Best data shows federalism modeling is irrelevant and overwhelmed by domestic politics

Constitutional review has spread around the world in recent decades, and various theories have arisen to account for this development. We have canvassed several different types of theories: (1) ideational theories which view constitutional review adoption as a product of a growing consciousness of the rule-of-law and protection of individual liberties; (2) coordination and commitment theories that draw on functional political logics of federalism and economic growth; (3) electoral market theories that hold that constitutional review is adopted when constitutionmakers envision themselves out of power after the adoption of the constitution; and (4) diffusion theories that posit that constitutional review is adopted in response to international audiences and constitutional developments in foreign states. Drawing on a new and unique quantitative dataset that documents the development of this institution across the globe since 1781, we used a fixed effects spatial lag model to develop the most extensive empirical test so far of these alternative accounts. Our results provide strong support for the insurance-based theory, and less support for the alternative accounts. The adoption of constitutional review is above all a response to domestic political incentives, rather than ideas, the demands of federalism, or diffusion pressures. The lack of support for diffusion-based accounts is particularly important, given that other work has demonstrated the role of diffusion with regard to constitutional provisions on human rights. We suggest that this reflects the relatively low cost of adopting rights provisions relative to institutional structures in national constitutions. Rights may represent “cheap talk,” while institutions are likely to develop a self-enforcing quality so that constitutional designers must treat them as involving higher stakes.