by Donald S. Lutz. New York and Cambridge: Cambridge University Press, 2006. 261pp. Hardback. $80.00/£48.00. ISBN: 0521861683. eBook format. $64.00. ISBN: 9780511247958.
Reviewed by Wade Mansell, Kent Law School, University of Kent, UK. Email: W.M.Mansell [at] kent.ac.uk.
Coming as I do from a legal background, my expectations of books about constitutions, their drafting and their interpretation, may have been excessively narrow. The uneasy relationships between law and political science, and international law and international relations is manifest, if implicitly so, in the book under review. In some ways for a lawyer PRINCIPLES OF CONSTITUTIONAL DESIGN, by Donald S. Lutz, is a revelation. What it does with admirable clarity and lucidity is examine the history of constitutional theories and theorists, and the problems that have exercised them. If there remains little new to say of the works of Aristotle, Montesquieu, Bodin, Hobbes, Rousseau and Locke, nevertheless their identification of the problems of both the allocation and also the limitation of allocated political power, and their suggestions for resolving them continue to resonate. The book is intended for those concerned with the drafting of constitutions, but it is certainly not concerned, except in the broadest of terms with the content of constitutions. Rather it attempts to isolate the many variables in peoples and government that dictate particular considerations in constitutional drafting. The important point here is that constitutional drafting must be tailored to particularities. Anyone who believes that a constitution is a constitution is a constitution (as in Gertrude Stein’s rose) will be quickly and correctly disabused. In Lutz’s own prefatory words: “A fundamental fact about constitutional design is that there is no optimal model, no clear set of rules for matching a people and their situation with a set of institutions, and no inherently stable or superior constitutional system” (p.ix).
We do however, as he observes, have considerable empirical evidence, not always consistent, of the operation and ‘success’ (however defined) of different constitutional arrangements in different social, political and national settings. This book is intentionally not a study of this evidence but rather an inquiry into the sorts of facts and factors that reflection suggests are germane when drafting choices are to be made.
Constitutions are of course a singular phenomenon. They are the means by which power within a state or society is allocated and legitimated until such time as they are amended or replaced. In many societies, not least in the USA, it is the voice of the ancestors institutionalised and to some extent ossified. One of the effects of constitutions is to remove from day to day democratic discussion, topics such as to whom power is allocated (and how it is to be separated), how this is to be ascertained, and the limits to which it is subject. When this is appreciated, it becomes clear that the relationship [*202] between a constitution and democracy is not a straightforward one, especially if democracy is understood as rule in accordance with the wishes of the majority of constituents. Constitutions are very often intended to thwart just such wishes and almost invariably this reflects the intentions of an elite not fully trusting the instincts of the hoi polloi, otherwise known as the common people, nor yet the vicissitudes of the future. Nevertheless the great advantage of a constitution is that, if accepted, it takes out of the political world the principles of government and gives them something approaching objective neutrality. Yet here is a paradox. A constitution, if it is to remain in force, requires the continuing assent of the people even while it limits the choices open to them.
On the other hand, if a constitution fails to convince its constituency of its objectivity, its existence may be brief, as we have seen in many constitutions ‘gifted’ by colonial powers upon decolonisation, or drafted to suit the needs of individual tyrants. As Lutz pertinently observes (p.185), the general expectation that government should rest on popular consent is a genie that can not easily be returned to the lantern. Thus a successful constitution requires popular acceptance of power limitations.
Popular sovereignty, however, implies that the people are limited in some way as the ultimate force, which in turn almost always implies a constitution to encode such limits. Popular ratification of the constitution then amounts to the initial self-limiting that defines a sovereign. (p.185)
Central to Lutz’s argument that successful constitutions must necessarily vary from society to society is the recognition that such acceptance, or at least acquiescence, will be forthcoming only where constitutional design is consistent with the ideological history of the people to whom it is directed. In other words, such a constitution must reflect the way in which the world is perceived where it is to operate. Both religion and the ‘history of experience’ of governance will contribute to such a world view. His ‘general principles of constitutional design’ (pp.218-220) all follow from this first premise, and if at the present time the premise seems obvious, it is important to remember just how often in an era of decolonisation it was ignored. For Lutz, constitutional design is very much the art of the possible, mitigating potential abuse of power as much as maximising the consent and security of the constituents.
Sensible though this undoubtedly is, my major criticism of the work is that it could (and should) have been much more grounded in experience and example. How do the ‘general principles of constitutional design’ suggest that the drafters of the Iraqi constitution, to take one contemporary modern example, might provide for an acceptable allocation of power, limits on that power, and methods by which subsequent constitutional disputes might be resolved? When one examines the text of the draft Iraqi Constitution and compares it with Lutz’s conclusions, problems with that troubled document seem patent. A demonstrably unrealistic and optimistic preamble includes the following: [*203]
We the people of Iraq, newly arisen from our disasters and looking with confidence to the future through a democratic, federal, republican system, are determined – men and women, old and young – to respect the rule of law, reject the policy of aggression, pay attention to women and their rights, the elderly and their cares, the children and their affairs, spread the culture of diversity and defuse terrorism.
The draft proceeds to assert in Article 2 that the ‘constitution guarantees the Islamic identity of the majority of the Iraqi people and the full religious rights for all individuals and the freedom of creed and religious practices.’ Worthy no doubt, but scarcely consistent with the reality of Iraq, at least as presently constituted.
But quite whether Lutz could have drafted a more effective constitution, immediately gives rise to the question of when and why effective constitutional drafting might simply be impossible because of ‘facts on the ground.’ While Lutz suggests that the drafters of constitutions must start with the lowest common denominator and the highest common factor, at least for some states these will be difficult to discover simply because of the incompatible diversity of interests of the population. In other words, successful constitution drafting requires a minimum of coherence in ideology from the people(s) it is to govern. Post-colonial Africa has given us many examples of the problems that may arise where constitutions attempt to protect minorities when the majority is unwilling to afford such protection. And outside Africa in such states as Cyprus, Burma, Yugoslavia, and Indonesia, similar difficulties quickly became apparent.
There is a danger that I am criticising Lutz for what he did not intend to do. His is a work that cogently and coherently examines the theoretical bases of constitutional design. Yet so plentiful are examples of crises of constitutionalism that it is disappointing that they are almost entirely unaddressed. This is particularly so because many of the crises seem to be variations upon a common theme, that of minority protection and the relationship of ethnic or religious minorities with majorities. It is surely crucial to try to understand what distinguishes states that are able to afford this protection and those that are unwilling to do so. It also seems important to consider the role, if any, of constitutions in this process. Certain it is that, while many of the contemporary political crises can be comprehended in terms of constitutional inadequacy – Darfur, Chechnya and Kosovo (none of which Lutz discusses) to name but three – usually constitutional explanations seem inadequate to understand the conflicts themselves.
A further omission that will probably seem surprising to lawyers at least, is any discussion of human rights and the international treaties drafted for their protection. These international obligations, particularly the International Covenants on Civil and Political Rights, and on Economic, Social and Cultural Rights of 1966, raise significant issues for those drafting constitutions. Indeed, it is here that it is possible to see clearly that choices concerning constitutional [*204] content are always political choices. While the South African Constitution has attempted to protect economic, social and cultural rights, the Iraqi draft Constitution chooses (as do a number of others) to guarantee private property and to commit the state to guaranteeing ‘the reforming of the Iraqi economy according to modern economic bases, in a way that ensures complete investment of its resources, diversifying its sources and encouraging and developing the private sector.’ The decision to make such a commitment to free market principles is never discussed by Lutz.
Not surprisingly given his expertise in the history of the US Constitution, the elements of that document form the core of what Lutz considers should be at the heart of a sound constitution. While his considerable erudition in this area of scholarship has defined the parameters of his book, this work is a significant contribution to the literature of constitutional theory. It is elegantly written and superbly produced, but with greater engagement with contemporary events its audience appeal would have widened greatly.
© Copyright 2007 by the author, Wade Mansell.