Editing Constitution (section)

==Principles of constitutional design==
After tribal people first began to live in cities and establish nations, many of these functioned according to unwritten customs, while some developed autocratic, even tyrannical monarchs, who [[rule by decree|ruled by decree]], or mere personal whim. Such rule led some thinkers to take the position that what mattered was not the design of governmental institutions and operations, as much as the character of the rulers. This view can be seen in [[Plato]], who called for rule by "philosopher-kings".<ref>''Aristotle'', by Francesco Hayez</ref> Later writers, such as [[Aristotle]], [[Cicero]] and [[Plutarch]], would examine designs for the government from a legal and historical standpoint.

The [[Renaissance]] brought a series of political philosophers who wrote implied criticisms of the practices of monarchs and sought to identify principles of constitutional design that would be likely to yield more effective and just governance from their viewpoints. This began with revival of the Roman [[law of nations]] concept<ref>''[http://www.constitution.org/victoria/victoria_.htm Relectiones] {{Webarchive|url=https://web.archive.org/web/20161221185718/http://constitution.org/victoria/victoria_.htm |date=December 21, 2016 }}'', Franciscus de Victoria (lect. 1532, first pub. 1557).</ref> and its application to the relations among nations, and they sought to establish customary "laws of war and peace"<ref>''[[The Law of War and Peace]]'', Hugo Grotius (1625)</ref> to ameliorate wars and make them less likely. This led to considerations of what authority monarchs or other officials have and don't have, from where that authority derives, and the remedies for the abuse of such authority.<ref>''[http://www.constitution.org/vct/vct.htm Vindiciae Contra Tyrannos (Defense of Liberty Against Tyrants)] {{Webarchive|url=https://web.archive.org/web/20170202051813/http://www.constitution.org/vct/vct.htm |date=February 2, 2017 }}'', "Junius Brutus" (Orig. Fr. 1581, Eng. tr. 1622, 1688)</ref>

A seminal juncture in this line of discourse arose in England from the [[English Civil War|Civil War]], the [[Oliver Cromwell|Cromwellian]] [[Commonwealth of England|Protectorate]], the writings of [[Thomas Hobbes]], [[Samuel Rutherford]], the [[Levellers]], [[John Milton]], and [[James Harrington (author)|James Harrington]], leading to the debate between [[Robert Filmer]], arguing for the divine right of monarchs, on the one side, and on the other, [[Henry Neville (writer)|Henry Neville]], [[James Tyrrell (writer)|James Tyrrell]], [[Algernon Sidney]], and [[John Locke]]. What arose from the latter was a concept of government being erected on the foundations of first, a state of nature governed by natural laws, then a state of society, established by a social contract or compact, which bring underlying natural or social laws, before governments are formally established on them as foundations.

Along the way, several writers examined how the design of government was important, even if the government were headed by a monarch. They also classified various historical examples of governmental designs, typically into democracies, aristocracies, or monarchies, and considered how just and effective each tended to be and why, and how the advantages of each might be obtained by combining elements of each into a more complex design that balanced competing tendencies. Some, such as [[Montesquieu]], also examined how the functions of government, such as legislative, executive, and judicial, might appropriately be separated into branches. The prevailing theme among these writers was that the design of constitutions was not completely arbitrary or a matter of taste. They generally held that there are underlying principles of design that constrain all constitutions for every polity or organization. Each built on the ideas of those before concerning what those principles might be.

The later writings of [[Orestes Brownson]]<ref>[http://onlinebooks.library.upenn.edu/webbin/gutbook/lookup?num=2053 ''The American Republic: its Constitution, Tendencies, and Destiny''] {{Webarchive|url=https://web.archive.org/web/20171010064705/http://onlinebooks.library.upenn.edu/webbin/gutbook/lookup?num=2053 |date=October 10, 2017 }}, O.A. Brownson (1866)</ref> would try to explain what constitutional designers were trying to do. According to Brownson there are, in a sense, three "constitutions" involved: The first the ''constitution of nature'' that includes all of what was called "natural law". The second is the ''constitution of society'', an unwritten and commonly understood set of rules for the society formed by a social contract before it establishes a government, by which it establishes the third, a ''constitution of government''. The second would include such elements as the making of decisions by the public [[Convention (meeting)|conventions]] called by [[public notice]] and conducted by established [[Parliamentary procedure|rules of procedure]]. Each constitution must be consistent with, and derive its authority from, the ones before it, as well as from a historical act of society formation or constitutional ratification. Brownson argued that a [[state (polity)|state]] is a society with effective dominion over a well-defined territory, that consent to a well-designed constitution of government arises from presence on that territory, and that provisions of a written constitution of government can be "unconstitutional" if they are inconsistent with the constitutions of nature or society. Brownson argued that it is not ratification alone that makes a written constitution of government legitimate, but that it must also be competently designed and applied.

Other writers<ref>''Principles of Constitutional Design'', Donald S. Lutz (2006) {{ISBN|0-521-86168-3}}</ref> have argued that such considerations apply not only to all national constitutions of government, but also to the constitutions of private organizations, that it is not an accident that the constitutions that tend to satisfy their members contain certain elements, as a minimum, or that their provisions tend to become very similar as they are amended after experience with their use. Provisions that give rise to certain kinds of questions are seen to need additional provisions for how to resolve those questions, and provisions that offer no course of action may best be omitted and left to policy decisions. Provisions that conflict with what Brownson and others can discern are the underlying "constitutions" of nature and society tend to be difficult or impossible to execute, or to lead to unresolvable disputes.

Constitutional design has been treated as a kind of [[metagame]] in which play consists of finding the best design and provisions for a written constitution that will be the rules for the game of government, and that will be most likely to optimize a balance of the utilities of justice, liberty, and security. An example is the metagame [[Nomic]].<ref>[http://www.earlham.edu/~peters/writing/psa/ The Paradox of Self-Amendment] {{Webarchive|url=https://web.archive.org/web/20060904214447/http://www.earlham.edu/~peters/writing/psa/ |date=September 4, 2006 }}, by Peter Suber (1990) {{ISBN|0-8204-1212-0}}</ref>

Political economy theory regards constitutions as coordination devices that help citizens to prevent rulers from abusing power. If the citizenry can coordinate a response to police government officials in the face of a constitutional fault, then the government have the incentives to honor the rights that the constitution guarantees.<ref>{{Cite journal|last=Weingast|first=Barry R.|date=Summer 2005|title=The Constitutional Dilemma of Economic Liberty|journal=Journal of Economic Perspectives|volume=19 |issue=3|pages=89–108|doi=10.1257/089533005774357815|doi-access=free}}</ref> An alternative view considers that constitutions are not enforced by the citizens at-large, but rather by the administrative powers of the state. Because rulers cannot themselves implement their policies, they need to rely on a set of organizations (armies, courts, police agencies, tax collectors) to implement it. In this position, they can directly sanction the government by refusing to cooperate, disabling the authority of the rulers. Therefore, constitutions could be characterized by a self-enforcing equilibria between the rulers and powerful administrators.<ref>{{Cite journal|last1=González de Lara|first1=Yadira|last2=Greif|first2=Avner|last3=Jha|first3=Saumitra|date=May 2008|title=The Administrative Foundations of Self-Enforcing Constitutions|journal=The American Economic Review|volume=98 |issue=2|pages=105–109|doi=10.1257/aer.98.2.105|citeseerx=10.1.1.386.3870}}</ref>