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Constitutional Horticulture: Deliberation-Respecting Judicial Review (with John Ferejohn), 87 Tex. L. Rev. 1273 (2009)


Engineering and architectural metaphors recur in discussions of constitutionalism by both political scientists and law professors. The dominant image is one of architects who design a constitution, which is then constructed or built according to the design. These metaphors have largely, supplanted the older Aristotelian metaphor of a constitution as "the life of the city," a pragmatic description of social norms and practices that have become entrenched in a society. The newer architectural metaphors have more bite for modern political problems, which assume that by creating a welldesigned written constitution some important social project (such as liberal rights, markets, or democracy) can be realized or encouraged. We take that point but suggest that modem concepts of constitutional design have much to learn from Aristotle. There are two ways of looking at constitutional design. One is an engineering perspective, where the designer hardwires the system to proceed in a certain way and then turns it loose, like a well-made watch or machine. Another design perspective is horticultural, where the designer plants a garden, whose original plan changes as the plants grow and receive further attention from the gardener. Thus, the constitution plants institutions, gives them powers or duties, and announces rights, but all at a high level of generality. The general purposes, powers, and rights sprout and grow, taking form as they are cultivated by the implementing persons and institutions. The full-grown constitutional trees adapt to climatic changes (or not) and if successful flourish and reproduce. In contrast to the engineering perspective where the designer can be a stranger-a clockmaker who designs the mechanism and leaves it to function as planned, or a Lycurgus who exiled himself from Sparta after giving it a constitution-the horticultural perspective requires that the designer or her associates be stakeholders with an ongoing relationship to the design.

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