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Summary of "Advanced Introduction to Comparative Constitutional Law"
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Complete summary of "Advanced Introduction to Comparative Constitutional Law" - Mark Tushnet - Edward Elgar Pub - 2018
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Advanced introduction to comparative constitutional law _ Tushnet & MarkConstitution-making
Constitutions are convenient ways of laying out the formal contours of the mechanisms for
exercising public power. The realities of power may not be fully reflected in a constitution. For
example, a nation’s constitution might adopt a presidential form of government, yet the formal
powers conferred on the president may not correspond to the practical power that the charismatic
leader for which it was written actually has. Constitutions where the inaccuracies are quite large
are described as “sham” constitutions, with the so-called Stalin Constitution for the Soviet Union
(1936) as the primary example. Practice in almost every nation will fail to fully correspond to the
formal constitution. Thus, we need a metric for determining when the shortfall is great enough to
make the constitution a sham.
Constitution-making can occur in nations with established constitutions as well. Replacements can
occur when the existing constitution has become outdated to the point where merely amending it
would take a great deal of effort. Another form of constitution-making can be called abusive:
political leaders use constitution-making to enact constitutional amendments or a new constitution
with provisions that are inconsistent with constitutionalism understood in liberal terms. The usual
example is the accession of Hitler to the formal leadership of the German government. It is useful
to distinguish between abusive constitutionalism and the replacement of constitutionalism by
authoritarianism. The matter of concern is not the abuse of the existing constitution, but the
authoritarian outcome.
Taking advantage of an aspect of Hungary's electoral rules designed to enhance the stability of a
government majority and one of the easiest amendment rules in the world, the Fidezs Party led by
Orbàn converted a narrow electoral victory to a legislative majority able to amend the constitution
at will. Through a series of constitution amendments, the governing party was able to gain control
over all organs of government, including those that might have served to check its power. Orbàn
argued that the new Hungarian constitutional arrangements were merely alternative specifications
of liberal requirements. He also emphasized that the new constitution better reflected the historical
traditions of the Hungarian people.
The US Republican Party used its control over state legislatures to enact “voter identification” laws,
aimed at ensuring that only registered voters actually cast their votes, whose effect was to exclude
significant numbers of potential voters likely to support the Democratic Party. The Party also
supported “gerrymandering” efforts whose effect was to make it easier for Republican candidates
to win enough seats to control legislative chambers, even when more voters actually voted for
Democratic candidates. It also supported systems of financing political campaigns whose effect
was to give Republican candidates financial advantages. All these efforts were held to be
constitutionally permissible by a Supreme Court with a majority of judges nominated by Republican
presidents.
One way to guard against abusive constitutionalism is to create separate amendment rules for
different parts of the constitution. As amendments approach the core of democratic rights, the
amendment rule becomes more stringent. Constitutional abuses occur by using existing legal
mechanisms for changing the constitution. What makes the changes examples of abusive
constitutionalism is their support in domestic constitutional law and that they make it more difficult
for the government’s opponents to replace the government through ordinary political means.
The foundation of constitution-making: the constituent power
The constituent power is the body of the people from whom the constitution’s authority emanates.
The constituent power combines real people whose consent is the basis of a constitution’s
legitimacy, with the thought that a constitution’s authority can derive from a collectively imagined
project that no one fully holds.
The USA is a nation that was created by the very act of constitution-making. Sometimes
constitution-making involves nation-building, the creation of a single nation unifying previously
diverse entities. An example is the creation of the Federation of Malaysia out of various distinct
Malay states.
Difficulties arise even when there is a pre-existing demos that can exercise the constituent power.
In the case of post-conflict 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. Those participating in the process will have to decide from what
territory the constitution-drafters will be drawn. Drawing the boundaries in one way or the other
will determine who the demos is, in a setting where the parties all contend that they were part of
the relevant demos. An example is the creation and subsequent separation of India and Pakistan.
The constitution-making body cannot be the people as a whole. That body can be at most
representative of the people. Its members may claim to speak for the people, but shortfalls are
inevitable. When the constitution-making body is composed of representatives of political
groupings, some groupings may be left out of the constitution-making process for practical
reasons, although they might be socially significant.
, Today, some constitution-making processes are assisted by elements of the international
community, either international organizations or individual nations. The need for assistance arises
from within the nation. The constitution in place may provide mechanisms for its own replacement
and the constitution-makers may use those mechanisms. But, to the extent that the constitution-
makers are representatives of the constituent power, they may believe that they are not legally
constrained by existing mechanisms. The constitutional transformations in the US and France in
the late 18th century were revolutionary displacements of the prior regimes. The revolutions
demonstrated the fact that force and violence sometimes displaced law as a means of ordering
society, making the constituent power legally unconstrained.
Constitutions typically provide mechanisms for their amendment and sometimes for their
replacement. The French constituent assembly acknowledged that the constitution they were
creating had to have room for later modification. Some worried that including procedures for
amending the constitution was inconsistent with the theory that the constituent power could not be
constrained by law. Their solution was to treat the amendment procedures as recommendations
which their successors could reject.
The constituent power prescribes the procedures for amending or replacing the constitution. Those
who employ such procedures are acting in line with the constituent power’s prescriptions. After the
constituent power creates a constitution, every action taken within that constitutional framework is
an exercise of constituted power. The theory of the constituent power kicks in only when the
existing procedures are ignored. The constituent power retains the power to re-constitute the
constitution on its own terms. For example, the US Articles of Confederation provided that they
could be amended only with the unanimous consent of the states, but the US Constitution (a
replacement of the Articles) provided that the amendment would take effect when 9 of the 13
states ratified it. The constituent power always has the ability to call itself into being, disregarding
restraints created by itself in an earlier appearance.
The constitution-making process can start without a pre-existing framework for constitutional
revision. XX century experiences of decolonization are good examples: colonizing powers withdrew,
without participating in the constitution-making process. Some revolutionary transformations are
similar: the ancien régime has collapsed and its supporters have fled, leaving the field open for a
complete constitutional revision. Constitution-making does not actually occur on a plain field. It
occurs under real historical circumstances that lead to a tension between the power relationships
as they already exist and the power relationships that the new constitution ratifies. Usually,
elements of the former regime participate in constitution-making. This is true when the push for a
new constitution comes when the existing constitution is understood to be functioning clumsily and
so requires extensive but not revolutionary updating. More dramatic changes can occur only with
the agreement of those empowered by the about-to-be-replaced constitution. Roundtable
negotiations bring together representatives of the regime in place with representatives of the
forces that all acknowledge will soon take power. Communist parties sat at the negotiating table in
Central and Eastern Europe as their political domination was disappearing, as did the white
National Party in South Africa. Those dominating the existing regime are universally understood to
be on their way out, but roundtable negotiations are aimed at smoothing the path to their exit. This
means that the constitution being drafted has to gain their agreement. In many cases, those who
formerly held complete political power will retain significant power after the transition. South
African whites would have substantial economic power in an African-dominated government.
Political stability requires consent from nearly all groups that have significant power. This implies
that even transformational constitutions project existing power relationships into the future. The
projecting of power relationships may limit the achievement of truly transformative goals.
However, excluding representatives of the ancien régime from constitution-making processes may
generate resistance to new arrangements and limit the transformative possibilities.
Constitution-making processes may be unnecessary or ineffective. Those holding power will agree
to the new arrangements only when they are confident that they will not be seriously
disadvantaged by those arrangements. They can have this confidence when the new constitution
does not change things much. However, the post-communist constitutions and the South African
Constitution did change things substantially, with the agreement of representatives of the former
regimes who knew that their political positions would be significantly different. Constitution-making
often occurs under circumstances unfavorable for careful design. When constitution-making occurs
during a crisis, constitution-makers may find themselves pressed to reach some conclusion within a
compressed time period. The felt urgency conduces to quick compromises without substantial
attention being paid to how the constitution will operate once adopted, leading to ineffectiveness.
The processes of constitution-making: questions about inclusiveness
Until recently it would have been obvious that constitution-drafting could not directly include wide
segments of a nation’s people. The only possibility was achieving inclusiveness by ensuring that
the drafting body was sufficiently representative of all the relevant constituencies. Iceland’s recent
constitution-drafting exercise suggests that this might no longer be true in its strongest form.
There, the drafting was crowd-sourced, with every Icelander, who was interested in participating,
having the right to submit suggestions for constitutional provisions. Of course, the proposed
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