The Intermestic Constitution: Lessons from the World’s Newest Nation

Abstract:     
Literature on constitution-making has traditionally focused either on the homogenous, transnational nature of constitutions, or conversely, on how domestic drafters or indigenous cultures work to shape a unique national product. This Article shows that these international and domestic perspectives can be reconciled under one framework. Using quantitative analysis and a case study of the constitutional process for the world’s newest nation, South Sudan, the Article demonstrates how these dual constitutional influences impact the two main components of constitutions — human rights provisions and structural/institutional framework — differently and predictably. In what I term an “intermestic constitution,” transnational forces disproportionately influence constitutional rights provisions, and domestic forces disproportionately affect constitutional structural provisions. Moreover, drawing on strategic-realist theories of constitutional influence, the Article postulates that four elements — three based in the socioeconomics and the domestic politics of the drafting country and one based in geopolitical politics — will be key predictors of when an intermestic constitution will materialize.

These conclusions have both theoretical and practical implications. They offer new insights into the literature on comparative constitutional design, demonstrating how constitutional influence is methodically dualistic and reconceptualizing the transnational/national influence dichotomy. On a practical level, they spell out a recipe for intermestic constitutions in other nations and predict how those documents will perform. The Article cautions that where intermestic constitutions materialize, indigenous structures designed to bolster power of drafters and would-be leaders may concentrate power in the executive, subvert an independent judiciary, and/or otherwise diminish checks and balances, thereby undercutting the constitution’s robust, internationally-approved progressive bills of rights.

Number of Pages in PDF File: 57

Keywords: comparative constitutional law, international law, transnational law, comparative law, international human rights, Africa

Accepted Paper Series