|公 法 评 论||惟愿公平如大水滚滚，使公义如江河滔滔
et revelabitur quasi aqua iudicium et iustitia quasi torrens fortis
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.
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."
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
A proper study of the subject, then, involves not only what is chosen but who
does the choosing, and how.
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.
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.
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.
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
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
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.
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.
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.
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
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.
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.
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.
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.
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.
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
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
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
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
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.
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.
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
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.
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.
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.
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
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
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.
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
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.
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.
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.
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.
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
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
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.
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
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.
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
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.
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
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.
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.
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.
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.
Vincent Ostrom, "Hobbes, Covenant and Constitution," Publius 10:4
(Fall 1980) and Political Theory, op. cit.
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.
Ivo Duchacek, Power Maps: Comparative Politics of Constitutions (Santa
Barbara, Calif.: A.B.C.-Clio, 1973).
Cf. Norton Long, "Aristotle and the Study of Local Government"; Daniel
J. Elazar and John Kincaid, Federal Democracy (forthcoming).
Cf. Antonio la Pergola, Director of the Center for Regional Studies, Rome,
Personal Interview, 1974.
Cf. Cesare Enrique Diaz Lopez, "The State of the Autonomic Process in
Spain," Publius, Vol. 11, Nos. 3-4 (Summer 1981), pp. 193-218.
Cf. Elazar, op. cit.