Constitution-Making: The Pre-eminently Political Act
Constitutionalism: The Israeli and American Experiences - Chapter 1
Daniel J. Elazar
It may appear to be a truism to state that constitution-making is
the pre-eminently political act. Nevertheless, after a
generation of withdrawal on the part of many political scientists
from consideration of all that is labelled "constitutional" in
the world of government and politics, on the grounds that such
matters are merely "formal" and hence not "real," it is a truism
that needs restating.
Modern constitutionalism first emerged in British North America
with the American colonial constitutions beginning with the
Fundamental Orders of Connecticut in 1639. After the Declaration
of American Independence in 1776, virtually all of the new states
drafted and adopted state constitutions which took modern
constitutionalism a long step forward. That trend reached its
first full flowering in the U.S. Constitution of 1787, whose
bicentennial is upon us. With it emerged the twin ideas of
constitutional choice and constitutional design as the first
expressions of political and civic life in democratic republics.
In the words of The Federalist, the Americans demonstrated that
governments could be established by "reflection and choice,"
rather than by "force" or "accident."
Constitution-making, properly considered, brings us back to the
essence of the political. However much extra-political forces
may influence particular constitution-making situations or
constitutional acts, ultimately both involve directly political
expressions, involvements, and choices. In that sense, the
dynamics of constitution-making have to do with questions of what
Vincent Ostrom has termed constitutional choice.1 A proper study
of the subject, then, involves not only what is chosen but who
does the choosing, and how.
Constitutional choice is more art than science. There are
scientific principles involved in the making of constitutions, as
the fathers of the United States Constitution of 1787
demonstrated in their reliance on the "new science of politics,"
which had discovered such vital principles of republican regimes
as separation of powers, federalism, and the institution of the
presidency.2 But the combination of those elements and their
adaptation to the constituency to be served is an art.
It is an even greater art to bring the constituency to endow the
constitution with legitimacy. Constitutional legitimacy involves
consent. It is not a commitment which can be coerced -- however
much people can be coerced into obedience to a particular regime.
Consensual legitimacy is utterly necessary for a constitution to
have real meaning and to last. The very fact that, while rule
can be imposed by force, constitutions can only exist as
meaningful instruments by consent, is another demonstration that
constitution-making is the preeminent political act.
A constitution is also a political artifact;3 making one combines
science, art and craft, including the identification of basic
scientific principles of constitutional design and the
technologies which are derived from them by a constitutional
artisan or group of artisans.
Because of its pre-eminence in constitutional history, the United
States Constitution often is taken to be the only model. Despite
its greatness, it is not. Other models have developed and must
be considered. Looking at the relationship between the contents
of the constitutional document and the fundamental character or
form of the polity it is designed to serve, we can identify
five basic models:
The constitution as frame of government and protector of
rights.
The constitution as code.
The constitution as revolutionary manifesto.
The constitution as (tempered) political idea.
The constitution as modern adaptation of an ancient
traditional constitution.
The Constitution as Frame of Government and Protector of Rights
This constitutional model is characteristic of the United States,
the oldest of the modern constitutions. As a frame of
government, it delineates the basic structure, institutions, and
procedures of the polity; and as protector of citizens, it
declares certain rights to be basic and provides means for their
protection in civil society. It is not a code. Hence it is not
designed to be highly specific and is only explicit in connection
with those elements essential to the framing of a government.
American constitutions frame governments and not the state
because the absence of any sense of state as a pre-existing
phenomenon, a reified entity which continues to exist regardless
of how it is constitutionalized (or not constitutionalized) at
any particular moment is characteristic of the American system.
Frame of government constitutions establish polities as often as
they establish governments. Written constitutions of this model
often are designed to be devices for organizing new societies
founded in new territories, such as the United States, Canada,
Australia, New Zealand, and South Africa. In such cases, they
frequently begin with political covenants or compacts which
establish the body politic in question. For example, the
Preamble of the Massachusetts Constitution (1780) specifies that
the people of that commonwealth both covenant and compact to form
a body politic. The Montana Constitution (1978) includes a
compact with the land in its Preamble.
Reform in such situations really amounts to keeping the frame of
government in tune with societal change. Often, the frame can be
tuned up through mechanisms like Supreme Court decisions, which
will not be written into the fundamental document, but which
becomes an integral part of the constitutional tradition. Only
where reform requires changes in specific wording is formal
amendment used. In the American states, new constitutions have
been adopted for that reason or when the mechanism of judicial
tuning has broken down.
The Constitution as Code
In contrast to the frame of government
model, Western European constitutional codes tend to be far more
rigid and require precise and deliberate formal textual change to
be tuned or adopted. The frame of government model works best in
political systems where there exists basic consensus with regard
to the character of the polity, while the constitutions as code
model reflects the reality of polities in which the character of
the regime itself is sufficiently problematic for change in its
authority, powers, or functions to require explicit consent.
For most Western European states, the constitution is a state
code designed to cope with an established order, with established
pre-existing constituencies, not to speak of a pre-existing
state. As the word "code" signifies, it is long, detailed,
highly specific, and explicit, certainly by American standards.
Constitutional change in the case of such constitutions reflects
either a change in regime or the necessity to adapt the
constitution to delineate precisely the ends of government at a
given time. The constitutions of Austria and the German Federal
Republic are classic examples of that highly rigid model, but so
is the 1978 Spanish constitution, introduced after Franco's death
as the basis for the introduction of a more liberal regime.
The Constitution as Revolutionary Manifesto
The third model,
most common in the Socialist (Communist) states, is designed for
the comprehensive revolutionary reconstruction of an established
civil society, based upon the achievement of a social revolution
of the most fundamental kind, with all of its political
manifestations and impact. This is a constitution designed to
root out the old order and to reorder its elements in their
entirety. Thus Communist constitutions tend to exclude certain
groups or classes from participation in the body politic as much
as to define the rights, roles, and responsibilities of those who
are entitled to participate. Moreover, the central feature of
every Communist constitution is the location of power in the
hands of the organized revolutionary cadres. Indeed, the
constitution is not only used to establish the myth of the social
revolution but as an instrument for fostering that myth and
enhancing the power of the revolutionary cadres to make the
revolution in the name of the myth.
If there is such a thing as constitutional reform in such
systems, it involves bridging the gap between the constitutional
myth and regime reality. Such constitutions establish certain
myths about the state and its society which are far from the
realities of political life. At some point, the gap between the
constitutional myth and the regime reality becomes too great and
there has to be some attempt at reform. This has been
particularly true in Yugoslavia where the federal republican
constitution has been rewritten several times since the regime
was instituted at the end of World War II to reflect changes in
the distribution of power between the federal government and the
republics and between the various classes and groups within
Yugoslav society. Another such change was instituted in
Czechoslovakia as a result of the 1968 revolt in the country.
While the socio-political liberalization sought by the liberals
was rejected by the ruling Communist party, a federal arrangement
was introduced to accommodate the ethnic aspirations of Czechs
and Slovaks.
The USSR itself has undergone the least constitutional change in
this respect. Its most recent effort was launched by Nakita
Khruschev when he was in power, principally to eliminate the
federal structure which he, following Leninist doctrine, held to
be a temporary expedient to communize non-Russian nationalities
which was no longer needed. After seventeen years of
negotiations and long after Khruschev himself has passed from the
scene, a new constitution was indeed adopted with the federal
structure intact. Even the Communist leaders of the national
states in the USSR had refused to accept the change.
The Constitution as (Tempered) Political Ideal
This model is
most closely identified with the Third World. It was pioneered
by the Latin American countries in the nineteenth century. This
type of constitution combines an expression of what its citizens
believe the regime should be with the basic structure of
authority which will enable the current powerholders to rule with
a measure of legitimacy. The former is presented without any
serious expectation that the polity or regime will achieve that
constitutional ideal, and the latter in anticipation of periodic
change as rulers change, usually through revolution or coup. This
model bears some superficial resemblance to the communist model
but it has a political rather than a social revolutionary intent.
In essence, most Third World constitutions are designed to
present an ideal picture of the institutional framework of the
proper polity while simultaneously reflecting the character of
already rooted power systems and the specifics of rule by the
current powerholders.
Constitutional change in much of the Third World involves
balancing regime realities with constitutional aspirations.
Hence, Third World polities seem to be constantly changing their
constitutions in their entirety. In fact, while each
constitution is presented as new, usually there is a great
continuity of basic articles from one document to the next,
combined with changes in specifics to reflect each new regime.
Latin American constitutions over the past 150 years or more
demonstrate this pattern: on the surface an apparently frequent
change of documents but underneath substantial continuity in
their contents. In each Latin American polity, there is a
"classic" constitution, usually adopted sometime during or at the
close of the first generation of independence, in which the
fundamental tensions o the founding are sufficiently reconciled
to enable the polity to continue to exist. Each subsequent
constitution accepts this original reconciliation and adapts it
to reconcile present realities with long-term constitutional
aspirations. In most cases, after a revolution or coup, when a
constitution is changed, the new powerholders will explicitly make
this point: that what they are doing is "temporary" or "interim,"
to make possible the achievement of larger constitutional
aspirations. If this is so much rhetoric, it remains an
important part of the Latin American political mythology.
The Constitution as a Modern Adaptation of an Ancient Traditional
Constitution
Polities utilizing this model have a deeply-rooted
commitment to what can only be characterized as an ancient and
continuing constitutional tradition, rooted in their history or
religion, or both. This commitment frequently finds expression
in what is conveniently referred to as an "unwritten
constitution," which often encompasses a collection of documents
of constitutional import, each of which marks an adaptation of
the great tradition to changed circumstances.
The United Kingdom is one example. Its constitution is
celebrated for its piecemeal constitutional development,
uninterrupted at least since the Norman Conquest and perhaps even
before if William the Conqueror's claims to the throne are
recognized. The only time there has been constitution-writing in
the United Kingdom or any of its constituent countries has been
in connection with some strong necessity to clarify or adapt what
are viewed as ancient principles, as in the case of Magna Carta
(1215), the 1689 Bill of Rights connected with the Glorious
Revolution, and the 1832 Reform Act, or when constitutional
documents are used to establish new relationships among its
constituent countries as in the case of the Act of Union between
England and Scotland (1707) or the reconstitution of Ireland in
the 1920s. Indeed, when this element has been lacking, efforts
to change the British Constitution in a formal way have generally
failed. This was true most recently in the attempted devolution
of legislative powers to Scotland and Wales. At all times,
constitutional change is achieved through ordinary legislative
procedures which are endowed by convention with constitutional
status.
Israel may be another example of this model. In Israel, the
first Knesset was elected as a constituent assembly and spent the
better part of a year debating whether or not to write a
constitution. The body was deadlocked as the traditional
religious parties opposed the idea of a constitution other than
the Torah (Five Books of Moses-as-interpreted), which is the
classic constitution of the Jewish people, while the socialists
were equally opposed because they knew that the constitution
which would emerge would not embrace their Marxian vision of what
the new state should be.
In a classic speech, David Ben-Gurion, Israel's first prime
minister, moved that the writing of a comprehensive constitution
in one stroke be set aside in favor of a system of enacting basic
laws piecemeal as consensus was achieved with regard to each
subject, which would ultimately form a constitution. He
suggested that polities need written constitutions for one of two
reasons -- either to link constituent units in a federal system
or to republicanize absolutism. Since Israel was not a federal
state and the Jewish people has always been republican, Israel
did not need a comprehensive written constitution, only basic
laws to frame its government.4
The proposal for piecemeal writing of the constitution was
accepted. Now every Knesset is a constituent assembly when it
wants to be, and can enact a basic law by a modest special
majority, namely, half plus one of its total membership. Basic
laws constitutionalizing its legislative, executive and judicial
organs, the presidency, the state lands, civil-military
relations, and the status of Jerusalem have been enacted since
the early 1950s. Israel's Declaration of Independence (a
covenantal document) has been given quasi-constitutional status
by the courts in lieu of a formal bill of rights, since it
specifies the basic principles of the regime, while unsettled
issues such as the status and powers of local government or
controversial ones such as a bill of rights, have been left in
abeyance. The relationship between Israel and the Jewish people
has also been constitutionalized through a covenant negotiated
with the World Zionist Organization and the Jewish Agency, and
enacted as legislation by the Knesset.
In the Israeli case, direct consideration of the ancient Jewish
constitution is discussed through presumably neutral rhetoric
because of the ideological disagreements between those who seek a
traditional grounding for the Jewish state and those who want the
state to have a strictly secular grounding. Most Israelis view
their state as a regime based on civil rather than religious law
but believe it only proper that the Knesset specify in law that
the state's legal system should be based as far as possible on
traditional Jewish legal-constitutional principles. To the
extent that the Torah, however understood and interpreted, is
perceived to have constitutional import, it provides a larger
constitutional grounding for the frame of government that is
emerging out of the Israeli constitutional process. Israel's
Declaration of Independence, known in Hebrew as the "Scroll of
Independence," serves as a bridge between this idea of an ancient
traditional constitution still possessing a certain validity and
a modern frame of government.
One of the characteristics of this model is the inclusion among
its constitutional documents of basic laws which relate to
specific ancient traditions: The basic laws of Israel relating to
state lands and to Jerusalem, plus parts of three others: the
Knesset, the President of the State, and the State Economy, plus
the Scroll of Independence and the covenant with the diaspora.
Thus seven of the eleven constitutional texts of the contemporary
Jewish state speak directly to the issues of the ancient
traditional constitution. So, too, does the quasi-constitutional
Law of Return.
Are there other examples of this model? It may be especially
real in the Islamic world, with the Ayatollah Khomeini's "Islamic
republic" in Iran, the extreme example but not too far beyond the
constitutions of the Arab states, all of which link their
polities to Islamic law and tradition. Does Japan consider
itself bound by some ancient traditional constitution even though
its frame of government is so deliberately modern? The matter
bears investigation.
Despite the tendency
for each constitutional model to be prevalent in a particular
geo-cultural area, the models are not strictly confined to a
particular region. For example, India is a Third World country
whose constitution is closer to the Continental European pattern.
The Indian constitution is not only more like a code than a frame
of government, but it deliberately seeks to democratize the
Indian political tradition.
Constitutional Models
|
1. Constitution as Frame of Government and Protector of Rights | e.g., English-speaking countries of the New World |
| 2. Constitution as Code | e.g., Continental European democracies, India |
| 3. Constitution as Revolutionary Manifesto | e.g., Soviet bloc countries, Yugoslavia |
| 4. Constitution as Political Ideal | e.g., Latin American and African states |
| 5. Constitution as Adaptation of Ancient Traditions | e.g., United Kingdom, Israel, Iran
|
The Three Dimensions of the Constitution
Constitutions are not only frames of government but also "power
maps," to use Ivo Duchacek's term; they reflect the realities of
the distribution of political power in the polity served.5 They
have yet a third dimension: they also reflect explicitly or
implicitly, the moral principles underlying polities or regimes.
These are, in fact, the three dimensions of constitutionalism,
recognized by Aristotle and by students of the subject ever
since.6
Every modern constitution must directly provide for a frame of
government. The various models reflect the other two dimensions
to a greater or lesser degree, sometimes directly and sometimes
by implication. A constitution which does not sufficiently
reflect and accommodate socio-economic power realities remains a
dead letter. Revolutionary constitutions actually specify the
new power arrangements being instituted by the revolutionary
regime.
While the moral underpinnings of some constitutions may be
confined to codewords or phrases in the preamble or declaration
of rights which are virtually unenforceable, they nonetheless
have a reality and power of their own. In many, they are at
least partially enforceable through the courts. The moral
dimension of the constitution serves to limit, undergird, and
direct ordinary political behavior within constitutional systems.
In every case, the moral basis of a constitution is an expression
of the political culture of the polity it serves. These aspects
are crucial to any comparative study of constitutions,
constitution-making, and constitutional change. Indeed, if there
is one reason why the study of constitutions became arid two
generations ago, it is because constitutional documents came to
be taken in the abstract, divorced from the power systems of
which they were a part and the political cultures from which they
grew and to which they were responding. Failure to recognize this
helps explain the limitations of trying to transplant
constitutional forms.
Constitution-makers often borrow from one another, not only
within the framework of a particular constitutional tradition but
across traditions as well. Such borrowings were once commonplace
and advocated by reformers as a matter of course. But through a
process of trial and error, constitutional designers have learned
the limits of borrowing. Constitutional architects and designers
can borrow a mechanism here or there but, in the last analysis,
those mechanisms must be integrated in a manner that is true to
the spirit of the civil society for which the constitution is
designed.
For example, the Spanish Constitution of 1978 at first glance may
seem to have certain consociational features, but in fact, Spain
is not consociational at all because it does not give the
nationalities as such within the country a real share in the
national government. Similarly, while there are many apparently
federal features of the Spanish Constitution, it deliberately
rejects the constitutional principle that the territories have
ancient rights (fueros in Spanish) other than those provided in
the constitution itself.
Perhaps the constitution closest to the Spanish is the Italian
constitution, in which the regions are given certain autonomous
powers of home rule without being involved qua regions in the
general government. Indeed, the Italians borrowed their model
from the pre-Civil War Spanish republican constitution and then
Spain very deliberately borrowed back some of the same ideas.7
But Spain is not Italy and its nationalities do not see
themselves as merely regional expressions of a common Spanish
culture as is the case in the latter country. Hence the
reborrowing has involved a transformation as well.
The Spanish Constitution of 1978 may have been the first step in
the evolution of what I have elsewhere termed "formalistic"
federalism, that is to say, a combination of self-rule and shared
rule arrangements between the general government and the
autonomous regional governments based upon bilateral negotiations
between Madrid and each region, leading to special constitutional
arrangements for each entity. This process has been completed
for three regions and is under way in all of them. It offers the
possibility of designing constitutional arrangements appropriate
to the "personality" of each entity. Since each arrangement is
then embodied in a constitutional document ratified bilaterally,
the system is, in essence, a modern adaptation of the ancient
Spanish system of fueros for a democratic state, and hence
anchored in Spain's political culture.8
Constitutional Design and the Form of the Polity
The basic processes for constitutional change are shaped by the
fundamental form or character of the polity. Let us refer for a
moment to the question of how polities are founded. Throughout
the ages, from ancient times to the present, political scientists
have identified three basic models of political founding and
organization: 1) polities founded by conquest which generate
power pyramids in which political organization is hierarchical;
2) polities which evolved organically out of more limited forms
of human organization and which over time concretize power
centers which govern their peripheries; 3) polities founded by
design through covenant or compact in which power is shared
through a matrix of centers framed by the government of the
whole, on the basis of federal principles broadly understood.9
In hierarchical polities, constitution-making is essentially a
process of handing down a constitution from the top, the way
medieval kings granted charters. Indeed, the principal
constitutional mechanism in hierarchical systems is the charter.
The basic means of consenting to such a constitution is through
pledges of fealty up and down the hierarchy. Constitutions are
changed only when there is a necessity to do so to restore fealty
ties or to alter the lines of fealty.
Constitutions established by contemporary authoritarian and
dictatorial regimes are of this kind, whatever trappings the
regime's rulers or ruler may give them to make them seem as if
they are something else. When Turkish or Pakistani generals, and
Iranian ayatollahs dictate constitutions, this is what comes out.
This is probably the most prevalent form of constitution-making
in Black Africa today. Even in the Communist world, while a
patina of symbolic acts to establish consensus covers the
constitution-making process, it essentially follows this pattern.
In organic polities, the process of constitution-making is also
an organic one, consisting of a series of acts negotiated among
the established bodies that share in the governance of the
polity, whether medieval estates, territorially-based groupings,
or other mediating social and political institutions, which speak
for the various segments of society represented in the center,
reflect their interests, and can negotiate among themselves to
resolve constitutional questions as they arise. Constitutional
change in such polities is relatively infrequent since it only
occurs when custom and tacit understandings are no longer
sufficient to determine the rules of the game. Ordinary
processes of law-making often serve as the mechanisms for
establishing such constitutional acts but those processes are
involved only after consensus has been reached through
negotiation.
The means of consenting to such constitutions is informal or at
best quasi-formal. In organic polities, whole constitutions are
rarely written and are even more rarely replaced. Rather,
constitution-making and constitutional change come in bits and
pieces. The United Kingdom is perhaps the prime example of an
organic polity with an organic constitution. Each step in the
constitution-making process at least from Magna Carta to the
present follows this pattern.
In polities founded by covenant or compact, the process of
constitution-making involves a convention of the partners to the
pact, or their representatives. Constitutional change is
instituted through similar conventions or through referral of the
issue to all partners to the polity, that is to say, all
citizens, in a referendum. The reasons for this are obvious. As
a pact among equals, or the political expression of such a pact,
the constitution can only be changed through the consent of
either all of the partners or a majority thereof if it has been
so agreed. The result produced by such polities is what we
commonly refer to as a written constitution, that is to say, a
comprehensive document deliberately given the status of
fundamental law, written, adopted, and preserved through
extraordinary rather than ordinary legislative procedures.
The means of consenting to such constitutions, the way in which
consent is given, and the kind of consent involved, are all
formal. Constitutions as covenants or compacts or extensions
thereof, can either be changed in their entirety or can involve
frequent amendment, because issues of constitutional choice
become part of the coin of the realm, as it were, and publics
constituted as partnerships see themselves as empowered to
participate in constitutional design in a relatively direct way.
The American and Swiss models -- federal and state -- are perhaps
the best examples of the constitution as covenant and the
extension of covenant. In Switzerland and in the American
states, the constitutional process has become an important way of
building consensus and hence citizen participation in determining
the basic policies and procedures of government, and in providing
a popular check on representative institutions. Consequently,
many of the issues that are dealt with on the level of
constitutional choice, that is to say, through referenda, would
not be considered major constitutional issues by an outside
observer but are dealt with in a way that reaffirms the process
itself. This, in turn, has become a political virtue in those
polities. That is to say, a constitutional initiative or
referendum reaffirms the power of citizens to shape the
fundamental or organic laws of their polities.
Modern revolutions have tended to emphasize the reconstitution of
the polity on the basis of a popular compact to replace either a
hierarchical or an organic founding associated with an ancien
regime. The extent to which such revolutions have succeeded is,
in itself, an issue. In most cases it seems that at best they
have been able to temper the earlier model through the
substitution of this third form of constitution-making. Under
such circumstances, constitutions may be extensions of
revolutionary compacts but they do not become as fundamental in
shaping the body politic as in cases where the polity itself is
founded by compact.
France, whose revolution is the accepted model for overthrowing
old regimes, is an excellent example of this phenomenon. Despite
its great revolutions, France has continued to exist no matter
what, having come into existence through a particular combination
of conquest and organic development, which is its historical
heritage. French constitutions have been changed with relative
frequency since 1798 since comprehensive constitutional change in
France really reflects regime change and does not address the
existence of the body politic itself.
The Spanish situation is somewhat similar. There we have a state
which sees itself as properly organic but in fact as much a
product of conquest and pact as of anything else. A proper state
is probably conceived to be organic on the part of most of
Spain's population, including those groups that would like to
secede from Spain because they want to form organic states of
their own. However, since the Spanish state has had to
reconstitute itself on a new basis, it has sought to establish
its new constitution by balancing the conception of Spain as an
organic state with the realities of the Spanish polity as a pact
between the various nationalities and regions which constitute
"the Spains." The Spanish constitution of 1978 essentially
renegotiates the character of the Spanish state, which is what
makes it so bold an experiment.
There is an element of this in the Canadian situation as well.
Canada's English-speaking population has traditionally tended to
view constitutions as products of organic development, even if
written down, while its French-speaking population has emphasized
the constitution as a compact between two peoples. The struggle
between these two theories goes back to the mid-nineteenth
century antecedents of the BNA Act and continues through the
recent struggle over constitutional reform. It will become
reemphasized as the courts and legislatures of Canada attempt to
interpret the country's revised and patriated constitution.
In polities which are constituted through covenant or compact,
the constitutions themselves often become the touchstones of
their very existence as bodies politic. This was evident in the
United States at the time of Watergate in the way that President
Nixon's actions were perceived to have shaken the very fundaments
of the American polity, far more so than even the Vietnam War.
One could sense a palpable -- even audible -- sigh of relief when
the presidency was successfully transferred from Nixon to Gerald
Ford and Ford took the appropriate steps to reestablish the
national consensus, thereby reassuring everyone that the republic
was intact.
Constitutional change is not always a matter of explicit
amendment to the constitutional document; it has a less formal
side too, for which explicit procedures for consent are
unnecessary. Such informal constitutional adaptation may be
intended or not and perceived or not. The latter is possible if
the substantive issue itself is so important that its
constitutional implications are ignored, or because it occurs so
gradually that there is no incentive to clarify intentions or
perceptions.
For example, in the United States it is unlikely that in the
stream of U.S. Supreme Court decisions designed to protect the
civil rights of racial minorities, there was an intent to change
the federal constitution to create conditions for massive,
across-the-board federal court intervention into state affairs.
The attempt to grapple with the substantive issues of individual
rights in effect blinded those involved to the constitutional
change that was occurring in the balance between the federal and
state governments. Sometimes there are mixed intentions, for
example in the history of U.S. Supreme Court grappling with the
question of the incorporation of the federal Bill of Rights into
state constitutional standards. Certain members of the Court
were for incorporation; others were opposed. As a result there
has never been full incorporation but a piecemeal extension of
particular rights to achieve a kind of quasi-incorporation which
did not go as far as some intended, but farther than others did.
The more flexible the framing document is, the greater is the
possibility for unintended and unperceived changes.
Conclusion
This leaves us with at least three questions to consider as we
proceed:
How does a constitution serve as an instrument of social
control given the character of the civil society it serves?
How is consensus achieved in constitution-making?
How do we effectively use constitutional choice as a device
for self-government?
Constitution-making and constitutional choice are vital aspects
of democratic government; they are more than the arid preparation
of constitutional documents. Rather, constitution-making
involves the embodiment of the constitutional traditions of the
body politic in appropriate binding rules of the game that
properly reflect the polity model basis and socio-economic
distribution of power.
Constitutional choice involves utilizing appropriate models that
recognize the importance of institutions in the lives of humans,
the significance of history and culture in shaping those
institutions and rendering particular institutions effective or
ineffective, and identifying the empirical and behavioral
dimensions of the constitutional process in each case.
Notes
1. Vincent Ostrom, The Political Theory of a Compound Republic:
Designing the American Experiment, 2nd ed. (Lincoln: University of
Nebraska Press, 1987). I am greatly indebted to Professor Ostrom
for teaching me how to understand constitution-making and
constitutional choice.
2. Alexander Hamilton, John Jay, and James Madison, The
Federalist, No. 2. For the relationship and distinction between
covenant and compact, see Daniel J. Elazar, "The Political Theory
of Covenant: Biblical Origins and Modern Developments," Publius,
Vol. 10, No. 4 (Fall 1980), pp. 3-30.
3. Vincent Ostrom, "Hobbes, Covenant and Constitution," Publius
10:4 (Fall 1980) and Political Theory, op. cit.
4. David Ben-Gurion, "Laws or a Constitution" in Rebirth and
Destiny of Israel, edited and translated from Hebrew under the
supervision of Mordecai Nurock (New York: Philosophical Library,
1954), pp. 363-379.
5. Ivo Duchacek, Power Maps: Comparative Politics of
Constitutions (Santa Barbara, Calif.: A.B.C.-Clio, 1973).
6. Cf. Norton Long, "Aristotle and the Study of Local
Government"; Daniel J. Elazar and John Kincaid, Federal Democracy
(forthcoming).
7. Cf. Antonio la Pergola, Director of the Center for Regional
Studies, Rome, Personal Interview, 1974.
8. Cf. Cesare Enrique Diaz Lopez, "The State of the Autonomic
Process in Spain," Publius, Vol. 11, Nos. 3-4 (Summer 1981), pp.
193-218.
9. Cf. Elazar, op. cit.
