Designing a Constitution: Of Architects and Builders

This Article offers a prolegomenon to basic problems of design rather than prescribes any particular values, institutional arrangements to secure those values, or means to obtain best fit between a larger culture and a given political order.1 My purpose to illuminate questions that confront architects who would strengthen an existing 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 architects' general plans. Thus, my objective to clarify choices for designers of a order rather than to produce a blueprint. I. Political Architects Political creation, Niccolo Machiavelli claimed, dangerous almost as exploration of unknown seas and continents.2 As a subset of that form of creation, design ranks among 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 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 bloody fiasco in Iraq following American invasion in 20037 - even when matched with successes in Germany, India, Italy, and Japan after Second World War8 - show that Machiavelli did not exaggerate difficulties of constructing a constitution. Although sensible men and women should be daunted by responsibilities of architects, they should take heart from Hannah Arendt' s assertion that making the noblest of all revolutionary deeds.9 Such work typically begun by a small elite,10 but if it will effectively constitute (or reconstitute) a civil society,11 that task must soon be joined by large sets of people, operating across decades, and possibly centuries. The constitution not merely a sitting immobile like a rock; it 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 world, nor any living thing, will so cohere.12 The charter, if a nation adopts a charter and if that document authoritative, will always be a focus of continuing debates. But these conversations (these quests for what Gary Jeffrey Jacobsohn terms constitutional identity)13 will not simply center on words of that text, but also on continually changing demands on political system, as well as on constitution's putative ideals and instruments. Thus, it a critical point to understand that design a process- an ongoing process - that will last at least as long as political system that it supposed to constitute.14 A functional can never be a machine that goes by its own force. The men and women who govern under any 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 language of politics.16 Many of its parts exist in a state of becoming, product of ongoing creativity.17 And change, as John Randolph delighted in repeating, does not mean progress.18 A order may decay as well as develop. II. Definitions Let me define certain terms. First, I use politics as did Aristotle truly master art,19 whose goal 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, a creature of politics, and, as Felix Frankfurter once said, interpretation applied politics. …