Academic journal article Texas Law Review

Designing a Constitution: Of Architects and Builders

Academic journal article Texas Law Review

Designing a Constitution: Of Architects and Builders

Article excerpt

This Article offers a prolegomenon to the basic problems of constitutional design rather than prescribes any particular values, institutional arrangements to secure those values, or means to obtain the best fit between a larger culture and a given political order.1 My purpose is to illuminate questions that confront constitutional architects who would strengthen an existing constitutional order, thoroughly revise that order, or found a new political system. I make no effort to solve more specific difficulties facing builders trying to carry out the architects' general plans. Thus, my objective is to clarify choices for designers of a constitutional order rather than to produce a blueprint.

I. Political Architects

Political creation, Niccolò Machiavelli claimed, is "as dangerous almost as the exploration of unknown seas and continents."2 As a subset of that form of creation, constitutional design ranks among the more daunting of human tasks, requiring great amounts of wisdom, heavily flavored with chutzpah and imagination as well as plain, old-fashioned luck. Halting attempts in the former American colonies from 1776 to 1787,3 disastrous efforts in Germany after World War I,4 unsuccessful governments in subsanaran Africa following World War II,5 persistent difficulties of forming a more perfect European Union,6 and the bloody fiasco in Iraq following the American invasion in 20037 - even when matched with successes in Germany, India, Italy, and Japan after the Second World War8 - show that Machiavelli did not exaggerate the difficulties of constructing a constitution. Although sensible men and women should be daunted by the responsibilities of constitutional architects, they should take heart from Hannah Arendt' s assertion that constitution making is "the noblest of all revolutionary deeds."9

Such work is typically begun by a small elite,10 but if it will effectively constitute (or reconstitute) a truly civil society,11 that task must soon be joined by large sets of people, operating across decades, and possibly centuries. The "constitution" is not merely a "thing," sitting immobile like a rock; it is also a set of ideas, as well as a continuing discussion about those ideas as they relate to a proper political order. As Walt Whitman asked, "Were you looking to be held together by lawyers? Or by an agreement on a paper? or by arms? Nay, nor the world, nor any living thing, will so cohere."12

The charter, if a nation adopts a charter and if that document is authoritative, will always be a focus of the continuing constitutional debates. But these conversations (these quests for what Gary Jeffrey Jacobsohn terms "constitutional identity")13 will not simply center on the words of that text, but also on continually changing demands on the political system, as well as on the constitution's putative ideals and instruments. Thus, it is a critical point to understand that constitutional design is a process- an ongoing process - that will last at least as long as the political system that it is supposed to constitute.14 A functional constitution can never be a machine that goes by its own force. The men and women who govern under any constitutional order inevitably interpret it, inevitably adjust it, and so, inevitably change it. They usually do so incrementally, but sometimes momentously.15 "Finality," Benjamin Disraeli contended, "is not the language of politics."16 Many of its parts exist in a state of becoming, the product of ongoing creativity.17 And change, as John Randolph delighted in repeating, does not mean progress.18 A constitutional order may decay as well as develop.

II. Definitions

Let me define certain terms. First, I use "politics" as did Aristotle "truly the master art,"19 whose goal is to maximize citizens' chances to live what they consider to be good lives. Thus, "law" in any of its forms, including that of a constitution, is a creature of politics, and, as Felix Frankfurter once said, constitutional interpretation is "applied politics. …

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