Constitution-Making Gone Wrong

Abstract

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

The foundations of democratic dualism: Why constitutional politics and ordinary politics are different

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Participatory Constitution-Building in Nepal – A Comparison of the 2008-2012 and the 2013-2015 Process

“…Though participatory constitution-building in post-conflict states and in states in transition from authoritarian rule is a trend that appears to be here to stay, the limitations of what participation can achieve in and by itself are increasingly being recognized (Landau, 2012;Saati, 2015). It appears that, without some baseline agreement amongst political elites concerning fundamental constitutional principles, there is not much that public participation in the making of the constitution can accomplish (Saati, 2017b).…”

Majority Rules in Constitutional Referendums

“…Both sides agreed on the need for a new constitution, although for different reasons. President Morales from MAS wanted a constitution that offered more social inclusion due to the fact that the indigenous groups were one of his major bases of support, while the opposition parties aimed for more regional autonomies due to their stronghold in the (richer) eastern regions of Bolivia (Landau, , p. 952).…”

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