The Constitution allocates entitlements not only to individuals, but also to institutions such as states and branches of the federal government. It is familiar fare that individuals’ entitlements are routinely deployed both as shields against unconstitutional action and as bargaining chips when striking deals with the state. By contrast, the paradigmatic models of interbranch and federal–state interactions derived from James Madison’s writings in The Federalist underscore conflict and tension, rather than cooperation or mutually beneficial trades. Despite Madison’s predictions, institutional negotiation and dealmaking over both federalism and separation-of-powers interests are not only endemic in practice but also unavoidable in theory. Although negotiation over institutional interests is an entrenched part of the constitutional landscape, it remains undertheorized as a systemic matter. To begin filling that gap, this Article develops a general normative theory of negotiated structural arrangements by leveraging insights into bargaining from basic microeconomic theory. Analysis of intermural negotiation reveals no categorical reason to reject such deals. This Article, however, identifies two general criteria for rejecting the specific outcomes of intermural negotiation. It further suggests that courts are not well positioned to sift out undesirable deals given their constrained institutional competence. Rather than being drawn through judicial review, boundary lines to institutional bargaining should be limned by elected officials.
Columbia Law Review THE NEGOTIATED STRUCTURAL CONSTITUTION