ABSTRACT
The United States Congress frequently deliberates upon and decides questions of constitutional interpretation, and many of those decisions are immune from subsequent judicial review, de jure or de facto. This chapter explains the idea of a Thayerian Congress and justifies the institutional-design strategy. It also explains our assumptions about legislators' behavior. The chapter provides more precise content to the goal of improving Congress's constitutional performance. It describes the design features of a Congress able to discharge its constitutional responsibilities more effectively guided by various design principles that implement the necessary tradeoffs between decision costs, error costs, and transition costs. The chapter also provides more sustained consideration of institutional-design questions into a discussion that has almost exclusively focused on questions of institutional choice. A well-functioning Thayerian Congress is one that takes advantage of the lessons learned from modern procedural frameworks to allow it to structure constitutional deliberation and decisionmaking so as to improve outcomes.
