Constitutionalism and its Alternatives

Constitutions are not alone in their capacity to order political and economic affairs. A hyper-constitutionalist such as Viktor Vanberg might accept the existence of alternative sources of order, yet still argue for the primacy of constitutional analysis and design on the grounds that, among these alternatives, constitutions are the only ones on which we have any purchase. That is, we can within limits design and modify them, whereas the alternatives are recalcitrant. Here I will identify some alternatives and show that there are in fact some that can be the target of informed reconstruction in the interests of better politics and better outcomes. In particular, I will emphasize the parts that can be played by discourses (in the sense of shared sets of constrained understandings that facilitate communication) and deliberation (in the sense of communication that is relatively unconstrained). These alternatives point to a discursive democracy that in key ways eludes constitutions and constitutionalism.