With the recent wave of regime change in the Middle East, the process of constitution-making must again become a central concern for those interested in comparative law and politics. The conception of constitutional politics associated with Jon Elster and Bruce Ackerman views constitutionmaking as a potentially higher form of lawmaking with different dynamics than ordinary politics and states that, ideally, constitution-making should be designed so as to be a relatively deliberative process where the role of group and institutional interests is deemphasized. I argue that a focus on achieving deliberation and transformation through constitution-making is unrealistic in certain situations and that theorists should instead often focus on avoiding worst-case scenarios of authoritarian regimes or breakdowns of order. Constitution-making moments must not be idealized; they are often traumatic events. In these situations, the central challenge of constitution-making is not to achieve a higher form of lawmaking but rather to constrain unilateral exercises of power. I use two recent Latin American examples where the constitution-making process was problematic to illustrate the difficulty. If political forces in assemblies are left unconstrained or poorly constrained, they can reshape politics to create a quasi-authoritarian regime (as occurred in Venezuela), or their attempt to impose a constitution on a reticent minority may create a constitutional breakdown (as nearly occurred in Bolivia). Some of the normative recommendations of followers of the dominant model-for example, that constitution-making should be highly participatory and should be undertaken in a specialized constituent assembly-emerge as problematic under this reconceptualization because they may increase the likelihood of a worst-case outcome. Finally, I apply my theory in order to
Constitutional borrowing looks very different today than it did thirty years ago: where in 1989, post-Soviet and Eastern European states were looking west for ideas and inspiration, today they are increasingly looking “eastward”—i.e. to Russia, China, and Singapore—for models of constitutional government. When they do look west, we argue, they are also doing so in increasingly “abusive ways”—i.e. in superficial, shallow, acontextual, or anti-purposive ways designed to use liberal democratic ideas and models not as inspiration but as justification for the erosion of minimum democratic norms and guarantees. This new mix of East-West influence is thus distinctly troubling from the perspective of a commitment to constitutional democracy.
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