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Principles of Constitutional Design
This book is written for anyone, anywhere sitting down to write a constitution. The book is designed to be educative for even those not engaged directly in constitutional design but who would like to come to a better understanding of the nature and problems of constitutionalism and its fundamental building blocks - especially popular sovereignty and the separation of powers. Rather than a 'how-to-do-it' book that explains what to do in the sense of where one should end up, it instead explains where to begin - how to go about thinking about constitutions and constitutional design before sitting down to write anything. Still, it is possible, using the detailed indexes found in the book, to determine the level of popular sovereignty one has designed into a proposed constitution and how to balance it with an approximate, appropriate level of separation of powers to enhance long-term stability.
280 pages, Paperback
First published August 28, 2006
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About the author
Donald S. Lutz
20 books5 followersDonald Lutz is professor of political science at the University of Houston, where he has taught sine 1968. Lutz received his B.A. from Georgetown University in 1965, and his Ph.D. from Indiana University in 1969.
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October 31, 2017
This book was exceptional. Most books that I have read about constitutions and constitutional law are heavy on either theory of history. This book has both, but it also attempts to quantify important concepts and then compare constitutions across nations. This has its problems, but it yields some very useful insights.
Lutz starts by noting that people around the world arrive at similar constitutional solutions for common problems, so it is likely that there is some underlying logic at work. The idea of the book is to search for that underlying logic.
He begins with foundational things – why humans form governments, the evolution of governments, and historical philosophies of government. He argues that there is always some sort of agreement at the beginning of a new regime, and the terms of that agreement are crucial.
He works his way up to definitions of key terms. This takes a while, but it is useful. Rather than use the generic and misleading term “democracy,” he uses the term constitutional republic. He defines a constitutional republic as a nation that meets certain requirements – there is a constitution that is followed, not ignored; the constitution is based on and supports the rule of law; there are free elections involving most of the adult population; there are two or more competitive parties; and there has been at least one peaceful transfer of power from one party to another, or we are confident that there would be if the current ruling party were replaced. He also spends some time defining sovereignty, and ends by defining it as supreme power that is limited. He defines popular sovereignty as popular control combined with the separation of powers.
The heart of the book is about separation of powers and amending constitutions. He discusses the different models of separation of powers, such as presidential systems and parliamentary systems, and the many variants of those models and others. This is where the empirical political science comes in. After analyzing many constitutions, Lutz assigns values to certain constitutional features to indicate how much that feature increases separation of powers. This is his separation of powers index. That way, he can score various constitutions on how strong their separation of powers is and see if any useful information comes out of it. Using this methodology, he finds that, as legislative size increases, so does the separation of powers score. As the level of popular control increases, so does the separation of powers. If the separation of powers does not increase with increased popular control, the nation ceases to qualify as a constitutional republic.
Lutz also created a difficulty in amending index, which also yields very interesting information. For example, there is a correlation between how hard it is to amend a constitution and the amendment rate. There is also a correlation between the length of a constitution and its amendment rate. As part of his study of amendment procedures, Lutz analyzed American state constitutions to find amendment rates, document length, and longevity of constitutions. To have a stable constitution, the amendment rate should be between .75 and 1.25 amendments per year. The amendment rate can be affected both by the length of the original constitution and the ease of amendment. The U.S. Constitution has a much lower amendment rate than .75, which may be why courts have modified the constitution by judicial fiat instead of waiting for official amendments.
Perhaps one of the most difficult questions Lutz tackles is the definition of a people. How do we define a nation? He relies heavily on Aristotle for this discussion. In general terms, a “people” is a group that shares a way of life. But how to decide the limits? Common language? Common religion? Close communication? Intermarriage? He moves on to discuss what a people holds in common – there are things that are held in common by all humans (e.g., human rights), and things that are only held in common by a given people. It seems that the bare minimum that a people must share to be a people is a commitment to a constitutional order. They must share a spirit of the laws. This may require a common civil religion or founding myths. I can’t do justice to this problem, but Lutz raises very important questions.
The book is full of other gems as well. Lutz explains how most nations, without realizing it, follow a cube root rule – the size of the primary house of a legislature is close to the cube root of the population. This is true until a nation reaches 150 million people, when they begin to use other kinds of constitutional arrangements, such as federalism, to separate powers. Nations tend to have unicameral legislatures until they reach 10 million people, at which point a higher house is added to the legislature.
There is too much good stuff in this book to summarize it all. It is extraordinarily educational for students of constitutions. Lutz summarizes the general principles of constitutional design thus:
1. Match the government to the people: all government, constitutional or not, rests on the “virtues” of the people.
2. The ideal political system will not work on Earth, so seek the best possible under the circumstances.
3. Political power is an unavoidable danger that must be understood and faced if the design is to succeed.
4. The idea of a constitution is to marry justice with power.
5. A critical problem in constitutional design is the distribution of power.
6. The process of collective decision making should be viewed as a complete system of interlocking institutions.
7. The system of institutions should be grounded in a coherent theory that should be apparent from the behavioral implications of the institutional design.
8. A constitution rests not only on the history and present circumstances of a people but also on probable future developments.
And finally, even if you “know” all the principles, you still have to choose what outcome you are seeking and fit it to the people. Perhaps the most important thing to remember about making a constitution – you cannot make a constitution by logic, but by experience. It is not helpful, and it is often dangerous, to try to make the ideal happen. And, paradoxically, writing a constitution is not a job for the “experts” to do. To be successful, it must be written by those who will live under it.
Lutz starts by noting that people around the world arrive at similar constitutional solutions for common problems, so it is likely that there is some underlying logic at work. The idea of the book is to search for that underlying logic.
He begins with foundational things – why humans form governments, the evolution of governments, and historical philosophies of government. He argues that there is always some sort of agreement at the beginning of a new regime, and the terms of that agreement are crucial.
He works his way up to definitions of key terms. This takes a while, but it is useful. Rather than use the generic and misleading term “democracy,” he uses the term constitutional republic. He defines a constitutional republic as a nation that meets certain requirements – there is a constitution that is followed, not ignored; the constitution is based on and supports the rule of law; there are free elections involving most of the adult population; there are two or more competitive parties; and there has been at least one peaceful transfer of power from one party to another, or we are confident that there would be if the current ruling party were replaced. He also spends some time defining sovereignty, and ends by defining it as supreme power that is limited. He defines popular sovereignty as popular control combined with the separation of powers.
The heart of the book is about separation of powers and amending constitutions. He discusses the different models of separation of powers, such as presidential systems and parliamentary systems, and the many variants of those models and others. This is where the empirical political science comes in. After analyzing many constitutions, Lutz assigns values to certain constitutional features to indicate how much that feature increases separation of powers. This is his separation of powers index. That way, he can score various constitutions on how strong their separation of powers is and see if any useful information comes out of it. Using this methodology, he finds that, as legislative size increases, so does the separation of powers score. As the level of popular control increases, so does the separation of powers. If the separation of powers does not increase with increased popular control, the nation ceases to qualify as a constitutional republic.
Lutz also created a difficulty in amending index, which also yields very interesting information. For example, there is a correlation between how hard it is to amend a constitution and the amendment rate. There is also a correlation between the length of a constitution and its amendment rate. As part of his study of amendment procedures, Lutz analyzed American state constitutions to find amendment rates, document length, and longevity of constitutions. To have a stable constitution, the amendment rate should be between .75 and 1.25 amendments per year. The amendment rate can be affected both by the length of the original constitution and the ease of amendment. The U.S. Constitution has a much lower amendment rate than .75, which may be why courts have modified the constitution by judicial fiat instead of waiting for official amendments.
Perhaps one of the most difficult questions Lutz tackles is the definition of a people. How do we define a nation? He relies heavily on Aristotle for this discussion. In general terms, a “people” is a group that shares a way of life. But how to decide the limits? Common language? Common religion? Close communication? Intermarriage? He moves on to discuss what a people holds in common – there are things that are held in common by all humans (e.g., human rights), and things that are only held in common by a given people. It seems that the bare minimum that a people must share to be a people is a commitment to a constitutional order. They must share a spirit of the laws. This may require a common civil religion or founding myths. I can’t do justice to this problem, but Lutz raises very important questions.
The book is full of other gems as well. Lutz explains how most nations, without realizing it, follow a cube root rule – the size of the primary house of a legislature is close to the cube root of the population. This is true until a nation reaches 150 million people, when they begin to use other kinds of constitutional arrangements, such as federalism, to separate powers. Nations tend to have unicameral legislatures until they reach 10 million people, at which point a higher house is added to the legislature.
There is too much good stuff in this book to summarize it all. It is extraordinarily educational for students of constitutions. Lutz summarizes the general principles of constitutional design thus:
1. Match the government to the people: all government, constitutional or not, rests on the “virtues” of the people.
2. The ideal political system will not work on Earth, so seek the best possible under the circumstances.
3. Political power is an unavoidable danger that must be understood and faced if the design is to succeed.
4. The idea of a constitution is to marry justice with power.
5. A critical problem in constitutional design is the distribution of power.
6. The process of collective decision making should be viewed as a complete system of interlocking institutions.
7. The system of institutions should be grounded in a coherent theory that should be apparent from the behavioral implications of the institutional design.
8. A constitution rests not only on the history and present circumstances of a people but also on probable future developments.
And finally, even if you “know” all the principles, you still have to choose what outcome you are seeking and fit it to the people. Perhaps the most important thing to remember about making a constitution – you cannot make a constitution by logic, but by experience. It is not helpful, and it is often dangerous, to try to make the ideal happen. And, paradoxically, writing a constitution is not a job for the “experts” to do. To be successful, it must be written by those who will live under it.
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