On Constitutional Design

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. Rousseau commented famously on the constitutions of Corsica and Poland. 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. 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. Each of those exercises is well worth examining. However, the strictly limited practical success of such distinguished predecessors ought serve as warnings to today's political theorists tempted to dabble in constitution-writing. Still, duly chastened, theorists do have something important to contribute. Theorists are primarily needed 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". 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. In this paper I discuss each of these options, after a few initial remarks on the nature of "constitutional design" itself.