Does the Process of Constitution-Making Matter?

Abstract

Constitution-making is a ubiquitous but poorly understood phenomenon. There is much speculation but relatively little evidence about the impact of different design processes on constitutional outcomes. Much of the debate reduces to the question of who is involved in the process and when. We consider two central issues in this regard. The first is the problem of institutional self-dealing, or whether governmental organs that have something to gain from the constitutional outcome should be involved in the process. The second has to do with the merits of public involvement in the process. Both of these concerns have clear normative implications and both are amenable to straightforward social scientific analysis. This article surveys the relevant research on constitution-making, describes the conceptual issues involved in understanding constitution-making, reviews the various claims regarding variation in constitution-making processes, and presents a set of baseline empirical results from a new set of data on the content and process of constitution-making.

Constituent Power: A Discourse‐Theoretical Solution to the Conflict between Openness and Containment

“…In most of the 460 processes of constitution making analyzed in the comparative constitutions project an elected institution (such as a constituent assembly or a regular parliament) was involved. 54 Moreover, mechanisms of direct democracy are regularly invoked for constitutional decisions. Between 1975 and 2000 at least one national referendum concerning the basic legal order was conducted in 39 of the 58 existing functioning democracies with more than three million inhabitants.…”

From Collapse to Constitution: The Case of Iceland

“…It remains to be seen whether constitution-making processes with direct popular involvement actually produce different outcomes -constitutions that are more 'indigenous,' better tailored to local circumstances, or more effective. Ginsburg et al (2009) Facebook. The electoral method used was STV (single-transferable-vote), a system designed to ensure that if your preferred candidate has no chance of being elected or has enough votes already, your vote is transferred to another candidate according to your instructions, thus ensuring that few votes go to waste (see Balinski and Laraki, 2010, p. 37).…”

Bolivia’s New Constitution: Towards Participatory Democracy and Political Pluralism?

“…According to Beau Breslin (2009, 4), constitutions are 'documents that use words to create worlds'. Nevertheless, the implementation of constitutions relies on many context-specific factors, such as political will, power relations, social acceptance of legal norms, and the legitimacy of the constitutional change process (Ginsberg et al 2009, Van Cott 2000, Habermas 1992. As examples like Colombia show, a new constitution that foresees important reforms will not necessarily have the desired impact, for example, when the particular socio-political context is obstructive to social change.…”