INTRODUCTION

Constitutionalism is all the rage around the world today. Every serious student of the topic recognizes, indeed insists, that each nation, especially each emerging nation, should adopt a written constitution to shape the organization of its government. As a matter of common agreement, these constitutions are set apart from the ordinary business of lawmaking that every nation has to undertake on a routine basis. The usual conceit is that a national constitution entrenches the basic and more permanent elements of political governance, sufficient to justify their insulation from the political stresses of the day. It is also commonly agreed that the individuals entrusted with forming new constitutions in modern times do not have the luxury of making incremental improvements on preexisting institutions. The strategy of slow evolution did work within the English context, but it has not been imitated since. Unwritten constitutions necessarily require a period of time for evolution that is no longer feasible when constitutions are self-conscious documents written with a clear instrumental purpose. Conscious design, not Hayekian gradualism, is a necessity, not an option.

What judgments should inform the design of an optimal constitution? To flesh out this discussion, three interrelated questions have to be addressed. The first goes to an assessment of human nature: it seeks to identify the forces that drive individual and collective action. The last two go to the key issues of constitutional design. Of these last two questions, one deals with the structure of government. Does a constitution adopt a presidential or parliamentary system?