Democratic Constitutional Change: Assessing Institutional Possibilities

Abstract

This paper develops a normative framework for both conceptualizing and assessing various institutional possibilities for democratic modes of constitutional change, with special attention to the recent ferment of constitutional experimentation. The paper's basic methodological orientation is interdisciplinary, combining research in comparative constitutionalism, political science and normative political philosophy. In particular, it employs a form of normative reconstruction: attempting to glean out of recent institutional innovations the deep political ideals such institutions embody or attempt to realize. Starting from the assumption that contemporary constitutional democracies are attempting to realize the broader ideals of deliberative democratic constitution (ideals outlined briefl y in the fi rst section), the paper proposes an evaluative framework, comprised of six criteria, for assessing various mechanisms of constitutional change. It argues that democratic forms of constitutional change embody six distinct ideals-operationalizability, structural independence, democratic co-authorship, political equality, inclusive sensitivity, and reasons-responsiveness-and that these ideals can be used to gauge the normative worth of different mechanisms for carrying out such change. The framework is developed with reference to recent constitutional developments (e.g., in Venezuela, South Africa, Colombia, Bolivia, and Iceland) highlighting distinct criteria and showing how they appear to capture the general direction of institutional innovation. The paper conjectures that the set of six criteria yield the best normative reconstruction of the crucial ideals embodied in the constitutional change mechanisms of contemporary constitutional democracies, and so, ought to be used for purposes of evaluating institutional design proposals.

A tripartite model of federalism

“…This is in line with the recent trend towards more inclusive and democratic forms of constitutional politics (cf. Colón-Ríos 2012; Zurn 2016). The inclusion of non-professional politicians not only increases the democratic legitimacy of the reform process but can also provide another counterweight against partisan calculations.…”

TheGrande Riformaof the Italian constitution: majoritarian versus participatory democracy?

“…Fishkin's participatory and deliberative models include innovative and experimental forms of constitution-making that provide for more direct involvement of citizens in constitutional revision (see also Reuchamps and Harris, 2016;Zurn, 2016). Participatory democracy is frequently understood in terms of the referendum instrument, which aggregates individual votes into a majority.…”

“…Much of the experimentation in recent constitutional reform concerns deliberative democracy (Renwick, 2014: 24;Reuchamps and Harris, 2016;Zurn, 2016) and frequently takes the form of citizens' assemblies. Such assemblies provide deliberative fora, which may include citizens alongside political representatives (as in the case of the Irish Constitutional Convention, 2012-13, where citizens were randomly selected); citizens and experts or scholars (as in the Romanian Constitutional Forum in 2013), or may even consist exclusively of citizens (as in the case of Iceland in 2011).…”

“…Tierney, 2013cf. Tierney, : 2187Zurn, 2016). Citizen involvement in constitutional reform has taken the form of constitutional referenda, engagement through the social media, public meetings and surveys, and, significantly, deliberative fora.…”