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Agenda and Procedures
Logically, this chapter might have been the first of the set on constitutional design. One first describes how a constitutional convention is assembled and its operation, and the» goes on to discuss the outcomes of its deliberations. But this has in a way been the most difficult chapter to write, and I have chosen to save the most difficult for the last There is also a pedagogic justification for this choice. It is somewhat easier to contemplate how the convention should be convened and how it should function after considering the tasks it must accomplish.
One difficulty in analyzing a constitutional convention is that the past is a less accurate predictor of the future than in other areas. Constitutional conventions are rare events occurring under unusual circumstances. Given their rarity one cannot readily apply Dar winian selection arguments to separate good formats from bad. Given that they «lie» occur after a revolution, civil war, coup d'etat, or the collapse of an ancien regime. constitutional conventions often occur when man's «animal spirits» are most unconstrained. The participants in the convention may also be «chosen» not for their judgment and knowledge of political institutions, but as a result of the part they played in the preceding events. The assumption that individuals are rational actors may be much less descriptive of the participants of at least some constitutional conventions than it is in other areas. Nevertheless, we continue to employ the perspective of rational actors joining in contract.
There are essentially three questions to be addressed concerning a constitutional convention. How are the delegates chosen? What is the voting rule employed? What is the agenda? In the first three sections below, we take up these questions in turn under the assumption that a constitution is a contract among the individuals who will become citizens under it. Following that, we discuss the constitution as a contract among states-i.e., a contract to create a confederation.
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