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By "traditional" I refer to the preparation in a continuous, short-term process of a purportedly comprehensive written constitution as a single (or consolidated) instrument, as in the drafting and adoption of the U.S. Constitution.As will be developed below, the understanding of this as a form of constitution-making distinct from more transitional approaches is subject to challenge. 2008]WHAT'S IN A NAME? 1251 characteristic of "ordinary" politics.5 Moments of dramatic regime change, as occurred in Iraq and Afghanistan, may enhance the conditions for this version of constitution-making, as the very rupture creates a "veil of ignorance" regarding future politics and enhances the capacity for longer term deliberation.'The raised stakes of constitution-making may not only move contending parties to focus on the constitutional project, but also encourage elites-who, having invested in the project of constitution-drafting, may have incentives to persuade those whose assent is required to ratify the document and then, as actors in the political system, to try to make the constitution work.7 BRUCE ACKERMAN, THE FUTURE OF LIBERAL REVOLUTION 48-51 (1992) [hereinafter ACKERMAN, LIBERAL REVOLUTION]. Popular mobilization may be tested and expressed through special methods of bringing a constitution into existence as law, but even without high popular mobilization, the moments in which major conflicts subside and new regimes are to be constructed have the capacity to motivate elites to put energy into crafting an agreement that sufficient numbers can accept as the foundational, supreme, and entrenched law.Ackerman recognizes that "a constitution can also win legitimation through evolutionary processes, in which elites build consent without the support of revolutionary mass mobilizations," and refers to Spain as an example.Id. at 47 n.1; see also infra pp.1257-59 (discussing constitutionalism without a single written constitutional instrument, as in the United Kingdom and Israel).6. JOHN RAWis, A THEORY OF JUSTICE 136-42 (1971) (explaining "veil of ignorance" as a construct in which those deciding on future rules to govern a society do not know their own position under the system to be designed, thereby creating incentives for impartial judgment).For a discussion of how constitution-making processes may simulate aspects of a "veil of ignorance," see ACKERMAN, LIBERAL REVOLUTION, supra note 5, at 64 (arguing that constitution-making right after the moment of founding or revolutionary change avoids the problem of politicians becoming "more accomplished in serving specific constituencies ... [and] less interested in uniting with one another in making an overarching constitutional statement of principle"); Andrew Arato, Forms of Constitution Making and Theories of Democracy, 17 CARDOZO L. REV.191, 228-29 (1995) (linking conditions approaching a "veil of ignorance" to optimal timing for constitution-making and suggesting, following Przeworski, that some form of a "veil of ignorance" may be approached when "the [constitutional] actors do not know the balance of forces in their society").See also JAMES M. BUCHANAN & GORDON TULLOCK, THE CALCULUS OF CONSENT 78-80 (1965); cf. Bruce Ackerman, The New Separation of Powers, 113 HARv.L. REV.634, 667 (2000) (arguing that having to submit proposed constitutional amendments to multiple referenda will induce more long-term thinking by drafters).7. See ACKERMAN, LIBERALREVOLUTION, supra note 5, at 51-53.These benefits will arise only where it is possible to reach a constitutional agreement in which elites in the major communities concerned have a sufficient stake and see a sufficient benefit for themselves and their constituencies; absent that possibility, it may be that trying to create an entrenched constitution will do more harm than good.See infra pp.
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