Writing a Constitution

A constitution is the document that describes how a community makes its most important decisions and what limits it places on its own power. Getting one written is less about legal drafting and more about surfacing the community's real agreements about power, rights, and process. A short, clear constitution adopted by genuine consensus is worth far more than a comprehensive document imposed by a drafting committee.

Key Concepts

• —Fundamental law distinction: A constitution differs from ordinary law in that it defines the process by which ordinary law is made and sets limits that ordinary majorities cannot override; without this distinction, it is merely a policy document.
• —Rights as trumps: Constitutional rights are claims that cannot be overridden even by majority decision; their value is precisely that they protect individuals and minorities from the community's own majoritarian impulses.
• —Amendment threshold: The process for changing a constitution should be deliberately harder than the process for ordinary lawmaking; requiring supermajority approval or multiple stages of deliberation prevents constitutional instability.
• —Vagueness and precision tradeoffs: Vague language (liberty, fairness) adapts to unforeseen circumstances but invites interpretive abuse; precise language limits abuse but becomes obsolete as conditions change. Both are needed in different provisions.
• —Legitimacy through process: A constitution adopted through broad, genuine participation is more durable than one imposed by a committee, even if the imposed version is technically superior; the process of adoption is part of what makes a constitution binding.

Practical Guide

1. 1.Convene a drafting assembly that includes members from every significant segment of the community - not just the most educated or most powerful. Diversity of perspective catches blind spots that homogeneous drafting committees miss.
2. 2.Begin with the Bill of Rights, not with governance structures: agreeing on what the community will not do to its members, even by majority vote, is easier to agree on in the abstract and sets the tone for the rest of the document.
3. 3.Draft the governance structure article by article, presenting each section to the full community for comment before finalizing it. Do not present a complete draft for take-it-or-leave-it ratification; build consensus section by section.
4. 4.Include an explicit amendment article specifying the process for change: supermajority required (two-thirds or three-quarters), deliberation period before vote, and prohibition on amendment to certain foundational rights.
5. 5.Ratify the draft constitution through the most broadly participatory process available - public assembly, signed affirmation by all adult members, or a formal referendum. The visibility of the ratification process legitimizes the document.
6. 6.Publish and distribute the constitution widely. A constitution that only officials have read is a constitution that only officials will invoke; widespread familiarity is a prerequisite for it to function as a constraint on power.