by Elias Blum
It’s important not to get too obsessed with constitutional design. Considering that I’ve made my academic and professional career out of constitutional design, that seems like an odd thing to say. But it’s just a reality check.
Of course constitutions matter. Constitutions do useful things: establishing structures and institutions of government, regulating relationships between them, distributing powers, defining the rights of citizens, proclaiming the identity and basic purposes of the state. The absence of a constitution means that these things are not set down in any clear and stable way, but are left to be determined by the government on the grounds of political expediency – which is a wholly unsatisfactory state of affairs. Likewise, the quality and resilience of a country’s democracy can be fatally undermined by a weak, inappropriate, illegitimate or badly written constitution – of which history affords many examples. On the other hand, the adoption of a new constitution, especially if produced through an inclusive, legitimate process, can be an important break from an authoritarian past, and can help – both by the legal provisions it establishes and by the political concord it represents – build a stronger and deeper democracy.
I’d also stand up for the role of the constitutional design expert advisor. We know that some constitutional models have relatively predictable effects, and a country would be ill-advised to ignore those likely effects when making constitutional processes. My trade lies in understanding these effects, relating them to the context and needs of particular countries, and helping people to make appropriate constitutional choices that will consolidate rather than erode democracy. That’s all good stuff.
But not every problem is constitutional in nature. And the best constitution in the world, if such a thing could be imagined, will not solve every problem. The constitution is like the skeleton of the body: a sound skeleton is necessary, but the best skeleton will not prevent a disease of the organs. Or it is like the foundation of a house: the firmest foundation will not prevent a leaking roof. When the appendix must be surgically removed, or the slate tiles are needing replaced, there’s no point trying to reset the bones: that’s not where the problem lies, and it’s not where the solution is to be found.
The constitution must be good enough. It must be robust, technically sound, legitimate, and suitable for its intended purpose. But there are limits to what endless constitutional tinkering can achieve.