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Constitution-Making: An Introduction, Summaries of Law

Law

See RUSSELL HARDIN, LIBERALISM, CONSTITUTIONALISM, AND DEMOCRACY 87–88 (1999). (discussing how constitutions serve to coordinate basic societal functions). 7.

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Constitution-Making: An Introduction
Mark Tushnet*
Alexander Hamilton’s observation that the people of the thirteen
colonies were the first to be given the opportunity to define their constitution
“from reflection and choice” rather than “accident and force”1 may have been
accurate, but that opportunity now extends to people everywhere. The
precise issues that constitution makers confront vary widely and depend on
the specific historical circumstances under which they operate.
Generalizations are difficult, perhaps impossible, to come by. Yet, we can
identify some issues about constitutional design that arise repeatedly.
Focusing on some of those issues, this Essay examines some of the more
important conceptual and practical issues associated with modern
constitution-making. Part I asks: Why make a constitution? Part II examines
the definition of the people for and perhaps by whom the constitution is
being made, and Part III turns to questions about the inclusiveness of the
constitution-making process. Part IV takes up questions about the scope and
comprehensiveness of the constitution.2 The conceptual and practical role
played by the “constituent power” in constitution-making is a pervasive
theme.
I. Why Make a Constitution?
Why make a constitution? Consider first a “new” nation, perhaps one
that has successfully struggled to secede from another, or one that emerges
from deep intranational conflict. Such a nation might “need” a constitution
for several reasons. The primary one is that in the modern world a
constitution is probably regarded by the international community as a
prerequisite to statehood,3 perhaps not as a matter of formal international
law4 but as a matter of practical reality. Second, and perhaps only the
* William Nelson Cromwell Professor of Law, Harvard Law School. I thank Rosalind Dixon,
Alexander Tsesis, and Adrian Vermeule for their comments on an earlier version of this Essay.
This Essay will appear in a different version in MARK TUSHNET, AN ADVANCED INTRODUCTION TO
COMPARATIVE CONSTITUTIONAL LAW (forthcoming 2014).
1. THE FEDERALIST NO. 1, at 27 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
2. The Essay touches on some issues about the content of modern constitutions, when such
issues intersect with the topics of primary concern, but does not explore questions of content in
detail.
3. See David Landau, The Importance of Constitution-Making, 89 DENV. U. L. REV. 611, 614
(2012) (observing that, in the modern era, almost all new states have sought to implement
constitutions quickly).
4. Formal international law may require not much more than effective control over a territory
and, perhaps, some democratic means of governance, which need not, however, be instantiated by a
constitution. See Pan American Convention on Rights and Duties of States art. 1, Dec. 26, 1933, 49
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Constitution-Making: An Introduction

Mark Tushnet

Alexander Hamilton’s observation that the people of the thirteen

colonies were the first to be given the opportunity to define their constitution

“from reflection and choice” rather than “accident and force”

1

may have been

accurate, but that opportunity now extends to people everywhere. The

precise issues that constitution makers confront vary widely and depend on

the specific historical circumstances under which they operate.

Generalizations are difficult, perhaps impossible, to come by. Yet, we can

identify some issues about constitutional design that arise repeatedly.

Focusing on some of those issues, this Essay examines some of the more

important conceptual and practical issues associated with modern

constitution-making. Part I asks: Why make a constitution? Part II examines

the definition of the people for and perhaps by whom the constitution is

being made, and Part III turns to questions about the inclusiveness of the

constitution-making process. Part IV takes up questions about the scope and

comprehensiveness of the constitution.

2

The conceptual and practical role

played by the “constituent power” in constitution-making is a pervasive

theme.

I. Why Make a Constitution?

Why make a constitution? Consider first a “new” nation, perhaps one

that has successfully struggled to secede from another, or one that emerges

from deep intranational conflict. Such a nation might “need” a constitution

for several reasons. The primary one is that in the modern world a

constitution is probably regarded by the international community as a

prerequisite to statehood,

3

perhaps not as a matter of formal international

law

4

but as a matter of practical reality. Second, and perhaps only the

  • William Nelson Cromwell Professor of Law, Harvard Law School. I thank Rosalind Dixon, Alexander Tsesis, and Adrian Vermeule for their comments on an earlier version of this Essay. This Essay will appear in a different version in M ARK T USHNET, A N A DVANCED I NTRODUCTION TO C OMPARATIVE C ONSTITUTIONAL L AW (forthcoming 2014).
  1. T HE F EDERALIST N O. 1, at 27 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
  2. The Essay touches on some issues about the content of modern constitutions, when such issues intersect with the topics of primary concern, but does not explore questions of content in detail.
  3. See David Landau, The Importance of Constitution-Making , 89 D ENV. U. L. R EV. 611, 614 (2012) (observing that, in the modern era, almost all new states have sought to implement constitutions quickly).
  4. Formal international law may require not much more than effective control over a territory and, perhaps, some democratic means of governance, which need not, however, be instantiated by a constitution. See Pan American Convention on Rights and Duties of States art. 1, Dec. 26, 1933, 49

1984 Texas Law Review [Vol. 91:

obverse of the preceding point, domestic actors may treat the existence of a

constitution as establishing or symbolizing the nation’s existence as a state.

5

Third, constitutions are convenient ways of laying out the formal contours of

the mechanisms for exercising public power.

6

Finally, in nations with

heterogeneous populations—an increasingly large proportion of the world’s

nations—a constitution can serve as an expression, perhaps the only one

available, of national unity.

7

Constitutions as maps of power may be somewhat inaccurate. The

realities of power may not be fully reflected in a constitution. For example, a

nation’s constitution might adopt a presidentialist form of government, yet

the formal powers conferred on the president might not correspond to the

practical power that the charismatic leader for which it was written actually

has.

8

The inaccuracies can be even greater, as when constitutions purport to

place limits on the exercise of public or private power in settings where that

power is in practice unlimited. Standard usage is to describe constitutions

where the inaccuracies are quite large as “sham” constitutions, with the so-

called Stalin Constitution for the Soviet Union as the primary example.

9

Yet,

the category of sham constitutions is inevitably imperfect. Practice in almost

every nation will fail to correspond with some aspects of each nation’s

formal constitution, at least from some perspective, and so we need a metric

for determining when the shortfall is great enough to make the constitution a

sham. That metric is again almost inevitably going to be a matter of

Stat. 3097, 3100 (“The state as a person of international law should possess the following qualifications: a ) a permanent population; b ) a defined territory; c ) government; and d ) capacity to enter into relations with the other states.”); see also JURE V IDMAR , D EMOCRATIC S TATEHOOD IN INTERNATIONAL L AW: T HE E MERGENCE OF N EW S TATES IN P OST-C OLD WAR P RACTICE (forthcoming 2013) (manuscript at 6), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_ id=2186496 (noting that the emergence of a new state depends chiefly on international acceptance of its existence rather than formal recognition by international law).

  1. See, e.g. , U.S. CONST. pmbl. (stating explicitly that “the People” established the Constitution “to form a more perfect Union”).
  2. See R USSELL H ARDIN, L IBERALISM, C ONSTITUTIONALISM , AND D EMOCRACY 87–88 (1999) (discussing how constitutions serve to coordinate basic societal functions).
  3. See John L. Comaroff & Jean Comaroff, Law and Disorder in the Postcolony: An Introduction , in L AW AND D ISORDER IN THE P OSTCOLONY 1, 32 (John L. Comaroff & Jean Comaroff eds., 2006) (“[T]he flight into constitutionalism... embraces heterogeneity within the language of universal rights—thus dissolving groups of people with distinctive identities into aggregates of person [sic] who may... enact their difference under the sovereignty of a shared Bill of Rights.” (emphasis omitted)). I thank Dennis Davis for this reference. See also infra text accompanying note 20 (discussing the demos of a heterogeneous nation).
  4. See Jonathan Miller, Judicial Review and Constitutional Stability: A Sociology of the U.S. Model and its Collapse in Argentina , 21 H ASTINGS INT’L & C OMP. L. R EV. 77, 79 (1997) (observing that a charismatic executive is likely to win battles with the judiciary in cases of legal uncertainty); William Partlett, The Dangers of Popular Constitution-Making , 38 B ROOK. J. INT’L L. 193, 209–33 (2012) (providing examples of charismatic leaders who were able to circumvent constitutions or push through authoritarian constitutions).
  5. See, e.g. , Gary Jeffrey Jacobsohn, The Permeability of Constitutional Borders , 82 TEXAS L. R EV. 1763, 1812 n.228 (2004) (referring to constitutions that do not resemble realities, “perhaps best exemplified by the old Soviet Constitution,” as “sham constitution[s]”).

1986 Texas Law Review [Vol. 91:

people from whom the constitution’s authority emanates.

14

That rough

statement conceals many complexities, though.

15

One paradoxical way of identifying the core difficulty is this: The

constituent power sometimes is called into being by the very process of

constitution-making that presupposes the existence of the constituent power.

Sometimes this is expressed in the proposition that constitution-making

presupposes a demos —a people—for whom the constitution is to be a

constitution.

16

This appears not to be universally true, though. The United

States may be an example of a nation that was created by the very act of

constitution-making—whether that act occurred with the adoption of the

Declaration of Independence, the Articles of Confederation, or the U.S.

Constitution.

17

And, more generally, sometimes constitution-making

involves nation building , the creation of a single nation unifying previously

diverse entities. Perhaps the creation of the Federation of Malaysia out of

various distinct Malay states each under British control is an example.

18

Constitutions created for the purpose of unifying a heterogeneous nation

might be understood as vehicles for the creation of a demos.

19

Normative and practical difficulties arise even when there is a

preexisting demos that can exercise the constituent power. Consider first

postconflict constitution-making, where the conflict has involved deep ethnic

or religious divisions. The question of who constitutes the nation is likely to

be at issue in the constitution-making process. This can have intensely

practical aspects. Those participating in the process will have to decide from

what territory the constitution drafters will be drawn. Drawing the

boundaries in one or another way will sometimes explicitly and almost

always implicitly determine who the demos is in a setting where the parties

  1. Id. at 293.
  2. I discuss one such complexity—whether the constituent power can be regulated by law— below in connection with the question of whether existing mechanisms for replacing a constitution are legally binding and with the question of including purportedly unamendable provisions in a constitution. See infra text accompanying notes 29–33 and subpart IV(B).
  3. See Chalmers, supra note 13, at 293 (noting that the idea of constituent power “suggests a collective subject—be it a Nation, demos , public or people—which has some originary power to give birth to the constitutional settlement and which stands transcendental and normatively pre- eminent over it”). This is an important theme in contemporary discussions of whether it is possible to write a constitution for Europe in the (claimed) absence of a European people. See, e.g. , J.H.H. Weiler, Does Europe Need a Constitution? Demos, Telos, and the German Maastricht Decision , 1 E UR. L.J. 219, 228–31 (1995).
  4. See Akhil Reed Amar, The Consent of the Governed: Constitutional Amendment Outside Article V , 94 COLUM. L. R EV. 457, 462–87 (1994) (examining the relationship between the Constitution and the Declaration of Independence, the Articles of Confederation, and various state constitutions with respect to the legality of the founding of the nation).
  5. For the constitutional background, see generally ANDREW H ARDING, T HE C ONSTITUTION OF MALAYSIA : A C ONTEXTUAL A NALYSIS 30–45 (2012).
  6. Jürgen Habermas has developed this idea in the course of his treatment of the idea of “constitutional patriotism” as a means of bringing the peoples of Europe together in a constitutionalized European Union. For a discussion, see Justine Lacroix, For a European Constitutional Patriotism , 50 POL. S TUD. 944 (2002).

2013] Constitution-Making: An Introduction 1987

implicated in the conflict all contend that they were part of all of the relevant

demos. An example might be the creation and subsequent separation of India

and Pakistan.

20

Or, consider that conflicts produce diasporas—people who

once were unquestionably part of the demos , and so would have been

included in the constituent power, but who left the territory in part because of

the conflict. Should those members of the diaspora who want to participate

in the constitution-making process be allowed to do so?

21

Further, the constitution-making body cannot actually be the people as a

whole. For purely practical reasons, that body can be at most representative

of the people. Its members may claim to speak in the aggregate for the

people, but shortfalls are inevitable. This is especially so where the

constitution-making body is composed in substantial part of representatives

of political groupings or “parties”

22

—the scare quotes because the groupings

need not have all or indeed any of the organizational trappings usually

associated with political parties. Some groupings may be left out of the

constitution-making process for seemingly practical reasons. They might be

too small to warrant a seat at a table already crowded with representatives of

larger ones or might lack the organizational capacity to participate

meaningfully in the body’s work.

23

Yet, these small groupings might be

socially or normatively significant, as with indigenous peoples in many

  1. See Am. Political Sci. Ass’n, Notes from the Editors , 106 AM. P OL. S CI. R EV., no. 4, Nov. 2012, at iii, v (describing the “boundary problem” that one cannot democratically decide how to demarcate the relevant demos and citing the partition of India as an example of a violent contest over such a border determination). Although the case is not exactly analogous, the expulsion of Singapore from the Federation of Malaysia, and Singaporean leader Lee Kuan Yew’s reported comment that the expulsion “anguish[ing],” suggests the stakes of the boundary-drawing question. See E DWIN L EE, S INGAPORE: T HE U NEXPECTED N ATION 598 (2008).
  2. Improvements in international communications make it easier today than earlier to include the diaspora in these processes.
  3. See MARTIN VAN V LIET ET AL., C ONSTITUTIONAL R EFORM P ROCESSES AND P OLITICAL P ARTIES 14–21 (2012) (discussing the role and challenges of political parties in constitution-making processes); Angela M. Banks, Expanding Participation in Constitution Making: Challenges and Opportunities , 49 WM. & MARY L. R EV. 1043, 1056–58 (2008) (explaining that power-sharing agreements between parties may ensure that those outside the parties’ networks have “little to no chance of having any significant political power” and “participatory constitution making may only provide challengers with limited opportunities for political inclusion”).
  4. See Yash Ghai & Guido Galli, Constitution-Building Processes and Democratization: Lessons Learned , in D EMOCRACY, C ONFLICT AND H UMAN S ECURITY 232, 242–43 (Int’l IDEA ed.,
  1. (explaining that some groups in the constitution-building process are at a disadvantage to other groups that have more funding or are better organized). Historically, of course, even large groups have been omitted from constitution-making—most notably women. Jon Elster, Ways of Constitution-Making , in D EMOCRACY’S^ V^ ICTORY AND^ C^ RISIS^ 123, 129 (Axel Hadenius ed., 1997). This Essay concerns modern constitution-making processes, though, and today such omissions are rare, though underrepresentation is not. See V IVIEN H ART, U.S. INST. OF P EACE, S PECIAL R EPORT: D EMOCRATIC CONSTITUTION M AKING 11 (2003), available at http://dspace.cigilibrary.org/ jspui/bitstream/123456789/4581/1/Democratic%20Constitution%20Making.pdf?1 (“Participatory processes have worked to overcome... racial and ethnic exclusions and have been notable... for the very visible inclusion of women.”); Ghai & Galli, supra (cataloging some successful modern constitutions that were created without meaningful public participation).

2013] Constitution-Making: An Introduction 1989

are (or see themselves as) representatives of the constituent power, they may

believe that they are not legally constrained by existing mechanisms. The

theory is that those mechanisms are themselves the product of the constituent

power, which always has unconstrained power. This is sometimes put in this

way: After the constituent power creates a constitution, every action taken

within that constitutional framework is an exercise of constituted power.

30

This is clearly so, in this theory, of ordinary legislation, of ordinary

constitutional amendments, and even of constitutional replacements made

according to the provisions of the constitution. But, the constituent power

always retains the power to reconstitute the constitution on its own terms;

that is, on terms set at any time by the constituent power as it is.

31

So, for

example, it is commonplace to observe that the U.S. Articles of

Confederation provided that they could be amended only with the unanimous

consent of the states making up the Confederation,

32

but the U.S.

Constitution—a replacement of the Articles—provided that it would take

effect when nine of the thirteen states ratified it.

33

According to the theory of

the constituent power, the example illustrates the constituent power being

exercised in 1787–1789 in a manner inconsistent with the constituted power

in the Articles, a constituted power that itself was an exercise of the

constituent power in 1777–1781. Put another way, the constituent power

always has the ability to call itself into being, disregarding restraints created

by itself in an earlier appearance.

In a second version, constitution-making processes get started without

there being a preexisting framework for constitutional revision, which can be

described as constitution-making in a vacuum. Twentieth-century

experiences of decolonization are good examples: Colonizing powers simply

withdrew, sometimes facilitating the constitution-making process but not

acting as participants in that process.

34

Some revolutionary transformations

are similar in structure. The ancien regime has collapsed and its supporters

have fled, leaving the field open for a complete constitutional revision. As

that while Article V makes it “next to impossible” to amend politically controversial provisions, such replacement is still an “abstract possibility”).

  1. See Lars Vinx, The Incoherence of Strong Popular Sovereignty , 11 INT’L J. C ONST. L. 101, 102, 108 (2013) (describing that a written constitution legitimates ordinary laws enacted in accordance with its authority where the constitution has been created by an act of the people’s constituent power).
  2. Id. at 108. I put to one side the possibility that international law might impose some constraints on the constitution-making process. For a discussion of examples of internally imposed restraints on the constituent power, see Jennifer Widner & Xenophon Contiades, Constitution- Writing Processes , in R OUTLEDGE^ H^ ANDBOOK OF^ C^ ONSTITUTIONAL^ L^ AW,^ supra^ note 12, at 57, 67–68. Such international constraints, if they exist, are imposed externally on the constitution makers.
  3. A RTICLES OF C ONFEDERATION OF 1781, art. XIII, para. 1.
  4. U.S. C ONST. art. VII.
  5. See D IETMAR ROTHERMUND, T HE R OUTLEDGE C OMPANION TO D ECOLONIZATION 245– (2006) (discussing constitution-making during the twentieth-century decolonization of European colonies in Africa and Asia).

1990 Texas Law Review [Vol. 91:

my use of the term ancien regime suggests, revolutionary France can be

taken as an example of this process,

35

and the flight of loyalists from the to-

be United States gave the drafting of the U.S. Constitution something of the

same flavor.

36

France and the United States are imperfect examples of constitution-

making in a vacuum, and indeed there may be no perfect ones. The reason is

that constitution-making does not occur on a desert island to which the

constitution makers have just arrived. It occurs in real, historical time under

real, historical circumstances. This leads to another tension in constitution-

making exercises. The tension is between the power relationships as they

exist when a new constitution is created and the power relationships that the

new constitution both ratifies to some extent and creates to some extent.

Sometimes the collapse of the ancien regime means that its supporters

have lost all political power. This may be true, for example, in some cases of

imposed constitutions, where a conquering power creates a constitution for

its now-defeated enemy. Nazis had no role in creating (West) Germany’s

Basic Law, for example. 37 Still, the complete collapse of preexisting political

power is rare. Conservative supporters of the Japanese emperor played some

part in the adoption of the postwar Japanese constitution even though it is

usually described as a constitution imposed by the occupying forces.

38

Royalists were active participants in the French constituent assembly of

39

and even in Germany conservative representatives participated

in the Basic Law’s creation.

40

35. JAMES R. A RNOLD, T HE A FTERMATH OF THE F RENCH R EVOLUTION 28 (2009).

  1. See JAMES A. H ENRETTA ET AL., A MERICA’S H ISTORY 187, 189 (7th ed. 2011) (recognizing that after the American Revolution the loyalists fled and that “[a]s Patriots embraced independence in 1776, they envisioned a central government with limited powers”).
  2. See Ernst Benda, The Protection of Human Dignity (Article 1 of the Basic Law) , 53 SMU L. R EV. 443, 445–46 (2000) (relating that four years after the fall of the Third Reich, German leaders undertook to draft a constitution with “human dignity” as a central tenet, in response to the country’s Nazi past). Technically, the Basic Law was designed as the “constitution” of a temporarily divided Germany, to be replaced by a national constitution upon reunification. As things happened, reunification was accomplished without fundamental revisions of the Basic Law. See D AVID P. CURRIE, T HE C ONSTITUTION OF THE F EDERAL R EPUBLIC OF G ERMANY 31– (1994).
  3. See K OSEKI S HōICHI , T HE B IRTH OF JAPAN’S P OSTWAR C ONSTITUTION 111–37 (Ray A. Moore ed., trans., 1997) (describing the process by which the conservative Japanese government “Japanize[d]” the draft constitution written by the American staff of the Supreme Commander for the Allied Powers).
  4. See, e.g. , Jon Elster, Arguing and Bargaining in Two Constituent Assemblies , 2 U. PA. J. C ONST. L. 345, 370 (2000) (noting that one delegate, Mounier, argued for a royal veto of whatever constitution the assembly produced). Mounier was part of Les Monarchiens , a group at the assembly whose members were “loyal supporters of the monarchy.” E RIC T HOMPSON, P OPULAR S OVEREIGNTY AND THE F RENCH C ONSTITUENT A SSEMBLY 1789–1791, at 10–11 (1952).
  5. See Inga Markovits, Constitution Making After National Catastrophes: Germany in 1949 and 1990 , 49 WM. & MARY L. REV. 1307, 1309 (2008) (recounting that the Christian Democratic Union, a political party with some conservative elements, had a large number of seats in the drafting body).

1992 Texas Law Review [Vol. 91:

substantial economic power in an African-dominated government,

49

and

Communist parties in central and eastern Europe continued to have members

who held on to strong collectivist visions of governance.

50

So, agreement

from representatives of the former regime is needed not only to ensure a

peaceful transition, but also to ensure that the new constitutional system is

stable because everyone, including those representatives, finds it acceptable.

Constitution makers hope that the institutions they are creating will be

stable over time.

51

Political stability requires at least acquiescence from

nearly all groups that have significant power, whether political, cultural, or

economic.

52

That requirement implies that even transformational

constitutions project existing power relationships into the future, though they

also seek to alter those relationships. Yet, doing so poses risks. The

projecting of power relationships may limit the achievement of

transformative goals. Excluding representatives of the ancien regime from

constitution-making processes—as occurred, for example, as a result of the

military occupation of the defeated Southern states after the U.S. Civil

War

53

—may generate resistance to the new arrangements, resistance that can

itself limit the transformative possibilities.

We can bring out the tension that this exposes by overstating it as a

paradox: Constitution-making processes will either be unnecessary or

ineffective. Those holding power must agree to the new arrangements. But,

they will do so only when they are confident that they will not be seriously

disadvantaged by those arrangements. They can have that confidence when

the new constitution does not change things much.

Clearly this is an overstatement. The postcommunist constitutions and

the South African constitution did change things substantially, with the

  1. See Patricia Agupusi, Trajectories of Power Relations in Post-Apartheid South Africa , 4 O PEN A REA S TUD. J. 32, 39 (2011) (stating that whites still hold significant economic power in South Africa and therefore “have a huge influence on policies that affect their interests”); Robert Pear, South Africa’s National Party: Vehicle for Afrikaner Power , N.Y. TIMES , Sept. 7, 1989, at A14, available at http://www.nytimes.com/1989/09/07/world/south-africa-s-national-party-vehicle- for-afrikaner-power.html?pagewanted=all&src=pm (noting the National Party’s success at securing economic empowerment for white Afrikaners).
  2. See, e.g. , R ETT R. L UDWIKOWSKI , C ONSTITUTION-MAKING IN THE R EGION OF F ORMER S OVIET D OMINANCE 151–52 (1996) (noting that in Poland negotiation with the communist government officials led to an agreement guaranteeing the communists seats in parliament and stating that the new presidency “remained in the hands of the communists”).
  3. This is true even of constitutions expressly understood as transitional because the drafters of such constitutions typically envision, in rough outline, the contours of the regime that a new, permanent constitution will have. This is exemplified by the inclusion in the transitional South African constitution of a set of principles that would have to be incorporated in, or provide the structure for, the permanent constitution. S. A FR. (INTERIM) C ONST., 1993, § 71; id. sched. 4.
  4. I have inserted the qualification “nearly all” because on rare occasions it may be possible to create a constitution over the objection of a protesting minority, whose continuing protests will be met with forcible suppression by the new regime.
  5. See, e.g. , C ARL H. MONEYHON, T HE IMPACT OF THE C IVIL WAR AND R ECONSTRUCTION ON A RKANSAS 165 (1994) (noting that following the Civil War, Congress refused to seat Arkansas’s representatives).

2013] Constitution-Making: An Introduction 1993

agreement of representatives of the former regimes who knew that their

political positions would be significantly different once the new constitutions

were in place.

54

Some participants in constitution-making may understand, if

only vaguely, that the new arrangements they are creating will start a process

of incremental change in power that will build on itself to produce substantial

alterations in the distribution of power over time.

55

The intervening period

may be long enough, or may be hoped to be long enough, for those

benefiting from the existing distribution of power to adjust, leave, or learn

how to regain power under the new arrangements.

56

Still, it may be worth

considering the possibility that new constitutions themselves do not change

anything but only ratify a change in the distribution of power that has already

occurred.

Jon Elster provides some support for the tension between effectiveness

and irrelevance in his observation that constitution-making often occurs

under circumstances unfavorable to careful design.

57

When constitution-

making occurs during crisis or, sometimes, after the exhaustion of conflict,

constitution makers may find themselves pressed to reach some conclusion

within a compressed time period.

58

The felt urgency conduces to quick

compromises without substantial attention being paid to how the constitution

will operate once adopted.

59

Such constitutions may be ineffective. Where

constitution-making occurs in the absence of a crisis, constitution makers

  1. See L UDWIKOWSKI , supra note 50 (describing this process in Poland); Ebrahim & Miller, supra note 45, at 121–22, 147 (noting such an occurrence in South Africa).
  2. See, e.g. , Daniel J. Elazar, Constitution-Making: The Pre-Eminently Political Act , in C ONSTITUTIONALISM: T HE ISRAELI AND A MERICAN E XPERIENCES 3, 6 (Daniel J. Elazar ed., 1990) (noting how the Yugoslav Constitution was revised to reflect changes in power distribution).
  3. See, e.g. , Andrew Arato & Zoltán Miklósi, Constitution Making and Transitional Politics in Hungary , in F RAMING THE S TATE IN T IMES OF T RANSITION, supra note 43, at 350, 356 (observing that the sponsors of Hungary’s two original draft presidential constitutions sought to “institutionalize an elaborate, electorally centered transition, in which political power would not be risked for a considerable period—an arrangement that a reformist, partially democratic system of the rule of law was to legitimize”); Ebrahim & Miller, supra note 45, at 120 (noting that the division of the South African constitution-making process into two phases “concretized a fundamental compromise between those who sought a swift transition to majority rule and those who sought to preserve some governmental influence and group privileges for the constituencies of the ancien regime”).
  4. Jon Elster, Forces and Mechanisms in the Constitution-Making Process , 45 D UKE L.J. 364, 394, 396 (1995).
  5. See B RANDT ET AL., supra note 41, at 47 (explaining that factors suggesting urgency include the risk of returning conflict, the risk of a coup, an impending election, or foreign pressure); Elster, supra note 57, at 394–95 (discussing the role of time pressure and crisis in effective constitution-making). Sometimes the period may be extended over time, but then primarily because the parties to the negotiation treat the constitution-making process as a continuation of the crisis or conflict.
  6. See Elster, supra note 57, at 394 (suggesting that passion rather than reason is most present when drafting a constitution in a crisis).

2013] Constitution-Making: An Introduction 1995

Existing political groupings and parties will almost certainly affect how

crowdsourcing and similar mechanisms of direct public participation in

drafting actually operate. For example, parties may prompt their members to

submit identical proposals, thereby multiplying the apparent public support

for the proposals.

67

Of course the proposed Icelandic constitution was not “drafted” through

crowdsourcing, which simply generated ideas and tapped public sentiment.

Someone had to do something with the citizenry’s suggestions. Winnowing

the outlandish from the strange but plausible, for example, would seem

essential to making the process work. And, even were the drafters to start

out regarding themselves as no more than charged with selecting the most

popular suggestions and placing them in the constitution, they could not

maintain that posture permanently. Some suggestions might be completely

inconsistent with others. The drafters might submit them in the alternative to

the public at the adoption stage.

68

More important, constitutional provisions

often interact. Suppose there is overwhelming support for Provision A, quite

a bit of support for Provision B, and slightly less support (but still a

substantial amount) for Provision C. A constitution that contained A and B

might be unworkable in predictable ways,

69

so the constitution’s writers

might choose to place A and C in the constitution.

The crowdsourcing example illustrates a more general point about

constitution writing. An inclusive process can generate a wide range of

perfectly decent proposals for the constitution, but integrating them into a

single document that will serve as the blueprint for an effectively functioning

.iconnectblog.com/2013/04/irelands-constitutional-convention-considers-same-sex-marriage- (describing public submissions to a constitutional convention that is a “hybrid of ‘ordinary’ citizens and experienced political representatives”).

  1. I owe the idea of party prompting to Lauren Coyle. The phenomenon known as “astroturfing” in the United States is similar; the term is used to describe communications from the “grass roots” that are actually coordinated by elite organizations. See, e.g. , Richard L. Hasen, Lobbying, Rent-Seeking, and the Constitution , 64 STAN. L. R EV. 191, 200–01 (2012) (“A 1935 congressional investigation uncovered what we would now term an ‘astroturf’ campaign, whereby utility companies paid for the sending of over 250,000 telegrams to Washington, written by utility company employees, and often forging the signature of senders.”).
  2. The referendum on adopting the Icelandic constitution asked voters to express their opinion on six specific options for inclusion in the constitution as well as on the constitution as a whole. Referendum: Eighty Percent Want National Resources Declared National Property , ICE. R EV. O NLINE (Oct. 21, 2012, 2:20 PM), http://www.icelandreview.com/icelandreview/daily_news/ Referendum_Eighty_Percent_Want_Natural_Resources_Declared_National_Property_0_394572.ne ws.aspx. Tom Ginsburg, Iceland: End of the Constitutional Saga? , INT’L J. C ONST. L. B LOG, (Apr. 6, 2013), http://www.iconnectblog.com/ 2013/04/iceland-end-of-the-constitutional-saga/, describes the Icelandic Parliament’s rejection of most of the referendum’s results.
  3. The best recent example of this kind of unworkability is Israel’s short-lived experiment with electing a Prime Minister separately from electing Parliament. Predictably, the Prime Minister lacked support from Parliament because voters chose a “leader” as Prime Minister and voted for narrower parties pursuing sectarian interests when they cast their votes for Parliament. See Yüksel Sezgı̇n, The Implications of the Direct Elections in Israel , 30 T URKISH Y.B. INT’L R EL. 67, 86 (2000).

1996 Texas Law Review [Vol. 91:

government requires a fair degree of technical skill.

70

The technicians,

almost certainly lawyers and legal academics, sometimes with the assistance

of international organizations and NGOs,

71

may regard themselves as faithful

servants of the inclusive process. Almost inevitably, though, lawyers’

technical concerns will have some effects—predictable and unpredictable—

on the meaning of the constitution they write.

72

To the extent that

constitutions as written are to be legal documents, inclusiveness will be

tempered to some degree by the necessary concern for technicality.

Inclusiveness will almost always be tempered by more than that,

though. Assume that the drafting body—a constituent assembly—is

adequately representative of the nation’s constituents. Under modern

conditions it will have to function with some substantial degree of openness.

The secrecy of the U.S. constitutional convention would no longer be broadly

acceptable.

73

As Jon Elster has emphasized, conducting constitution writing

in secret has advantages.

74

It allows participants to make unprincipled

bargains, tradeoffs that cannot be justified on the basis of any deep view of

what the new government should look like or do but are justified only on the

shallow but important ground that the tradeoffs are required to get agreement

on the constitution overall.

75

Afterwards, the constitution’s advocates can

invent principled accounts to justify the results (not the tradeoffs), or hope

that they will be ignored as part of a larger discussion. And, Elster argues,

drafting in public leads participants to posture for public consumption and to

stick with their positions longer than is desirable,

76

out of concern for

seeming to waffle on important issues.

As a practical matter, drafting can rarely be done in public anyway.

Public discussions by drafters might produce agreement on a few items, but

many others are likely to be intractable without hard bargaining of the sort

that is difficult to do in public.

77

Instead, the drafters will retreat to the back

rooms, or to dinner tables, where the important work will be done.

78

  1. Cf. Tom Ginsburg et al., Does the Process of Constitution-Making Matter? , 5 A NN. REV. L. & S OC. S CI. 201, 208 (2009) (positing that the drafting phase of constitution-making under a model involving direct consultation with the public or representative groups is “likely to be the least participatory [phase], given the challenges of writing-by-committee, much less writing-by-nation” and remarking that “in some well-known cases, the public is excluded from the drafting process and not consulted at all”).
  2. See Bryan Schwartz, Lawyers and the Emerging World Constitution , 1 A SPER R EV. INT’L B US. & T RADE L. 1, 7 (2001) (asserting, in the context of international agreements, that certain governments draw heavily on lawyers at the drafting stage).
  3. See id. at 10 (“When lawyers draft they sometimes achieve results that are hard to understand because they have tried too hard to anticipate and provide for every possibility.”).
  4. See Pozen, supra note 63.
  5. Elster, supra note 57, at 388.
  6. See id. at 388–89.
  7. Id. at 388.
  8. See id. (“[P]ublic debate drives out any appearance of bargaining... .”).
  9. See id. at 395 (arguing that the constitution-drafting process should include some elements of secrecy to avoid grandstanding and rhetorical overbidding).

1998 Texas Law Review [Vol. 91:

Both stages require the dissemination of the proposal, and dissemination

cannot be merely mechanical—simply distributing the proposal widely.

85

Rather, the nation’s people must have the opportunity to understand the

proposal.

86

Technical and political issues can arise in connection with the

educational processes necessary for effective dissemination. Particularly in

nations with low literacy rates, the mechanisms for dissemination must use

channels other than descriptive writing. In the recent past, visual depictions

in graphic form (“comic books,” disparagingly), and radio and television

transmissions were used;

87

today social media are available. Using any of

these alternatives raises questions beyond the technical because translating

the proposed written constitution into some other form inevitably alters its

meaning. Some alterations will be substantively consequential, which means

that those charged with the task of translation have the power to redefine

some constitutional provisions, sometimes in politically controversial ways.

Those who find themselves disadvantaged by the translation may organize to

oppose going forward with the constitutional process; they may argue that

they do not oppose the constitution as written but rather the constitution as it

is being described by the means of dissemination.

Even before the availability of crowdsourcing techniques, sometimes

the people were asked to comment on the proposed constitution before they

were asked to ratify it. Sometimes quite a substantial number of comments

were submitted.

88

One can be skeptical about the value of the comment

process. As with other forms of crowdsourcing, popular suggestions may

impair the technical integrity of the constitutional draft. More important

perhaps, such suggestions run the risk of undoing compromises reached

during the drafting process.

89

Further, political groupings or parties that only

Constitutional Approval , 81 T EMP. L. R EV. 361, 365–66 (2008) (identifying “direct consultation” as a method of popular participation in constitutional design).

  1. See Elkins et al., supra note 83, at 364 (referring to ratification as “[t]he modal form of participation in constitutional design”).
  2. See H ART, supra note 23, at 7 (discussing examples of nations that have “experiment[ed] with new structures and forms of participation... to develop an open process”).
  3. See Richard A. Rosen, Constitutional Process, Constitutionalism, and the Eritrean Experience , 24 N.C. J. INT’L L. & C OM. R EG. 263, 277 (1999) (“In a society which has limited experience with successful constitutional governance... the drafters must also popularize and educate the people about these concepts, for a people cannot be wedded to something which they do not understand.”).
  4. See id. at 294 (recounting the use of comic books and radio broadcasts to educate Eritreans about their constitution-making process); H ART, supra note 23, at 8 (discussing South Africa’s use of numerous forms of media—including radio, television, and cartoons—to educate and involve the public in the constitution-making process).
  5. See, e.g. , H ART, supra note 23, at 7 (stating that South Africans made two million submissions to their country’s Constitutional Assembly); Elkins et al., supra note 83, at 366 (mentioning a report that 61,000 citizen submissions were made to Brazil’s Congress as part of its constitution-making process).
  6. See Elkins et al., supra note 83, at 371–72 (noting that an open process can “make bargaining and the granting of concessions more difficult” and “hinder tough choices and compromise”).

2013] Constitution-Making: An Introduction 1999

grudgingly accepted the constitutional draft may use the comment process as

a wedge for reopening matters that others regarded as settled. Popular

participation may in this way undermine the very legitimacy that it is

supposed to generate.

One response to these difficulties is to defang the comment process by

treating it as merely cosmetic. That is, innocuous suggestions may be

incorporated in a revised proposal to demonstrate that the comment process

was meaningful, but truly significant suggestions, even those with substantial

support, may be disregarded. More study of comment processes is needed,

but my present view is that these comment processes are more often cosmetic

than substantial.

Either in its initial or a possibly revised form, a proposed constitution

must then be ratified to become binding law. At this point the distinction

between constitution-making via established amendment processes and

constitution-making via some other mechanism returns to prominence.

Depending on the existing constitution’s amendment rules, new constitutions

developed as constitutional amendments might not require popular ratifica-

tion. So, for example, if the amendment rule requires only parliamentary

approval by a qualified majority (such as a supermajority, or majorities in

successive sessions), a new constitution adopted through the amendment

process might not be submitted to the people for ratification. There might be

an emerging soft norm of international law that requires popular ratification

no matter what domestic mechanism for proposing a new constitution is

adopted, though as a soft-law norm the requirement lacks effective

enforcement.

90

Popular ratification is almost certainly regarded as “best

practice” in constitution-making today.

91

Ratification is desirable, even if not required, in part to ensure that the

new constitution has domestic legitimacy. Typically ratification occurs

through a national referendum.

92

Some issues already mentioned recur at the

ratification stage, but sometimes in a more focused way.

93

Political parties

  1. As an example, the Venice Commission, an advisory component of the Council of Europe, expressed concern about the scope of recent revisions to the Hungarian Constitution, made without popular ratification, but has no power to do more than that. European Comm’n for Democracy Through Law (Venice Comm’n), Opinion on the New Constitution of Hungary , ¶¶ 6, 144, Council of Eur., Op. no. 621/2011 (June 20, 2011), available at http://www.venice.coe.int/ webforms/documents/CDL-AD(2011)016-E.aspx.
  2. See Kirsti Samuels, Post-Conflict Peace-Building and Constitution-Making , 6 C HI. J. INT’L L. 663, 668 (2006) (arguing, based on a study of constitution-making processes in postconflict environments, that “the more representative and more inclusive constitution building processes resulted in constitutions favoring free and fair elections, greater political equality, more social justice provisions, human rights protections, and stronger accountability mechanisms”); Tushnet, supra note 26, at 1491 (“Modern constitution making appears to require some form of popular ratification of a proposed constitution.”).
  3. Elkins et al., supra note 83, at 364.
  4. For a case study of the Kenyan process in which this occurred, see Alicia L. Bannon, Note, Designing a Constitution-Drafting Process: Lessons from Kenya , 116 Y ALE L.J. 1824 (2007).

2013] Constitution-Making: An Introduction 2001

IV. The Substance of Constitution-Making: Scope and Comprehensiveness

This Essay focuses on constitution-making processes in general, not on

the particular substantive choices by constitution makers. It is not concerned

with the choice between having a parliamentary system or a presidential one,

for example, or with the precise form given processes for constitutional

review of legislation. We can examine some general issues of substance by

moving to a higher level of generality, though.

A. Expressing Foundational Principles in a Constitution

Often the hard work in constitution-making involves working out details

of government structures because different structures have different and to

some degree predictable political consequences. Modern constitutions

typically have preambles and other provisions stating general principles.

98

Constitution writers can and sometimes do omit preambles without

sacrificing much.

99

Most preambles combine pabulum—in references to

general ideas about human rights, for example—with some effort to capture a

sense of national identity.

100

Most often, this combination serves some broad

expressive or educational purposes, but occasionally more emerges from the

preambles and general statements of principle.

Often these provisions are largely precatory, with relatively little legal

effect. Legislators can rely on them, arguing that their proposals, if adopted,

will advance the general principles or the aims articulated in a preamble.

101

Often they are expressions of the constitution-writers’ understanding of

national identity.

102

Sometimes, though, preambles and general principles

  1. Liav Orgad, The Preamble in Constitutional Interpretation , 8 INT’L J. C ONST. L. 714, 716 (2010).
  2. See Sanford Levinson, Do Constitutions Have a Point? Reflections on “Parchment Barriers” and Preambles , in WHAT S HOULD C ONSTITUTIONS D O? 150, 156–57, 177–78 (Ellen Frankel Paul et al. eds., 2011) (exploring the purpose of preambles and concluding that they contribute little towards some functions of constitutions); Orgad, supra note 98, at 716 n.6 (noting that states without preambles in their constitutions include Austria, Belgium, Cyprus, Finland, Latvia, Luxembourg, the Netherlands, and Singapore).
  3. See, e.g. , IR. C ONST., 1937, pmbl. (incorporating general ideals with references to national history in its goal “to promote the common good, with due observance of Prudence, Justice and Charity, so that the dignity and freedom of the individual may be assured, true social order attained, the unity of our country restored, and concord established with other nations”); see also Vicki C. Jackson, Methodological Challenges in Comparative Constitutional Law , 28 P ENN S T. I NT ’ L L. R EV. 319, 325 (2010) (listing expressions of national identity in the preambles of the constitutions of Iraq, China, France, Germany, and Ireland).
  4. See, e.g. , Press Release, Senator Patrick Leahy, Statement on the Constitutionality of the Patient Protection and Affordable Care Act (Mar. 24, 2010), http://www.leahy.senate.gov/press/ statement-on-the-constitutionality-of-the-patient-protection-and-affordable-care-act (“Among the six purposes set forth by the Founders was that the Constitution was established to ‘promote the general Welfare.’ It is hard to imagine an issue more fundamental to the general welfare of all Americans than their health.”).
  5. See Jackson, supra note 100.

2002 Texas Law Review [Vol. 91:

can have practical and legal force.

103

Occasionally the expressive, practical,

or legal effects of statements of general principles and preambles may create

unanticipated difficulties for an operating constitution.

104

Preambles come in many variants. Some, like the U.S. Constitution’s,

are terse and consist almost entirely of statements of general principle.

105

Preambles consisting primarily of general principles are almost entirely

forward-looking. More typically, preambles are both backward and forward-

looking.

106

They describe the nation’s historical origins and the reasons for

adopting this constitution. Postconflict constitutions may refer to the

struggle’s resolution by the process resulting in the constitution being offered

for adoption. Examples include the preambles to the 1937 Irish Constitution

and the 1996 South African Constitution. The former refers to “centuries of

trial,” and the “heroic and unremitting struggle to regain the rightful

independence of our Nation.”

107

The latter says that “the people of South

Africa[] [r]ecognise the injustices of our past [and] [h]onour those who

suffered for justice and freedom in our land.”

108

Some preambles are long

and quite detailed.

109

The longer the preamble, the more likely it is to reflect

the kinds of negotiated compromises that pervade constitutional details. The

Iraqi preamble, for example, carefully includes as many of the peoples of

Iraq as possible, so as to avoid the implication that one group has

constitutional priority.

110

Preambles can conceal as well as reveal important issues. Referring to a

nation’s “people” may, in specific contexts, signal to insiders and sometimes

to others an ethnonationalist understanding, for example. More generally,

backward looking statements may come to have exclusionary implications as

a nation’s population changes.

111

In the twenty-first century, many nations

  1. See infra notes 116–17 and accompanying text.
  2. See, e.g. , Jacobson v. Massachusetts, 197 U.S. 11, 22 (1905) (“Although [the] Preamble indicates the general purposes for which the people ordained and established the Constitution, it has never been regarded as the source of any substantive power conferred on the Government of the United States or on any of its Departments.”).
  3. See U.S. C ONST. pmbl. (promoting “Justice,” “the general Welfare,” and “Liberty” among other principled values).
  4. Constitutions written to replace ones that have become outdated may simply pick up the preamble from the existing constitution.
  5. IR. C ONST., 1937, pmbl.
  6. S. A FR. C ONST., 1996, pmbl.
  7. See, e.g. , A MAGYAR K ÖZTÁRSASÁG A LKOTMÁNYA [C ONSTITUTION OF THE R EPUBLIC OF H UNGARY ], pmbl., available at http://www.kormany.hu/download/e/2a/d0000/THE% FUNDAMENTAL%20LAW%20OF%20HUNGARY.pdf#!DocumentBrowse.
  8. See pmbl., Doustour Joumhouriat al-Iraq [The Constitution of the Republic of Iraq] of 2005 (calling upon “the pains of sectarian oppression inflicted by the autocratic clique and inspired by the tragedies of Iraq’s martyrs, Shiite and Sunni, Arabs and Kurds and Turkmen and from all other components of the people”).
  9. For a discussion focusing on the Irish Constitution of 1937, see Mark Tushnet, National Identity as a Constitutional Issue: The Case of the Preamble to the Irish Constitution of 1937 , in T HE C ONSTITUTION OF IRELAND : P ERSPECTIVES AND P ROSPECTS 49 (Eoin Carolan ed., 2012).