In This Review

Designing Democracy: What Constitutions Do
Designing Democracy: What Constitutions Do
By Cass R. Sunstein
Oxford University Press, 2001, 304 pp.

The post-Cold War era has seen the birth of new constitutions across the globe. Yet experts disagree over what constitutions do and how constitutional democracy can be consolidated. Although some scholars believe constitutions should ensure equality or social justice, Sunstein argues that their central goal is to create the preconditions for a well-functioning democratic order. This responsibility includes ensuring fair elections, a free press, and vigorous political debate. For Sunstein, democracy is not simply about majority rule or the summation of individual preferences; it also involves deliberation and the exchange of ideas. Constitutions work best when their mechanisms, such as checks and balances, transform disagreement into creative engagement. Rival factions are thus exposed to multiple perspectives and eventually find reasoned accommodations. Rights should still be protected in any constitution, Sunstein maintains, but constitutional law should promote deliberation on how rights should be defined. But he also admits that in ethnically divided societies -- where conflict runs so deep that physical security, not deliberation, is critical -- a constitution's primary purpose should be to restrain power and reduce the risk of violence.