No observer of Justice Ruth Bader Ginsburg’s career in the law can miss the tension between her unflinching support for substantive justice and her tempered view of the “measured” judicial steps possible under that flag. That contrast is starkly posed by a snapshot comparison between her praxis as a lawyer and her praxis as a judge.

All constitutions involve a balance between preservation and transformation, that is, between retaining some elements of an old order and reaching toward a new one. It is in the first period of constitutional implementation that these tensions are worked out, and in which many constitutions fail. Drawing from the contracting literature, we identify two general sources of constitutional crisis or failure during the first period. We call these deficits of drafting and deficits of implementation: the first involves incomplete or imperfect text, and the second involves problems of political will and cooperation. Both reflect the immanent conflict between those factions and groups that benefit from transformation, and those that seek transformation.

How should we evaluate constitutional performance? What should count as “success” in constitutional design? Is there a universal benchmark against which all constitutions, regardless of local circumstance, can be evaluated? Or is constitutional design as idiosyncratic as a person's choice in neckties? These questions, which are the focus of this volume, are necessarily raised by the emergent transnational practice of constitutional advice-giving and criticism. They are implicated every time a scholar, consultant, human-rights activist, or international organization expresses a position on a proposed constitution, whether in Somalia, Tunisia, Nepal, or the United Kingdom. They are thus necessarily questions for the governments and international organizations that fund such practices. And they are equally questions for the national publics engaged in the act of constitutional creation, who are often on the receiving end of international advice about what they should be doing. Finally, they ought to be puzzles for the growing coterie of scholars and jurists engaged in the comparative analysis and critique of new constitutions, a scholarly literature that often employs explicitly normative criteria in evaluating constitutional design. If we wanted to err on the side of grandiosity, we might even say they are questions implicated every time one decides that a constitution, as a going concern, merits our continued fidelity.

The contributors to this conference have been asked to respond, from a variety of perspectives, to the seemingly simple question of what counts as constitutional success (a term we will use interchangeably with constitutional performance here). By posing this concededly naïve question, we hope to draw attention to a normative terrain that has received surprisingly little attention from scholars and practitioners who assume, often implicitly, that there is a convergent consensus on what counts as “success” in constitutional design, and that therefore it is meaningful to praise or to blame a constitution for meeting or falling short of this desideratum. In so doing, we hope to provoke more careful debate among legal and political theorists about the plural possible meanings of constitutional success or quality. The chapters assembled in this book, we think, provide a series of important landmarks and provocations in that debate rather than a singular, definitive answer to our threshold question.

INTRODUCTION

Is there a criterion that can be used to evaluate constitutions written in Pretoria in 1996, Philadelphia in 1787, and Baghdad in 2005? Can the organic documents produced by democrats, oligarchs, tyrants, and theocracies all be judged by the same metric? This chapter, in taking up these questions, develops a benchmark for constitutional success with a general, albeit not universal, scope. That benchmark is independent of local criteria or prejudices, and relies instead on an analysis of the minimal conditions for constitutional success. Focusing my inquiry in that fashion, I contend that the most plausible touchstone of constitutional success is the avoidance of self-defeating constitutional design. It is a constitution purged of elements that conduce, perhaps unintentionally, to the breakdown or collapse of the state that the constitution endeavors to underwrite.

To situate this inquiry, it is useful to recall the dichotomy that Tom Ginsburg and I posit between metrics for evaluation of constitutional “success” that are internal and ones that are external in character. An internal criterion is one applied by a member of the polity engaged in constitutional creation or evaluation. An external criterion, by contrast, is one employed by an outsider such as a comparative constitutional scholar or a foreign advisor to constitutional drafters. So defined, the internal/external distinction turns on who applies the standard, not what the standard is. Human rights norms, for example, might be invoked both by participants to a drafting process as an internal criteria, or instead by transnational advocacy groups as a generally applicable external standard. Moreover, there is often leakage between internal and external criteria. Evaluative criteria deployed by participants in a constitution-making process are not autochthonic. They can leach their content and orientation from global intellectual currents (Ginsburg et al. 2008). Nor are external criteria necessarily loosed entirely from the gravitational force of the local circumstances of their intellectual production. Political rationality, in my view, lacks any transhistorical, acontextual form. Nevertheless, the distinction is useful insofar as it draws attention to the fact that criteria of constitutional success play different roles in different circumstances. And different standards might fit those distinct circumstances better than a single norm.