Constitutions regulate legislatures, and legislatures sometimes create constitutions. Does it follow that in such cases, legislatures engage in acts of self-binding? Or that they use the constitutions to bind others, to enhance their own freedom of action? Although neither of these simplistic propositions is adequate, each of them captures an aspect of the relation between the institution of the legislature and the text of the constitution.

The idea of viewing constitutions as acts of self-binding is one for which I have to take some responsibility. For various reasons, I have come to be skeptical of its normative and explanatory value. For one thing, the “binding” effect of constitutions is much less constraining than in such paradigm cases of individual self-binding as saving your money in a scheme under which you cannot take it out before Christmas. For another, the “self” that is supposed to bind “itself” is much more elusive in the collective than in the individual case. Concerning the second point, the idea of self-binding makes somewhat more sense when the constitution is written by the legislature than when it is the work of a special convention. A legislature that writes the ground rules under which future legislatures will operate does at least have the capacity to bind “itself,” in a loose sense of that term. By contrast, a convention that is convened for the sole purpose of writing the constitution and that is disbanded once that task is done, has no enduring “self” to bind.