• Professor Dimitrijevic formulated what Goodin means by environment as follows: (a) local traditions, (b) circumstances (economic situation, political constraints, social divisions) and (c) past practice. Tailoring a constitution to the environment does not mean mirroring the environment in the constitution but achieving a balance between universal notions and the environment.
• Goodin does not tell us (a) how to achieve this balance, (b) or how it is achieved in the past. If all he says is this, it is almost common sense.
• It is said in the class that “democratic responsiveness”, “avoiding abuse of power”, “protection of minorities” and “social pluralism” are substantive design principles contitution writers should take into consideration somehow. However, these are more like democratic principles rather than design principles. Any theorist of democracy could come up with another list of ‘design’ principles. What Goodin tells us here is not how to design a constitution but his definition of democracy.
• Professor (rightfully) added “protection of rights” to this list. Someone else could add or delete various other articles to/from Goodin’s list of design principles. In the end, it depends on how you define democracy.
• We should not take Goodin’s constitution writers as any constitution writers, according to the professor. What Goodin has in mind, appearently, a group of constitution writers who have democracy in mind a priori.
  

  James Madison. What stopped him from pursuing his own interests while writing the Constitution? Correction: didn't he pursue his own interests then?

• If this is the case, both “logic of uncertainty” and “logic of appropriateness” appear to be a bit irrelevant. In the end, if we automatically assume that constitution writers have democracy in mind, we cannot introduce motives into the picture. If this is not the case, both “logic”s’ explanatory capability seem to be limited. Constitution writers have the authority, legitimacy and competence to introduce their short term benefits into the constitution. It is not that uncertain, and inappropriateness will not stop a person from pursuing his own interests once he finds authority to do that. They might pursue higher level concerns generally, but when it comes to the issues related to their interests, neither logic of uncertainty nor logic of appropriateness have the potential to stop them from systematizing a benefit-creating scheme.
• Thus, I would say, what enables constitutions to include higher values is the fact that constitution writers do not find most of the issues relevant to their benefits. When discussing such issues, they will look for other criteria: efficiency and democracy. Efficiency, obviously, is not always democratic. Why am I saying that they will take democracy into consideration? Because the constitution writers Goodin is talking about are concerned with democratic values ex ante.

Robert E. Goodin

This post is a simple summary of and a low profile commentary on Robert E. Goodin’s working paper “On Constitutional Design”.

According to Goodin, “political scientists do not have a particularly distinguished track record when it comes to designing constitutions” (p. 1) despite the fact that they often come up with ideas for new constitutions and reflections on the existing ones. He thinks they’d better keep working this way, since it is more interesting to have them commenting on a wide range of issues besides constitutions.

I. Constitutional Design

A. Contra the Skeptics

Goodin emphasizes the fact that constitutions, contrary to many other institutions, are built and rebuilt consciously by definite actors at a definite time. He defines the modus operandi of designers as

1. First-principle: “Minimally sensitive to local traditions”
2. Blue-sky: “Minimally sensitive to constraining circumstances”
3. Blank-sheet: “Minimally sensitive to past practice”

His example for this? Well, he thinks that designer clothes are not comfortable (see the picture). He doesn’t leave the metaphor there.

He says that there are two alternatives to designer clothes (or, should I say, houte couture constitutions?):

1. Off-the-peg items (even these are cut to some basic design. It is a generalized version of the common-sensical design)
2. Made-to-measure articles (preferable)

Goodwin is a supporter of made-to-measure constitutional designs but he approves that in the end, it all comes to general principles (p. 3).

"Designer clothes are notably uncomfortable." Well, who can disagree with that?

For the concept “design”, the author borrows the Bauhaus slogan: “harmoniously fitting form to function”.

Forms? “Alternative constitutional arrangements”.

Functions? “Purposes those constitutional alternatives are supposed to serve”.

What’s harmony? It means “fitting the separate bits together in such a way that they interfere minimally one another in the performance of their designated functions”. Cool definition.

But all this is about internal consistency. What about the relationship between the design and its environment? A good design must also adapt well to the “larger functions which [it is] supposed to serve”, according to the writer.

To meet these ends, constitutional design has two crucial elements:

1. Functional requisites: The things the constitution is expected to do.
2. Functional equivalents: Alternative mechanisms to fulfill functional requisites.

A good design picks the best functional equivalent to satisfy the functional requisites. Obviously.

II. Constitutional Aspirations

“Constitutions constitute the skeleton of the polity” (Here comes another metaphor!). This function of the constitution is called higher law. (But, to make things more confusing, Goodin says that we should call this function lower law. However, thank Jupiter, he does not follow this idea in the coming paragraphs and leaves us in peace with the initial definitions).

But constitutions also act as the source for the flesh by creating goals and aspirations.

And this makes the skeleton metaphor a very very bad metaphor.

Goodin agrees with Bruce Ackerman’s claim that constitutional moments evoke people’s higher selves and motivate them to pursue long-term ideals rather than short-term interests.

Although people put a serious effort in constitution-writing, constitutions are to be amended in the future. However, they are hard to modify. This hardness comes from the constitution’s function: being the framework within which primary laws are amended, enacted and utilized.

There’s also a political reason: we want it to be hard to amend the constitutional law because we want it to limit the playground of politicians. We want it to define the grounds on which political commitments and agreements will take shape.

What makes citizens interested in long-term common interests is that since constitutional laws are hard to amend or replace, it is hard to calculate the benefit one will gain from any one article of the constitution. It is thus rational for citizens to try to increase the “average citizen’s long-run well-being” by coming up with good constitutions. He calls this logic of uncertainty.

Something makes me wanna draw a parallelism between this and Rawls’ veil of ignorance.

Goodin thinks the fact that we don’t bump into the traces of this logic in the classified records of parliamentary meetings weakens this argument.

This doesn’t make much sense really. No parliamentarian would openly state that he is pursuing long-term principles just because his short-term interests appear to be incalculable at the moment.

He thinks logic of appropriateness is at work along with logic of uncertainty. Parliamentarians, because they are sitting in the parliament and discussing high-level concerns, they tend to think about long-term common benefits.

To be honest, this sounds far less convincing than logic of uncertainty.

Ability of constitutional debates to evoke higher ideals makes Goodin claim that political philosophers should focus on uncovering these ideals and finding out ways of “framing institutional structures capable of evoking them”.

III. Constitutional Options

A. Against Borrowing Off-the-Peg Models

Many constitution writers tend to borrow “tried-and-true” models. Goodin says that he is planning to do this but he makes it clear that he intends to go “beyond the tired trinity of British, French and American constitutions” (p. 8).

However, Goodin also warns us about the perils of borrowing constitutions from elsewhere. To explain why, he utilizes the general theory of second-best. This theory says, if I understood him correctly, that if one of the aspects of the first-best model does not work, it is not enough to replace that aspect with the second-best: all of the first-best aspects will need to be revised. This theory makes it clear that it is not enough to have a model which is partly appropriate to the reality at hand. The reality might necessitate wholesale alterations to the model. Thus, it is clear, it is not good enough to borrow a model which functions good in a completely different framework.

B. Canvassing Wider Options

If a tried-and-true model can be devastating in a different environment, constitution-writers need to know all kinds of alternatives in order to pick the model appropriate to the given environment. For this, they need a menu which includes far more than this year’s catalogue of off-the-peg products.

Goodin’s aim, here, is not giving all possible alternatives that could be utilized by constitution-writers. He merely wants to give “different ways of skinning the constitutional cat” (and no, it has nothing to do with Satanism or illegal Vietnamese cuisine).

1. Democratic Responsiveness: Making vs. Applying the Laws

“We want our laws to reflect the will of the people”, don’t we? (Don’t bother to ask who ‘we’ are.)

Goodin gives two alternative strategies to keep the will of the people relevant to the laws:

1. “Franglo-American” strategy: Keeping the actors of the law enactment accountable.
2. Alternative strategy: Keeping the law enforcement actors accountable.

The second is really interesting. Since what simply matters is to force the legal process to take the will of the people into consideration, keeping law-makers accountable does not appear to be the only option. However, would it be equally democratic to keep the monarchy and having citizen councils when it comes to law-enforcement? Ofcourse not. Because the laws citizens will try to enforce in this case would be created arbitrarily, which is completely non-democratic.

2. Checking the Abuse of Power: External vs. Internal Controls

A very wide-spread concern is to keep the government within a circle where it will maintain its power but will not abuse this power.

There are alternative strategies to achieve this aim, according to Goodin:

1. Giving people vested rights and empowering courts to stop government from violating these rights.
2. Separation of powers. (Shoot yourself if you’re reading this summary but you don’t know what this means)

These both mechanisms try to create an external control over branches of government. However, Goodin claims, it is possible to create internal control within branches. A way of doing this would be concentrating the power and “thereby giving the authority in question both the motive and the ability to check abuses of power”.

My reaction to this proposal? Nothing but a huge question mark that could be seen from the Moon. Although Goodin talks about diffusion of responsibility (“what is many people’s job is no one’s”) and blame avoidance (“each passing the buck to co-responsible parties”), if we are to keep our concern with the abuse of power with our concern of the will of the people, references to the Middle Age arguments don’t mean much. At least to me. Adversus solem ne loquitor.

As Goodin argues, such arguments can be used to show why “responsible party government” is good.

But responsible party government does not mean the USSR government where governments were supposed to have internal control if this line of logic is functional.

3. Protecting Minorities: Output vs. Input Filters

“The standard way of” protecting minorities “is through rights guarantees of one sort or another” (p. 11).

Goodin defines this method as “filtering outputs”, outputs being the actions/laws. An alternative to this method is to filter inputs: limiting the legal arguments to a sphere where the discourse will not include “racist appeals or arguments defamatory of minority religions or ethnic groups”.

Will limiting the language of parliamentary debates in any way guarantee the non-existence of discriminatory laws? Ofcourse not. Any parliament is capable of making terrible laws while talking about beautiful concepts. Goodin also admits this weakness of filtering inputs.

4. Social Pluralism: Tolerating Diversity vs. Promoting It

The “ordinarily mechanisms”, as Goodin calls them, for accomodating social pluralism “are constitutional guarantees of toleration” (p. 12). There are hands-on and hands-off variants of such mechanisms while the former defines various institutions of social pluralism and the latter recognizes an unregulated space where civil society acts on behalf of various religions, races, languages, etc.

However, this is not the only way of recognizing the importance of social pluralism constitutionally. A constitution can also “actively promot[e] more diversity”. Goodin gives the example of Locke’s constitution for Carolinas where everybody was free to belong to whatever church they desire to, but it was obligatory to belong to one or another.

Goodin gives various reasons why this alternative might be preferable to the standard attitude of mere tolerance:

1. Mere tolerance might give authority to “distinctly illegal groups”.
2. It might ossify the existing power relations among groups.

C. Ensuring Functional Fit

As he has already said before, Goodin thinks it is essential to go beyond creating novelties when it comes to writing constitutions: bits need to be harmonious with each other and the whole needs to be harmonious with the circumstances.

In this section, Goodin gives the example of “the perils of presidentialism”: where the president and the parliament both enjoy the authority given by popular elections, neither of them tend to recognize the authority of the other. Often this mechanism leads to deadlocks between two branches. This makes comparativists to think that popular legitimacy is better to be given to one branch of the government. It is deemed preferable to have parliamentarianism where the parliament enjoys the advantages of being elected by the people while the chief executive is elected by that parliament. The other alternative is Latin American presidential dictatorships where the popularly elected president ignores the views of the popularly elected parliament.

Goodin offers two alternative ways to solve this tension which is rooted in having two branches of government elected by the people:

1. Having an unaccountable or indirectly-accountable institution to filter the decisions of the parliament. This will, according to Goodin, decrease the parliament’s ambition to own the final word on representing the will of the people.
2. Limiting the authority of the parliament to the local issues while deeming the president as the only representative of all nation.

Although I support Goodin’s idea that we should look beyond the tried-and-true models and be more creative when it comes to design issues, I really don’t think the first alternative is convincing since a popularly elected parliament which does not even tolerate the control of a popularly elected president will not tolerate the control of an unaccountable upper house.

Conclusion

In conclusion, Goodin states that there is a “higher purpose to be served” by creating constitutions. Although he does not clarify what that higher purpose is, from the rest of the paper we can claim that the higher purpose is coming up with a constitution which will blend sensible alternatives harmoniously with each other and with the circumstances. He finishes the paper by saying that “when it comes to fundamental questions of constitutional design, … much can be known and much can be done – and theorists can help.