Mark Tushnet

91 Texas L. Rev. 1983

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Alexander Hamilton’s observation that the people of the thirteen colonies were the first to be given the opportunity to define their constitution “from reflection and choice” rather than “accident and force” may have been accurate, but that opportunity now extends to people everywhere.  The precise issues that constitution makers confront vary widely and depend on the specific historical circumstances under which they operate. Generalizations are difficult, perhaps impossible, to come by.  Yet, we can identify some issues about constitutional design that arise repeatedly.  Focusing on some of those issues, this Essay examines some of the more important conceptual and practical issues associated with modern constitution-making.  Part I asks: Why make a constitution?  Part II examines the definition of the people for and perhaps by whom the constitution is being made, and Part III turns to questions about the inclusiveness of the constitution-making process.  Part IV takes up questions about the scope and comprehensiveness of the constitution.  The conceptual and practical role played by the “constituent power” in constitution-making is a pervasive theme.