ence in the national democratic elections held in 2004.20 Beyond judicial review,
other scholars likewise suggest that an insurance theory can explain the creation of

other independent institutions by otherwise dominant political actors: In Taiwan, Jen-
Cheng Wang suggests that, with some modifications, an insurance theory can explain
the changes created by the Court Organization Law, which led to a significant increase
in independence for prosecutors.21 While the key forces behind the law were prosecu-
tors and civil society, the changes were only finally adopted when both the Democratic
Progressive Party (DPP) and long-time dominant KMT party faced significant uncer-
tainty about their future electoral prospects.
In short, insurance theory has had wide application in a variety of contexts since its
articulation in the early 2000s. Scholars such as Epperly have also found strong em-
pirical support for the basic logic underpinning the idea of constitutions as political in-
surance: In an empirical study of the post-tenure fate of leaders of 188 countries from
1875–2004, he found a strong, statistically significant negative relationship between
the degree of judicial independence in a polity and the risk of ex-post punishment of
a political leader.22
To be sure, insurance theory has its detractors. Silvia Inclan contests its applica-
tion to the Mexican case, arguing that the search for legitimacy has more explanatory
power.23 Lisa Hilbink has been a sustained critic, arguing that ideational factors are
a better place to look to understand judicial behavior.24 In other work, one of us has
suggested that it may have limited application in contexts where a dominant party or
elite is in a position of increasing electoral dominance.25 Scholars such as Randazzo,
Gibler, and Reid have likewise questioned the extent to which it is likely to apply in
non-democratic settings.26 Like democratic leaders, they suggest, non-democratic
leaders may sometimes fear a loss of power—not via electoral means but via a coup or
other form of popular revolution. This may also encourage them to empower indepen-
dent courts as a form of political insurance. But a key difference between democracies
19
Volcansek, supra note 5.
20
Liviu Damsa, Extending the Powers of Constitutional Court, While Limiting and Focusing the Judicial
Review: Some Considerations of the Impact of Recent Romanian Constitutional “Reform” in the Activity
of the Constitutional Court and of the Ombudsman, Paper presented at the Fourth International
Graduate Legal Research Conference, King’s College London, Apr. 15–16, 2010.
21
Jen-Cheng Wang, Politician’s Vision and Judicial Independence Reform: The Case of Taiwan, Paper pre-
sented at the Annual Meeting for the Western Political Science Association, San Francisco, Apr. 1–3,
2010.
22
Epperly, supra note 4, at 255–264.
23
Inclan Oseguera, supra note 5.
24
Hilbink, supra note 6
25
Compare Rosalind Dixon, Rights as Bribes (2017) (unpublished manuscript).
26
Randazzo, Gibler, & Reid, supra note 8.
994 I•CON 15 (2017), 988–1012
and non-democracies is that they do not expect courts to be truly independent of the
ruling elite, and thus to provide meaningful insurance. Courts may offer a costly form
of opening to the political opposition. Independent judicial review may thus be less,
rather than more, likely in non-democracies under conditions of true uncertainty or
threat to a ruling coalition.27
However, as a positive account of the adoption and spread of constitutional review
at least in democracies, in a range of circumstances the insurance theory seems to

perform better than many alternatives on offer.28
2.2. Three distinct risks: Power, policy, and personal protection

The idea of constitutional insurance, we suggest, can also explain a broader range of
cases than the original, basic version of insurance theory (“basic insurance theory”).
Ginsburg’s theory focused on power and the idea of dominant political elites insuring
themselves against the loss of future electoral dominance, or an array of weak parties
who are uncertain as to who will win.29 But it does not end with this particular con-
stitutional pattern.
As a theory of the relationship between constitutions and political risk, it may
extend to a much broader range of circumstances—i.e., to situations in which con-
stitutional actors are seeking to protect themselves against a broad range of risks, in-
cluding the risk of loss of political power, retribution or criminal punishment as an
individual, or a loss of policy influence.30
(a) Power and personal protection

When political elites face a potential decline in electoral power, they face two broad
risks: first, that they will lose power or influence over the long, not just short, term;
and second, that they will be subject to individual forms of retaliation or punish-
ment at the hands of a new government. In many new or fragile democracies, there
may be long-standing practices of electoral manipulation, or exclusion of the politi-
cal opposition from any possibility of effective political competition. Deep patterns of
commitment to reciprocity-based norms may be lacking. If the governing party loses
office, it might expect the new legislative majority to attempt antidemocratic tactics
similar to those used in the past. In many cases, practices of electoral manipulation
will also overlap with forms of economic patronage designed to shore up support for
27
Id. They also find a non-linear relationship between the level of political competition or external threat
and levels of judicial independence in non-democracies: see id. at 19–20.
28
Versteeg & Ginsburg, supra note 1.
29
Ginsburg, supra note 3.
30
Epperly, supra note 4. At its broadest, insurance could also potentially be used to explain the interpre-
tation or function of a democratic constitution, ex post, and not simply in circumstances in which the
proponents of constitutional change understood the constitution as designed to produce a form of insur-
ance. The analogy here might be to socialised insurance as opposed to purchased forms of insurance.
Compare, e.g., Ian Gough, The Political Economy of the Welfare State (1979); Francis Castles, The Oxford
Handbook of the Welfare State (2010); Daniel Shapiro, Is the Welfare State Justified? (2007).
the government. Patronage of this kind may also, in many cases, be relatively hard
to distinguish from more overt forms of quid pro quo corruption. If and when a new
government is elected, this will also mean that it has broad power to exclude prior
officeholders from any future political competition—simply by instigating various
forms of criminal prosecution against them for electoral misconduct or corruption.
Political elites who are aware of this risk will thus also have a strong incentive
to look for available legal—or constitutional—means of insuring themselves against

the risk. One obvious way in which to do this will be to create a newly independent
constitutional court with strong powers of judicial review in respect to core political
and civil rights (i.e., rights to political participation and to procedural due process in
criminal matters). To further reduce the risk of electoral manipulation, such a court
may also be given a broader jurisdiction in respect to electoral matters—i.e., to act
as a court of final returns, or power to rule on the constitutionality of electoral laws
and procedures. A constitutionally entrenched electoral commission may also play a
role in this regard. Constitutional insurance under such circumstances will be a mix
of personal and power-based insurance: it will ensure that, in the short term, individ-
ual political leaders are protected against the threat of political retaliation through
the criminal process, and in the longer term, that outgoing political elites have some
chance of regaining office.
Constitutional insurance may be more directly focused on one or the other of these
risks. It can address either the protection of existing elites’ personal rights or access to
power. An electoral commission will be more focused on the latter, while judicial in-
tegrity in ordinary criminal matters will matter for the former. Even if outgoing elites
realize that their chances of ongoing political power or influence are limited, they may
still wish to protect their individual liberty, and property, against the threat of arbi-
trary infringement or expropriation. The corresponding form of insurance may be
limited, and may not involve courts engaging in any broad role in settling electoral
disputes—but, rather, in a far more limited, traditional judicial role in protecting indi-
viduals against arbitrary arrest, detention, and conviction, or protecting the assets
and freedom of the movement of elites (in terms of their ability to exit or reenter the
country and/or to remove their property from the jurisdiction). While not our primary
focus, we note that insurance of this kind will also be valuable both to democratic
and non-democratic actors: for non-democratic actors, there may be the added risk
of prosecution for war crimes or other crimes against humanity during their term
in office, and thus a desire to insure against this risk by adopting additional constitu-
tional “amnesty” provisions.31
31
See, e.g., Myanmar’s 2008 reforms, as discussed in International Bar Association, The Rule of Law in
Myanmar: Challenges and Prospects 53 (2012) and Janet Benshoof, Women, Peace, and Security, in The
United Nations Security Council in the Age of Human Rights, 68 (Jared Genser & Bruno Stagno Ugarte eds.,
2014). But equally, non-democratic actors may have a broader range of non-insurance related ‘tools’ for
addressing these risks – including increase repression of the opposition, and concentration of political
and governmental power.
996 I•CON 15 (2017), 988–1012
Conversely, some elites may place limited weight on their individual position: They
may plan to leave the country if they lose office, and have large economic resources
outside the jurisdiction. Beyond insuring their own freedom of exit, their prime con-
cern may thus be to obtain a form of power-based insurance—i.e., to adopt provisions
that maintain their existing political power and influence.
For elites facing a decline in electoral power, provisions in this category might
include “reserved” legislative seats or executive roles, or forms of federalism designed

to give geographically concentrated minorities some minimum access to governmen-
tal power. In South Africa, for instance, faced with the prospect of losing electoral
dominance in 1992–1993, representatives of the NP sought to protect their position
in a number of ways. They sought to ensure strong protection for individual prop-
erty rights32 and to promote constitutional structures that would preserve their own
ongoing access to public power: Once black South Africans were allowed to vote, the
NP knew that it was unlikely it would continue to win a national majority. But it was
optimistic the party would gain a strong minority of seats in a new democratic par-
liament, and a majority in at least some provinces. In both the drafting of the interim
and final constitution, NP negotiators thus consistently argued for a more federal
structure in the new South Africa, and strong powers for the provinces in the National
Assembly, as a form of power-based insurance for the white minority. They also pushed
for a more temporary form of power-based insurance which involved a power-sharing
arrangement between the African National Congress (ANC), NP, and Zulu IFP in the
exercise of executive power under the interim constitution.
(b) Policy
Political elites may also be concerned with a third, overlapping risk: the risk of a loss of
influence over policy. For some political actors, access to political power may be more
or less an end in itself. But for many, it will simply be an intermediate goal, in the ser-
vice of an ultimate interest in influencing public policy. Political elites may also lose
influence over policy in a range of ways: through a loss of strength in the legislature,
a loss of influence over the bureaucracy, or even the ordinary courts, a loss of control
over state or local governments in a federal or decentralized system, or even declining
factional control within their own party.
To insure against this, political elites may further seek to adopt a form of consti-
tutional insurance that focuses more directly on protecting various policy commit-
ments—via provisions that in some way entrench a preferred approach to those policy
questions. Of course, not every policy issue is one that readily lends itself to constitu-
tionalization: Some issues may simply be too transient or specific to be included in a
constitution. Constitutions, however, are becoming increasingly detailed, and covering
a greater number of topics traditionally seen as purely legislative or subconstitutional
32
Dixon & Ginsburg, supra note 5; M. Chaskalson, Stumbling Towards Section 28: Negotiations over the
Protection of Property Rights in the Interim Constitution, 11 South African J. Hum. Rts. 222 (1995).
in nature.33 Constitutional drafters thus have the option of entrenching an ever-

increasing range of substantive policy positions.
The idea of insurance of this kind is closely related to the account of the political
origins of judicial review offered by Ran Hirschl in Towards Juristocracy.34 Hirschl’s
account was developed primarily in the context of established democracies, where the
personal risk to the political actors was probably not particularly high, but the pol-
icy risk faced by a declining majority was high. Foreseeing near certain electoral loss,

elites in Israel, New Zealand, and Canada sought to entrench key policies in the con-
stitution in the form of rights. A loss of power need not be electoral, however, for such
logic to hold. Policy-based insurance can be equally attractive to non-democratic elites
as to democratic ones: For military elites, independent courts may in fact be the only
reliable means of protecting certain preferred policies once they “retreat to the bar-
racks.” Thus in Turkey, for example, both the military and political opposition at var-
ious times have sought to promote the role of the constitutional court as a guardian
of secular constitutional values, in the face of the increasing role of religious parties
in Turkish politics.35
Policy-based forms of constitutional insurance may equally be designed to protect
against much smaller-scale, micro-political risks associated with the defeat of partic-
ular policies in the courts, the legislature, the bureaucracy or even the party room.
In Brazil, for example, Rodrigo Nunes suggests that the expansion in the independ-
ence and jurisdiction of the Supreme Court was largely due to a desire on the part of
incumbent political parties to “improve governance or their ability to implement pre-
ferred policies’.36 A major impetus for the expansion of judicial review in the 1990s
was thus a desire to empower the Supreme Court to uphold attempts at market liberal-
ization, and increased fiscal control, by overturning lower court decisions that consist-
ently stalled the implementation of such policies.37
(c) Forms of insurance

Not only will different constitutional provisions respond to different forms of political
risk, but they make take different forms depending on the type of insurance needed.
33
Mila Versteeg & Emily Zackin, Constitutions Un-Entrenched: Toward an Alternative Theory of Constitutional
Design, 110 Am. Pol. Sci. Rev. 657 (2016); Juliano Zaiden Benvindo, On the Limits of Constitutional
Adjudication: Deconstructing Balancing and Judicial Activism (2010). The interaction between constitu-
tional and international human rights norms also gives national policymakers an even broader range of
legal tools on which to draw, in seeking to entrench their preferred policy positions via norms enforceable
in both domestic and international fora. We are indebted to Samuel Issacharoff for pressing us on this
point. Compare Karen J Alter, The New Terrain of International Law: Courts, Politics, Rights (2013). For a
more sceptical or critical view, see David Schneiderman, Investment Rules and the New Constitutionalism,
25 L. Soc. Inquiry 757 (2000).
34
Hirschl, supra note 3.
35
Hirschl, supra note 3; Serdar Gulener, Relations Between Politics and Constitutional Review in Turkey with
Special Reference to the Referrals of Republican Peoples Party: 2002–2010 Period, 10(2) Alternatives: Turkish
J. Int’l Rel’ns 1 (2011).
36
Nunes, supra note 5.
37
Id. at 325–327.
998 I•CON 15 (2017), 988–1012
Power-based insurance, for instance, will generally involve constitutional provisions

that guarantee basic norms of fair electoral competition as well as guarantees of min-
imum ongoing access to office. Provisions in the first category will involve a guarantee
of freedom of expression and access to the franchise, and the supervision of electoral
disputes, and political districting practices. Provisions in the second category, in con-
trast, may involve “reserved” legislative seats or executive roles, or forms of federal-
ism designed to give geographically concentrated minorities some minimum access

to governmental power, which ensures some minimum level of representation for all
key political factions or parties, regardless of their showing in national legislative elec-
tions. Policy-based insurance will generally involve a different set of constitutional
provisions, which aim to entrench certain substantive policy preferences, such as
preferences for social democracy or market-based capitalism, secularism, or religious
law. And personal forms of political insurance will generally have a much narrower
focus: They will involve protection against arbitrary arrest, detention, and conviction,
as well as protection for the assets and freedom of movement of former leaders seek-
ing to exit or reenter the country, and/or remove their property from the jurisdiction.
They may also provide for specific immunities (such as in Fiji 2010 or Chile in 1988).
Different theories of insurance likewise imply a different emphasis on the role of
courts compared to other independent institutions and the design of court structure
and jurisdiction. To begin with, the historical role of courts in a particular country can
affect the degree to which elites are likely to turn to courts to enforce a constitution
as a form of political insurance. If courts have a history of independence, and strong
judicial review, elites are quite likely to trust courts to provide meaningful insurance,
whereas if they have little history of independence, or meaningful judicial review, this
trust will be more scarce.38 The relative attractiveness of courts as the enforcers of
political insurance will also vary based on the degree to which other institutions—
such as electoral commissions and human rights or “integrity” institutions—provide
effective oversight and limitation on majoritarian political processes. Institutions of
this kind, however, are also inherently more likely to provide meaningful political and
policy-based forms of insurance rather than reliable forms of personal insurance for
individual political leaders.
Similarly, different forms of insurance can imply different understandings about the
design of courts’ jurisdiction and norms of access and appointment to the court. In the
original insurance theory, Ginsburg suggested that where judicial review is explained
by the idea of insurance, courts will generally be larger in size and have long terms of
judicial appointment and broad norms of access.39 These factors may, however, vary
according to the nature of the insurance at stake.
For power-based insurance to be effective, an essential feature is access to a court by
organized political groups. Thus we observe schemes (as in Mexico or Fifth-Republic
France) in which subnational governments or legislative minorities have a right to
challenge laws. This would make some sense in instances in which a prospective loser
38
Compare Randazzo, Gibler, & Reid, supra note 8.
39
Ginsburg, supra note 3.
has some confidence that he or she will have electoral strength in some part of the
government. For personal insurance, access by individual citizens will be more criti-
cal, whereas for policy-based insurance, either political elites or citizens may be able to
bring relevant challenges.
The structure of courts may also differ, depending on the particular insurance
needs of drafters: Power-based insurance will generally require constitutional judges
who are willing to exercise robust forms of structural judicial review, which may

mean judges appointed to a new constitutional court with only constitutional juris-
diction. Personal forms of insurance, in contrast, will require judges to have a con-
ception of judicial review far closer to the traditional Anglo-American view—that is,
one grounded in notions of procedural due process or procedural fairness, and indi-
vidual rights protection, rather than general structural or political review. This might
manifest itself in a preference for non-specialized courts of general jurisdiction over
specialized constitutional courts. For policy-based insurance, there may be a less clear
mapping to the structure or jurisdiction of a constitutional court: The key question
will be whether judges actually share the substantive policy preferences of relevant
political elites or, if not, will be willing to adopt a relatively backward looking or pur-
posive approach to constitutional interpretation. Table 1 lays out the options.
Understanding insurance theory in these terms also helps explain the adoption of
a range of constitutional provisions, such as various socioeconomic rights, which can
Table 1. Different forms of insurance

Type of Risk insured Relevant constitutional Court jurisdiction + access
insurance against provisions/scope of
judicial review or
independent
enforcement
Power Loss of access Free speech, access to Specialized; opposition
to political franchise, access/standing
power; jurisdiction over electoral
partisan disputes; “reserved”
lockout, legislative or executive
electoral seats, or certain forms of
manipulation federalism
Personal Political Due process; liberty Ordinary court/court of
prosecution, and property rights general jurisdiction;
detention, guarantees; immunities individual access/standing
arbitrary
deprivation
of property or
liberty
Policy Fundamental Wide variety of provisions Either specialized or ordinary
shift in policy (e.g. social democracy, court; opposition or
direction social rights, secularism, individual access
or religious preferences)
1000 I•CON 15 (2017), 988–1012
have a strongly pro-majoritarian character.40 While it is perfectly understandable why

a dominant majority party with a left-wing ideology would seek to use the language of
rights, or directive principles, to signal their policy goals, it is far less understandable why
it would wish to constitutionalize such rights in a positive, judicially enforceable form.41
Adopting socioeconomic rights will inevitably constrain discretion in governing,
if they win power at subsequent democratic elections; and the left wing has not
typically placed much faith in courts as instruments for rights protection, perhaps

because of the association of courts with protection of property. The long saga of
property rights and judicial power in India, in which government redistribution pro-
grams were continually blocked by courts, provides an important example.42 But the
idea of constitutional insurance as focused on entrenching certain policy-based out-
comes provides a clear explanation for why certain political elites or factions might
push to adopt such provisions.
3. Actual limits: Constitutional renegotiation and one- v.

two-sided insurance
The efficacy of constitutions as a form of political insurance also depends on certain
ongoing political conditions. While the initial theory recognized that the insurance
might not be foolproof, as political circumstances could change, the idea was that in-
surance raised the costs of reversal. However, it did not fully specify the modalities
of downstream change, which include renegotiation and nullification. This section
considers renegotiation, and the next considers nullification.
An obvious difficulty in any contractual bargaining situation is the possibility
that parties will seek to renegotiate the terms of the contract after it is complete.
Renegotiation of this kind is extremely difficult to prevent, ex ante. It can also un-
dermine the basic incentives parties have to engage in processes of contractual bar-
gaining in the first place.
If bargaining is costly for parties, either in terms of the resources involved or time
foregone, there will be little reason for parties to incur such a cost—unless there is
some reason to believe that the agreement they reach will actually be enforced. In
many cases, this will mean that the practice of contract-writing itself also depends
on strong preconditions—i.e., the existence of either a strong external enforcement
mechanism (such as an independent court with knowledge of the agreement) and/or
a context of repeated interaction between the parties that gives them an incentive to
comply with the terms of the agreement, in any given period.
40
David Landau & Rosalind Dixon, Constraining Constitutional Change: Constitution-Making and Constitutional
Design, 50(4) Wake Forest L. Rev. 859 (2015).
41
Compare Farber, supra note 7.
42
See, e.g., Nick Robinson, Expanding Judiciaries: India and the Rise of the Good Governance Court, 8(1) Wash.
U. Glob. Stud. L. Rev. 1 (2009); Burt Neuborne, The Supreme Court of India, 1 Int’l J. Const. L., 476
(2003); Gregory S. Alexander, The Global Debate Over Constitutional Property: Lessons for American Takings
Jurisprudence 49 (2007).
The same is also true for constitutions, if we understand constitutions as a form

of bargain between political elites. As Gretchen Helmke and Frances Rosenbluth
note, insurance theory clearly shares with a range of other theories “the difficulty of
explaining why a majority government, if in possession of a sufficiently large legisla-
tive majority, might not renege on the [original constitutional insurance] deal once it
returns to office.”43 Facing the risk of a decline in electoral power, elites may have good
reason to want to insure against the risk of political “lockout.” But once a subsequent

election reveals more fine-grained information as to their actual political position,
they may have a very real interest in renegotiating the terms of a prior constitutional
bargain, to give themselves greater freedom of action, unconstrained by the terms of
a prior judicial insurance policy.
The scope for renegotiation of this kind will be particularly acute where the process
of creating a new constitutional court occurs over two broad stages: the creation stage,
where constitutional changes are adopted to empower or authorize the creation of a
new constitutional court, and also an implementation stage, where the resources, per-
sonnel, and institutional structures necessary for the exercise of judicial review are put
in place. Where there is an established constitutional court, it may be possible for propo-
nents of constitutional insurance to adopt relevant changes via a single constitutional
amendment, prior to the relevant election: Because a court’s infrastructure already
exists, and the court is staffed with the number of judges required to hear constitutional
matters, the expansion of the court’s jurisdiction will simply require the passage of a
single, or single set of, constitutional amendment(s). In some cases, an amendment may
have a delayed or prospective effect, or require parallel amendments to a statute regulat-
ing a court’s jurisdiction. But a court can often rely on the amendment to impose limits
on the scope for delay, or statutory non-implementation, in this context. This means
that there will also be reduced scope for strategic renegotiation by dominant elites, after
a subsequent democratic election, as to the scope of the court’s jurisdiction: The court
will already enjoy the relevant form of jurisdiction, and so the onus will be on the newly
strengthened coalition to enact changes removing that jurisdiction.44
The court may also already have an independent degree of public political support,
which means that there is less scope for dominant political elites to punish judges, or
independent agencies, without facing adverse political consequences.45 Like an insur-
ance company with an established reputation, an established court is more difficult to
43
Gretchen Helmke & Frances Rosenbluth, Regimes and the Rule of Law: Judicial Independence in Comparative
Perspective, 12 Ann. Rev. Pol. Sci. 345, 350 (2009).
44
On the burdens of inertia, see Rosalind Dixon, Creating Dialogue About Socioeconomic Rights: Strong-form
Versus Weak-form Judicial Review Revisited, 5(3) Int’l J. Const. L. 391 (2007); Kent Roach, Constitutional
and Common Law Dialogues between the Supreme Court and Canadian Legislatures, 80 Canadian Bar Rev.
481 (2001). On endowment effects, see Carey K. Morewedge & Colleen E. Giblin, Explanations of the
Endowment Effect: An Integrative Review, 19(6) Trends in Cognitive Sci. 339 (2015); Elizabeth Hoffman &
Matthew L. Spitzer, Willingness to Pay vs. Willingness to Accept: Legal and Economic Implications, 71 Wash.
U. L. Q. 59 (1993).
45
Stephenson, supra note 13, noting that ‘a common explanation for government deference to independ-
ent courts is that the public favours judicial independence would punish politicians who openly defy the
Court’.
1002 I•CON 15 (2017), 988–1012
undermine and less likely to fail.46 Attacking the court will involve a complex politi-
cal calculus about the relative long-term benefits of removing constraints on political
action, versus shorter-term costs of provoking widespread public backlash.
When, in contrast, insurance requires both the creation of a constitutional court,
and relevant new substantive constitutional jurisdiction, there will be much greater
scope for renegotiation by elites that retain a strong—and greater than expected—
hold on political power. Jodi Finkel illustrates this vividly in her study of judicial reform

in Latin America. In both Peru and Argentina, the expansion in the scope of judicial
review took place across two broad stages: adoption and implementation.47 In both
cases, the president and his party also chose not to proceed to the implementation
stage until much later, when their own electoral prospects had weakened considerably.
In both cases, this was also a renegotiation of the terms of a prior constitutional deal:
Increased judicial power and independence was the agreed price for the willingness of
the opposition to support a right of re-election for the president.
The prospect of renegotiation of this kind can have damaging consequences for the
prospects of democratic constitutional bargaining, ex ante. Like ordinary forms of in-
surance, constitutional insurance creates new problems of its own even as it solves
others: It can increase moral hazard or induce adverse selection. Moral hazard, in this
context, would involve reduced levels of effort by the party that is out of power, be-
cause the risks of losing are lower. Adverse selection would involve the conclusion
of constitutional bargains that should not otherwise exist, and is less of a risk in our
view. The overall effect is that by allocating risk more efficiently, political insurance
can also enhance social welfare. In the context of constitution-making, effective forms
of political insurance may help promote the chances of concluding a constitutional
bargain ex ante, and thus the capacity of constitutions to serve as a socially valuable
tool for their myriad purposes.48 If parties believe that their core interests are pro-
tected, whether those interests take the form of power, personal integrity, or policy,
they will be more willing to give in on other matters. That is, the availability of insur-
ance can, through reducing the stakes of political bargaining, enhance constitutional
formation and thus efficacy.
What, if anything, in the nature of a particular constitutional insurance contract,
or context, might prevent constitutional renegotiation that undermines the insur-
ance contract? One important factor, we suggest, is the degree to which insurance is
two-sided rather than one-sided in nature, and thus the political opposition has both
46
Nuno Garoupa & Tom Ginsburg, Judicial Reputation: A Comparative Theory (2015).
47
Finkel, supra note 3, at 39–85 (2008).
48
These include taming or reducing conflict, creating public goods, reducing agency costs in govern-
ment, protecting democratic stability, or protecting and promoting minority rights protection and dem-
ocratic inclusion. Compare Tom Ginsburg & Aziz Huq, Assessing Constitutional Performance, in Assessing
Constitutional Performance 1 (Tom Ginsburg & Aziz Huq eds., 2016); Rosalind Dixon & Theunis Roux,
Constitutional Triumphs, Constitutional Disappointments: A Critical Assessment of the 1996 South African
Constitution’s Local and International Influence (2016) (unpublished manuscript), on assessing South
African constitutional performance.
some ability and some incentive to insist on the implementation of a prior constitu-
tional bargain.49
In prior work, we developed the idea that insurance may be either one- or two-sided
in nature.50 If a single party is politically dominant, it can often adopt constitutional
change unilaterally—without the need to engage in extensive bargaining with any
other political actors. The scope of such changes will thus often also be one-sided in
nature: There will be few obstacles, or “transaction” costs, to the ruling elite adopting

changes that systematically favor its own position over that of other political actors—
i.e., to providing that a court’s jurisdiction only applies to some, but not other, issues,
or only operates on a delayed or prospective basis (or in respect to future legislative or
executive action). However, if a political party lacks, or has already lost, significant
power or influence, it may need to negotiate with the political opposition in order to
achieve constitutional change. The transaction costs of such change will be much
higher: Knowing that they face a real prospect of increased power in the future, oppo-
sition political parties may simply decide to oppose changes proposed by the current
legislative majority and “hold out” for a better constitutional deal.51
To achieve constitutional change, a ruling party must therefore be prepared to com-
promise in some way. One way to do this will be to adopt a form of constitutional
“swap” or trade with the opposition.52 The idea of a constitutional swap is one we
first developed in the context of ideas about constitutional “deferral,” but the concept
is potentially much broader: It can refer to any two provisions (or sets of provisions)
connected at the level of constitutional bargaining or politics, or that are the product
of deliberate constitutional trade by parties to constitutional negotiations.53
Parties may also be willing to agree to a trade of this kind in a range of circum-
stances: because of uncertainty surrounding their future electoral performance, or
because they have a relatively high political discount rate. In some cases, individual
political leaders may not expect to seek re-election beyond the relatively short term,
or they may regard their future political prospectus so uncertain that they place very
high value on actual (or perceived) political victories in the present.
There is an analogy here between forms of constitutional insurance and financial
insurance contracts. Increasingly, in global financial markets, insurance contracts
are not simply one-way in nature. They are effectively forms of “insurance swap,”
whereby parties hold mutual cross-collateralized promises that hedge their risk to
49
Compare Andrea Pozas-Loyo and Julio Ríos-Figueroa, Enacting Constitutionalism: The Origins of Independent
Judicial Institutions in Latin America, 42(3) Comp. Pol. 293 (2010).
50
Dixon & Ginsburg, supra note 5.
51
Rosalind Dixon & Tom Ginsburg, Deciding Not to Decide: Deferral in Constitutional Design, 9(3–4) Int’l
J. Const. L. 636 (2011).
52
Id.
53
That is, not all forms of constitutional deferral will involve constitutional swaps; and not all swaps involve
deferral: sometimes constitutional drafters adopt ‘by law’ clauses that explicitly delegate certain deci-
sions to later legislators, or in other cases, vague constitutional language that implicitly delegates certain
constructional choices to later courts. Dixon and Ginsburg, supra note 51. Conversely, some forms of
constitutional trade or bargain occur across quite unrelated areas, and thus call for limited downstream
constructional choices by courts or other constitutional actors.
1004 I•CON 15 (2017), 988–1012
a certain degree, but leave it to downstream or market agents to determine the pre-
cise value of the hedge for both sides.54 Common forms of a swap arrangement of
this kind, in an economic context, arise in markets such as those for currency, com-
modities, and interest rates.55 In a constitutional context, swaps of this kind are also
increasingly common.
If constitutional insurance is from the outset truly two-sided in nature, at least one
side of the political bargain will also have a strong incentive to ensure that it is imple-

mented. The whole idea of an insurance swap is that counterparties hold mutual or
cross-collateralized promises. As the risks covered by a swap arrangement eventuate,
a least one side of the bargain will thus have a strong incentive to defend the insti-
tutional independence and integrity of courts-as institutions capable of enforcing
the terms of the contract. In many cases, the same political dynamics that explained
the creation of a two-sided insurance arrangement will also support the ability of the
opposition to block attempts at constitutional renegotiation by the dominant political
coalition. Generally, two-sided contracts will only arise where the opposition has suffi-
cient power to “hold up” unilateral attempts at constitutional change by the dominant
political coalition. This may also be a good indication of the relative strength of the
opposition in subsequent elections.
We also see this dynamic of opposition-led enforcement of a two-sided constitu-
tional insurance swap in a range of cases involving actual constitutional change,
which follows an insurance-based logic. In South Africa, the 1993 interim constitu-
tion created what was clearly a form of two-sided insurance: For the NP, it insured an
ongoing share in executive power, some ongoing commitment to policies of market-
based capitalism, and substantially protected individual NP leaders against the risk of
criminal punishment for past wrongs, and appropriation of their property and other
assets. And for the ANC, it provided important insurance against the risk that the NP
would renege on its earlier commitment, at Kempton Park, to the transition to full
multiparty democracy.
Similarly, the 1996 Constitution again created a form of two-sided insurance: for
the NP, the ongoing chance to exercise power at a provincial level, and protection for
individual property rights and a market-based economy; and for the left of the ANC,
protection against the possibility that a later ANC government might abandon com-
mitments to broad and inclusive growth and development. For the ANC more gen-
erally, it also arguably provided insurance against the risk that nonperforming or
reactionary provincial or local governments might undermine broad national pol-
icy goals. The new property clause, in section 25 of the Constitution, for instance,
provided that compensation for the appropriation of property was to be agreed, or
54
Dixon & Ginsburg, supra note 5.
55
R. M. Stulz, Credit Default Swaps and the Credit Crisis, 24 J. Econ. Persp. 73 (2010). There is, unsurprisingly,
a large literature on the costs and benefits of credit default swaps in the wake of the 2008 financial cri-
sis, in which swaps on subprime mortgage-backed securities played a major role. Some argue that the
presence of swaps improves the speed of transmission of market information and makes markets more
efficient. Others have argued that the ability to offload risk reduces incentives for monitoring. See id. at 76.
determined by a court, as “just and equitable, reflecting an equitable balance between

the public interest and the interests of those affected, having regard to all relevant cir-
cumstances, including the current use of the property; the history of the acquisition
and use of the property; the market value of the property; the extent of direct state
investment and subsidy in the acquisition and beneficial capital improvement of the
property; and the purpose of the expropriation.”56
At the same time, sections 25(5) and 26(2) provided that the state must “take rea-

sonable legislative and other measures, within its available resources” both to “fos-
ter conditions which enable citizens to gain access to land on an equitable basis”
and “achieve the progressive realisation of ” the right of access to housing. Section
26(3) further provided that “[n]o one may be evicted from their home, or have their
home demolished, without an order of court made after considering all the relevant
circumstances [and that] [n]o legislation may permit arbitrary evictions.” The 1996
Constitution thus effectively created a form of two-sided insurance for both the NP and
ANC in the economic domain: The NP and its membership were insured against the
risk of radical forms of nationalization, or other economic reorganization, that could
dramatically decrease the value of their existing holdings, while the ANC (left in par-
ticular) was insured against the risk that more traditional, legalist conservatives might
rely on the right to property to frustrate even moderate attempts at economic redistri-
bution or policies aimed at promoting inclusive growth.57
In Mexico, the nature of the agreement struck between the PRI and PAN (National
Action Party) in 1994 was likewise a form of two- rather than one-sided insurance
arrangement. President Zedillo and the ruling PRI in Mexico initiated changes to the
constitution in 1994 designed to expand the scope of judicial review, and the inde-
pendence of the Supreme Court. As Finkel notes, this was also arguably the product
of an insurance-based logic: in the long run it protected the PRI against the chances of
leaving national electoral office.58 But more importantly, in the short run, it provided a
valuable form of power or policy-based insurance against the risk of a loss of influence
in certain state and local government elections. The PRI also sought to ensure that,
in empowering the court to check state and local governments, a newly independent
court specifically did not have significant power to check laws and policies enacted by
a PRI-controlled national legislature or executive branch. It proposed that the court
would have power to declare laws invalid only if they were challenged by a member of
a legislature within thirty days of promulgation; would have no jurisdiction over the
constitutionality of laws dealing with “electoral matters”; and could reject laws only
by vote of supermajority of nine of eleven justices.59
56
S. Afr. Const. 1996, §§ 25(2)–(3).
57
Dixon & Ginsburg, supra note 5. On the idea of inclusive growth, see, e.g., Ifzal Ali & Hyun Hwa Son,
Measuring Inclusive Growth, 24(1) Asian Dev. Rev. 11 (2007); Arjun Sengupta, Inclusive Growth as Rights-
Based Development, 3(3) J. Asian Pub. Pol’y 215 (2010). On the strength of legalist methodologies and
ideas in South African constitutional culture in 1995, see, e.g., Theunis Roux, Principle and Pragmatism on
the Constitutional Court of South Africa, 7(1) Int’l J. Const. L. 106 (2009).
58
Finkel, supra note 3, at 105–108
59
Id. at 96–98.
1006 I•CON 15 (2017), 988–1012
Ultimately, however, the PRI would not pass these changes in Congress unilaterally.
To obtain the two-thirds supermajority approval required for proposed changes, they
required the support of some members of the political opposition.60 Before agreeing
to support the proposed changes, the PAN opposition party also managed to extract a
number of concessions from the PRI. First, PAN demanded that the new court should
have increased independence from the president (i.e., that the president should be enti-
tled to nominate one member of the court rather than two), and have power to inval-

idate a law by vote of eight rather than nine of eleven justices. Second, it pushed for
a lower threshold for the legislative petition of the court (i.e., 33 percent rather than
45 percent of the legislature), so that there was the potential to challenge national as
well as state and local laws.61 Thus, while the PRI gained valuable insurance against
the risk of a loss of power and influence at the state and local level, PAN also gained
the very real chance of being able to challenge PRI actions before the court: the 33
percent threshold for petitioning the court was lower than the combined vote-share
of the PRI and the other major opposition party, the PRD, in the national legislature
(the Chamber of Deputies) and Mexico City Legislative Assembly, and PAN controlled
one-third of the seats in many northern state legislatures, as well as the chamber of
deputies. When it came to creating a new Judicial Council, or staffing the court with
new justices, PAN was also active in helping push for full implementation. Four out of
eleven members of the newly appointed court were aligned with PAN. A member of
PAN was also appointed as attorney general, so that PAN had a lead role in implement-
ing the relevant reforms.62
In Italy, the Christian Democratic (DC) party was initially the major force behind
the creation of the constitutional court, during the years in which the country was
returning to democratic rule. Scholars suggest that this was driven by a desire to cre-
ate a form of political insurance, against the risk of declining electoral popularity, and
thus a loss of political power: the DC party was anxious, Volcansek writes, to “consoli-
date its control and passed the so-called . . . 'fraud law' that established a ‘first majority
system.”63 Under this law, if a coalition of parties won more than 50 percent of votes
in parliamentary elections, they would take two-thirds of seats in Parliament. The DC
party also sought to entrench this arrangement, by creating a constitutional court
with jurisdiction over disputes between national organs of government, and broad
referendum powers. The DC party also passed the law creating the court just prior to
national democratic elections in June 1953.
The form of insurance created by the Italian Constitution, and particularly the
1953 Constitutional Court Act, however, was ultimately not one-sided in nature:
after the 1953 elections, the Socialist and Communist parties had significant power
in Parliament, and argued for expanding the court’s jurisdiction to include a range
of checks on central government power, including powers to review the validity of
60
Id. at 109.
61
Id. at 109.
62
Id. at 109.
63
Volcansek, supra note 5, at 288.
referendum proposals, and to protect regional constitutional arrangements.64 The

Constitutional Court Act of 1953 also reflected this compromise. While, after 1953,
the DC party itself also increasingly lacked an interest in creating and maintaining
an independent court, the socialist and communist left ultimately became forceful
defenders of the court’s jurisdiction and independence.
Large-n studies of constitution-making also lend support to the idea that two-sided
forms of insurance may be particularly viable as a basis for judicial empowerment. One

of us, together with Mila Versteeg (2014), shows that an important predictor of the like-
lihood that a country will in fact adopt independent judicial review is the gap between
the largest and next largest political party: The closer the parties are in terms of electoral
performance, the more likely it is that independent courts will be empowered to engage
in judicial review, whereas the bigger the gap, the less likely independent judicial review
will be. Similarly, empirical studies of constitution-making in Latin America show that
multilateral (or multiparty and inclusive) as opposed to unilateral episodes of constitu-
tion-making are more consistently associated with functioning, independent courts.65
4. Political nullification and cancellation

The constitutional insurance policy also faces a danger from a different direction,
namely, from newly dominant political elites, who may wish to nullify the constraints
placed on them by prior political majorities. This possibility emerges only with a major
shift in the political landscape, such that a new government is elected with sufficient
electoral support to threaten the power and policies of prior elites. This may involve
amending the constitution to remove constitutional provisions inserted by way of po-
litical insurance, or the exercise of influence over the composition, and behavior, of
a constitutional court. As Ramseyer notes in the Japanese context, there are a broad
range of tools available to a dominant political coalition when seeking to discourage
or undermine true judicial independence: It can control the appointments process but
also the training and career structure of judges; it can also transfer, pass over for pro-
motion, or even remove judges who show too much political independence.66 When
outgoing elites are able unilaterally to amend the constitution to create newly inde-
pendent forms of judicial review, new governments will also often have similar power
to amend the constitution to restrict access to the courts. Relatedly, dominant elites
might cancel the insurance they provided in the original arrangement.
To avoid the danger of political insurance being voided by either previously or newly
dominant elites, courts might therefore adopt an approach to judicial review that is
both somewhat counter- and pro-majoritarian, or politically two-sided, in nature. If
a court simply defers to the laws and policies of current political majorities, it will
inevitably fail to advance the powers, prerogatives, or policies of prior elites. Courts
64
Id.; Italy Const. 1953, §§ 291–291.
65
Pozas-Loyo & Rios-Figueroa, supra note 49.
66
Ramseyer, supra note 12, at 724–726.
1008 I•CON 15 (2017), 988–1012
themselves would in effect be voiding the constitutional insurance bargain. But

equally, if a court takes an overly counter-majoritarian approach to judicial review,
it will give a new legislative majority a strong incentive to undermine the scope and
independence of judicial review, either by way of formal constitutional amendment or
by way of informal change via a process of judicial appointment, thereby increasing
the chances of political nullification of relevant forms of insurance.
For courts to provide effective political insurance, they must therefore uphold the

rights and interests of prior elites with sufficient frequency to give constitutional
insurance teeth, but not so frequently as to give newly dominant elites a strong incen-
tive to attack the court, and its jurisdiction and independence.
Formal models of judicial independence make clear the importance of judicial
“moderation” of this kind to maintaining political support for independent judicial
review. Ramseyer, for instance, analyzes judicial independence through the lens of a
repeat-game structure, and suggests that whether political actors will maintain inde-
pendent judicial review in this context depends largely on “whether they expect elec-
tions to continue indefinitely,” and “to continue to win [elections] indefinitely”: The
more political actors believe elections will continue but their own chances of uninter-
rupted electoral victory are low, the more they will tend to support maintaining the
independence of the judiciary.67 Randazzo, Gibler, and Reid lend empirical support to
this hypothesis, showing that in democracies there is a positive, statistically significant
relationship between the level of political competition and judicial independence.68
Matthew Stephenson has also formalized this hypothesis, and shown that for par-
ties to have an incentive to maintain judicial review in such circumstances, courts
must adopt a relatively “moderate” approach to judicial doctrine: “if the judiciary is
too far left or right and for some reason cannot or will not adjust,” he suggests, “we
would expect both parties—even the one favored by the judiciary’s political slant—to
support changes that make the judiciary more moderate.”69
The same analysis, we suggest, also applies to the effectiveness of constitutional
courts, and substantive constitutional provisions as a form of political insurance.
Courts need not adopt an insurance-based understanding of their role in order to per-
form this function: Courts may give effect to constitutional provisions as a form of polit-
ical insurance because of a distinctly legalist approach to constitutional interpretation,
which strongly emphasizes the actual language of the constitution, the original public
meaning of that language, or the intentions of those who wrote and ratified it. They
might also adopt a more purposive approach, which effectively advances the aims and
understandings, and thus also the interests of those adopting constitutional norms.70
Or they may do so for more overtly ideological reasons, based on a desire to advance the
67
Id. at 722.
68
Randazzo, Gibler, & Reid, supra note 8, at 18.
69
Stephenson, supra note 13, at 77. He further shows that the range of conditions in which judicial inde-
pendence is sustainable “will be skewed toward the point preferred by whichever political party is more
successful in political competition.” Id. at 74.
70
Aharon Barak, Purposive Interpretation in Law (2007); see also Rosalind Dixon, Constitutional Drafting and
Distrust, 13(4) Int’l J. Const. L. 819(2015).
interests of the political actors who appointed them. Equally, they may choose to defer
to the laws and policy judgments of current (national) political majorities as a matter of
prudence, or out of more principled commitment to the democratic resolution of polit-
ical controversies.71
What matters is not individual judges’ motivation, or interpretive theory, in adopting
an ideologically “moderate,” or balanced, approach to constitutional decision-mak-
ing. It is that, for whatever reason, and whether consciously or not, courts develop a

jurisprudence that is politically two-sided in nature in order to sustain ongoing politi-
cal support for the enforcement of constitutional constraints by an independent court.
What is striking about the examples of constitutional insurance in the literature
thus far is that, in many cases, they also do have a constitutional jurisprudence that
meets this description. In Korea, the constitutional court has maintained its profile and
independence, even in the wake of political controversies. In exercising its powers, the
court has also largely deferred to the incumbent political coalition, while upholding
challenges to legislation and government action in a nontrivial number (i.e., roughly
one-third) of cases.72 In Taiwan, following the move to democratization in the 1990s,
the Judicial Yuan progressively expanded its power. Scholars such as Chien-Chih Lin
also credit this to a willingness on the part of the court to exercise its powers in ways
that “have been welcomed both by the ruling and opposition parties.”73 From 2003 to
2012, the court upheld citizen petitions in roughly 50 percent of cases, and upheld
a number of key challenges by the opposition. But it also decided the most controver-
sial cases (such as the Nuclear Power Case)74 in ways that effectively avoided deciding
the question, or alienating either side of politics, particularly the governing coalition.
In South Africa, one of the ways in which the constitutional court arguably built
its legitimacy was via early decisions that had some real benefits to both the democ-
ratic opposition (i.e., the NP and more progressive Democratic Alliance) and left of
the ANC, but only modest costs to the ruling ANC government (or ruling right-wing
faction of the ANC).75 In the First Certification Case,76 for example, the first case heard
by the new constitutional court, the court found that certain provisions of particu-
lar concern to the opposition (such as employers’ rights to lock out) were not fully
compatible and had to be redrafted. But equally, it largely upheld the democratically
drafted constitution as consistent with the constitutional principles in the interim
71
Mark Tushnet, Law and Prudence in the Law of Justiciability: The Transformation and Disappearance of
the Political Question Doctrine, 80 N.C. L. Rev. 1203 (2002); Anthony T. Kronman, Alexander Bickel’s
Philosophy of Prudence, 94(7) Yale L.J. 1567 (1985); Chris Eisgruber, Justice and the Text: Rethinking the
Constitutional Relationship Between Principle and Prudence, 43 Duke L.J. 1 (1993); Jeremy Waldron, Can
There Be a Democratic Jurisprudence? 58(3) Emory L.J. 675 (2009).
72
Ginsburg, supra note 3, at 221.
73
Chien-Chih Lin, The Birth and Rebirth of the Judicial Review in Taiwan—Its Establishment, Empowerment and
Evolvement, 7(1) Nat’l Taiwan U. L. Rev. 167, 171 (2012).
74
J.Y. Interpretation No. 520 (Jan. 15, 2001).
75
Compare Roux, supra note 57 (highlighting its role in building support from lawyers).
76
Certification of the Constitution of the Republic of South Africa, 1996 (CCT 23/96), [1996] ZACC 26;
1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC) (Sept. 6, 1996).
1010 I•CON 15 (2017), 988–1012
constitution. A very large number of the early cases heard by the court also involved
laws passed by the outgoing NP government. This meant that, in striking down those
laws, the court delivered an important affirmation for the NP of the value of the
interim constitution as a form of political insurance, but imposed only the smallest of
political costs on the ANC: It was simply required to accelerate the pace of repealing
or amending apartheid-era laws it fully intended to revisit in any event. Similarly, in
later cases, such as the TAC Case,77 the court has given the government considerable

flexibility in the timetable for adopting a new policy response to the HIV AIDS epi-
demic (i.e., the rollout of anti-retrovirals designed to prevent mother to child trans-
mission of HIV). But it is also handed important victories to the ANC's left wing, and
COSATU (Congress of South African Trade Unions), by finding it unreasonable for
the government to continue to impose a blanket ban on access outside certain limited
test sites to anti-retrovirals of this kind.
The Romanian Constitutional Court, on the other hand, has arguably come close
to being so counter-majoritarian in nature as to present a real risk of provoking an
attack on its institutional standing and independence, which effectively voids its ca-
pacity to serve as a form of constitutional insurance for the former SDP: As Liviu
Damsa notes, the court appointed by the outgoing SDP “manifested the highest his-
torical percentage of unconstitutionality” ever declared by the court as a result of ex
ante petitions brought by the parliamentary opposition; and the lowest percentage of
findings of unconstitutionality ex post, or as a result of petitions brought by citizens.78
This also came close to undermining the institutional standing of the court. Arguably,
it is only the fact that the court has shifted somewhat its approach in later periods
which helps explain how and why the court has survived. In Mongolia, too, the con-
stitutional court has found itself in a battle for supremacy with the legislature, which
has led to a decline in its role. The court, in this context, has also shown a consistent
unwillingness to defer to current legislative majority preferences, including in the face
of the actual use of a power of legislative override by the legislative majority.79
5. Conclusions
No theory of the political origins of judicial review provides a complete or exhaustive
account of the process of constitution-making in any given jurisdiction: Inevitably,
different theories overlap in ways that mean that they explain different aspects of the
same constitutional moment, and reinforce and complement each other in different
contexts. Insurance theory is no exception. Yet it has provided a robust set of expla-
nations for the adoption, form, and performance of constitutional review in many
contexts.
77
Minister of Health and Others v. Treatment Action Campaign and Others (No. 1) (CCT9/02), [2002]
ZACC 16; 2002 (5) SA 703; 2002 (10) BCLR 1075 (July 5, 2002).
78
Damsa, supra note 20.
79
Ginsburg, supra note 3, at 176–177.
In this article, we show that the idea of constitutional provisions as a form of polit-
ical insurance does not end with the protection of political elites against the danger
of subsequent electoral lock out. It also extends, as Epperly has shown, to protecting
individual members of the elite from the risk of subsequent reprisal by a new govern-
ment, or the preferred policies of a current legislative majority or faction.80 Each of
these particular rationales implies its own form of review, with different implications
for standing, substantive provisions, and the design of the constitutional court.

These different forms of insurance may also be adopted in a wide variety of contexts:
where political elites fear losing control of the national government, either through
democratic elections or a return to authoritarian rule, but also where they may fear
a decrease in power or influence—such as via a loss of influence over the bureau-
cracy, or even the ordinary courts, a loss of control over state or local governments
in a federal or decentralized system, or even declining factional control within their
own party. Moreover, how much insurance elites may wish to “purchase” in any given
situation will inevitably depend on a range of context-specific factors: the information
or beliefs they have about their own future electoral prospects and the strength and
behavior of political rivals; their degree of individual or collective risk aversion; and
the discount rates of relevant actors (or preference for short- versus long-term insur-
ance). Similarly, the ability of particular elites to obtain insurance of various kinds
will inevitably depend on their relative power in the constitutional bargaining process.
The more difficult question for an insurance theory, is when, or under what condi-
tions, constitutional provisions and institutions of this kind will in fact be effective in
providing insurance to political elites. Efficacy requires that current political majori-
ties must be willing to honor the terms of a prior constitutional bargain, both by taking
the steps necessary to implement it and by leaving it free from repeal or replacement.
Both of these preconditions, we suggest, are demanding: The possibility of legislative
non-implementation or even constitutional modification of prior agreed constitu-
tional changes is always a threat to the effectiveness of constitutions as political insur-
ance. At the same time, we suggest that there will also be two related conditions under
which insurance cancellation or nullification will be unlikely to occur: first, where
insurance is two- rather than one-sided in nature, and second, where courts engage in
forms of review that are effectively two- rather than one-sided—i.e., that advance the
interests of both current and prior political majorities at different times, in a relatively
balanced approach. Insurance swaps of this kind not only can help resolve hold-up
problems at the moment of constitutional design but may also offer the most prom-
ising means of ensuring that constitutional provisions in fact deliver on the promise
of effective political insurance.
We suggest that the idea of insurance is a quite rich—and general—account of the
way in which political elites respond to a range of potential future risks: to the risk of
losing democratic elections, and thus being locked out of future political competition,
but also the risk of losing policy influence in certain areas, or being subject to individ-
ual reprisal. Constitutional insurance also takes a wide variety of forms in response to
80
Epperly, supra note 4.
1012 I•CON 15 (2017), 988–1012
these perceived risks: It may be structural or rights-based in focus, focused on judicial

review or political safeguards, or first- or second-generation rights. These various sub-
types of the insurance analogy may have different logics and dynamics, but together
they provide a useful lens for understanding a wide range of constitutional problems
and solutions.
They may even point to more general insights about the nature of written constitu-
tions: In some ways, they suggest that all constitutions will effectively be a response to

certain forms of social, legal, and political risk. The only question will be how much,
and in what way, they attempt to cabin or mitigate various risks, not whether they
seek to lower the risks associated with future social, legal, and political change.

DIXON, Rosalind GINSBURG, Tom. The Forms and Limits of Constitutions As Political Insurance.

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DIXON, Rosalind GINSBURG, Tom. The Forms and Limits of Constitutions As Political Insurance.

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The forms and limits of

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* Professor of Law, UNSW Sydney; rosalind.dixon@unsw.edu.au.

I•CON (2017), Vol. 15 No. 4, 988–1012 doi:10.1093/icon/mox080

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Understood in this way, the idea of constitutions as a form of political insurance is

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The idea that insurance can be limited is particularly important to understand in an

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2. The idea of constitutions as political insurance—A typology

This idea of multiple parties agreeing on a framework of mutual guarantees is an

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2.2. Three distinct risks: Power, policy, and personal protection

(a) Power and personal protection

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in nature.33 Constitutional drafters thus have the option of entrenching an ever-

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(c) Forms of insurance

Power-based insurance, for instance, will generally involve constitutional provisions

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Table 1. Different forms of insurance

have a strongly pro-majoritarian character.40 While it is perfectly understandable why

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3. Actual limits: Constitutional renegotiation and one- v.

The same is also true for constitutions, if we understand constitutions as a form

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determined by a court, as “just and equitable, reflecting an equitable balance between

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referendum proposals, and to protect regional constitutional arrangements.64 The

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4. Political nullification and cancellation

themselves would in effect be voiding the constitutional insurance bargain. But

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these perceived risks: It may be structural or rights-based in focus, focused on judicial

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