The constitutional proceduralism of the 1960s and after helped to create the harsh justice of the 1970s and after. Constitutional law creates a series of political taxes and subsidies, making some kinds of legislation and law enforcement more expensive and others cheaper. Politicians are freest to regulate where regulation is most likely to be one-sided and punitive.Constitutional law that reinforced healthy politics would be different in nearly every respect from current law. Its animating goals would be to and fight discrimination, not to protect privacy and extend jury power. It would focus more on macro incentives. It would be more open to innovation, hence more political market-friendly. Such law would be both more democratic and more experimentalist. Though reformed constitutional law would be much less intrusive than the current regime, it would also better protect criminal suspects and defendants, who get little benefit from the legal doctrines that allegedly safeguard their rights.
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