Going Constitutional? How Political Actors Decide on the Constitutional Anchoring of Legislation

Constitutions typically entrench the core principles of a country, such as the institutional order and fundamental rights. Some countries, however, have extended their body of constitutional law far beyond this, reaching deeply into day-to-day politics and policy. In such systems, legislative actors decide on how to advance their policy initiatives: by ordinary legislation or by legislation in constitutional rank. Constitutional rank protects policy achievements against constitutional review and future simple majorities; but it may also freeze a policy and make it vulnerable to regulatory decay and resistant to changes even by its initiators if they lose their constitutional majority. Building on comparative research both on constitutional amendments and legislative success, this paper theorizes under which conditions a legislative initiative, firstly, is successful in enactment at any level and, secondly, at which level it is adapted as a law, drawing on an original dataset of Austrian legislative initiatives from 1945 to 2024. Austria represents an extreme case of constitutionalizing legislation. With hundreds of laws and state treaties in constitutional rank, the body of constitutional law regulates subjects ranging from ‘classic’ constitutional matters to trivial policies. It thus provides a laboratory that allows to study how different government and parliamentary constellations influence actor strategies and success rates under largely constant institutional conditions.