Reason, Interest, Rationality, and Passion in Constitution Drafting

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Abstract
Liberal constitutionalism is founded in part on a desire to build a polity on the basis of reason and the public interest. At its most ambitious, the result can verge on a prepolitical or even apolitical view of constitution writing. To be sure, most liberal constitutionalists have backed away from the extreme view by increasingly recognizing that passion and bargaining will inevitably play a role in constitution writing. But few have moved beyond grudging acceptance of passion and bargaining to active incorporation. In addition, the terms themselves are used in increasingly slippery ways. Yet while greater terminological precision is desirable and possible, it cannot overcome a key feature of constitution drafting: reason and interest are easily confused in practice as are passion and rationality. Even if reason and deliberation over the public interest could be distinguished from passion and private bargaining, they are unlikely to be able to deliver what is demanded of them. Constitutional politics differs from normal politics less in the role for rationality and the public interest and more in the means used and the number of actors with veto power. In such an environment, partisan interest and passion are not merely inevitable contaminants but essential elements.