By “constitution,” I mean a constitution in the modern sense, an identifiable text or set of texts containing rules at the highest level of the formal legal hierarchy. I exclude, therefore, the “material constitution,” the total collection of rules, practices and values that underlie a functioning legal-political system. That is the sense, for example, in which we usually speak of the “British constitution.”1 *716 That kind of constitution develops organically; it is not the product of deliberate design. The modern sense of constitution, in contrast, the “formal constitution,” is an instance of positive law, a piece of legislation and, therefore, it is the artifact of a discrete decision by some particular people at some particular time, of a “datable act of human will.”2