Abstract
Traditionally, two general methods have been used to make constitutional law. The first involves creating a constitutional text, and has been done by constituent assemblies convened especially for that purpose or by legislatures either proposing replacement constitutions or more limited constitutional amendments. The second involves interpreting existing constitutional texts, and has been done by specialized constitutional courts or generalist courts. After describing briefly what we know about how constitutional law is made by these traditional methods, this essay turns to some recent innovations in making constitutional law, which I describe generically as involving substantially higher levels of public participation than in the traditional methods: the process of drafting a proposed new constitution for Iceland, and the practice of “public hearings” in the Brazilian Supreme Federal Court. My aim is to identify some features of these newer methods that might be of interest to scholars of comparative constitutional law. For that reason, the essay paints in deliberately broad strokes, isolating features that may point in the direction of a more general understanding of constitution-making processes while ignoring features that may play crucial roles in the two specific processes on which I focus.
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Notes
- 1.
Sometimes constitutions and amendments take effect upon their announcement by the drafting body, whether constituent assembly or legislature, but more commonly, especially in modern times, replacement constitutions are ratified by some other body, today usually by a national referendum but again occasionally by existing institutions such as the sitting legislatures in the component units of a federation. Amendments sometimes must be ratified as well, and if so similar methods – ratification by referendum or by some other legislature than the proposing one – are used.
- 2.
The U.S. Supreme Court has been the focus of study not only because of its prominence, but probably more important, for present purposes, because of the availability of a great deal of information in the personal papers of the justices (including material related to cases), many of which readily available for scholarly study. As I understand it, access to such papers is quite unusual outside the United States. For one study relying on such papers, see Sharpe and Roach (2003). I believe that internal documents from the French Constitutional Council are now available with a multi-year time lag.
- 3.
Elster (1995).
- 4.
The status quo includes the possibility that another constituent assembly or similar process might be convened after the failure of the initial one.
- 5.
I develop this distinction in a forthcoming essay, “The Politics of ‘Best Practices’ in Constitution-Making.”
- 6.
An example might be a provision defining the qualifications for the presidency, which might make it possible for all who are plausibly thought of as potential candidates to qualify, but which might obstruct the candidacy of someone who becomes political prominent shortly after the constitution’s adoption. Bulgaria and Egypt both have faced variants of this problem.
- 7.
The Court occasionally sets a case for reargument in the succeeding Term, almost always with the figleaf of a new question the Court asks to be argued.
- 8.
In Brazil secrecy’s weakening is not as dramatic as it might be in other systems, because of the Brazilian practice of public deliberation by the justices themselves in the course of considering constitutional claims.
- 9.
An accessible account of the Icelandic process, on which I draw heavily, is Meuwese (2013).
- 10.
The figure is reported in Meuwese (2013, 484–85).
- 11.
Quoted in Meuwese (2013, 483).
- 12.
The Constitutional Council was open to suggestions, of course, and its work-in-progress was monitored by a “semi-formal collective of individuals sharing an interest in the Constitution process,” as quoted in Meuwese, note—above, at p. 483. The collective seems to have brought some degree of focused expertise to the drafting process, but the descriptions I have found do not make clear how much.
- 13.
Gylfason (2014, 9) refers to “reform fatigue”.
- 14.
Had the constitution gone into effect, I suspect that many of the flaws the Venice Commission identified would have been remedied through interpretation or political practice.
- 15.
I adopt the terminology of “one-shotters” and, below, “repeat players” from Galanter (1974).
- 16.
Except insofar as their participation might have impelled them to greater involvement in political activity in the future than they had done in the past. One member did form a political party to support the constitutional draft, but it did not gather many votes.
- 17.
Not entirely, because had one or more parties thrown its weight behind candidates in the elections for the Constitutional Assembly, there is a decent chance that those candidates would have won at least some seats.
- 18.
The term “constraint” is inapt because the parties did not actually constrain choice at the upstream point.
- 19.
The information in this paragraph is drawn from Henning Leal (2014).
- 20.
In a purely legislative context we would describe the participants as representatives of organized interest groups or non-governmental organization. The point is that the participants are not “ordinary citizens,” which seems consistent with the statutory requirement that they have “experience” with the matter.
- 21.
The literature is quite large. Some of it is summarized in Balkin (2011).
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Tushnet, M. (2016). New Institutional Mechanisms for Making Constitutional Law. In: Bustamante, T., Gonçalves Fernandes, B. (eds) Democratizing Constitutional Law. Law and Philosophy Library, vol 113. Springer, Cham. https://doi.org/10.1007/978-3-319-28371-5_8
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