Drafting of Constitutions
Joel I Colón-Ríos
- Borrowing and migration — Form and substance of constitution — Drafting — Principles and objectives of constitutions — Types of constitutions
Published under the direction of the Max Planck Foundation for International Peace and the Rule of Law.
General Editors: Rainer Grote, Frauke Lachenmann, Rüdiger Wolfrum.
1. Constitutions are as old as law itself. Wherever there is a legal system, there is a set of rules that establishes the procedures for the creation of the law, and that regulate the relationship between those who make the laws and those who are subject to them. Those rules conform the constitution and, even if unwritten, they will be the product of human action (codified / uncodified constitutions). In that sense, all constitutions are made. This article is only concerned with a subset of constitutions: those that are written down through a formal constitution-making process. The article has been organized in the following way. Part B focuses on mechanisms of constitution-making that have been frequently used since the eighteenth century for the drafting of constitutions. Such mechanisms are sometimes triggered through a pre-existing legal rule (a rule different from that used for ordinary amendments), and are sometimes brought into existence in violation of the established constitutional regime. The emphasis will be on four main mechanisms: constituent assemblies, constitutional conventions, constituent legislatures, and multi-stage processes. Part C focuses on the process of developing and writing the constitutional text. It will examine the role that individuals, specialized committees, constitutional commissions and experts, public consultation, international actors, and international law, have played in different constitution-making processes. These are very large and diverse topics, and this article does not pretend to exhaust them, but to provide the reader with a general introduction to the area. Part D considers different conceptions of legitimacy, and how they apply to a constitution-making process and the resulting constitution. Part E provides a brief conclusion.
B. Constitution-Making Mechanisms
2. Constitutions are not always adopted according to law. Indeed, new constitutions are often adopted as a reaction to the perceived injustice of a previous constitutional order. In those cases, following the rules of change of the old regime—particularly if those rules are cumbersome ones—will understandably not be a priority. The adoption of the first French written constitution (French Constitution of 1791: 3 September 1791) is of course one of the major examples, where delegates of the Third Estate decided to reconvene as a National Assembly and attributed themselves with the power to create a new constitution for France, eventually abolishing the institutions of the ancien régime (Thompson (1952) 5–6). Similar entities have more recently been convened in countries such as Colombia and Venezuela (Segura and Bejarano). Constituent Assemblies convened in this way—that is, extra-legally—typically share the following characteristics: (1) they are convened by government, frequently through an executive decree (executive order); (2) they are initially authorized by referendum; (3) they are seen as depositaries of the people’s constitution-making power; (4) they are composed of elected delegates; (5) they operate independently of the legislature and sometimes engage in the adoption of ordinary laws; and (6) they draft a constitution the validity of which sometimes depends of popular ratification in a referendum (direct democracy; ratification of constitutions).
3. While entities called ‘constituent assemblies’ frequently exhibit all or most of these features, there are of course many variations. For example, a number of constitutions attempt to regulate the convocation of constituent assemblies (through a process specifically designed for the creation of new constitutions and separate from that applicable to ordinary amendments), and in addition to giving the initiative to convene them to the executive, they also authorize the legislature or the electorate to do soin the case of the electorate, through the collection of signatures (eg Constitution of the Republic of Ecuador: 28 September 2008 (as Amended to 7 May 2011) Main Text, Chapter 3 ‘Reform of the Constitution’, Art. 444 (Ecuador); Constitution of the Bolivarian Republic of Venezuela: 15 December 1999, Main Text, Chapter 2 ‘Constitutional Reform’, Art. 348 (Venez)). Moreover, some constitutions attempt to create procedural or substantive limits on the constitution-making power of a constituent assembly, such as the requirement that it adopts the draft constitution by supermajority (eg Constitution of the Pluri-National State of Bolivia: 25 January 2009, Main Text, Part V ‘Supremacy and Reform of the Constitution’, Art. 411 (Bol)). Others establish that a constituent assembly’s power will only extend to deliberation about certain subjects or about adopting a particular type of constitution (eg Constitution of the Republic of Colombia: 5 July 1991 (as Amended to 4 November 2011) Main Text, Title XIII ‘On Constitutional Reform’, Art. 376 (Colom)). Constitutional conventions share most of the features enumerated above, but lack the faculty to exercise any of the ordinary (constituted) powers of the state. This was in fact the preferred option of Emmanuel Sieyes and other eighteenth century French writers (eg Condorcet). It was arguably the approach followed by the Philadelphia Convention of 1787, which drafted a constitution subject to the ratification of the American states and lacked the ability of adopting ordinary laws (Wood 533).
4. Of course, the risk that a constitutional convention illegally transforms itself into a sovereign body (ie a constituent assembly) is always present, and it does not seem possible to devise a rule or institution that guarantees such a situation will never occur. Not all constitutions are drafted by extraordinary assemblies. Sometimes they are created by ordinary legislatures that are given—or that assume—constituent functions. Constituent legislatures have indeed been common in different regions, including Europe and Latin America (Elster). An example is the National Congress of 1967 in Bolivia, which, after being attributed with constitution-making power by a presidential decree, decided it would operate as a ‘Constituent Assembly’ on Mondays, Wednesdays, and Fridays, and as an ordinary legislature on Tuesdays and Thursdays (although sometimes it transformed itself from a constituent to an ordinary legislature in the same day) (Rodas Morales 377). Other constituent legislatures begin as ordinary law-making bodies and transform themselves into constitution-making entities, while still exercising their ordinary powers. This was the case, for example, of the Hungarian Parliament of 1989, which replaced the communist constitutional order by piecemeal amendments that, arguably, amounted to the creation of a new constitution even though its members were not elected for that purpose (Partlett 532–536). Constituent legislatures are also common in the context of the creation of new states, where the first representative assembly is tasked with the responsibility of giving the country its first constitution. This was the case, for example, of the Indian Constituent Assembly, which operated simultaneously as a Provisional Parliament until 1952 (Lerner 132). This is also common in post-conflict situations, as in East Timor where, in 2002, an elected Constituent Assembly became the National Parliament of the newly independent country (Brandt (2005) 16).
5. Multi-stage constitution-making (a model most closely studied by Andrew Arato and sometimes also referred to as the post-sovereign, post-revolutionary, round-table led, or two-stage model) relies on some of the mechanisms described above (Arato (2016) 10). It can assume different forms but generally speaking it has three main features (Arato (2016) 91–92). First, an interim constitution—or functional equivalent, such as a set of principles—is drafted by a non-sovereign negotiating entity (eg a round table). Second, the free election of a non-sovereign constitution-making body—which could take the form of a legislature or a special assembly—that is required to draft a constitution consistent with the conditions, for example the provisions of an interim constitution or a set of principles, developed during the first stage. Third, in some cases, the intervention of a constitutional court in the last stage of the process, as a means of ensuring the consistency of the final document with the conditions set by the negotiating forum. Importantly, unlike in typical ‘sovereign constituent assembly’ scenarios, the entire constitution-making episode is characterized by an absence of a legal rupture (Arato (2016) 92). This model has been put in practice in different ways in a number of jurisdictions, including Spain and Poland. The paradigmatic case of the new model is usually identified in the adoption of the South African Constitution of 1996 (Constitution of the Republic of South Africa: 4 December 1996 (as Amended to 1 February 2013) (S Afr)); (Arato (2016) 106). The constituent process recently proposed by President Michelle Bachelet in Chile (briefly discussed later) also shares a number of features with the multi-stage model.
6. In addition to these four mechanisms, there are a number of recent examples of constitution-making through novel methods. One of these processes took place in Iceland, where interesting efforts were made to involve ordinary citizens in a constitution-making episode. The process started in 2010 and involved a National Forum of 950 randomly selected citizens, who made the initial decision that a new Constitution was needed, and an elected Constitutional Council from which parliamentarians and members of political parties were excluded (Landemore 166–191). The council approved a draft constitutional text that was widely discussed in social media, in what many described as the first instance of crowd-sourced constitution-making (Suteu 252). This text was ratified by the citizenry in a referendum, but in the end it was not passed by Parliament, which had the last word on its coming into effect (Gylfason 13–15). Ireland also recently experimented with random selection. The Constitutional Convention that recommended a number of constitutional changes to government in 2014 included 66 citizens selected by lot, 33 elected representatives, and one independent chair (Carolan 739). Two important precursors to these initiatives are the Canadian provinces of British Columbia and Ontario, which in 2005 and 2007 respectively considered a set of electoral reforms proposed by assemblies composed of randomly selected citizens (Fournier et al (2011); Goodin and Dryzek 233).
C. The Roles of Different Actors
7. Drafting a constitution is no longer, if it ever was, a non-technical political act of a people who decides to posit the fundamental rules of their state. For better or worse, it is more and more common for entities other than the people to which a constitution will apply—or their elected delegates—to play major roles in its writing or to otherwise influence constitutional outcomes. At the same time, there have been interesting efforts to involve ordinary citizens in constitutional drafting. These two tendencies pull in different directions and it is not uncommon, for example, for expert-led process to involve different forms of popular participation (public participation). This section provides an overview of some of the main tendencies in the preparation of new constitutional texts. It will focus on the role of individuals, specialized committees, constitutional commissions and experts, public consultation, international actors, and international law.
1. Role of Individuals
8. When one thinks of individual constitution-makers, the names Solon, the famous lawgiver who gave Athens a new code of laws that established a new form of government (Wallace 58–59), Lycurgus, who is said to have given Spartans a new unwritten constitution (Hooker 340; Plutarch 303), and Muhammad, drafter of the Charter of Medina in 622 (Arjomand 555), may come to mind. Nevertheless, in the modern world of advisers, committees of style, and rather long and complex constitutional texts, it is hard to find true instances of individual constitution-makers. There are however some cases that come close to that phenomenon. James Madison, by most accounts, played a major role in the drafting of the text of the United States Constitution (Constitution of the United States of America: 17 September 1787) (US)) and is generally recognized as the author of the Bill of Rights (Elding 163). In Latin America, Juan Germán Roscio is widely recognized as one of the principal drafters of the Venezuelan Constitution of 1811 (Federal Constitution of the Venezuelan States: 21 December 1811 (Venez)) (Brewer-Carías (2013) 411). In India, BR Ambedkar is usually identified as the person who wrote the draft constitution that was presented to the Constituent Assembly (Rao 13).
9. Individual public servants can also be attributed with the power of presenting a draft constitutional text to a constitution-making body, as in the constituent process underway in Chile, where the President is attributed with that task. The draft constitution, however, will be based on a number of principles (bases ciudadanas) drafted through a process that would involve significant instances of public consultation, even though it seems that those principles are not legally binding on the executive (Muñoz 17). The essence of these cases is that for different reasons, specific individuals play a principal role in the writing of a constitution, even if they do it with the assistance of others. Those individuals are sometimes members of the constitution-making body in question (like BR Ambedkar), but sometimes they are not (like Joaquín de Mora). There are also situations where ‘individual’ constitution-makers are foreigners (Lanni and Vermeule 914). An example of this phenomenon is that of Spanish jurist Joaquín de Mora, who is commonly identified as the drafter of the Chilean Constitution of 1828 (Political Constitution of the Republic of Chile: 9 August 1828 (Chile)) (Donoso 13).
2. Role of Specialized Committees
10. The previous examples notwithstanding, the writing of a constitution rarely falls to the hands of a single individual. Frequently such activity is the responsibility of specialized committees created by the constitution-making body, which are given the task of drafting specific constitutional provisions—the constitution-making entity thus devoting most of its debates to general principles and controversial political issues. An interesting example of those specialized committees is the system of thematically-organized mesas constituyentes recently used in the making of the Constitution of Ecuador of 2008. The Ecuadorian Constituent Assembly designated ten mesas, which were assigned topics such as ‘fundamental rights’, ‘structure and institutions of the state’, and ‘natural resources and biodiversity’. Each mesa was composed of thirteen assembly delegates and was responsible for a particular topic (Centro Carter (2008) 9–10). In addition to presenting to the assembly a draft of the articles that fell within their competency, the mesas were responsible for receiving proposals from social movements and individuals (Reglamento de Funcionamiento de la Asamblea Constituyente (Law of the Functioning of the Constituent Assembly) Art. 13, paras 3, 23 (Ecuador)).
11. In South Africa too, the process of writing the constitution relied on the work of six thematically-organized committees (Hatchard et al 39). These committees gathered the views of the political parties and the public, and forwarded draft articles for discussion in the constitution-making body (Hatchard et al 39). In addition to thematically-organized committees, it is common for the final wording of individual constitutional provisions to be considered by a committee of style. For example, in Bolivia, the rules adopted by the Constituent Assembly established a committee of style that would examine and submit the constitutional text for final approval (Reglamento General de la Asamblea Constituyente (General Law of the Constituent Assembly) Art. 70 (Bol)). Interestingly, this committee was criticized for making substantive changes to the draft constitution (Lazarte 3–4), negatively affecting the legitimacy of an already controversial process. In the United States, the Constitutional Convention gave a committee of style—of which James Madison was a member of—the task of revising ‘the style of and arrange[ment of] the articles which had been agreed to by the House’ (Amar 283; Farrand 553).
3. Constitutional Commissions and Experts
12. In some cases a draft constitution is written by an entity external to the constitution-making body, commonly called a constitutional commission. This was the case, for example, of the Ugandan Constitution (Constitution of the Republic of Uganda: 8 August 1995 (Uganda)), which was drafted by a government appointed commission and later discussed and approved by an elected Constituent Assembly (Tripp 162–167). Another example is found in the adoption of the Constitution of Fiji (Constitution of the Republic of the Fiji Islands: 25 July 1997 (Fiji)), where a draft constitution prepared by a constitutional commission was discussed by a joint committee of both legislative houses before being finally adopted by parliament (Brandt et al (2011) 272). Generally speaking, commissions are usually composed of experts, and the idea is that a division of labour is created between an expert entity that writes the constitutional text, and a political entity (eg a constituent assembly or legislature) that accepts or rejects it. Sometimes, as in the case of Eritrea in 1997, those experts not only include lawyers but also professionals with different backgrounds, for example historians, political scientists, or anthropologists (Brandt et al (2011) 273). The advantages of outsourcing the actual writing of a constitution, it has been argued, include that it diminishes the influence of political parties and particular interests, allows for greater input from experts, facilitates negotiation among elites, and is also consistent with different forms of public consultation (Ghai 31).
13. Given that they are not politically accountable, the legitimacy of constitutional commissions largely rests on their independence from the government; when such independence is absent, as has been noted was the case in Zambia and Zimbabwe, the reputation and effectivity of a commission can suffer in important ways (Brandt et al 268). This also applies generally to experts who provide advice outside the context of a constitutional commission. Indeed, experts usually play a major roles in contemporary constitution-making processes, even in those that present themselves as popular political acts. For instance, the rules applicable to the mesas constituyentes in Ecuador provided for the assistance of advisers who could attend the mesas’ sessions—and even the plenary session of the assembly, with the authorization of the President or three members of that entity’s directive commission (Reglamento de Funcionamiento de la Asamblea Constituyente, Art. 55 (Ecuador)). Significant expert advice is often present in post-conflict scenarios, where processes of constitutional change are sometimes organized by international actors. In the constitution-making process that took place in Cambodia in 1991 under the auspices of the United Nations, for example, technical advisors from the UN Transitional Authority in Cambodia drafted the new constitution’s human rights provisions (Brandt (2005) 13). And, of course, in constitutions adopted in the context of a military occupation it is not uncommon for particular individuals—foreign and local—to play an important role in the writing of the relevant constitutional text (Inoue; Arato (2009)).
4. The Role of Public Consultation
14. The previous sections referred to different examples of public intervention in constitution-making. This section focuses on public consultation, understood as a process in which the views of citizens are collected through different mechanisms. While the increasing influence of experts in the writing of constitutions is undeniable, it is also the case that public consultation is now widely seen as a desirable feature of a constitution-making process. For example, constitutional commissions are frequently attributed with the responsibility of collecting public views about a draft constitution. This was the case of the Ugandan Constitutional Commission which after its establishment in 1988 collected oral testimony and written submissions in different regions of the country (Moehler 281). Indeed, there have been recent instances of constitution-making through novel mechanisms that potentially give ordinary citizens the opportunity to offer their views about what should be the content of the future constitutional text. This type of process, of which Iceland is one of the most salient examples, frequently relies on websites and different social media platforms to collect the views of the public (Suteu 262). In the recent constitution-making process in Ecuador, too, a similar use of the internet was made: each mesa constituyente had its own blog in which different proposals were announced and made available for public comment (Albornoz 87).
15. In the constitution-making process that took place in the 1990s in South Africa, public consultation was facilitated through a number of workshops that took place through the country, complemented by telephone and e-mail services which recorded public comments (Klug 56–57). Public consultation processes by themselves are arguably not sufficiently participatory, in the sense that they do not guarantee that popular preferences will be constitutionalized. Indeed, in cases where the public is not formally included in the writing of the constitutional text and where their views lack legal authority, the extent to which public comments and submissions actually influence the finally adopted constitutional text is at best unclear. That is to say, public consultation in the context of constitution-making should be distinguished from other forms of popular intervention which include not only the collection of the public’s views but that attribute to citizens actual decision-making roles, both in the ratification of draft proposals in referenda and in the ability to make formal proposals through popular initiative. To the extent that part of the legitimacy of a new constitution depends on the degree of popular participation in its creation, the actual power given to citizens involved in the process is of the utmost importance.
5. External Influences
16. It would be unthinkable for constitution-making today to be free from external influences. These influences take many forms, one being foreign constitutional law (borrowing and migration of constitutions). The United States Constitution, for example, was a major influence in nineteenth century Latin America, particularly in federal countries such as Argentina, Mexico and Venezuela (Cheibub, Elkins, and Ginsburg 1709–1710). In fact, there is a good amount of evidence that the deputies elected to the Constituent Congress that drafted the first Latin American constitution were deeply influenced by the constitutional thought of some of the United States founding fathers (Brewer-Carías (2012)). More generally, and recently, David Law and Mila Versteeg have noted that there is ‘a corpus of constitutional provisions that are shared by a wide majority of the world’s constitutions’, and that one can therefore refer to ‘a shared, or generic, global practice of rights constitutionalism’ (at 773). The development of that shared practice could be the result of the fact that certain provisions are being imported into new constitutions from a handful of particularly influential ones. In addition to the United States Constitution, the German Basic Law (Basic Law of the Federal Republic of Germany: 23 May 1949 (Ger)), as well as the Indian (Constitution of the Republic of India: 26 January 1950 (India)) and South African constitutions, are commonly identified as having been particularly influential, although the extent of that influence seems to be declining (Law and Versteeg 823–833). The Canadian Constitution—specifically, the Canadian Charter of Rights and Freedoms (Constitution of Canada: the Constitution Acts 1867 to 1982 (Unofficial consolidation current as of September 2008) (UK) (Can) 1867 c.3 (30 and 31 Victoria)—has been identified by Law and Versteeg as the most representative of that shared constitutionalism and since the 1980s its provisions are increasingly reflected in newly adopted constitutions in certain regions, such as Eastern Europe and Africa, but not in others, such as Western Europe and Latin America (at 813).
17. There are of course more direct examples of the influence of external elements in the content of new constitutions. In the context of military occupations which are followed by constitution-making episodes, such as that of Germany (Spevack) and Japan (Moore and Robinson (2002)) after the Second World War, the occupiers naturally exert significant influence. With respect to the more recent constitution-making processesunder different forms of occupationin Yugoslavia, Iraq, Afghanistan, and East Timor, Noah Feldman has noted that there has been ‘substantial local participation’ but also ‘substantial intervention and pressure imposed from outside to produce constitutional outcomes preferred by international actors’ such as the North Atlantic Treaty Organization (NATO), the United Nations, international NGOs, and foreign states like the United States and Germany (at 858859). This influence, as well as the democratic limitations of any constitution-making exercise that takes place after a military occupation, does not necessarily mean that the resulting constitutions will not reflect important local cultural and religious features, as exemplified by the constitutions of Iraq and Afghanistan (Grote and Röder 617, 693). Another major influence in the content of a number of newly adopted constitutions has been that of the Venice Commission of the Council of Europe (‘Commission’). States that are members of the Council can ask the Commission for advice on their draft constitutions—even though in some cases, like that of Belgium in 2010, the Commission has provided advice against the wishes of the state in question (Visser 983). For example, in the recent constitution-making episode in Tunisia the Commission was requested by a Constituent Assembly to express its views about a preliminary constitutional document (Visser 974, 978); the Commission issued a report that recommended a number of changes to the text, most of which were reflected in the final constitution (Visser 979).
18. There are also some indications that international law is beginning to play an increasing role in restraining the options available to constitution-makers. For example, it has been argued that international recognition for a new state whose constitutional order does not protect fundamental rights would be at the very least unlikely (Lorz 4). It could even be maintained that the ‘effective government’ requirement in the Montevideo Convention of 1933 (Convention on Rights and Duties of States (signed 26 December 1933, entered into force 26 December 1934) 165 LNTS 19) could be understood as involving a democratic requirement (Lorz 7). In the case of already existing states, one can point toward certain treaties, such as the International Covenant on Civil and Political Rights (1966) (ICCPR) ((adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171), which recognizes the right of every citizen to vote and ‘to take part in the conduct of public affairs, directly or through freely chosen representatives’ as an example of an international norm that may move constitution-makers in a particular direction (ICCPR, Art. 25). At the same time, the membership rules of some international organizations involve different kinds of democratic requirements, such as ‘the effective exercise of representative democracy’ in the case of the Organization of American States (OAS) (Art. 3; Lorz 7). The adoption of a non-democratic constitution would therefore have negative international implications, which would provide incentives to constitution-makers to adopt particular types of constitutional arrangements. Arguably, international law has the potential of impacting the choice of constitution-making mechanism itself. In particular, the ‘right to democracy’, identified by some authors as an emerging right in public international law, would demand some form of citizen participation in the constitution-making process and would be inconsistent with constitutional orders externally or internally imposed (Hart 5; Banks 1052–1055).
D. Democracy and Legitimacy
19. Up to this point, this article has approached the topic of constitutional drafting from a descriptive perspective, without considering at length the normative implications of different types of mechanisms and constitution-making practices. Those normative implications are related to issues of legitimacy and democracy, and are put under particular stress in situations where a constitution-making process becomes less of an act of self-legislation and more of a technical process designed to secure a particular type of constitutional order. In this context, an initial problem with a discussion about legitimacy is that there is no consensus about what one wishes to convey by phrases such as ‘that constitution-making process lacked legitimacy’ or ‘that is a legitimate constitution’. Following David Beetham, it can be said that the meaning of the term legitimacy typically depends on the training of the academic who is speaking or writing; whether she is a lawyer, a social scientist, or a philosopher, will have an important impact on her approach to the question of what constitutes a legitimate exercise of political power (at 4–5). For instance, lawyers are traditionally concerned with how legal rules are posited, revised, and enforced. From that perspective, legitimate political power would be acquired and exercised according to established law, and legitimacy becomes equivalent to legal validity (Beetham 4; Kelsen 209). A legitimate constitution-making process would thus be one organized according to the amendment rules of a previous constitution. Under this view, the ‘legitimacy’ of the process is directly connected to the legitimacy of the resulting constitution, and the former is a sufficient condition for the latter. This conception of legitimacy is not particularly influential in the context of constitution-making: as seen above, it is common for constitutions whose legitimacy is seldom put into question to be brought into being through legally dubious processes—consider, for example, the creation of the United States Constitution (Ackerman 11).
20. Social scientists have a very different approach to legitimacy. The social scientist is not normally interested in questions of legal validity, but in looking at the extent to which those who exercise political power can count on the obedience of those subordinated to them (Beetham 5). Social scientists are not concerned with the idea of legitimacy in universal or normative terms. Their objective is to show how legitimacy affects power relations in particular societies. By trying to stand back from their own values and beliefs—for example, from their idea of what would amount to a ‘truly’ legitimate political power according to some set of normative criteria—they aim at discovering what is actually believed in the society they are studying. In this vision, power relations are legitimate when ‘those involved in them, subordinate as well as dominant, believe them to be so’ (Beetham 6; Weber 310). Such an approach would consider a constitution-making process or the constitution that results from it legitimate if both officials and citizens believe it to be legitimate, regardless of the causes of that belief. The question of legitimacy does not involve a juridical assessment of how a regime came into being, but an empirical judgment (Beetham 8). This is probably the most common conception of legitimacy and it is the way in which that term has been used in the previous sections of this article. Unlike in the ‘legal’ approach to legitimacy, under this approach there is no necessary correspondence between the legitimacy of the constitution-making process and the legitimacy of the constitution. For instance, a constitution created under a process of dubious legitimacy—such as a constitution drafted under military occupation—could nevertheless be accepted as legitimate through the passage of time. This might be the case of the German Basic Law, originally seen as a provisional document that ‘would cease to exist on the day a reunited Germany replaced it with a real constitution freely adopted by the German people’ (Kommers 477).
21. Beetham distinguishes the approaches of the lawyer and the social scientist from that of the philosopher. Moral and political philosophers are usually not interested in legal validity or in the actual beliefs of those involved in a relation of power. They are concerned with the question of how political power ought to be arranged (Beetham 5). For them, political power is legitimate when its rules can be justified according to normative principles with which any rational and unbiased person would agree. What is legitimate to the philosopher ‘is what is morally justifiable or rightful; legitimacy entails the moral justifiability of power relations’ (Beetham 5). This approach is exemplified in the political philosophy of John Rawls, who famously attempted to show how the idea of justice can guide the establishment of a just constitution (Rawls (1999) 314). Consistent with Beetham’s depiction of the philosophical approach, Rawls expresses his conception of legitimacy in terms of what is justifiable to citizens: ‘[a]s we have said, on matters of constitutional essentials and basic justice, the basic structure and its public policies are to be justifiable to all citizens, as the principle of political legitimacy requires’ (Rawls (2005) 224). As with the approach of the social scientist, this conception of legitimacy does not seem to require a correspondence between the legitimacy of the constitution-making process and the legitimacy of the resulting constitution; as long as the constitution contains the right content, the process through which it comes into being appears to be irrelevant. To a certain extent, those constitution-making processes that rely in the advice of experts at the expense of the actual views of the population could be seen as a manifestation of this content-oriented approach. It can be argued, however, that deliberative constitution-making processes are more likely to produce constitutions based on principles justifiable to all members of the political community (Habermas (1996)).
22. Despite the usefulness of these conceptions of legitimacy, in the context of twenty-first century constitution-making the notion of democratic legitimacy may better describe the types of practices that are seen to make a process of constitutional creation acceptable to most political and academic observers—that is, not only to the society that will be subject to it. A constitution which has been created through a process in which citizens are free to propose, deliberate, and decide about the content of the future constitution is more likely to be considered legitimate than a constitution that has been implemented by a foreign power or by a well-intentioned political elite (Colón-Ríos 108). These are the kind of practices that drive recent attempts to make constitution-making more deliberative and participatory through mechanisms that range from increased public consultation to the random selection of constitution-making bodies, as has been aforementioned. Under this view, the idea of democracy inextricably links the legitimacy of the constitution-making process to that of the resulting constitution. The notion of democratic legitimacy serves not only to evaluate a constitution-making process, but also the rules of constitutional change established in the resulting constitution. That is to say, it directs our attention toward the question of whether those rules allow for future acts of popular constitutional creation. If they do not, not only the democratic legitimacy of the constitution may be negatively affected; the creation of a new, democratically legitimate constitution may ironically require a constitution-making process that would have to be described as illegitimate from the legal point of view.
23. This article attempted to provide the reader with a general introduction to the activity of drafting new constitutions. It examined four common types of constitution-making mechanisms as well as the role that different actors have in the preparation of a constitutional text. These mechanisms and practices were discussed with reference to the experience of different jurisdictions. As noted earlier, this is a very large subject and there is a large amount of literature discussing its different aspects in much more detail. Some of that literature is listed in the bibliography. While major constitutional change continues to be a significant part of political life, the drafting of new constitutions will continue to be a relevant topic, and more and more energy will have to be devoted to understanding the nature of the practices used to produce new constitutional regimes. There seems to be a broad consensus that a legitimate constitution-making process will include an elected assembly—assisted by experts and public consultation—and final approval in a referendum. Nevertheless, given the emergence of novel forms of citizen involvement, such as the use of random selection and the different possibilities of participation offered by technological developments, the question of which kind of mechanisms are necessary for a constitution-making process to be sufficiently participatory and deliberative—and therefore legitimate from a democratic perspective—is likely to be with us for a long time to come.
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