Academic journal article William and Mary Law Review

Some Skepticism about Normative Constitutional Advice

Academic journal article William and Mary Law Review

Some Skepticism about Normative Constitutional Advice

Article excerpt

It has been frequently remarked, that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force. (1)

--The Federalist No. 1

The spate of constitutional advice giving over the past decade or two seems to have taken only part of Alexander Hamilton's observation to heart. Advice givers appear to believe that they can help others establish good government by reflection and choice. They appear to ignore Hamilton's suggestion that the ability to establish good government in that manner was reserved to the people of the United States. True, the U.S. experience came early in the constitution-writing enterprise, and accumulated wisdom is--one might think--more widely available today than it was in 1787. And yet one might reflect as well on the fact that Hamilton's characterization of the proposed U.S. Constitution was inaccurate even when it was offered: The Constitution's drafters embedded a large number of essentially unprincipled compromises in the document they forwarded to the people for ratification, occasionally but not always dressing them up in the garments of "reflection and choice" as a tactic aimed at inducing support for the proposal.

My aim in this short Essay is to revive Hamilton's qualification, shorn of course of its ethnocentricity. I suggest that what primarily determines the content of constitutions are the intensely local political considerations "on the ground" when the constitution is drafted, (2) and therefore that normative recommendations about what "should" be included in a constitution or constitution-making process are largely pointless. (3) Scholars can accumulate information about constitutions and their drafting and try to draw inferences about what will work. Yet, predicating normative advice on such studies is hazardous at best. (4) The number of observations--examples used to generate broader propositions--in the studies are inevitably small. (5) Perhaps they can support conclusions that are statistically significant, but, as serious scholars understand, statistical significance is not the same as social significance.

In addition, normative advice will often have something like what Adrian Vermeule calls a "self-defeating" character. (6) Effective advice must be compatible with the political incentives that the advice receivers have. Yet those same incentives operate to induce the advice receivers to search for solutions to their political problems; for example, for institutional designs on which they and their opponents can agree. One has to wonder whether external advisors or expert participants can bring to the attention of politically significant figures information that was not already available to them, (7) or that, if previously unavailable, will be fed into the local political context as the basis for rational deliberation rather than strategic maneuvering. (8) I proceed anecdotally, with a series of informal examples designed as provocations, although each is based on evidence. (9)

I. AN INTRODUCTORY EXAMPLE AND SOME COMMENTS ON WHY ADVICE IS SOUGHT AND GIVEN

A useful starting point is the argument made by Cass Sunstein in the early 1990s, with reference to the ongoing processes of constitutional drafting and development in Central and Eastern Europe. (10) Sunstein argued that the new constitutions in those nations should not include protections for social and economic rights. (11) Sunstein began with the assumption that new democracies had to enforce the first- and second-generation rights included in their constitutions through the courts, and he worried that citizens would not be able to distinguish between those rights and the third-generation social and economic rights. …

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