Volume 87, Issue 7

Symposium: What, If Anything, Do We Know About Constitutional Design?

Foreword: "I Read the News Today, Oh Boy": The Increasing Centrality of Constitutional Design
Prof. Sanford Levinson
87 Texas L. Rev. 1265 (2009)

Synopsis not available.

I. Theories of Constitutional Design

Constitutional Horticulture: Deliberation-Respecting Judicial Review
Profs. William N. Eskridge, Jr. & John Ferejohn
87 Texas L. Rev. 1273 (2009)

In this piece, Professors William N. Eskridge, Jr.
Designing a Constitution: Of Architects and Builders
Prof. Walter F. Murphy
87 Texas L. Rev. 1303 (2009)

In this Article, Walter Murphy demonstrates the enormity of the constitution-making task, highlighting numerous choices that designers of a constitution must make and problems that they inevitably will face.
The "Design Sciences" and Constitutional "Success"
Prof. Ran Hirschl
87 Texas L. Rev. 1339 (2009)

In this Article, Professor Ran Hirschl examines constitutional design within the broader “design sciences” paradigm, identifies features unique to constitution making, and contemplates how to measure whether a country’s constitutional design has achieved success.  Hirschl begins by describing the qualities shared by all design undertakings.  First, the likelihood of success is greater when the plan is small-scale, focused, and tightly designed.  But as Hirschl demonstrates with urban-planning and scientific examples, even the most careful of designs can fail

II. Presidentialism, Parliamentarism, and the Role of Opposition Parties

Making Presidential and Semi-constitutional Constitutions Work
Prof. José Antonio Cheibub
87 Texas L. Rev. 1375 (2009)

For many years, comparative scholarship about forms of government and democratic survival has been strongly influenced by Juan Linz’s thesis that presidential institutions are not conducive to democracy’s survival.  Influenced by Linz’s work, empirical studies, and the prevalence of collapsing democracies, comparative scholarship argued for either replacing strong presidential systems with parliamentarian ones, or, in the alternative, weakening or dramatically reforming presidential institutions.  This scholarship produced a litany of recommendations for reform,
The Second American Revolution in the Separation of Powers
Prof. David Fontana
87 Texas L. Rev. 1409 (2009)

In this Article, Professor David Fontana explores the historical and constitutional origins of the internal homogeneity present in the American Executive Branch.  While most of the world’s other constitutional democracies exhibit political and ideological diversity among high-level Executive Branch members, the central players in the American Executive Branch usually are of the same political party.  In parliamentary, semi-presidential, and even presidential systems around the world, such internal homogeneity within executive branches is uncommon.  The situation in the

III. Designing a Judiciary

Ancillary Powers of Constitutional Courts
Profs. Tom Ginsburg & Zachary Elkins
87 Texas L. Rev. 1431 (2009)

In their article, Professors Tom Ginsburg and Richard Elkins explore ancillary powers of constitutional courts—an important area of constitutional design that is often overlooked.  Most observers of the international spread of constitutional courts have focused instead on the more traditional power of judicial review.  Ancillary powers, in contrast, are those that fall outside of the conventional constitutional review of high courts.  As constitutional courts have become more prevalent, constitutional designers have turned to these relatively successful institutions to
The Strange Cases of Marbury and Lochner in the Constitutional Imagination
Prof. Miguel Schor
87 Texas L. Rev. 1463 (2009)

In this article, Miguel Schor examines the spread of judicial review throughout the world.  Taking a historical and comparative approach, Professor Schor details how the American cases of Marbury v. Madison (1803) and Lochner v. New York (1905) influenced global views of judicial review.  Schor likens the two cases to Robert Louis Stevenson’s protaganist/antagonist in The Strange Case of Dr. Jekyll and Mr.

IV. Constitutional Change

Constitutional Workarounds
Prof. Mark Tushnet
87 Texas L. Rev. 1499 (2009)

In this piece, Professor Mark Tushnet explores the questions of constitutional theory raised by what he terms “constitutional workarounds”: situations where an action seems to be prohibited by some part of the Constitution, but may be permissible based on (a sometimes creative reading of) another part. In such cases, the Constitution “is in some sense at war with itself.” Tushnet’s analysis focuses on a number of real-world situations where such tensions have arisen.
Malleable Constitutions: Reflections on State Constitutional Reform
Profs. Bruce E. Cain & Roger G. Noll
87 Texas L. Rev. 1517 (2009)

In this piece, Professors Bruce E. Cain and Roger G. Noll discuss the consequences of constitutional malleability. The U.S. Constitution is notoriously difficult to amend despite the fact that the Constitution itself provides two different mechanisms for amendment.  This is surely--to some extent--by design.  Constitutions are the top of our hierarchy of laws and embody some of our most fundamental legal principles. It is not surprising, then, that constitutional provisions are not as easy to change as those statutes and regulations lower on the legal food chain.

V. Lessons of Experience in the Enterprise of Constitutional Design

The Anatomy of a Conservative Court: Judicial Review in Japan
Prof. David S. Law
87 Texas L. Rev. 1545 (2009)

In this Article, Professor David Law sheds new light on the inner workings of the Supreme Court of Japan.  The Supreme Court of Japan has been described as the most conservative constitutional court in the world, and for good reason.  One might characterize it as “conservative” in the sense of being so passive or cautious that it almost never challenges the government.  Alternatively, or in addition, one might characterize it as “conservative” in the sense that it happens to share the ideological views and preferences of Japan’s long-ruling conse
Constitutions, Elections, and Election Law
Prof. Peter C. Ordeshook
87 Texas L. Rev. 1595 (2009)

In this Article, Professor Ordeshook argues that a democratic state’s stability depends more upon elements that are not usually enumerated in the state’s constitution than those that are more typically thought of as affecting elections.  For example, constitutions typically include “precise formulas whereby votes are translated into legislative seats or aggregated to determine the winner for executive office.”  But examining these provisions tells only part of the story of a state’s election law.  The more consequential elements of election law a
A Constitution Without Constitutionalism: Reflections on Iraq's Failed Constitutional Process
Feisal Amin Rasoul al-Istrabadi
87 Texas L. Rev. 1627 (2009)

In this Article, Ambassador Feisal Amin Rasoul Istrabadi labels the drafting of the Iraqi Constitution in 2006 both “devastating” and “a failure.”  Ambassador Istrabadi, relying on his own intricate, first-hand knowledge of the constitution-drafting proceedings, argues that the Iraqi Constitution and its surrounding processes failed to engender a much hoped-for national cohesion. 

Constitutionalism Before Constitutions: Burma's Struggle to Build a New Order
Prof. David C. Williams
87 Texas L. Rev. 1657 (2009)

A vast quantity of constitutional literature has been written on the social integrity that can be achieved from a well-planned constitutional regime.  However, though the beneficial ends of a constitutional regime are well-documented, very few scholars have written at length on the tangible results that can be achieved from the constitutional means.  This is exactly what Professor David Williams sets out to address in this Article.  In this article, Professor Williams chronicles the war-torn history of Burma, retells the story of the current military regime’s take-over

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