ARENA Working Papers
WP 97/26



On Constitutional Design

Robert Goodin
Department of Political Science, Australian National University


Political theorists do not have a particularly distinguished track record when it comes to designing constitutions. That is not from the want of trying. Bentham spun out massive constitutional codes. [1] Rousseau commented famously on the constitutions of Corsica and Poland. [2] Aristotle's Academy assembled commentaries on the constitutions of 158 Greek city-states, the sole survivor of which is Aristotle's own distinguished discussion of the constitution of Athens. [3] Most remarkable was Locke, who in his capacity as secretary to the Earl of Shaftesbury drafted a text which actually served as the constitution of the colony of the Carolinas, of which Shaftesbury was one-eighth proprietor. [4]

Each of those exercises is well worth examining. Each powerfully illuminates crucial aspects of its author's own larger abstractions. (None more revealingly so than Locke's: his classification as an apologist for commercial capitalism is surely secured by his willingness, despite the democratic pretensions of his Second Treatise, to treat the Carolinas as a commercial fiefdom, constitutionalizing the sovereign authority of its joint-stockholders over its denizens.) Illuminating though those constitutional writings might be of their larger theories, though, I doubt that quite so many of us would today be reading those authors quite so attentively if constitutional commentaries were all they had ever written.

Those strictly limited successes of such distinguished predecessors ought serve as salutary warnings to today's political theorists tempted to dabble in constitution-writing. Certainly I enter those lists with trepidation. Still, duly chastened, theorists do have something important to contribute. Theorists are primarily needed, in my view, as an antidote to black-letter lawyers and thickly-descriptive comparativists. Those practitioners tend to set their moral sights low; at the same time, they tend to stick closely to tried-and-true constitutional models borrowed from elsewhere. All that is done in the name of "realism." But in both respects they are, I think, being unnecessarily realistic: indeed, in many respects wrongly realistic.

Theorists can and should impart more "idealism" to those discussions in both respects. They should bring higher normative aspirations more fully to bear; and they should bring rather more "imagination" to the project, canvassing a wider range of non-fanciful options. I shall discuss each, after a few initial remarks on the nature of "constitutional design" itself.

I. Constitutional Design

A. Contra the Skeptics

"Only a minority of social institutions," says Sir Karl Popper, "are consciously designed: the vast majority have just 'grown,' as the undesigned results of human actions." [5]

True though that may be of most social institutions, constitutions are different. They are, to be sure, written and rewritten against a background of historical accretion. [6] The crucial point nonetheless remains that constitutions are written and rewritten — intentionally designed and redesigned, well or badly, by a determinate set of actors at a determinate point in time. Insofar as principles of institutional design can ever have any purchase, the designing and redesigning of constitutions must surely be an especially (perhaps uniquely) important locus.

Inevitably, contingency and circumstance, luck and judgment all figure largely in the making and unmaking of constitutions. Still, there is considerable scope for more general principles of constitutional design as well. However contextualized the applications of those principles may be, what constitution makers are applying must necessarily be general principles of some sort or another, even if only very incohate ones. However much constitutional designers must trust to luck as to how it will all evetually turn out, it is not purely a matter of luck. Good general principles, properly applied, make good outcomes far more likely, even if still far from certain.

All that seems straightforward. There nevertheless seems to be something about the notion of design that continues to rankle. Perhaps it is just this. "Design" implies "designers," and designers are notoriously out of touch with the real world. Their modus operandi is first-principle (minimally sensitive to local traditions), blue-sky (minimally sensitive to constraining circumstances), blank-sheet (minimally sensitive to past practice). "Designer clothes" are notably uncomfortable, made to fit models with contours very unlike our own (indeed, models chosen precisely for having figures strikingly different from those of mere mortals). Designers design clothes for their clotheshorses, and perhaps for other designers: they do not design clothes for you and me. That, or something like it, might be what we have against designers in general. [7]

In the rag trade, there are two basic alternatives to designer clothes. On the one hand, there are "off-the-peg" items, cut to some standard design in ways impervious to needs of particular individuals. On the other hand, there are "made-to-measure" articles, tailored to fit the specific wearer. No one, except perhaps another designer, would commend clothes that no real people can wear. No one, except perhaps someone who can afford no better, would actually covet off-the-peg items. Everyone, at least in principle (other things being equal), would prefer a made-to-measure wardrobe. So too, presumably, would most polities prefer a made-to-measure constitution.

All three approaches, notice, involve an element of design. Even off-the-peg clothes are cut to some pattern or another; and even made-to-measure clothes, tailored though they may be to fit the wearer, are also tailored according to some conception or another of style and good design.

Furthermore, all three approaches play off certain general principles of design. Designers' designs play off standard themes, their novelty consisting precisely in tightly disciplined deviations from those generally accepted design practices. The made-to-measure designs work general design principles around the particular needs of the particular wearer. Both the most novel and the most adapted designs are, thus, modulations on the sorts of general designs which are standardly embodied in the much maligned off-the-peg items.

My approach to constitutional design is much like that. I commend tailoring constitutions to cases, redesigning and retooling standard models to fit the peculiar circumstances of particular countries to a much greater extent that constitutional copyists characteristically do; and I commend a wider-than-usual search for creative solutions to the peculiar challenges that that often involves. Still, at the end of the day what I propose we should be doing is simply adapting some generally received principles of constitutional design. However far we ultimately move away from them in our designs for any particular polity, we must always start with some general principles regarding what does and does not work in standard cases and most of the time.

B. The Nature of Design

"Design," as I understand it, consists in "harmoniously fitting form to function." [8] The "forms" in question are alternative constitutional arrangements. The "functions" in question are the purposes those constitutional alternatives are supposed to serve — initially in the minds of the constitution's drafters, and ultimately in the life of the society thereby governed. "Harmony" is a matter of fitting the separate bits together in such a way that they interfere minimally with one another in the performance of their designated functions. [9]

When economists speak of "mechanism design," they sensitize us to the need to harmonize incentives to ensure "incentive compatibility" in order for the schemes to work as intended. [10] When legislators speak of "policy design," they sensitize us to the need to harmonise programs with one another and with the larger political and administrative environment. [11] Talk of institutional and constitutional design more generally points to the cognate need to harmonize political structures both with one another and with the larger socio-economic environments in which they are set. [12]

Good designs must be not only internally harmonious but also externally well adapted to the larger functions which they are supposed to serve. In talking of a constitution's "larger functions" I borrow the language of functionalism quite unashamedly. Sociologists and social theorists are rightly skeptical of social explanations couched in terms of "serving purposes" which no one had set, through mechanisms whose workings no one had engineered. [13] Again, though, constitutions are different. There, an intentional selection is made by an identifiable set of agents, and they select the clauses they do for their constitutions precisely with a view to their functional contribution to institutional continuity and social stability.

At the core of constitutional design activities, thus understood, is the identification of "functional requisites" and "functional equivalents." Functional requisites point to the various things that the constitution needs to do. Functional equivalents specify the alternative mechanisms available are for doing it. The design task lies in discovering which combination of mechanisms will most efficiently and effectively perform the functions required of good constitutions.

II. Constitutional Aspirations

Constitutions constitute "higher law," in two connected senses. [14] First, they are "laws about laws." In Hart's famous phrase, they are "secondary rules" telling us how to make and apply, interpret and change the other "primary rules" which govern our daily lives. [15] In this capacity, constitutions constitute the skeleton of the polity. [16] They specify organization charts and lines of authority; they stipulate procedures and create offices; they constitute the mechanisms of government.

That sense of "higher law," though, might be better dubbed "lower law." Certainly it underlies all other lawmaking, but undergirding it from below rather than guiding it from above. Were no such basic framework of secondary rules implicitly or explicitly in place, it would be strictly impossible for us make any other laws at all. [17] But if basic lawmaking frameworks and norms of due process were all we had, we would have nothing to help us decide which laws actually to enact within that bare constitutional shell.

The goals and aspirations which help put substantive flesh on the bare bones of the constitution have many sources and correspondingly many different ways of making themselves felt. But constitutions are among their more important repositories. Constitutions thereby constitute "higher law" in a second sense, setting out (inevitably abstractly and imprecisely) larger goals and aspirations which we want to pursue.

The pious tones of constitutional commentators is undeniably wearing. But, I submit, it is also indicative of something very real, not purely a matter of style and affectation. The stilted rhetoric really reflects, to some greater or lesser extent, the twin fact that with constitutions higher issues are at stake and higher motives are in play. 

"Constitutional moments," in Bruce Ackerman famous phrase, really do evoke people's "higher selves," both subjectively and objectively. [18] When people are called upon to institute fundamental rules for their future self-government, they tend to set aside narrow sectional self-interest and passing controversies and to deliberate instead on the basis of what is truly in the long-term public interest. That too is debatable, of course. But those debates have a decidedly different feel from the petty squabbling and mean maneuvering that characterize politics as usual.

Constitutional deliberations become a font of higher principle largely because constitutions are, or anyway hope to be, long-term arrangements. The 1291 agreement creating the Swiss confederation proclaims that it will, "God willing, last eternally." [19] The American Federalists proclaimed the similar aspiration that their constitution might "stand [a] fair ... chance for immortality," and the Philadelphia Convention actually let that thought guide its deliberations in important respects. [20]

Sometimes of course constitution-writers try too hard. Locke proclaims his constitution for the Carolinas to be "the sacred and unalterable form and rule of government ... for ever" — making no allowance for subsequent amendment. [21] That is bound to backfire. A constitution which cannot be altered will have to be scrapped altogether, sooner rather than later. Recall Dicey's jibe at "the labour wasted in France on the attempt to make immutable Constitutions which, on an average, have lasted about ten years apiece." [22]

Still, constitutions are by their nature at least moderately hard to alter. They characteristically specify relatively arduous procedures for their amendment: special assemblies must be called; amendments must pass by super-large majorities; they must be approved by several different bodies, or reapproved over several years; and so on. [23] In some places, such as Britain, the constitution can in principle be amended just by ordinary legislative procedures. [24] (In Britain even the monarch sits on the throne merely by virtue of Acts of Parliament. [25]) But even where constitutions can in principle be amended easily, in practice there are always firm conventions to ensure that that is not done lightly. [26]

The reason that constitutions are necessarily harder to alter or enact than it is to alter or enact ordinary legislation is not a straightforward function of the fact that constitutional law is higher law, in the sense of being law about the making of law. True, primary rules can only be enacted under the authority of some secondary rule or another, and hence ordinary legislation strictly requires some sort of constitutional warrant for its very existence. Nonetheless, legislation enacted under one constitution can and often does survive the passing of that constitutional order. The French Fifth Republic, for example, continues to pay old age pensions to people qualified by contributions made under the pension laws of the Fourth Republic; and Federal Republic of Germany continues to pay war pensions to veterans of the Third Reich. [27] This is sometimes made constitutionally tidy by successive legislatures re-enacting the commitments of their constitutional predecessors. But even absent re-ratification, it is as Blackstone says in the nature of law that existing laws that they stand until they are changed. [28]

The reason constitutional law must necessarily be harder to enact or amend than mere statutory law lies instead in the functions, both legal and political, which higher law is supposed to serve. Legally, the function of higher law is to provide a framework within which other laws are made and changed. Suppose, however, it were easier to change the law regarding the validity of laws than it is to change those laws themselves. Then secondary law-making, instead of providing a framework for primary law-making, would supplant it altogether. No one would bother with the more arduous procedures for repealing a law if it were easier simply to get the constitutional warrant for its enactment withdrawn— Just as no one would bother to buy title to property, if it were cheaper and easier to buy the judges and police charged with enforcing the rights of titleholders.

Politically, too, we want our constitution to be hard to change for the same reason we want a constitution at all. Politically, the function of constitutions (and institutions more generally) is to provide a secure background of norms and frameworks, in relation to which we may confidently negotiate our ordinary affairs. [29] We want, and need, not only to be able to make commitments to one another but also to be able to make commitments about commitments. In private affairs that is the purpose of contract law: signing a contract is a more binding commitment that merely shaking hands, precisely because we can be sued if we do not keep our contractual commitments. [30] In public affairs, an analogous purpose is served by constitutional law. Politicians do all sorts of deals with one another all the time, usually just on the strength of a handshake. But some of those deals they embed in a constitution in which many other deals are also embedded at the same time. Constitutionalizing those commitments in that way makes each of those them more secure, because no one can renege on any one constitutional commitment without risking the unravelling of all the others as well, to their own considerable disadvantage. [31]

For both those reasons, then, constitutional law is necessarily harder to amend and hence (usually) more stable and long-lasting than ordinary legislation. That, in turn, helps constitutional law to tap people's higher aspirations.

One way that works is through "the logic of uncertainty." The longer a law is likely to remain in force, the more uncertain are each person's own particular interests over that entire period. Even if people were trying to calculate their constitutional choices strictly to maximize their own long-term egoistic self-interest, the more uncertain they are of where exactly those interests might lie, the more they would be driven by that uncertainty to strive to maximize the interests of citizens on average and over the long run — not because they take any altruistic interest in the average citizen's long-run well-being, but merely because the average citizen's long-run well-being the best predictor of each uncertain egoists' own. [32] That is one way in which a constitutional focus upon the "basic structure as subject" helps to evoke more seemingly high-minded responses, whatever people's actual motives. [33]

Logically compelling though that appeal to uncertainty undoubtedly is, it must also be said that there is surprisingly little direct evidence of it at work in actual constitutional conventions. Even behind the closed doors of the Philadelphia Convention — back in 1787, when gentlemen were gentlemen, and Madison's Notes could be trusted not to appear publicly for fully half a century after the event — only one speech is reported as making anything remotely like this "uncertainty" argument. And even then, the speaker's appeal was to the uncertainties that surrounded not delegates' own futures but rather the fates of their children. [34]

There is another mechanism more conspicuously at work, which might be dubbed the "logic of appropriateness." [35] The point is just this. People's responses depend crucially upon how exactly questions are cast. Frame the question in economic terms ("How much is it worth to save the Grand Canyon?"), and you will get an appropriately dollars-and-cents answer; frame the question instead in terms of collective values and self-conceptions ("Are we the sort of people who would flood the Grand Canyon in exchange for cheap electricity?") and you will get a very different sort of answer. [36] Empanel people as a jury, asking them to decide guilt or innocence under law, and they will genuinely try to suppress their personal feelings in the matter. Vest people in public office, requiring them on their oath to "proceed impartially and do nothing for any promise, fear, favour or reward," and they will genuinely try to rise above the temptations of private profiteering to serve the public interest. [37] Sit people in a constitutional assembly or on a constitutional court — or even just ask people in the street what they think the fundamental laws of their society should be — and often enough you are likely to evoke the more reflective sort of response that seems more appropriate to these deeper issues. [38]

Whether by means of the "logic of uncertainty" or the "logic of appropriateness," fundamental, long-lasting constitutional arrangements do seem to embody our higher aspirations. [39] A good many of those aspirations may be of a low-level sort: done deals should stay stuck; politically just as interpersonally, lying, cheating and stealing should be kept to a minimum. In specifying frameworks for living together, ensuring respect for certain basic moral minima may always be what matters most. Even the Ten Commandments specify a pretty minimal morality rather than setting out any particularly high ideals.

But whereas the role of moral minima in personal life might be just letting us get on with our affairs without unwarranted interference from others, the role of constitutional frameworks in political life almost invariably points toward some shared goals which can only (or anyway can best) be pursued collectively. And there, clearly, lies one role for political philosophers in the process of constitutional design: in identifying and refining higher aspirations and shared goals to commend to collective consideraton, and in framing institutional structures capable of evoking them. [40]

III. Constitutional Options

Much though theorists might do toward explaining how and why constitutions can and should embody higher aspirations, and suggesting what those should be, their second and frankly equally important role lies more simply in mounting a more imaginative search for constitutional options.

A. Against Borrowing Off-the-Peg Models

Traditionally, those charged with writing or rewriting constitutions, whether in new nations and old, tend largely just to borrow tried-and-true models close to hand. Their texts bear witness to this borrowing. Reading across any large compendium of constitutions, it is astonishing how similar their language often is. [41] The histories of constitution writing bear further witness to this self-conscious borrowing. It is not just armies of occupation that impose US-style constitutions on countries like Germany and Japan. Many new nations actually sent armies of emissaries to solicit advice from US Supreme Court justices and their counterparts overseas before drafting constitutions for themselves. [42]

Now, in many obvious respects it is a simply good practice to canvass existing options, getting whatever ideas you can from elsewhere. Indeed, I shall be doing just that myself in what follows — although in so doing I shall certainly be moving well beyond the tired trinity of British, French and American Constitutions. [43]

In many other respects, though, it is dangerous simply to borrow constitutions from elsewhere, adjusting them only marginally to local circumstance. While that sometimes works well, sometimes it backfires badly for reasons associated with the "general theory of second-best." In its standard economic form, that theory simply says that, if any one of the features that characterize the first-best state of the world does not exist, then the second-best world might require wholesale revision of all those first-best characteristics. [44] Perfect competition in a completely free market may be the ideal, for example; but if you cannot have perfect competition everywhere, then more rather than less government intervention might be second-best to correct for those market imperfections.

The same may well apply in politics as well. [45] Ideally, perhaps we would like to be able to enumerate all rights in full detail in our constitution. But if we find that we cannot enumerate all of them completely, it might be better to enumerate none of them in any detail at all. It might be better, instead, to ask constitutional courts just to apply a few very general and vague principles to protect people's rightful interests. [46]

Or, again, ideally a polity might contain no "persistent minorities." In that case, majority rule and "one person, one vote" would indeed be the ideal decison rule. [47] Where there are persistent minorities, however, majority rule yields persistent oppression. Under those circumstances, what we want are entrenched rights or super-large majority requirements — the whole point of which is to give minority groups more power than their numbers would warrant, and in that way actually to thwart the voting power of majority factions. [48] Note well: In adjusting our ideal political arrangements for the complicating factor of persistent minorities, what we make are not merely marginal adjustments but rather systematic departures from first-best political arrangements in the ideal world. In the non-ideal world where polities are indeed factionalized, the success of our arrangements depends not in how close they come to implementing majoritarian "one person, one vote" principles but rather in safely distant they are from that ordinarily-ideal standard.

There is every reason to suppose that this "second-best" phenomenon is politically pervasive. If so, however, constitution-writers who think they are being super-cautious and highly prudent in borrowing tried-and-true models from elsewhere might instead be behaving unduly recklessly. Instead of importing off-the-peg models, with minimal adjustments, it might actually be better for them to approach their task in the bolder, "blank-slate" mode, rethinking the issues de novo and (re)designing constitutions from first principles.

B. Canvassing Wider Options

To do this, constitution-writers will require a much wider menu of options than are generally available from the standard handful of off-the-peg constitutional models. Mixing-and-matching elements from among them will generate a certain number of novel combinations, to be sure. But limiting our focus to familiar Franglo-American models, mixing-and-matching as we may, leaves us with an all-too-limited set of options from which to choose: presidentialism versus parliamentarianism; majoritarianism versus proportionalism; unicameralism versus bicameralism; multi-member constituencies versus single-member ones; federalism versus unitary government; and so on. [49]

Since my aim here is merely to show that there is more scope for creative thinking than students of comparative constitutional law ordinarily exercise, I shall content myself with a mere "sampler" of different ways of skinning the constitutional cat. What follows are just a few examples of hitherto under-discussed functional equivalents which might well meet the functional requisites of a good constitutional order.

1. Democratic Responsiveness: Making vs. Applying the Laws

One of the functional requisites we would nowadays want to specify for any good constitution is democratic responsiveness. We want (nowadays, at least) our laws to reflect the will of the people.

The ordinary way of ensuring that is through the electoral accountability of presidents and parliaments and, to a lesser extent, through the accountaility of unelected officials to elected representatives in either the executive or legislatiture. All the standard Franglo-American constitutional provisions are all variations, in one way or another, on that basic strategy.

Those ordinary strategies of electoral accountability try to render the enactment of laws democratically responsive. An alternative strategy might try instead to render democratically responsive their application and enforcement. We might, for example, give democratically representative juries broad discretion in applying the laws. Functionally, democratizing the later stages of the legal process is strictly equivalent to democratizing the earlier stages of it. Either way, the law is made subject to the will of the people.

This proposal is not without precedents. That is roughly the way things seem to have worked, whether by accident or design, in ancient Athens where juries were highly democratic institutions which enjoyed broad latitude. [50] The precedents are not all ancient, though. Today, too, we strive to make our jury representative of the community at large (so those accused really are tried by a "jury of their peers," in more than a purely formal sense). [51] These precedents suggest that perhaps we ought consider the "democratic jury discretion" option for democratizing the polity more generally. Much can be said both for and against actually adopting that option. [52] My present purpose, however, lies simply in showing that there are many more constitutional options that free-ranging theorists might think of than that comparative constitutionalists ordinarily stumble across.

2. Checking the Abuse of Power: External vs. Internal Controls

One of the functional requisites liberals want to specify for any good constitution is checking the abuse of power. We want (nowadays) to ensure that there government stays within its assigned sphere, that it does not exceed its authority.

There are many ways by which we ordinarily attempt to achieve that aim. Some of those mechanisms are essentially judicial: we give people vested rights, which they can pursue in court; we empower courts to void government acts as unconstitutional or ultra vires, where public officials are acting outside the scope of their legal authority. Other mechanisms for ensuring limited government are frankly political: separating powers among distinct branches of government, and givine each both the ability and incentive to check and balance the other.

All of those standard ways of checking the abuse of authority amount to instituting external checks, relying upon other branches of government to check one another. Alternatively, we might try to institute internal checks. Instead of dividing powers, for example, we might concentrate them instead, thereby giving the authority in question both the motive and the ability to check abuses of power.

Again, many of the precedents have an antiquated feel. Vesting all power in a single source might give the sovereign the motive not to absue power for the reasons offered by medieval defenders of absolute monarchy: they found it inconceivable that a prince would do anything to harm his subjects, because they and theirs belong to him and hence he cannot harm them without harming himself. [53] Authorities with undivided power are better able to police abuses of power because they face none of the problems, standard where power is divided and responsibility is shared, of "diffusion of responsibility" (what is many people's job is no one's) and "blame avoidance" (each passing the buck to co-responsible parties). [54] While much in those arguments really does hark back to the dark ages, much in them also finds echoes in the modern theory of the firm. [55] And of course the modern notion of "responsible party government" that plays heavily on them. [56]

3. Protecting Minorities: Output vs. Input Filters

A further functional requisite for a liberal constitution, connected to the last, is to protect minorities. The standard way of doing that is through rights guarantees of one sort or another. Rights specify "protected spheres": there are certain sorts of things we simply cannot do to people. [57]

That standard approach works by filtering outputs. An alternative strategy is to filter inputs. We might, for example, impose restrictions on what sorts of arguments can be used in parliamentary debates, banning racist appeals or arguments defamatory of minority religions or ethnic groups. [58]

Again, there are precedents of sorts in existing rules of what constitutes "unparliamentary language" (though that mostly amounts to a probibition on name-calling among Honorable Members themselves), in laws against defamation and hate speech (though MPs are traditionally themselves exempt from such laws when speaking on the floor of the House), and in occasional "gag rules" legislatures have imposed on themselves in the past. [59]

It is, perhaps, unclear to what extent input filers can fully substitute for output filters in preventing hateful enactments from reaching the statute books. Those anxious to enact such legislation might always be able to employ thinly veiled allusions, where directly hateful appeals are not permitted. Once again, though, the issue here is not whether this alternative is actually preferable but merely that it is worth considering.

4. Social Pluralism: Tolerating Diversity vs. Promoting It

Liberals regard it as a functional requisite of a good constitution that it can accommodate the fact of social pluralism. The good society must accommodate "secondary associations," leave space for civil society and so on. It must accept social diversity and respect difference, particularly in socially-sensitive realms of religion, race, language, ethnicity and so on. [60]

The ordinarily mechanisms for serving these ends are constitutional guarantees of toleration of one sort or another. These are typically expressed in terms of "free association" and "free exercise" of each group's different practices. The Virginia Statute of Religious Liberty is the most famous model [61]; but a clear precursor is found even in Cromwell's "Instrument of Government" (the only written constitution Britain has ever had). [62] Usually the toleration takes a hands-off form, as with the "non-establishment" clause in the US First Amendment; occasionally it takes a more hands-on form, as with the Scheduled Castes in the Indian Constitution. [63] But hands-on or hands-off, toleration is the fundamental strategy.

Instead of tolerating existing diversity, however, we might try actively promoting more diversity. Multiculturalism sometimes amounts to that (though more often it is just another rather more capacious strategy of toleration). [64] A clearer constitutional model for promoting social diversity is found in Locke's constitution for the Carolinas. Everyone there was obliged to belong to some church or another, but everyone (even slaves) were to be free which church to join; and any group of seven people could officially form a church of their own, and officially register it as such with the authorities. [65]

Again, I do not want to argue here whether on balance this alternative strategy is preferable to the standard one. But let me give just a couple of reasons why it might be. One problem liberals have with recognizing the prerogatives of subordinate social groups over their members is that that sometimes amounts to subcontracting authority to distinctly illiberal groups. [66] Another problem is that in allowing any wide scope to group prerogatives we thereby risk ossifying already-privileged groups in our society. [67] Were our constitution to promote social pluralism in a way that encourages a proliferation of new groups, rather than just blanketing in existing ones, both of those problems would be largely ameliorated.

Let me say again, I do not want to argue the pros and cons of any of those particular proposals. I merely mean to suggest that there is some real point in indulging political theorists' occasional flights fo fancy, and in joining them in looking beyond the strictly limited set of standard constitutional models. We can certainly hope to get some new ideas in that way, and they might well turn out to be good ideas, at least for particular (possibly peculiar) sorts of polities.

C. Ensuring Functional Fit

As I said at the outset, though, design is more than just a matter of generating lots of novelties. It is also a matter of fitting all the bits together into a harmonius whole, which is functionally well-adapted to the purposes at hand. Once again, within the scope of a single paper the most I can do is to illustrate the importance of that theme: offering some examples of these processes gone wrong, together with some analysis of how a design focus might have helped keep them on the right track.

For purposes of this demonstration, let me shift my focus from the insistently novel to the painfully familiar. My point here is not just bizarre schemes that might sometimes behave in bizarre ways but that even very familiar instruments can behave in surprisingly erratic ways, either in non-standard circumstances or in company with other instruments which are themselves perfectly standard too but with which they are not often paired.

One of the more hackneyed example is what has been dubbed "the perils of presidentialism." [68] The problem is that, where both president and parliament enjoy a direct democratic mandate, neither has any democratic reason to yield to the other. Disfunctional wrangling, whether in the form of deadlock or instability, inevitably ensues. Anyway, so goes the stylized finding of comparativists which I will take as my jumping-off point, for purposes of this discussion. [69]

Recasting that as a "design problem," the issue seems to be just this. Direct democratic accountability may well be a desirable attribute of our constitutions; but it can be applied to only one, and no more than one, branch of government. Parliamentarianism resolves the problem by removing the direct democratic accountability of the chief executive. There, the premier is elected by parliament and accountable to it, and is only indirectly accountable through parliament to the people. Latin American-style presidential dictatorship resolves the problem in the opposite way, with presidents ruling largely by decree and thereby circumventing legislatures and any democratic authority vested in them. Insofar as those are the two principal options which the systematic of comparative politics reveals, it is not in the least surprising that so many commentators plump for the parliamentary option. [70]

Focusing on the standard menu of options thrown up by comparative political experience may make those two seem the only options. But focusing upon the dynamics of the design problem itself suggests others — others which, upon closer inspection, we see manifested in various countries around the world as well.

Suppose the design problem is that both legislature and executive have direct democratic accountability, which too often comes into tension. One way to reduce this tension would be by reducing the sense of direct democratic accountability that attaches to the legislature by, for example, building an unaccountable (or indirectly accountable) component into the legislature. The democratic credentials of the legislative branch are clearly compromised by having legislation subject to the intervention of unelected or indirectly-elected upper chambers: and from a design perspective, that might not be an altogether bad thing, insofar as it makes less-democratic legislatures more subservient to the popular will represented by more-democratically accountable executives. [71] Another way of ameliorating the clash between a directly elected executive and a directly elected legislature is to emphasize different scope of their concern. Legislators are elected to represent local constituencies. The president and the president alone is directly responsible to a nationwide constituency. That, in some clear sense, makes the president more directly accountable to the people as a whole. [72]

Those thoughts are familiar enough from theoretical critiques of democratic practice worldwide. Oddly enough, they are rarely brought to bear in the arguments over presidentialism versus parliamentarianism, where the focus seems insistently fixed on the too sharp contrast between parliamentary democracy or presidential dictatorship. Ways of modulating the democratic pretensions of the legislature without eliminating them, and strengthening the democratic authority of executives without making them elective dictators, is rarely canvassed.

Thinking in terms of a design perspective — analyzing the problem in terms of functional requisites and functional equivalents and harmonious fitting together of the pieces — helps us better see exactly what the problem is, even with something so familiar as the "perils of presidentialism." And thinking of the problem in those design terms helps us see some other (once we have seen them, familiar) solutions to the problem, solutions which just scanning the comparative politics horizons for alternative models did not immediately reveal.

IV. Conclusions

Article 80 of Locke's constitution for the Carolinas would prohibit us (and Locke) from doing what we have just been doing. It reads,

Since the multiplicity of comments ... have great inconveniencies, and serve only to obscure and perplex; all manner of comments and expositions, on any part of these Fundamental Constitutions, or any part of the common or statute law of Carolina, are absolutely prohibited.

Perplexing though of constitutional questions can sometimes be, no decent purpose can properly be served by theorists desisting altogether from comment on issues of constitutional design. Awkward it may be for Palatines and proprietors of the Carolinas, and for potentates elsewhere throughout the world, to be bound by higher law. There is nonetheless a higher purpose to be served, a purpose which will be served well or badly depending largely upon how that higher law is itself cast. We may not be able to plan everything, politically, or to fix everything, institutionally. When it comes to fundamental questions of constitutional design, though, much can be known and much can be done — and theorists can help.


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[1] Bentham 1843.

[2] Rousseau 1765; 1772.

[3] Aristotle n.d.

[4] Locke 1669.

[5] Popper 1961, p. 65.

[6] Hence Cicero: "the constitution of the republic is the work of no single time or of no single man" (quoted in McIlwain 1947, p. 26).

[7] There is also, of course, the element of sheer hubris, as Freeman Dyson's (1997, p. 48) peroration on "designer dogs and cats" makes clear: "Designing dogs and cats is an ethically dubious business.... When anybody with access to the software can order a dog with pink and purple spots that can crow like a rooster, some tough decisions will have to be made. Shall we allow private citizens to create dogs who will be objects of contempt and ridicule, unable to take their rightful place in dog society? And if not, where shall we draw the line between legitimate animal breeding and illegitimate creation of monsters?"

[8] To adapt the old Bauhaus slogan — which the Bauhaus movement itself conspicuously failed to live up to.

[9] Alexander 1964.

[10] Hurwicz 1977.

[11] Linder and Peters 1985.

[12] Goodin 1995.

[13] At most, it was widely agreed, existing social institutions might be said to be "functionally well adapted" to ensuring the survival of societies embodying them, not because societies have self-consciously chosen them by virtue of those attributes, but merely by virtue of natural selection: institutions which, for whatever accidental reasons, happen to embody them are more likely to survive to be counted. See Cohen 1978, ch. 9. Elster 1983, ch. 2.

[14] Distinguished clearly in Sartori 1962.

[15] Hart 1961.

[16] Adapting Sir Frederick Pollock's observation that 'law is to political institutions as the bones to the body' (Pollock 1882: 200-1).

[17] So too would it be strictly impossible for us to be guided by laws unless they displayed certain fundamental aspects of "natural justice" (being promulgated; being made in advance of the acts which they are meant to guide; and so on) — which is Fuller's (1969) point in coining the phrase "lower law."

[18]Ackerman 1984; 1991. Note, for example, Alexander Hamilton's remarks to the Philadelphia Convention on 29 June 1787: "We are weak and sensible of our weakness. Henceforward the motives will become feebler and the difficulites greater. It is a miracle that we are now here exercising our tranquil and free deliberations on the subject. It would be madness to trust to future miracles. A thousand causes must obstruct a reproduction of them"' (Madison 1840, p. 216).

[19]Indeed, that confederation was actually called the "First Eternal League" (Spiro 1959, p. 393).

[20] Madison, Federalist # 38 (Hamilton, Jay and Madison 1788, p. 246). In the closed-door drafting sessions, they self-consciously strove to avoid constitutionalizing contentious matters which could, in the words of Madison's 29 June 1787 speech to the Philadelphia Convention, "infuse mortality into a Constitution which [they] wished to last forever" (Madison 1840, p. 214).

[21] Locke 1669, Article 20. That this is no accident or oversight is clear from the constitution's preface: "We have agreed to this following form of government, to be perpetually established amongst us, unto which we do oblige ourselves, our heirs, and our successors, in the most binding ways that can be devised."

[22] Dicey 1908, p. 474.

[23] Friedrich 1968, chap. 8. Bryce 1901.

[24] Other such examples include the 1848 Italian Constitution, the present New Zealand Constitution and even Bentham's proposed Constitutional Code (Grey 1979, p. 193).

[25] Act of Settlement, 13 William III, ch. 6 [1701]. Act of Union, 6 Anne ch. 4 [1707]. See further Dicey 1908, pp. 62 ff.; Finer, Bogdanor and Rudden 1995, p. 43.

[26] On the conventions of the constitution more generally, see Dicey 1908 and Moodie and Marshall 1971.

[27] Rose and Peters 1979, pp. 115, 263.

[28] As common-law rather than statutory-law, perhaps, in instances such as these. See e.g. Blackstone 1765, bk. 1, ch. 4, p. 105. That passage was directed at the continuing validity of (unrepealed) Saxon law after the Norman conquest, but it has been used most recently to underwrite continuing "native title" of Australian Aborigines in unconfiscated territories even after European settlement. See Mabo v Queensland [1992] 107 ALR 1.

[29]This is the message of the "new institutionalism" in economics and political science, more generally. See, e.g., North 1991; March and Olsen 1984; 1989; 1995.

[30]Schelling 1960, p. 43. Hardin 1982, p. 260.

[31]Elster 1988. North and Weingast 1989; Shepsle 1995; Weingast 1996; 1997.

[32] See, e.g., Edgeworth 1897/1967, pp. 120-1. See similarly Hume's (1739, bk 3, pt 2, sec. 7) arguments for adopting settled rules of justice as an "expedient, by which I may impose a restraint upon myself, and guard against [the] weakness" of myopic time preferences.

[33]Rawls 1977. Goodin 1992, chs 3, 6.

[34]The speech in question — by George Mason on 31 May 1787 — reminded delegates that, "however affluent their circumstances, or elevated their situations might be, the course of a few years not only might but certainly would distribute their posterity throughout the lowest classes of Society. Every selfish motive ..., every family attachment, ought [therefore] to recommend such a system of policy as would provide no less carefully for the rights and happiness of the lowest than of the highest orders of Citizens" (Madison 1840, p. 40). I am grateful to Jon Elster for drawing this speech to my attention; see further Elster 1994.

[35]March and Olsen 1995, ch. 2.

[36] Sagoff 1994.

[37]The form of words is that which were to have been sworn by the Lord Protector and Council under Cromwell's Instrument of Government (UK 1653, article 42).

[38] Goodin 1996b, p. 341.

[39] "Appropriateness" and "uncertainty" motives can of course work perfectly well alongside one another. They need not (and usually would not) come into sharp enough focus to force us to acknowledge them as distinct motives, much less to force us to choose between them (Goodin 1995c, ch. 3).

[40] Goodin 1996b.

[41] Peaslee 1956. Blaustein and Franz 1976.

[42] Rapaczynski 1990. Goldwin and Kaufman 1988.

[43] Or Germany and Russia, which with them make up the standard Five Constitutions (Finer 1979; Finer, Bogdanor and Rudden 1995).

[44] Lipsey and Lancaster 1956. "Might," notice: not "necessarily will." The theory is an agnostic one in that respect.

[45] Goodin 1995b; 1996a.

[46] So argued Hamilton against a Bill of Rights, in Federalist # 88 (Hamilton, Jay and Madison 1788). See the 1946 Preamble to the Constitution of the French Fourth Republic (Finer, Bogdanor and Rudden 1995, pp. 211-2) for a good example of enumeration gone wrong — a very partial list of rights, with the ones that are listed being specified so completely that it seems hard to justify insinuating any others as "implied."

[47] Ideal, for example, in terms of impartiality (May 1952) or in terms of maximizing each voter's chances of being on the winning side (Rae 1969; Taylor 1969).

[48]Which is what Waldron (1993), for example, has against them.

[49] Sartori's (1994) Comparative Constitutional Engineering limits itself to essentially the first two of those pairs alone. Lane's (1996) treatment is more theoretically wide-ranging but institutionally similarly circumscribed. Even in their four-volume reference collection, Cohen and Fung (1996) only occasionally manage to move much beyond this familiar litany.

[50] Sometimes numbering as many as 5000 persons, juries represented a fairly large sample of the citizenry; and they were chosen by lot from the entire citizenry, propertyless and propertied alike. Furthermore, Athenian juries were particularly powerful bodies (Manin 1997). Charged with the task of applying very broad, indefinite laws to particular cases, they enjoyed such broad latitude that it might reasonably be said that they were making the laws every bit as much as they were interpreting and applying them. Aristotle (n.d., sec. 9) notes that this was the effect, while denying it was the intention, of leaving the interpretation of such broad laws to democratic juries.

[51]Abramson 1993; 1994.

[52] In the case of "democratization through jury discretion," the principal objection will presumably be that it undermines the "rule of law." Where the law can vary at the whim of a jury, no one can know in advance what the law will actually turn out to be, and people cannot guide their lives accordingly. How strong an objection you think that is depends, in part, upon how predictable you think present judicial practices are. At present, large corporations can reliably blugeon individual plaintiffs into submission by running up huge legal fees which few individuals can match. Insofar as jury discretion renders that result less predictable, it seems to me an argument for rather than against democratization-via-the-jury. What it undermines, then, is not so much the rule of law as rule of the rich.

[53]This argument is most familiar to moderns in virtually its last incarnation, in Thomas Hobbes' defence of absolute monarchy: "Now in monarchy the private interest is the same [as] the public. The riches, power and honour of a monarch arise only from the riches, strength and reputation of his subjects. For no king can be rich nor glorious nor secure whose subjects are either poor or contemptible or too weak through want to dissention to maintain a war against their enemies" (Hobbes 1651, ch. 19; for precursors, see Gierke 1900). Advocates of one-party democracy sometimes argue similarly today (Zolberg 1966).

[54] Darley and Latané 1968. Weaver 1986.

[55]Why do we internalize production within a single firm, if it is not easier to monitor the quality of the labor inputs than it is to monitor the quality of the finished outputs we would alternatively have to buy from subcontractors? and do those same lessons not apply in trumps when it comes to subcontracting government services? Coase 1937; Williamson 1985.

[56] APSA 1950.

[57] Hart 1955; Goodin 1996c.

[58] This discussion draws on my earlier arguments for "laundering preferences" (Goodin 1995c), ch. 9.

[59] Jefferson 1801. May 1971. Holmes 1988. Note that this is a matter of constitutional law in Locke's 1669 Constitution for the Carolinas, Aricle 102 holding that, "No person of any other church or profession shall disturb or molest any religious assembly," and Article 109 that, "No person whatsoever shall disturb, molest or persecute another for his speculative opinions in religion, or his way of worship."

[60]Cohen and Rogers 1992. Hirst 1994.

[61] Peterson and Vaughan 1988.

[62] Clause 37 provides, "That such as profess faith in God by Jesus Christ (though differing in judgment from the doctrine, worship a discipline publicly held forth) shall not be restrained from, but shall be protected in the profession of the faith and exercise of their religion" — though of course that explicitly does not apply to those profess "Popery or Prelacy nor to such as under the profession of Christ, hold forth and practice licentiousness" (UK 1653).

[63]Galanter 1984.

[64]Kymlicka 1995.

[65]Locke 1669, Articles 97-109.

[66] Kukathas 1997.

[67] Fraser 1995a,b. Young 1995.

[68] Linz 1990. Linz and Valenzuela 1994. Stepan and Skach 1993. Sartori 1994, pt 2.

[69] Instability does not always follow: the US seems strikingly different from the Latin American upon which this finding rests, for reasons which themselves are too-little explored in this literature (Sartori 1994, ch. 5).

[70] Sartori (1994, ch. 9) suggests a mixed variant he dubs "alternating presidentialism," with parliaments having the option of forming one or two governments, but after those have collapsed the president forming a government for the duration of the parliament. That, however, seems to constitute a solution to a rather different problem and less worrisome problem. As Sartori (1994, pp. 112-4) himself says, the problem of government turnover in itself is really rather trivial. What worries us instead is the failure of governments, however constituted, to legislate. That is the problem to which the alternatives in the text are designed as solutions.

[71] That is of course big "if": US Senators in the period before they were directly elected were not notably deferential to the President or to the directly elected House. Further design work is obviously required to make this scheme work, if it cam be made to work at all.

[72] It might be replied that, while each legislator represents a particular constitutency, the legislature as a whole represents the country as a whole. But the point remains that the legislature is not directly accountable to the country as a whole. The mechanisms of accountability are constituency-by-constinuency, legislator-by-legislator.

[Date of publication in the ARENA Working Paper series 15.10.199]