Social Science Research Network (SSRN)

The Dangers of Popular Constitution-Making

INTRODUCTION

Across the Middle East and North Africa, corrupt dictatorships are currently being swept away with astonishing speed. To fulfill the democratic promise of this wave of authoritarian collapse, these nations must build political systems committed to pluralism, the rule of law, and representative government. The adherence to written constitutional rules that structure and limit the exercise of political power is central to this mission. But how can these countries transform written constitutional rules into a “respect-worthy” form of higher law that can actually limit the power of government? Or, in other words, how can these countries make new democratic constitutions “matter”?

The scholarly answer focuses on the process of constitution-making. It argues that written constitutional rules “matter” when they are drafted and ratified during a period of extraordinary popular mobilization. In this process of “popular constitution-making,” constitutional drafting and ratification necessarily involves irregular mechanisms of extraordinary popular mobilization, such as extra-parliamentary constitutional conventions and referendums. By operating outside the rules and institutions of ordinary politics, the people will be able to act in their sovereign capacity as the “constituent power.” In this constituent position, the people themselves become the author of constitutional rules, maximizing the democratic “legitimacy”of these rules and transforming them into a form of higher law.

Popular constitution-making is grounded on the belief that a successful process of constitution-making must be separated from ordinary politics. This view is so deeply ingrained that a recent article found that “nearly all the normative and positive work on constitutions proceeds from the assumption that constitutional politics are fundamentally different in character from ordinary politics.” In constructing a normative agenda for post-authoritarian constitution-making, scholars and commentators have drawn on this belief to encourage new democracies to deploy extraordinary popular mechanisms such as constitutional conventions and referendums in their constitution-making process.

The experience of constitution-making in post-Communist Europe and Asia, however, challenges this scholarly consensus. First, many Central and Eastern European post-Communist countries have established strong systems of constitutional review without using popular mechanisms to draft and ratify their constitutions. Instead, they used inherited, Communistera institutions and related rules to draft their new constitutions, a process that Andrew Arato calls “parliamentary constitution- making.” In these countries, “constitutional change was so closely associated with political change that it implied a constitutional politics not readily distinguishable from ordinary politics.” The relative success of this form of parliamentary constitution-making in building constitutional orders that limited political power and protected individual rights has led some scholars to formulate a new “legal” model for democratic constitutional adoption.

Second, and more disturbingly, the mechanisms and rhetoric of popular constitution-making have not produced constitutions that limit the concentration of power and protect individual liberty in the post-Communist world. Instead, irregular popular mechanisms like referendums and constitutional conventions have helped charismatic presidents unilaterally impose authoritarian constitutions on society. As Stephen Holmes and Cass Sunstein describe it, “the greater role granted to popular referenda and extra-parliamentary authorities, the less constitutionalism matters as a political force.”

This article will explore why popular constitution-making has led to constitutional dictatorship. Part I will detail the theoretical underpinnings of popular constitution-making. Part II will describe how many Eastern European countries rejected popular constitution-making and instead drafted new constitutions through ordinary political processes and within the preexisting legal system. Part III will demonstrate how popular constitution-making has helped undermine constitutionalism by providing opportunities for charismatic politicians with little desire for constitutionally-limited government to appeal to the people. Claiming to be the agent of the people, these charismatic figures were then able to justify their decisions to sidestep parliamentary opposition and push through “authoritarian constitutions” that concentrated vast power in their own hands. Part IV will conclude by stressing the importance of stable rules and institutions in constraining the constitution-making process.