Designing a constitution: Of architects and builders

Texas Law Review

Volumn 87, Issue 7, 2009, Pages 1303-1337

  Murphy, Walter F ^a  

^a PRINCETON UNIVERSITY   (United States)

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EID: 69249097392     PISSN: 00404411     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (278)

1. For an excellent effort to accomplish these aims for the United States, see SANFORD LEVTNSON, OUR UNDEMOCRATIC CONSTITUTION: WHERE THE CONSTITUTION GOES WRONG (AND HOW WE THE PEOPLE CAN CORRECT IT) (2006).
2. For many insightful analyses, especially those by Donald L. Horowitz, see DESIGNING DEMOCRATIC INSTITUTIONS: NOMOS XLII (Ian Shapiro & Stephen Macedo eds., 2000).
3. For a collection of essays on the study of constitutional design, see CONSTITUTIONAL DESIGN FOR DIVIDED SOCIETIES: INTEGRATION OR ACCOMMODATION? (Sujit Choudhry ed., 2008).
4. For a piece addressing problems of constitutional design from the broad comparative and historical perspectives of political theorists such as Jean Bodin and Montesquieu, see DONALD S. LUTZ, THE PRINCIPLES OF CONSTITUTIONAL DESIGN (2008).
5. NICCOLÓ MACHIAVELLI, Discourses on the First Ten Books of Titus Livius, in THE PRINCE AND THE DISCOURSES 103, 103 (LuigiRicci trans., Random House 1950) (1513).
6. See infra notes 181-187 and accompanying text.
7. See infra note 109.
8. See infra note 195.
9. See Christopher J. Borgen, Whose Public, Whose Order? Imperium, Region, and Normative Friction, 32 YALE J. INT'L L. 331, 343 (2007) (describing the European Union as a "regional hegemon" that is comprised of "sovereign states that rarely agree completely on diplomatic and military issues" but nonetheless employs "decision-making structures which operate on a consensus basis").
10. See infra note 131 and accompanying text.
11. See infra notes 192-95 and accompanying text.
12. Hannah arendt, On Revolution 185 (1965).
13. See Walter F. Murphy, Constitutional Democracy: Creating and Maintaining a JUST Political Order 149 (2007) (noting that the initial stages of constitutional construction typically require the participation of a talented and educated elite because, inter alia, constitutional architects must be able to persuade others of a constitutional democracy's desirability).
14. I use this term to refer to a system in which people are free to live in peace to pursue the moral, social, and economic goals they have set for themselves as long as they respect similar rights of each fellow citizen.
15. Walt Whitman, Over the Carnage Rose Prophetic a Voice, in WALT WHITMAN: THE COMPLETE POEMS 340, 341 (Francis Murphy ed., 1975).
16. See, e.g., Gary Jeffrey Jacobsohn, The Permeability of Constitutional Borders, 82 TEXAS L. REV. 1763, 1773, 1773-1786 (discussing Israel's "[u]nresolved [d]ilemma of [constitutional [i]dentity").
17. Some theologians espouse a "theology of emergence," arguing that their discipline displays similar evolutionary characteristics. See, e.g., PHILIP CLAYTON, MIND AND EMERGENCE: From Quantum to Consciousness 18 (2004) (discussing the ongoing process of evolutionary emergence in the context of humans' mental faculties).
18. Compare U.S. CONST, amend. XII (changing incrementally the procedure by which the President and Vice President are elected), with U.S. CONST, amend. XIII (abolishing slavery in a momentous manner after the conclusion of the Civil War).
19. Benjamin Disraeli, Speech in the House of Commons (Feb. 28, 1859), in WIT AND WISDOM OF THE EARL OF BEACONSFIELD 104, reprinted in THE WORKS OF BENJAMIN DISRAELI EARL OF BEACONSFIELD.
20. Compare the theology of emergence. CLAYTON, supra note 14.
21. RUSSELL KIRK, RANDOLPH OF ROANOKE: A STUDY IN CONSERVATIVE THOUGHT 134 (1951).
22. ARISTOTLE, Nicomachean Ethics, in THE COMPLETE WORKS OF ARISTOTLE I.2.1094a26, at 1729, 1729 (Bollingen Series No. 71, Jonathan Barnes ed., 1984) (Revised Oxford Translation).
23. FELIX FRANKFURTER, The Zeitgeist and the Judiciary, in LAW AND POLITICS: THE OCCASIONAL PAPERS OF FELIX FRANKFURTER 3, 6 (E. F. Pritchard, Jr. & Archibald MacLeish eds., Capricorn ed. 1962).
24. Giovanni Sartori, Constitutionalism: A Preliminary Discussion, 56 AM. POL. SCI. REV. 853, 861 (1962).
25. For a more detailed analysis, see GIOVANNI SARTORI, DEMOCRATIC THEORY (1965).
26. 2 ARISTOTLE, Politics, in THE COMPLETE WORKS OF ARISTOTLE, supra note 19, HI.6.1278b9-.1278blO, at 1986, 2029.
27. Id. atIV.1.1289al5-.1289al6, 2046.
28. Id. at IV. 11.1295b 1, 2056.
29. GRUNDGESETZ FOR DIE BUNDESREPUBLIK DEUTSCHLAND [GG] [Constitution] art. 2(1), 9(2), 20(3H4) (F.R.G.), translated in 7 CONSTITUTIONS OF THE COUNTRIES OF THE WORLD (RUdiger Woltrum & Rainer Grote eds., 2009). Beginning with one of its earliest decisions, The Southwest Case, the Constitutional Court frequently repeats this term.
30. Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court] Oct. 23, 1951, 1 Entscheidungen des Bundesverfassungsgerichts [BVerfGE] 14, 33-39 (F.R.G.), reprinted in WALTER F. MURPHY & JOSEPH TANENHAUS, COMPARATIVE CONSTITUTIONAL LAW 208-11 (1977).
31. See ROBERT BARROS, CONSTITUTIONALISM AND DICTATORSHIP: PINOCHET, THE JUNTA, AND THE 1980 CONSTITUTION 140-44 (2002) (discussing the ineffectuality of constitutional guarantees of individual rights).
32. See HARRY ECKSTEIN, DIVISION AND COHESION IN DEMOCRACY: A STUDY OF NORWAY 10-20 (1966) (attributing the stability of Norway's democracy to social conceptions of democracy rather than to formal institutional systems).
33. See JUNE GRASSO ET AL., MODERNIZATION AND REVOLUTION IN CHINA: FROM THE OPIUM WARS TO World POWER 251 (3rd ed. 2004) ("While the Chinese constitution allows for freedom of speech, publication, and democratic elections, the actual meaning of such terms has always been defined by the party.");
34. MICHAEL KAMMEN, A MACHINE THAT WOULD Go OF ITSELF: THE CONSTITUTION IN AMERICAN CULTURE 280 (1986) (discussing the "farce" of Stalin's constitutional text of 1936 and its impression on foreigners).
35. See generally Walter F. Murphy, Constitutions, Constitutionalism, and Democracy, in CONSTITUTIONALISM AND DEMOCRACY: TRANSITIONS IN THE CONTEMPORARY WORLD 3, 6-7, 12-14 (Douglas Greenberg et al. eds., 1993) (discussing constitutional democracies and shifts of constitutional meaning over time).
36. Constitution Act, 1867, 30 & 31 Vict. Ch. 3, § 96 (U.K.), as reprinted in R.S.C., No.5 (Appendix 1985) (Can.).
37. Id. §91.
38. Besides the "by and with the consent" phrase, the clearest clue to a parliamentary system came in the Preamble, citing Canada's alleged desire to be governed by a "Constitution similar in principle to that of the United Kingdom." Id. pmbl. For a fascinating use of this statement to protect freedom of the press and an argument that the censorship of the Press Bill interferes with "the free working of the political organization of the Dominion," which is contrary to the language of the Preamble, see the opinion of Chief Justice Lyman Duff in In re Alberta Statutes, [1938] S.C.R. 100, 146, 142-47 (Can.). Duffs reasoning was remarkably similar to that of Justice Harlan Fiske Stone in his famous "footnote four," in Carotene Products. See United States v. Carolene Products, 304 U.S. 144, 152 n.4 (1938) (suggesting a higher degree of judicial scrutiny over legislation that "restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation").
39. For instance, Article I, Section Nine dictates that "a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time." U.S. CONST, art. I, § 9, cl. 7. As of early 2009, Congress has not seen fit to obey that command, and the Supreme Court has said it lacks authority to enforce the mandate.
40. See United States v. Richardson, 418 U.S. 166, 178 n.l 1 (1974) (discussing "nearly two centuries of acceptance of a reading of cl. 7 as vesting in Congress plenary power to spell out the details of precisely when and with what specificity executive agencies must report the expenditure of appropriated funds and to exempt certain secret activities from comprehensive public reporting"). Section Two of the Fourteenth Amendment orders a reduction in the congressional representation of any state that discriminates against the voting rights of citizens over twenty-one. U.S. CONST, amend. XIV, § 2. Congress never enforced that mandate either.
41. See Gabriel J. Chin, Reconstruction, Felon Disenfranchisement, and the Right to Vote: Did the Fifteenth Amendment Repeal Section 2 of the Fourteenth Amendment?, 92 GEO. L.J. 259, 259-60 (2004) (asserting that despite the fact that "the conditions triggering invocation of Section 2 existed for the better part of a century ... no discriminating state lost even a single seat in the House of Representatives when Congress reapportioned itself). In addition, although Article One, Section Six says, "no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office," U.S. CONST, art. I, § 6, cl. 2, many members of Congress continue to hold commissions as officers in the military reserve and earn "points" entitling them to retire from the military at sixty-three and receive pensions.
42. See Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 222 (1974) (holding that there is no standing to sue as taxpayers and citizens on the basis of a congressman's violation of Article One, Section Six, Clause Two: "To permit a complainant who has no concrete injury to require a court to rule on important constitutional issues in the abstract would create the potential for abuse of the judicial process, distort the role of the Judiciary in its relationship to the Executive and the Legislature."). In contrast, Congress requires federal judges to resign their reserve commissions and thus lose any pension benefits they may have accrued.
43. See, MURPHY, supra note 10, at 384 n.l2 ("[B]y statute, a federal judge must resign his or her commission in the reserves, a requirement that has compelled judges who have been in the military to lose retirement benefits for themselves and their spouses that they have accumulated for their service ....").
44. Cf. Edward S. Corwin, Constitution v. Constitutional Theory, 19 AM. POL. SCI. REV. 290, 290-92 (1920), reprinted in 2 CORWIN ON THE CONSTITUTION 183 (Richard Loss ed., 1987) (arguing that the term "constitution" encompasses far more than the written text of the U.S. Constitution).
45. MICHAEL WALZER, EXODUS AND REVOLUTION 144 (1985).
46. Customs and usages are-of course-themselves interpretations, only less self-consciously done.
47. WILLIAM SHAKESPEARE, TWELFTH NIGHT act 1, sc. 5.
48. For relevant bibliographies, see MURPHY, supra note 10, at 4-12.
49. Id. at 4.
50. See id. at 4-6, 84 (emphasizing the importance of representative processes to democracies and asserting that the Netherlands has such processes).
51. For an analysis of Athens's voting system, see MOGENS HERMAN HANSEN, THE ATHENIAN DEMOCRACY IN THE AGE OF DEMOSTHENES: STRUCTURE, PRINCIPLES, AND IDEOLOGY 46 (J.A. Crook trans., 1999).
52. See, e.g., GG art. 39, § 1 (requiring elections for the members of the Bundestag be held every four years); CONSTITUCl6N [C.E.] art. 68, § 3 (Spain), translated in 17 CONSTITUTIONS OF THE COUNTRIES OF THE WORLD, supra note 25 (requiring elections for the members of the House of Representatives be held every four years).
53. See, e.g., Murphy, supra note 29, at 3-4 (listing the institutional conditions necessary to a modern democracy: popular election of representatives, districts of approximately equal population, and universal adult suffrage).
54. See id. at 4 (teaching that the election of representatives "for limited terms, to institutions that allow those representatives to freely govern," is a hallmark of a democratic system).
55. See ROBERT A. DAHL, HOW DEMOCRATIC IS THE AMERICAN CONSTITUTION? 65 (2003) (discussing the choices facing the American Constitutional Convention regarding the method of selecting an independent executive).
56. The bibliography devoted to constitutionalism is almost as large as that explaining democracy. For citations to many of the better works, see Murphy, supra note 29, at 20.
57. See DAHL, supra note 45, at 6 (asserting that constitutionalists seek "institutional restraints on substantive matters to prevent lapses into an authoritarian or totalitarian system cloaked with populist trappings").
58. Richard Epstein is a prominent defender of such a system. See RICHARD A. EPSTEIN, Principles for a Free Society: Reconciling Individual Liberty with the Common Good 2 (1998) (promoting laissez-faire as "the embodiment of principles [that], when consistently applied, will work to the advantage of all (or almost all) members of society simultaneously");
59. Richard A. Epstein, Takings: Private Property and the Power of Eminent Domain 331 (1985) ("[T]he eminent domain approach, as applied both to personal liberty and private property, offers a principled account of both the functions of the state and the limitations upon its powers."). There is also a less simplistic defense of such a system.
60. See RANDY E. BARNETT, RESTORING THE LOST CONSTITUTION: THE PRESUMPTION OF LIBERTY 10, 9-10 (2004) (asserting that laws may "bind in conscience only if there is a reason to be confident that they do not violate the 'liberty rights' of the people" and that a clear conception of natural rights "helps to illuminate why and when there is a duty to obey the law").
61. See, e.g., SOTIRIOS A. BARBER, WELFARE AND THE CONSTITUTION 147-53 (2003) (making a systematic theoretical argument for positive constitutionalism).
62. See, e.g., MURPHY, supra note 10, at 204 (discussing the twentieth-century gravitation towards constitutional democracy by the peoples of Germany, Italy, Spain, Portugal, Argentina, Brazil, Chile, Uruguay, and various other Central and Eastern European countries).
63. I take full blame for, as far as I know, coining this awkward neologism. My excuses are that the word expresses an important political concept and its use may avoid serious analytic confusion.
64. I differ from Robert Barros, who argues in a fine study of Chile that General Augusto Pinochet embraced constitutionalism. See BARROS, supra note 26, at 317 (contending that the creation of the Constitution in 1980 by Pinochet and other members of the Junta constituted a form of "self-binding," since they passed the document that limited their powers and went into force while they held office). In 1989, when I joined Professor John E. Finn of Wesleyan University and then-Judge Kenneth Starr in a tour of Chilean universities to debate Pinochet's supporters, I realized that they equated constitutionalism with fidelity to a text that authorized a ruthless, often murderous, dictatorship.
65. WOODROW WILSON, CONSTITUTIONAL GOVERNMENT in the UNITED STATES 157 (Read Books 2007) (1908).
66. GARY JEFFREY JACOBSOHN, THE DISHARMONIC CONSTITUTION (forthcoming) (manuscript at chs. 1, 5, on file with author).
67. 2 ARISTOTLE, supra note 19, 1.2.1140b21-.l 140b22, at 1729, 1801.
68. JACOBSOHN, supra note 54 (manuscript at chs. 1, 5).
69. See infra notes 113-114, 116 and accompanying text.
70. BUNREACHT NA HÉIREANN, 1937 [IR. CONST., 1937], art. 2, translated in 9 Constitutions of the Countries of the World, supra note 25.
71. See Patrick Hanafin, Constitutive Fiction: Postcolonial Constitutionalism in Ireland, 20 PENN ST. Int'L L. Rev. 339, 354, 353-354 (2002) (describing the way Ireland's constitutional text of 1937 created a bicameral parliament, bureaucracy, and legal system that were all similar to the system that was previously in place, but the drafters of the constitutional text prefixed the institutions with "Irish" to "lead the citizens to believe that these institutions were new creations not adaptations of previous institutions").
72. See Katherine Lesch Bodnick, Bringing Ireland Up to Par: Incorporating the European Convention for the Protection of Human Rights and Fundamental Freedoms, 26 FORDHAM INT'L L. J. 396, 414 (2003) (stating that Articles 40-44 of Ireland's constitutional document of 1937 list many fundamental rights afforded to the Irish people and that the judiciary interprets Article 40.3 as a source of unenumerated rights).
73. See Kathryn A. O'Brien, Ireland's Secular Revolution: The Waning Influence of the Catholic Church and the Future of Ireland's Blasphemy Law, 18 CONN. J. INT'L L. 395, 398 (2002) (noting that, unlike Ireland's previous constitutional text, the constitutional document of 1937 definitively gave the judiciary the power to strike down legislation).
74. See Hanafin, supra note 59, at 345, 352 (stating that the philosophical bases of Ireland's constitutional text of 1937 were the natural law teachings of Thomas Aquinas and the themes of Roman Catholicism, and that both were present but not as overt in the constitutional document of 1922).
75. See IR. CONST., 1937, art. 1 ("The Irish nation hereby affirms its inalienable, indefeasible, and sovereign right to choose its own form of Government, to determine its relations with other nations, and to develop its life, political, economic and cultural, in accordance with its own genus and traditions.").
76. See Ziyad Motala, Constitution-Making in Divided Societies and Legitimacy: Lessons from the South African Experience, 15 TEMP. POL. & ClV. RTS. L. REV. 147, 148 (2005) (stating that the major problems in Iraq and Afghanistan in writing a constitution is the "lack of public embrace of the project" and the "ambivalence to the American presence and role in the constitution making process");
77. see also Feisal Amin Rasoul al-Istrabadi, A Constitution Without Constitutionalism: Reflections on Iraq's Failed Constitutional Process, 87 TEXAS L. REV. 1627, 1654 (2009) (identifying one of the factors that led to the failure of the Iraqi constitutional process as the "distrust amongst Iraq's nascent political elites").
78. There is a vast literature on nation building, including some excellent older works. E.g., BENEDICT ANDERSON, IMAGINED COMMUNITIES (1991);
79. KARL DEUTSCH, NATIONALISM AND SOCIAL COMMUNICATION chs. 4-8 (1966);
80. ERNST GELLNER, NATIONS AND NATIONALISM (1983);
81. E. J. HOBSBAWN, NATIONS AND NATIONALISM SINCE 1780: PROGRAMME, MYTH, REALITY (2nd ed. 1992);
82. LUCIAN W. PYE, POLITICS, PERSONALITY, AND NATION BUILDING: BURMA'S SEARCH FOR IDENTITY (1962);
83. ANTHONY SMITH, NATIONALISM AND MODERNISM (1998).
84. There are also more recent works that address this topic. E.g., JAMES DOBBINS ET AL., THE BEGINNER'S GUIDE TO NATION-BUILDING (2007);
85. W. J. NORMAN, NEGOTIATING NATIONALISM: NATION-BUILDING, FEDERALISM, AND SECESSION IN THE MULTINATIONAL STATE (2006);
86. CONOR O'DWYER, THE RUNAWAY STATE: PATRONAGE, POLITICS, AND DEMOCRATIC DEVELOPMENT (2006);
87. KENNETH M. POLLACK, A PATH OUT OF THE DESERT: A GRAND STRATEGY FOR AMERICA IN THE MIDDLE EAST (2008);
88. STATE-BUILDING: THEORY AND PRACTICE (Adian Hehir & Neil Rudolph eds., 2007);
89. UNITED STATES INSTITUTE OF PEACE, STRATEGIC FRAMEWORK: FRAGILE STATES AND SOCIETIES EMERGING FROM CONFLICT (2007).
90. Edward C. Banfield with Laura Fasano Banfield, The moral Basis of a Backward Society 10, 139 (1958). This book was a study of a life in a village in Potenza, the heart of the Mezzogiorno, the south of Italy, at a time when it was even less affluent and less in tune with the rest of the country than it is today.
91. For a similar work, which combined literary elegance with anti-Fascist protest, see Carlo LEVI, CHRIST Stopped AT EBOLI (Frances Frenaye trans., Noonday Press 1963) (1947).
92. Tocqueville's use of political sociology was in the tradition of Montesquieu, and their collective influence remains strong in the social sciences. See Robert D. Putnam & Kristin A. Goss, Introduction to DEMOCRACIES IN FLUX: THE EVOLUTION OF SOCIAL CAPITAL IN CONTEMPORARY SOCIETY 3, 8 (Robert D. Putnam ed., 2002) (stating that social capital affects the health of democracies);
93. see also ROBERT D. PUTNAM ET AL., BETTER TOGETHER: RESTORING THE American Community 1-5 (2003) (discussing the continued impact of social capital on community building);
94. ROBERT D. PUTNAM, BOWLING ALONE: THE COLLAPSE AND REVIVAL OF AMERICAN COMMUNITY 48-49 (2000) (noting the continued impact of Tocqueville's views on modem social scientists);
95. ROBERT D. PUTNAM, MAKING DEMOCRACY WORK: CIVIC TRADITIONS IN MODERN ITALY 11 (1992) (explaining how Tocqueville's notions of society's "mores" and political practices continue to be used in analysis of democratic institutions).
96. 68.See, e.g., U.S. CONST, pmbl. ("We the People of the United States... do ordain and establish this Constitution ....").
97. Id.
98. See WILLIAM EDWARD DODD, JEFFERSON DAVIS 132-134, 251 (1907) (describing the military accomplishments of West Point graduates Jefferson Davis and Robert E. Lee).
99. See H. J. Fenton, Constitutional Law: An Introductory Treatise Designed for Use in the United States Naval Academy, and in Other Schools Where the Principles OF THE CONSTITUTION ARE STUDIED 276 (1914) (noting that many Civil War era statesmen believed that they were citizens of states only, or alternatively, that their national citizenship resulted entirely from state citizenship).
100. Sebastian de Grazia, A Country with No Name: Tales from the Constitution (1997).
101. James M. McPherson argues that, in the antebellum debate over the character of the American federation, Southerners were correct insofar as they focused on the constitution as it had existed in 1787-1788. James M. McPherson, Antebellum Southern Exceptionalism, 23 CIV. WAR HIST. 230, 243 (1983) ("The South's concept of republicanism had not changed in three-quarters of a century; the North's had."). Had American constitutional development stopped in its first few decades, the Southern argument would have been valid in 1861. Id. That evolution, however, continued, driven in part, as McPherson points out, by the revolution in the nineteenth century of transportation and the invention of the telegraph.
102. JAMES M. MCPHERSON, BATTLE CRY OF FREEDOM: THE CIVIL WAR ERA 11-13 (1988). These technological innovations made communication and transportation easier for Americans, which brought the country closer together. Id. During the same period, demands for federal aid for turnpikes, canals, and railroads as well as Southerners' demands that the national government enact and enforce fugitive slave laws, and acquire Mexican and Cuban territory further fostered the importance of federal power. Id. at 42-43, 78, 104.
103. See JEREMY D. POPKIN, A HISTORY OF MODERN FRANCE 1-6 (2nd ed. 2000) (tracing the developments in French national history).
104. See Shlomo Avineri, On Problems of Transition in Postcommunist Societies, 19 CARDOZO L. REV. 1921, 1922, 1926, 1935 (1998) (offering one description of some of the changes that occurred during the political development of Germany and Italy).
105. See Jeremie J. Wattellier, Comparative Legal Responses to Terrorism: Lessons from Europe, 27 HASTINGS INT'L & COMP. L. REV. 397, 410 (2004) (noting that there are longstanding ethnic and regional identities in France that desire autonomy).
106. See Darwin porter & Danforth Prince, Frommer's: Sicily 60 (2007) (noting that its residents are quick to admit that '"[w]e're Sicilian-not Italian'");
107. Anna Cento Bull, Ethnicity, Racism and the Northern League, in ITALIAN REGIONALISM: HISTORY, IDENTITY AND POLITICS 171, 171 (Carl Levy ed., 1996) (discussing the racism and antisouthern feelings by the Northern League).
108. See Constitution Act, 1867 (forming "One Dominion under the Name of Canada" from the British provinces of Canada, Nova Scotia, and New Brunswick and dividing this new entity into the four provinces of Ontario, Quebec, Nova Scotia, and New Brunswick).
109. EDWARD M. CORBETT, QUEBEC CONFRONTS CANADA 34 (1967).
110. Peter H. Russell carefully traced these separatist developments until they eventually calmed down in 2003. See PETER H. RUSSELL, CONSTITUTIONAL ODYSSEY: CAN CANADIANS BECOME A SOVEREIGN PEOPLE? 247 (3rd ed. 2004) ("[M]ost Quebecers, like most Canadians everywhere, have had enough of this stuff for the time being."). During that time, the fortunes of the Parti Quebecois, once the most powerful voice for separation, waxed-but mostly waned.
111. See Clifford Krauss, Quebec Result: Solidly for Canada, N.Y. TIMES, Apr. 16, 2003, at A8 (discussing the landslide victory of the Liberal Party in Quebec's provincial elections over the Parti Quebecois). In 1998, when asked by the Prime Minister of Canada for its opinion, the Supreme Court advised that the Constitution did not permit Quebec to secede from the nation, even if such a resolution were approved by a popular referendum held within that province. Any breakup of the federal union, the Justices said, had to be negotiated among all the provinces and the federal government. In re Secession of Quebec, [1998] 2 S.C.R. 217 (Can.). In strict legal terms, the government, either of the nation or provinces, may not be bound by such advisory opinions; but these officials have almost always followed the Justices' "advice." This practice is among the principal reason that most prime ministers have been reluctant to consult the Court on sensitive matters of public policy.
112. See GG art. 146 ("This Basic Law shall cease to be in force on the day on which a constitution adopted by a free decision of the German people comes into force."). Instead of invoking this provision when the two Germanys reunited in 1990, the West German government chose to pretend that the East-German Länder would be admitted individually as new states into the Federal Republic. As part of a compromise, the Basic Law was also amended. For details, see PETER E. QUINT, THE IMPERFECT UNION: CONSTITUTIONAL STRUCTURES AND GERMAN UNIFICATION 115-23 (1997). As in so many matters German, I am indebted to Professor Donald P. Kommers, Emeritus, of the University of Notre Dame.
113. See Stephen Engelberg, Czechoslovakia Breaks in Two, to Wide Regret, N.Y. TIMES, Jan. 1, 1993, at Al (reporting on the split of Czechoslovakia into the Czech and Slovak Republics).
114. See Isabel Kershner & Steven Erlanger, Palestinian Split Deepens, with Government in Chaos, N.Y. TIMES, June 15, 2007, at Al (detailing the dissolution of the unity government).
115. See Sanford Levinson & Jack M. Balkin, Constitutional Crisis, 157 U. PA. L. REV. 707, 731 (2009) (mentioning the "secession crisis of 1860-1861" created by the "southern states").
116. See Steven Erlanger, Behind the Bearhug: Chechnya's Case, N.Y. TIMES, Dec. 22, 1994, at A14 (explaining Chechnya's quest for independence from Russia since the fall of the U.S.S.R.). It is quite possible that a constitutional text might specifically provide for secession.
117. For hefty bibliographies, see MURPHY, supra note 10, at chs. 2-3.
118. See Walter F. Murphy, Alternative Political Systems, in CONSTITUTIONAL POLITICS: Essays on Constitution Making, Maintenance, and Change 9, 26-32 (Sotirios A. Barber & Robert P. George eds., 2001) (discussing the Tiny Tigers, particularly Singapore, in the context of coercive capitalism).
119. See Omar Saleem, Be Fruitful, and Multiply, and Replenish the Earth, and Subdue It: Third World Population Growth and the Environment, 8 GEO. INT'L ENVTL. L. REV. 1, 23 n.127 (1995) ("China demonstrates the use of guided capitalism, in contrast to market capitalism.")- One might also make a case for including Chile during General Augusto Pinochet's rule.
120. See MURPHY, supra note 10, at 334 (discussing the use of coercive (or guided) capitalism and noting that South Korea "has taken on many of the indicia of constitutional democracy" and that Taiwan's guided capitalistic system has "peacefully made significant steps toward... a transition").
121. See Murphy, supra note 87, at 27, 26-27 (discussing Singapore's use of coercive capitalism and observing that "Singapore's ['soft' authoritarian] policies have long yielded dramatic economic growth").
122. See JUDITH F. KORNBERG & JOHN R. FAUST, CHINA IN WORLD POLITICS: POLICIES, PROCESSES, PROSPECTS 7, 84 (2nd ed. 2005) (discussing China's incremental changes in its economic structure while noting China's "[g]rowing disparity in wealth and income" and "severe human rights violations").
123. See Samuel H. Barnes, The Contribution of Democracy to Rebuilding Postconflict Societies, 95 AM. J. INT'L L. 86, 97 (2001) (" Consociationalism provided stable democracy in the Netherlands until economic development and social and geographical mobility allowed evolution into modern European consensus patterns.");
124. id. at 97-98 (stating that Lebanon employed a consociational form of governance between 1943 and 1975).
125. Ahmed T. el-Gaili, Federalism and the Tyranny of Religious Majorities: Challenges to Islamic Federalism in Sudan, 45 HARV. INT'L L.J. 503, 512 n.62 (2004).
126. See Bames, supra note 92, at 97 (explaining that the Netherlands is now following the more usual European political processes).
127. See Charles E. Ehrlich, Democratic Alternative to Ethnic Conflict: Consociationalism and Neo-Separatism, 26 BROOK. J. INT'L L. 447, 457 (2000) ("Lebanon's attempt at consociational democracy did not work... [because the] inflexible percentages which the diverse groups agreed on in 1943 did not reflect changing demographics.").
128. See Barnes, supra note 92, at 97 ("Each segment of Dutch society maintained its own political party, trade unions, schools, [and] newspapers [with] virtually no interaction between [segments]. Individuals worked their way up the structure of each segment, and when they reached the top, they dealt with the elite leaders of other segments on matters of mutual concern.").
129. See Louis Henkin, Rights: Here and There, 81 COLUM. L. REV. 1582, 1588 n.13 (1981) (using the United Kingdom as an example of a society with a highly developed representative democracy).
130. See Jason N. E. Varuhas, Keeping Things in Proportion: The Judiciary, Executive Action and Human Rights, 22 N.Z. U. L. Rev. 300, 318 (2006) ("In New Zealand (as in the United Kingdom) we have a representative democracy ....").
131. See Andrew Geddis & Bridget Fenton, "Which Is to Be Master?"-Rights-Friendly Statutory Interpretation in New Zealand and the United Kingdom, 25 ARIZ. J. INT'L & COMP. L. 733, 737 (2008) (noting that in New Zealand and the United Kingdom, "parliamentary sovereignty" essentially "entails that a bare majority of the nation's elected representatives possesses legislative power to make or unmake any law they choose, free from any substantive limits");
132. Lisa E. Klein, On the Brink of Reform: Political Party Funding in Britain, 31 CASE W. RES. J. INT'L L. 1, 2 (1999) (stating that in Britain "general elections are called at the discretion of the Prime Minister at some point within a five-year period"). One could reasonably classify this insistence on periodic, free elections as a malleable piece of political culture, in that it is formally prescribed only by statute that the legislature itself may repeal it at any time. During World War II the British Parliament did suspend elections.
133. See Ariel L. Bendor & Zeev Segal, Constitutionalism and Trust in Britain: An Ancient Constitutional Culture, a New Judicial Review Model, 17 AM. U. INT'L L. REV. 683, 705 (2002) ("It is an unwritten rule in Britain that there are 'certain things' that Parliament will not do, including trampling on basic human rights.").
134. See Robert Blackburn, The United Kingdom, in FUNDAMENTAL RIGHTS IN EUROPE: THE ECHR AND ITS MEMBER STATES, 1950-2000, at 935, 964 (Robert Blackburn & Jorg Polakiewicz eds., 2001) (explaining that, by adopting the European Convention on Human Rights, U.K. courts and tribunals are under a mandatory obligation to consider the materials from the European Court of Human Rights in making determinations regarding rights covered by the Convention).
135. Harry Eckstein linked political stability to congruence between a regime's norms and those of the nation's general culture. See ECKSTEIN, supra note 27, at 11-32 (discussing the political stability of Norway);
136. HARRY ECKSTEIN, A Theory of Stable Democracy (1966), reprinted in REGARDING POLITICS: ESSAYS ON POLITICAL THEORY, STABILITY, AND CHANGE 179, 186-88 (1992) (discussing the congruence of authority patterns regarding political stability);
137. Harry Eckstein, Congruence Theory Explained, in CAN DEMOCRACY TAKE ROOT
138. See generally Harry ECKSTEIN & TED Robert Gurr, PATTERNS OF AUTHORITY: A STRUCTURAL BASIS FOR POLITICAL INQUIRY (1975).
139. See GABRIEL A. ALMOND & SIDNEY VERBA, THE CIVIC CULTURE: POLITICAL ATTITUDES AND DEMOCRACY IN FIVE NATIONS 12 (illustrated ed. 1989) (defining political culture as "the specifically political orientations-attitudes toward the political system and its various parts, and attitudes toward the role of the self in the system").
140. 1 ANNALS OF CONG. 437 (Joseph Gales ed., 1834).
141. For a study of the efforts to cope with the problems of having several large and diverse cultures, see the essays in MULTICULTURALISM AND THE CANADIAN CONSTITUTION (Stephen Tierney ed., 2007).
142. See Robert A. Dahl, Who Governs? Democracy and Power in an American City 316 (2nd ed. 2005) ("[Democratic beliefs, like other political beliefs, are influenced by a recurring process of interchange among political professionals, the political stratum, and the great bulk of the population. The process generates enough agreement on rules and norms so as to permit the system to operate ....").
143. See, e.g., John Pomfret, Chinese Leaders Purge Scholars They Accuse of "Westernization," WASH. POST, Apr. 12, 2000, at Al (reporting on the ironic purge of Communist officials for failure to adhere to Marxist tenets despite a rapidly privatizing economy).
144. Tom Lansford, Democracy: Political Systems of the World 80 (2007).
145. In the United States, deadlock has occurred. See generally James MacGregor Bums, THE DEADLOCK OF DEMOCRACY: FOUR-PARTY POLITICS IN AMERICA (1963) (writing on the structural features of American democracy that have produced political deadlocks throughout history). Between the world wars, proportional representation helped proliferate political parties in Europe, often leading to governmental paralysis.
146. See, e.g., F.A. HERMENS, DEMOCRACY OR ANARCHY?: A STUDY OF PROPORTIONAL REPRESENTATION 244, 244-45 (1941) (postulating that the rise of political parties in interwar Europe led to "political stagnation," which called into question the efficacy of democratic government"). In Germany, although Hitler did not control a majority in parliament, the President asked him to form a government, as Weimar's constitutional text permitted.
147. See STANLEY G. PAYNE, A HISTORY OF FASCISM 1914-1945, at 168, 173 (1995) (recounting that when the Nazi party held only 33% of Reichstag seats, President Hindenburg acquiesced to an ill-fated plan to appoint Hitler to the chancellorship to lead a parliamentary coalition). Thus, Hitler came to power not only because of failures in the structures and processes of the constitutional system but also because various parties insisted on going their own ways.
148. See HERMENS, supra, at 244-45 (noting that in interwar Germany "[i]t was unheard of for a number of parties to join forces for an electoral contest" and so "they went into the contest 'free from entangling alliances'"). Ferdinand A. Hermens linked political breakdowns in Germany, France, and Italy closely to proportional representation. Id.;
149. FERDINAND ALOYS HERMENS, EUROPE BETWEEN DEMOCRACY AND ANARCHY (1951). Proportional representation certainly contributed to the demise of democratic regimes, but other factors were also at work.
150. See WILLIAM BRUSTEIN, THE LOGIC OF EVIL: THE SOCIAL ORIGINS OF THE NAZI PARTY, 1925-1933, at 181 (1996) ("[Mjany Germans calculated that of the competing Weimar political parties, the Nazis offered them the best prospects for a better life.");
151. ECKSTEIN, supra note 27, at 197-200 (arguing that German society during the Weimar Republic was much more authoritarian in essence than its democratic government, thus creating an untenable incongruity);
152. ELLEN KENNEDY, CONSTITUTIONAL FAILURE: CARL SCHMITT IN WEIMAR 155 (2004) (contending that "the [Weimar] constitution as the foundation of law, as the referent of legal and political discourse, and as the framework of political action had failed" by 1933);
153. HANS MOMMSEN, THE RISE AND FALL OF WEIMAR DEMOCRACY 367, 367-368 (Elborg Forster & Larry Eugene Jones trans., Univ. of N.C. Press 1996) (1989) (noting that burgeoning unemployment in the early 1930s in Germany, especially among the young, "contributed to the rapid rise of social militancy");
154. DETLEV J. K. PEUKERT, THE WEIMAR REPUBLIC: THE CRISIS OF CLASSICAL MODERNITY 257 (Richard Deveson trans., Penguin Press 1991) (1987) (stating that for the Germans, the symbolic meaning of the Great Depression was that "the post-war period had brought about the devaluation of old certainties without creating new social and political values to take their place").
155. CHARLES DE SECONDAT, BARON DE MONTESQUIEU, THE SPIRIT OF THE LAWS bk. XIX, ch. 5 (Anne M. Cohler et al. trans, and eds., Cambridge University Press, 1989) (1750).
156. The Shari'a is a set of practices and unsystematic, unorganized, and sometimes conflicting opinions of jurisprudes over the centuries.Westerners tend to equate it with the harsh procedures followed in Islamic criminal law. In reality, Shari'a (literally "the path to the water") is much broader, offering a way of life to help Muslims achieve salvation.
157. See Daniel P. Franklin & Michael J. Baun, Conclusion to POLITICAL CULTURE AND CONSTITUTIONALISM 219, 223 (Daniel P. Franklin & Michael J. Baun eds., 1995) (observing that the post-World War II constitutional regimes of Japan and West Germany were essentially imposed from without by liberal democracies "on weak historical and cultural foundations").
158. See Pratap Bhanu Mehta, Hinduism and Modernity, in DEVELOPING CULTURES: ESSAYS ON CULTURAL CHANGE 279, 288 (Lawrence E. Harrison & Jerome Kagan eds., 2006) ("[T]he Indian Constitution has been rightly called a charter for the social reform of Hinduism").
159. See Erin E. Goodsell, Note and Comment, Constitution, Custom, and Creed: Balancing Human Rights Concerns with Cultural and Religious Freedom in Today's South Africa, 21 BYU J. PUB. L. 109, 123 (2007) ("The 1996 South African Constitution expressly recognizes the injustices of apartheid and has as its overarching goal the promotion of unity, social justice, and equality in a torn nation ....").
160. Unless, of course, the old political system was incongruent with the old culture. This incongruence is unlikely unless the old order had been unstable. Italy provides an interesting case study here. Once World War II was over, with help from the CIA, Italians rejected communist authoritarianism. See William Blum, Killing Hope: U.S. Military & CIA Interventions SINCE WORLD War II, at 29 (2nd ed. 2003) (noting that the CIA played a role in U.S. efforts to eradicate Italian communism). In 1922, the country had shifted from a budding representative democracy to Mussolini's authoritarian regime and then in 1945 to constitutional democracy without having fundamentally changed its culture either time.
161. See SPENCER DI SCALA, ITALY: FROM REVOLUTION TO REPUBLIC, 1700 TO THE PRESENT 249-50, 297-98 (3rd ed. 2004) (describing the circumstances surrounding Mussolini's rise and fall). That culture fit Mussolini's system even less well than it had the previous ineffectual representative democracy or, for some decades, constitutional democracy. After living and teaching in Italy, I came to believe that historically, Italian culture had probably been more compatible with modified anarchy than with authoritarian rule or constitutional democracy. But Italian culture has become much more congruent, first with the notion that a government should actually do some, if not very much, governing, and second with a belief that if real government is indeed necessary, constitutional democracy is probably the least evil regime.
162. See Gopal Guru & Shiraz Sidhva, India's "Hidden Apartheid," UNESCO COURIER, Sept. 2001, at 27 (revealing that though the Hindu "untouchable" caste was abolished by the 1950 constitutional text, members of that caste nonetheless are "denied access to land, forced to work in humiliating and degrading conditions and are routinely abused by the police and upper-caste groups").
163. Numbers 32: 13.
164. See PETER F. SUGAR ET AL., A HISTORY OF HUNGARY 43 (1994) (explaining that the Golden Bull of 1222 was an edict issued by King Andrew II granting noblemen their privileges and was "considered to be the first and most important written guarantee of the nobles' rights and freedoms");
165. European Commission for Democracy Through Law, The Constitutional Heritage of Europe, VENICE COMMISSION, Nov. 22-23, 1996, *http://www. venice.coe.int/docs/1996/CDL-STD (1996)018-e.asp (describing the Constitutional Accord of 1995 that arose from the post-Soviet constitutional discussions as analogous to the Golden Bull of 1222).
166. See LOUIS HENKIN & ALBERT J. ROSENTHAL, CONSTITUTIONALISM AND RIGHTS: THE INFLUENCE OF THE UNITED STATES CONSTITUTION ABROAD 287 (1990) (describing the renunciation of Poland's first modern constitution during the Russo-Prussian War).
167. THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776) ("We hold these truths to be self-evident, that all men are created equal....");
168. see also U.S. CONST., amend. XIV, § 1 (incorporating in 1868 the idea that all men are equal and that the states must provide "equal protection of the laws").
169. See Green v. New Kent, 391 U.S. 430, 438 (1968) (requiring that segregated schools be dismantled "root and branch");
170. Brown v. Bd. of Educ, 347 U.S. 483, 493 (1953) (holding that segregation in public schools violated the Fourteenth Amendment).
171. See, e.g., Maura Dolan, California Supreme Court Looks Unlikely to Kill Proposition 8, L.A. TIMES, Mar. 6, 2009, at Al (describing the "dueling demonstrators" that awaited the California Supreme Court's decision on whether or not Proposition 8, which eliminated same-sex couples' right to marry in California, was a permissible constitutional revision).
172. See ORNIT SHANI, COMMUNALISM, CASTE AND HINDU NATIONALISM: THE VIOLENCE IN GUJARAT 135-55 (2007) (explaining the rise of Hindu nationalism since the 1980s as a reaction to the changing character of India's caste system and its relation to state policies and politics).
173. See RICHARD D. MOSIER, MAKING THE AMERICAN MIND 154-59 (1947) (discussing the underlying pattern of political conceptions on which the McGuffey readers were based).
174. See JOHN HOOKER, WORKING ACROSS CULTURES 343 (2003) ("The belief in individual initiative makes the United States [a society where] competition is encouraged. Learning to spell means competing in a spelling bee.").
175. Cf. David Archard, Children: Rights & Childhood 165 (1993) (describing Chinese education as a "collectivist" system with a group-based ethic that stresses group achievement through interdependent effort and discourages individual competition).
176. MONTESQUIEU, supra note 110, at bk. XIX, ch. 5.
177. For an analysis of the concept of Janus-faced "constitutional patriotism," see JAN-WERNER MÜLLER, CONSTITUTIONAL PATRIOTISM (2007).
178. 2 ARISTOTLE, Politics, supra note 22, 111.4.1276bl6-.1276bl8, at 2025-26.
179. Id.
180. See LARRY DIAMOND, SQUANDERED VICTORY: THE AMERICAN OCCUPATION AND THE BUNGLED EFFORT TO BRING DEMOCRACY TO IRAQ 22 (2005) (explaining that the Shiites had been "marginalized and victimized" by the Sunni minority, which had monopolized "power and wealth" in Iraq).
181. See, e.g., Raymond A. Bauer, The new man in Soviet Psychology 128-150 (1952) (discussing how the Soviet government used psychology to teach citizens new moral norms that emphasized the needs and interests of and duties to the state).
182. For Soviet attempts to politically acculrurate Muslims in the Russian political system through promoting the equality of women, see the marvelous study by Gregory J. Massell, The Surrogate Proletariat: Moslem Women and Revolutionary Strategies in Soviet Central Asia (1974).
183. ROBERT A. DAHL, DEMOCRACY AND ITS CRITICS 15 (1989).
184. Olmstead v. United States, 277 U.S. 438, 485 (1928) (Brandeis, J., dissenting).
185. See MURPHY, supra note 10, at 488 ("It is also likely that, along with normative political theories, the broader constitution will encompass traditions as well as many social and governmental practices.").
186. A constitutional order without a constitutional text would probably require as much interpretation as-perhaps more than-a political system with such a text, although in the absence of a formal charter, judges might well have a smaller role to play. Id. at 482-83.
187. See, e.g., U.S. CONST., amend. XX (altering the dates when elected federal officials begin and end their terms). Even here, practices requiring the incumbent President and Vice President's cooperation could allow the newly elected official to take office in November.
188. SELECTIONS FROM THE WORKS OF SAMUEL JOHNSON 426 (Charles Grosvenor Osgood ed., 1909).
189. KATE BURRIDGE, BLOOMING ENGLISH: OBSERVATIONS ON THE ROOTS, CULTIVATION AND HYBRIDS OF THE ENGLISH LANGUAGE 113 (2004).
190. For an introduction to studies of linguistic change, see JEAN AITCHISON, LANGUAGE CHANGE: PROGRESS OR DECAY? (1991);
191. LAURIE BAUER, WATCHING ENGLISH CHANGE (1994)
192. OTTO JESPERSEN, GROWTH AND STRUCTURE OF THE ENGLISH LANGUAGE (10th ed. 1982).
193. For the most relevant works about creating and maintaining a constitutional order, see id. at chs. 1-2
194. JAMES BOYD WHITE, WHEN WORDS LOSE THEIR MEANING: CONSTITUTIONS AND RECONSTITUTIONS OF LANGUAGE, CHARACTER, AND COMMUNITY (1984).
195. For the effects of linguistic changes on the constitutional debates in the United States during the period before the Civil War, see MARK E. BRANDON, FREE IN THE WORLD: AMERICAN SLAVERY AND CONSTITUTIONAL FAILURE ch. 6 (1998).
196. Ronald Dworkin has compared development through constitutional interpretation with tag-team writing of a novel. Ronald Dworkin, Law as Interpretation, 60 TEXAS L. REV. 527, 542-43 (1982).
197. For a critique of this trope and the interpretive methods it supports, see Stanley Fish, Working on the Chain Gang: Interpretation in Law and Literature, 60 TEXAS L. REV. 551, 551-62 (1982).
198. For Dworkin's response, see Ronald Dworkin, My Reply to Stanley Fish (and Walter Benn Michaels): Please Don't Talk About Objectivity Any More, in THE POLITICS OF INTERPRETATION 287 (W.J.T. Mitchell ed., 1983).
199. Fish took up the cudgels once more. Stanley Fish, Wrong Again, 62 Texas L. REV. 299 (1983).
200. Dworkin continued the debate. RONALD DWORKIN, Law's EMPIRE ch. 2 (1986).
201. Theologians face similar problems of interpretations building upon earlier exegeses, and some of these scholars have been developing a "theology of emergence." E.g., CLAYTON, supra note 14.
202. One might argue that constitutional texts, such as India's, that are easily amended present a form of tag-team writing of charters. An assessment of the validity of this claim depends on many factors, including the relative strengths of competing political parties and the possibility that some officials will successfully claim authority to declare constitutional amendments void on substantive grounds. I have discussed this general problem of unconstitutional constitutional amendments: Thus an "amendment" corrects or modifies the system without fundamentally changing its nature.... A proposal to transform a central aspect of the compact to create another kind of system-for example, to change a constitutional democracy into an authoritarian state, as the Indian Court said Mrs. Gandhi tried to do-would not be an amendment at all, but a re-creation of both the covenant and its people. That deed would lie outside the authority of any set of governmental bodies, for all are creatures of the people's agreement. Insofar as officials destroy that compact, they destroy their own legitimacy. Murphy, supra note 29, at 14 (citation omitted).
203. Jacobsohn offers a sophisticated analysis of this problem. JACOBSOHN, supra note 54 (manuscript at ch. 2).
204. MURPHY, supra note 10, at 483-84.
205. Id.
206. Id.
207. Martin Edelman adds that some of the secular parties were unwilling to risk dividing the nation by offending the ultra-Orthodox. Martin Edelman, The New Israeli Constitution, MIDDLE E. STUD., Apr. 2000, at 1, 8 [hereinafter Edelman, The New Israeli Constitution].
208. See generally Martin Edelman, Courts, politics, and Culture in Israel (1994) [hereinafter Edelman, Courts].
209. D.K. (1950)1743
210. GARY JEFFREY JACOBSOHN, APPLE OF GOLD: CONSTITUTIONALISM IN ISRAEL AND THE UNITED STATES 106 (1993).
211. MURPHY, supra note 10, at 484.
212. ROBERT L. MADDEX, CONSTITUTIONS OF THE WORLD 227 (3rd ed. 2008).
213. Some Basic Laws, such as that enacted in 1992, Basic Law: Human Dignity and Liberty, operate only prospectively. CHUK Yasud: Cvod Haadam Vcheerooto [CY: Cvod Haadam] [Basic Law: Human Dignity and Liberty], 5752-1992, 45 LSI 150 (Isr.), translated in 9 Constitutions of the Countries of the World, supra note 25.
214. Still, in Ganimat v. Israel, the Israeli Supreme Court stated that, when interpreting earlier statutes, it would give great weight to the purpose of the Basic Law of 1992. CrimA 2316/95 Ganimat v. Israel [1995] IsrSC 49(4) 589.
215. Murphy, supra note 10, at 484.
216. CY: Cvod Haadam.
217. Id. §§ 2-7.
218. Id. § 11.
219. HCJ 98/69 Bergman v. Minister of Fin. [1969] IsrSC 23(1) 693.
220. Id. at 693-97.
221. CA 6821/93 United Mizrahi Bank v. Migdal Coop. Vill. [1995] IsrSC 49(4) 1.
222. Home Bldg. & Loan Ass'n v. Blaisdell {Minnesota Moratorium Case), 290 U.S. 399 (1934). In the Minnesota Moratorium Case, Minnesota's Mortgage Moratorium Law, which retroactively altered private mortgage terms to protect homeowners from foreclosure during the Depression, was challenged "as being repugnant to the contract clause ... and the due process and equal protection clauses of the Fourteenth Amendment." Id. at 416. In upholding the statute, the Supreme Court reasoned that there was no violation of the Contract Clause because the conditions of the Great Depression justified "the exercise of [the state's] continuing and dominant protective power notwithstanding interference with contracts." Id. at 437.
223. United Mizrahi Bank, IsrSC 49(4) at 23-24, 27-28.
224. CY: CVOD HAADAM § 3. Section 8 of the Basic Law qualified the protected rights and liberties, somewhat easing the Justices' problems in deciding the specific case. Id. § 8.
225. United Mizrahi Bank, IsrSC 49(4) at 159. A cynic might note a certain similarity here with John Marshall's strategy in Marbury v. Madison. 5 U.S. (1 Cranch) 137 (1803). In each case, the Court asserted its authority to invalidate governmental actions and did so without issuing an order that either the executive or legislature could flout. It may be worth noting that Aharon Barak, the President of the Israeli Supreme Court and author of the opinion of the majority, is quite familiar with American constitutional interpretation.
226. See AHARON BARAK, PURPOSIVE INTERPRETATION IN LAW, at xvi (Sari Bashi trans., 2005) (discussing various approaches to interpretation, using Justice Scalia and Judge Posner as examples).
227. United Mizrahi Bank, IsrSC 49(4) at 297. There are scholarly discussions on this constitutional revolution.
228. See, e.g., EDELMAN, COURTS, supra note 145, at 28-29 (discussing differing opinions on the place of judicial review in Israel);
229. JACOBSOHN, supra note 147, at 124-33 (exploring the role of judicial review in post-Bergman Israel);
230. Martin Edelman, The Status of the Israeli Constitution at the Present Time, 21.4 SHOFAR 1, 18 (2003) (acknowledging that while political circumstances currently support the judicially-created constitutional text, it remains subject to legislative reversal);
231. Menachem Hofnung, The Unintended Consequences of Unplanned Constitutional Reform: Constitutional Politics in Israel, 44 AM. J. COMP. L. 585, 601 (1996) (explaining that by adopting the doctrine of reasonableness, the Court changed its function from regulating the administrative bodies to substantively reviewing the content of decisions and policies);
232. Gary Jeffrey Jacobsohn, After the Revolution, 34 ISR. L. REV. 139, 155, 153-55 (2000) (discussing this "landmark breakthrough" in Israeli jurisprudence).
233. United Mizrahi Bank, IsrSC 49(4) 1, 69.
234. Id.
235. See id. at 3 ("The three cases represented the first instances in which Israeli courts annulled a law passed by the Knesset on the grounds of unconstitutionality due to a violation of fundamental rights established in a Basic Law.");
236. id. at 34 ("The innovation of the Basic Law was its establishment of criteria for the examination of the constitutionality and validity of a law. It created new, substantive criteria, unprecedented.");
237. id. at 160 ("The constitutional revolution occurred in the Knesset in March 1992 [when it] endowed the State of Israel with a constitutional bill of rights [the Basic Law].").
238. Id. at 80.
239. See id. at 108 ("During the First Reading [of the draft Basic Law], the members of the Knesset voted on the status of the Basic Law as a constitution. However, this perception relied upon the rigidity provision that appeared in the draft law and was ultimately omitted from the Basic Law as enacted.").
240. See id. at 24 ("[T]he Basic Law provides that the Basic Law will not affect the validity of any law ... in effect prior to the commencement of the Basic Law.").
241. Id. at 407.
242. For an argument that judges should cope with this problem by finding, or imagining, a hierarchy of values in a charter, see BVerfG Oct. 23, 1951, 1 BVerfGE 14, 32-33 (F.R.G.), reprinted in MURPHY & TANENHAUS, supra note 25, at 208, 209.
243. THOMAS HOBBES, LEVIATHAN 123 (Richard Tuck ed., Cambridge University Press 1991) (1651).
244. Okoth-Ogendo's analysis of the fate of constitutions in sub-Saharan Africa is relevant here. See H.W.O. Okoth-Ogendo, Constitutions Without Constitutionalism: Reflections on an African Political Paradox, in CONSTITUTIONALISM AND DEMOCRACY: TRANSITIONS IN THE Contemporary World, supra note 29, at 65, 71-72 (describing the "process of 'subverting' the constitutional order" for political gain in African countries by various means: the "total abrogation" of the basic law and the "cavalier disregard of constitutional niceties and processes").
245. New Zealand has in place a set of quasi-constitutional texts labeled as Constitution Acts or amendments to Constitution Acts. See GEOFFREY PALMER & MATTHEW PALMER, BRIDLED Power: New Zealand's Constitution and Government 5-6 (4th ed. 2004) (mentioning several Constitution Acts that are or were part of New Zealand's constitution).
246. But these documents are subject to modification or repeal by a simple act of Parliament. DEP'T OF THE PRIME MINISTER AND CABINET, CABINET MANUAL 6 (2008), *http://cabinetmanual.cabinetoffice.govt.nz/files/manual .pdf.
247. In 1986, Parliament considered bringing them together into one enactment provision of "constitutional significance" but as of early 2009 has not entrenched this bill. See Palmer & PALMER, supra, at 319 (discussing the debate and ultimate rejection in the mid-1980s over whether to entrench the Bill of Rights so that it could not be altered by a simple parliamentary majority). Although judges have not yet exercised judicial review, they have, in the British tradition, honed statutory interpretation into a sharp instrument.
248. See Geddis & Fenton, supra note 99, at 734 (placing New Zealand and the United Kingdom among the jurisdictions that, "[wjhile stopping short of giving judges the final word on the constitutional permissibility of particular legislative provisions,... have sought to incorporate their substantive views on individual rights into the process of law making, interpretation and application").
249. Clear agreements, good friends.
250. EDWARD S. CORWIN, COURT OVER CONSTITUTION: A STUDY OF JUDICIAL REVIEW AS AN INSTRUMENT OF POPULAR GOVERNMENT 228 (1938).
251. THE FEDERALIST NO. 37, at 164-165 (James Madison) (Clinton Rossitered., 1961).
252. See id. at 165 (finding that the problem stems from "imperfection of the organ of conception ... the interfering pretensions of the ... States ... and citizens [with] contending interests and local jealousies").
253. See JACOBSOHN, supra note 147, at 71, 92 (stating that many Israelis view Israel as a pluralist state like America and explaining that many Israelis believe that theirs is a Jewish nation with their members scattered all around the world, thereby suggesting that Israelis recognize the different backgrounds that constitute their citizenry).
254. MURPHY, supra note 10, at 187.
255. See, e.g., JOHN MYHILL, LANGUAGE, RELIGION AND NATIONAL IDENTITY IN EUROPE AND THE MIDDLE EAST: A HISTORICAL STUDY 230-31 (2006) (discussing the religious diversity of the Arabs in the context of nationalism).
256. See, e.g., Letter from Thomas Jefferson to Samuel Kercheval (July 12, 1816), in 15 THE Writings of Thomas Jefferson 32, 42 (Andrew A. Lipscomb & Albert Ellery Bergh eds., 1904) ("Each generation ... has ... a right to choose for itself the form of government it believes most promotive of its own happiness.").
257. This theme ran through much of Jefferson's writings. See, e.g., Letter from Thomas Jefferson to James Madison (Sept. 6, 1789), in 1 THE WRITINGS OF THOMAS JEFFERSON 454, 459 (Albert Ellery Bergh ed., 1907) ("[I]t may be proved, that no society can make a perpetual constitution, or even a perpetual law."). Still, on no occasion with which I am familiar did Jefferson relax his demand for a bill of rights.
258. THE FEDERALIST No.1 (Alexander Hamilton), supra note 176, at 34, 33-37.
259. NOAH WEBSTER, Bills of Rights, in COLLECTION OF ESSAYS AND FUGITIVE WRITINGS ON MORAL, HISTORICAL, POLITICAL AND LITERARY SUBJECTS 45, 47 (1790).
260. DONALD S. LUTZ, THE ORIGINS OF AMERICAN CONSTITUTIONALISM 6-7 (1988).
261. See id. at 32 ("The enunciation of values, self-definition, and common commitments was so important to the colonists in America that it came to occupy a larger and larger portion of their foundation documents.");
262. Daniel J. Elazar, The Political Theory of Covenant, 10 PUBLIUS 3, 29 (1980) (concluding that Americans' notions of human rights, civic organization, and politics were shaped by the many uses of covenant through the settlement of the frontier);
263. Donald S. Lutz, From Covenant to Constitution in American Political Thought, 10 PUBLIUS 101, 103 (1980) (asserting that early state constitutions contained elements of "the creation of government" and "a self-definition of themselves as a people, their common values, rights, and interests").
264. MURPHY, supra note 10, at 188.
265. Id. at 189.
266. See id. at 482-83 (describing the necessity of interpretation in particular circumstances).
267. LARRY D. MANSCH, ABRAHAM LINCOLN, PRESIDENT-ELECT: THE FOUR CRITICAL MONTHS FROM ELECTION TO INAUGURATION 75 (2005).
268. Cf. DONALD S. LUTZ, PRINCIPLES OF CONSTITUTIONAL DESIGN 14 (2006) (noting that even though Japan and Germany's constitutional texts were imposed upon them after World War 11, the prior constitutional experience of other countries helped Japan and Germany successfully amend and conform their constitutional texts to their societies).
269. See Tappan Raychaudhuri, Constitutionalism and the Nationalist Discourse: The Indian Experience, in CONSTITUTIONALISM AND DEMOCRACY: TRANSITIONS IN THE CONTEMPORARY WORLD, supra note 29, at 197-210 (discussing the struggles accompanying the development of the Indian constitution resulting from indigenous politics and nationalism intersecting with imperial power).
270. See STEPHEN J. LEE, EUROPEAN DICTATORSHIPS: 1918-1945, at 18 (2000) (describing Poland between World War I and World War II as a dictatorship).
271. I do not mean to denigrate the importance of having politically experienced leaders available to operate a new political system. I believe much of the difference between the success of constitutional democracy in India and the failure of civil government in most of sub-Saharan Africa was due to the fact that the British had cultivated an educated, trained civil service in India, while they-like the French and Belgians-left behind, in Africa, few locals who were educated at all, and almost none whose governmental experience exceeded that of noncommissioned officers in the military. For details, see MURPHY, supra note 10, at ch. 4.
272. THE FEDERALIST No.1 (Alexander Hamilton), supra note 183, at 27.
273. See University of Richmond, Constitution Finder, http://confinder. richmond.edu/(providing access to constitutions, charters, amendments, and other related documents of the world's nations).
274. LEVINSON, supra note 1.
275. HANS KOHN, AMERICAN NATIONALISM 8 (1957). Using much weaker evidence, Owasi Masako claims the so-called MacArthur Constitution "has effectively become Japan's identity.".
276. LAWRENCE WARD BEER & JOHN MAKI, FROM IMPERIAL MYTH TO DEMOCRACY: JAPAN'S TWO CONSTITUTIONS 184 (2002).
277. Belgium, Canada, Pakistan, Russia, Spain, Turkey, the Union of Czechs and Slovaks, the United Kingdom, and Yugoslavia have each recently confronted demands for secession. MIODRAG JOVANOVIĆ, CONSTITUTIONALIZING SECESSION IN FEDERALIZED STATES: A PROCEDURAL APPROACH 3, 34, 88-89 (2007). Miodrag Jovanovic argues that federal systems' charters should incorporate procedures for member states' peaceful separation. Id. at 79.
278. JAMES K. KIRSCHKE, GOUVERNOUR MORRIS: AUTHOR, STATESMAN, AND MAN OF THE WORLD 233, (2005).