Designing a Constitution: Of Architects and Builders

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. Professor Murphy draws on several nations’ constitution-making processes to illustrate these decisions and problems.  One such crucial decision that Professor Murphy discusses, for example, is whether or not to draft a constitutional text, and, relatedly, the way in which the governing regime is to be formed out of such a text.  Additionally, he notes that constitution-making is an ongoing process that necessarily involves participation of the polity to be governed by the new constitution.  Indeed, constitution-making happens concurrently with the establishment of both a nation and a “people.”  Thus, not only must the constitutional and governmental framework be worked out on a functional level, but also, on a more abstract level: the citizenry itself must be created, constituted, and brought on board with the project.