Friday, January 2, 2009

Nathan Brown: Reason, Interest, Rationality and Passion in Constitution Drafting

Nathan J. Brown: Reason, Interest, Rationality and Passion in Constitution Drafting

This article focuses on the role of reason, interest, rationality and passion in constitution drafting. The author notes that the terminology used is slippery - meaning it isn't clear. But although there is a desire for more complete and definitive terminology, it isn't present yet. However, it is still clear that while people acknowledge that interests and passion play a role in consitution drafting, the theories and ideas about constitution drafting are still linked to reason and rationality, without recognizing that interests and passion play a role - if only in bargaining certain powers away.

The claim is that constitutional politics is different from normal politics, where partison interests and passion are not simply contaminants of the process, but are essential elements of the process. Some contitutional scholars ignore passion and partisanship because if they cannot be clearly distinguished, including these factors make it impossible to write a burable and just constitution.

However, if a constitution is written that is devoid of the influences of passion and bargaining among self-interested parties (partisanship), it is a facade constitution that is routinely violated. And the reason it is violated is because a consitution drafted in this manner will reflect only the interests of the ruling regime, and no others, so others won't feel bound by it. In order to reflect the interests of the many, so that the many will be bound by the constitution, the many must participate.

This article seems to make common sense, although there are a lot of interesting divergences in the actual article (terminology, definition of partisanship etc). People must feel like they had input to be bound by a constitution or else they feel like it isn't binding on them. But part of the problem is creating moderate constitutions that reflect a country well enough to bind all. The article doesn't mention how to incorporate interests and passions - but rather says they must make interests and passion a part of constitution making.

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