1.1.6 Choices for constitution-makers

Some other issues also constitute serious dilemmas for constitution-makers. How much salience should the constitution give to ethnic differences? What is the proper balance among national, tribal, religious, and linguistic identities? Is it morally right to design all decisions for majority voting? What is the appropriate balance between principles and the details of policies? Are there some principles that must be stated in the constitution? Are there some matters of policy that are so clearly matters for governmental decision-making that they should never be entrenched in the constitution (and if so which are these)? The same questions can be raised about institutions, especially given the current vogue for independent institutions. Do too many independent institutions incapacitate the state and undermine legitimate political processes? In all these ways, does the constitution become too rigid, unable to respond to unanticipated problems? Are there problems with a constitution that is long, as many new ones are? And what are the criteria for success of the constitution that constitution-makers should apply? Is longevity one of them? If so, why? Shouldn’t each generation (the “people” for the moment) decide on its own system of governance?

In his assessment of many of these issues, the distinguished political scientist Giovanni Sartori concludes: “most recent constitutions are poor instruments of government” (Sartori 1997: 197). This conclusion may not resonate with some other commentators, who consider that the constitution in the contemporary world must serve several important functions and that it must balance competing interests. Constitution-makers have to decide on the orientation and scope of the constitution. For the purposes of this handbook, we need to understand the impact of different methods of constitution-making on the orientation and scope of the constitution, and in particular the consequences of popular participation. We discuss this matter throughout.