The "Design Sciences" and Constitutional "Success"

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.  No matter the type of design, however, one that encompasses self-adjustment adaptation mechanisms—such as amending formulae, residual powers, and “living constitution” interpretive approaches—and that is forward-looking, rather than rigid, will have greater longevity. 

As Hirschl explains, this inflexibility can exist in countries where there is “constitutional disharmony” either within the constitutional provisions or between a constitution’s values and the values of the populace.  Moreover, constitutional design is distinct from other types of design because the constitution-making process is often influenced by political motivations and efforts to consolidate political power.

Hirschl’s Article analyzes the various factors one could potentially use to measure the success of constitutional endeavors, demonstrating how cultural and ideological differences between constitutional democracies make it difficult to adopt uniform criteria.  Although an intuitive indicator of the success of a constitution may be its endurance, focusing solely on how long a constitution has been in existence does not address whether it has accomplished its stated goals.  But as Hirschl discusses, determining whether a constitution has delivered the substantive goods it purports to advance poses several methodological problems. 

Chief among these problems is whether a particular societal result was caused by a constitutional contribution or other societal, political, or institutional contributions.  The Article points out how in the United States, favorable sociocultural conditions that welcome democratic institutions and civil protections might be a more significant factor in the durability of American’s constitutional democracy than the formal constitutional provisions.  Other measurements of democratic success, such as the Democracy Index, name mostly Northern European countries, as well as Canada, New Zealand, and Australia, as the most “democratic” countries, placing them above American-style constitutional democracies.

The success of a constitutional design may also be measured by its ability to provide its citizens with adequate standards of living, basic needs, services, protections, and meaningful life opportunities.  Looking at international human-development statistics, Hirschl observes that simply creating individual rights and protecting individual freedoms does not ensure satisfactory life conditions.  Additionally, such constitutional provisions do not guarantee de facto protection of those rights.  Hirschl specifically examines the gap that exists between the Canadian polity’s long-standing commitment to the welfare-state model and the exclusion of subsistence social rights from judicial interpretation of rights provisions.

Two final criteria Hirschl considers are a constitutional design’s ability to deal with international crises, and its ability to contribute to ethnic integration and conflict resolution.  While constitutional initiatives appear to be able to effectively control economic development through regulation, they are less successful when it comes to noneconomic exogenous threats.  Lastly, Hirschl shows how mutual interests of rival ethnic parties and third-party involvement, as opposed to constitutional structures, have played a significant role in resolving intranational conflicts.

Despite constitutional design’s success in dealing with certain specific situations, Hirschl acknowledges its inability to address some of the core challenges we face in the twenty-first century.