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There are many good recent critiques, and at least as many good recent defenses,

of the idea of constitutional rights.4 Both the critiques and the defenses almost al-

ways assume a particular audience, one consisting of what we might call

institutional designers. Institutional designers are in a position either to invent or

reinvent the governing institutions of a society (like, say, the American Framers in

the 1780s or the post-Soviet and post-apartheid-South-African nation-builders of

the 1990s), or (far more often) to seriously reassess some of the governing

institutions the society already has (as happened during recent debates in Great

Britain and New Zealand over the adoption of statutory Bills of Rights).

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