What's in a Name? Reflections on Timing, Naming, and Constitution-making

Abstract

I. INTRODUCTION: THE PARADOXES OF CONSTITUTION-MAKING There is a paradox, well described by Jon Elster, (1) that the crisis conditions that often lead to constitution-making are incompatible with the kind of deliberation thought necessary for the creation of a constitution consistent enough with the needs of its polity to be successful. Post-conflict situations are likely to involve crises that motivate constitution-making, but are also likely to create conditions in which the probability of creating a lasting constitution at one blow is low. This essay explores the consequences of this observation, suggesting that those committed to constitutionalism need an expanded repertoire of approaches in post-conflict societies (including contingent, incrementalist, revisable or interim approaches). Moving directly to traditional, comprehensive forms of constitution-making (2) in some circumstances may be antithetical to promoting the conditions necessary for constitutionalism--including trust in legal institutions. (3) The increasing range and diversity of constitution-making approaches is humbling, or should be, especially for those seeking to influence other countries' decisions of when and how to engage in constitution-making. Constitutions are a foundation for the rule of law, insofar as they specify the rules by which law is made, interpreted, applied, enforced, and changed; successful polities need a constitution (written or not) to allocate these responsibilities. Yet making a written constitution may at times be antithetical to the constitutionalism it seeks to promote. And calling the process may at times be antithetical to producing the kind of agreement that may lead to a more permanent, or legitimate, state of constitutionalism. A second and related paradox of relevance to constitution-making in post-conflict societies arises from the distinctive features of constitutions. In most settings, constitutions are understood to be legal instruments that are foundational in terms of defining and allocating legitimate governmental authority, hierarchically supreme over other sources of law, (4) and entrenched--meaning that they are more difficult to change than other forms of law and intended to be more enduring. In the kinds of crises generated by conflicts and their aftermaths, the entrenched, foundational, and supreme character of the constitution as a matter of legal hierarchy can help to mobilize attitudes of public-spiritedness and elicit extraordinary efforts to produce the best possible document. Bruce Ackerman famously refers to of high popular mobilization and enhanced deliberation, beyond the type characteristic of ordinary politics. (5) Moments of dramatic regime change, as occurred in Iraq and Afghanistan, may enhance the conditions for this version of constitution-making, as the very rupture creates a veil of ignorance regarding future politics and enhances the capacity for longer term deliberation. (6) The raised stakes of constitution-making may not only move contending parties to focus on the constitutional project, but also encourage elites--who, having invested in the project of constitution-drafting, may have incentives to persuade those whose assent is required to ratify the document and then, as actors in the political system, to try to make the constitution work. (7) However, a constitution's entrenched character, together with its foundational and hierarchically supreme status, may also create disincentives to cooperative or public-spirited drafting behavior. Existing powerful parties fearing the loss of power through an entrenched constitution may, rationally, be obstructive; they may refuse to participate, block thoughtful compromises, or otherwise seek to derail the project. (8) In societies with existing cleavages based on ascriptive identity with a clear majority in one group, minority groups may be reluctant, even in moments of regime change, to bargain over a document that is likely to entrench majority power; where the rule of law is weak or legal institutions unsettled, minorities may not be willing to rely on a legal instrument's statement of rights. …