What is Constitutional Design?

By Stefanie A. Lindquist

Welcome to the Center for Constitutional Design at the Sandra Day O’Connor College of Law.  This Substack includes essays, blog entries, and other thought pieces that we hope will advance national and global conversations about how to design constitutions to support and promote democracy most effectively.

You may be wondering, but what is “constitutional design”? Quite simply, constitutions are coordinating instruments: they set forth the ground rules for citizens, organizations, policy makers and governmental agencies to coordinate their efforts to translate the public’s will into democratic action. Any experiment in democratic self-governance requires the creation of a “playbook” for determining how to operate that government in ways that channel citizens’ preferences into policies.  In the United States, the Framers of the U.S. Constitution made a series of design choices about those democratic ground rules—including federalism, the separation of powers, a federal government of limited and enumerated powers, and the protection of the people’s rights to be free from detrimental government interference in their lives and activities.  In that sense, we might think of the Framers as “designers” of a unique and innovative governmental system through which citizens, politicians and governmental agents might coordinate the people’s policy preferences into law.

Given how long the U.S. Constitution has survived (with the greatest longevity of any written constitution in the world), it seems clear that the Framers were, indeed, excellent designers.  Nevertheless, we face significant challenges in this constitutional moment.  Political polarization has now reached unprecedented levels among the electorate and among political elites, and citizen satisfaction with government has reached new lows.  In the wake of financial crises, pandemics, climate change, failed foreign interventions, and the erosion of cooperation among the political parties, some citizens wonder whether the system designed by the Framers is sufficiently effective to manage the problems of the day.  

At the Center for Constitutional Design, we seek answers to the hard questions posed by current conditions in our democracy.  How might we reconsider our constitution’s design so as to bolster citizen confidence in democracy?  How do we ensure that our constitutional democracy does not give way to populist authoritarianism?  Is our constitution too difficult to amend and thus give too much interpretive power to unelected judges?  What is the proper balance of power between the federal and state governments that will maximize democratic representation and produce the most effective policies?  In short, how do we ensure that government by the people and for the people will not perish from our great nation?  These questions require us to engage in innovative design thinking in the tradition of the Framers themselves.

In doing so, we recognize that certain tensions will arise in the context of conversations about our Constitution’s design. We know that we must balance reverence for our Constitution against needed reforms to ensure it survives for future generations.  We know that constitutional theories are useful only to the extent that they may be translated into constitutional action.  We know that innovation must be balanced against historical traditions and norms that have sustained us through many social, political and economic upheavals in the past.  But we also know that the consequences of inaction, of complacency, and of rigidity might be profound.  Stability is a value, but not at the expense of the survival of our republic.

Stanford’s Design School has been at the forefront of systems design for decades.  In one insightful commentary, its leaders identified several design principles aimed at organizational effectiveness to advance what they call “human centered design.”  Several of those insights are critical to the work of ASU’s Center for Constitutional Design.  First, the Stanford scholars note the importance of putting “real people, the beneficiaries and stakeholders, back into the line of sight.”  Our constitutional Framers were keenly aware of this design principle, understanding that the incentives of political actors must be balanced in a system of separated powers so as to avoid tyrannical and concentrated authority.  Madison was wise to note the importance of ambition countering ambition in public affairs and government. The Center’s work engages with these human incentive structures to seek to understand how beneficiaries and stakeholders perceive our Constitution’s legitimacy and efficacy.

Second, organizational designers must “uncover deep insights that can lead to novel solution spaces.”  This admonition presses toward innovation, but only following a careful assessment of the underlying human and institutional dynamics.  In the context of constitutional design, an explicitly comparative approach that considers how constitutional design choices have worked in other democracies may uncover new insights and novel solutions.  Thus, the Center takes an explicitly comparative approach in all its work.

Third, designers must brainstorm a number of possible solutions before settling on the one worthy of investment. At the Center for Constitutional Design, we convene groups of thought leaders, politicians, practitioners, journalists, lawyers, judges, and other players into brain storming sessions to test our assumptions about the functioning of our constitutional democracy. These sessions are essential to generate a variety of potential solutions to our current challenges.

And finally, designers must develop prototypes of those solutions and put those prototypes into the hands of real people for analysis, application, and feedback.  The Center for Constitutional Design will fail in its mission if it fails to disseminate new ideas for discussion and feedback from beneficiaries and stakeholders.  Thus all our activities include the public and produce information that will be useful to it.

No matter your profession or background, we hope you will join us in our efforts to secure our democracy and constitution for future generations.  Democracy is difficult—indeed, perhaps the most difficult governmental system—because it involves negotiation and compromise, and because no one player in the system may mandate outcomes or invade citizens’ rights.  But the alternative systems are far less palatable.  Authoritarian governments trample our precious inalienable rights to self-actualization, to liberty, and to justice.  We look forward to your feedback, participation, and new ideas.  

Stefanie Lindquist is the executive director of the Center for Constitutional Design and a Foundation Professor of law and political science in the School of Global Politics and the Sandra Day O'Connor College of Law at ASU. Her prior service at ASU includes heading ASU's Global Academic Initiatives as senior vice president in the Office of the Provost. She is recognized as an expert on the U.S. Supreme Court, Constitutional Law, and Administrative Law. She has co-authored three books and has authored dozens of published articles and book chapters. Her book, "Measuring Judicial Activism," is the first publication to define the oft-used term quantitatively.