Taking Embodiment Seriously: Constitutional Law, the Economy and the Forms of Underdeterminacy.

Economic policy does not require a constitutional grounding. However, many constitutions expressly dedicate articles and chapters to the national economy while others produce comparable effects by indirectly privileging particular economic arrangements. The constitutions of the US, the People's Republic of China and the Philippines and the Basic Law of Hong Kong can plausibly be invoked to justify State approaches to economic ordering. However, each of them essentially underdetermines the economic fundamentals of the polity, not merely by deferring their concretization to governments and judiciaries, but by eschewing to commit the State to an identifiable level of involvement. Underdeterminacy can result from a variety of structural features, such as omissions, the use of contested concepts, the dilution of overarching economic alignments through countervailing constitutional provisions or limitations by ordinary legislation and the assortment of amorphous constitutional repertoires that give free rein to policy. The fact that even constitutions that were in their drafting informed not least by economic considerations fail to set the basic parameters of the economic arena queries the extent to which they can be said to embody any such underpinnings. It further questions the significance of constitutions and formal institutions in the formation of liberal market economies in particular and emphasizes the role of experience. [ABSTRACT FROM AUTHOR]