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Israel: Constitution, Government and Politics

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:

  1. The constitution as frame of government and protector of rights.

  2. The constitution as code.

  3. The constitution as revolutionary manifesto.

  4. The constitution as (tempered) political idea.

  5. 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 Rightse.g., English-speaking countries of the New World
2. Constitution as Codee.g., Continental European democracies, India
3. Constitution as Revolutionary Manifestoe.g., Soviet bloc countries, Yugoslavia
4. Constitution as Political Ideale.g., Latin American and African states
5. Constitution as Adaptation of Ancient Traditionse.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.


This leaves us with at least three questions to consider as we proceed:

  1. How does a constitution serve as an instrument of social control given the character of the civil society it serves?

  2. How is consensus achieved in constitution-making?

  3. 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.


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.

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