Is Hindsight 20-20? Reconsidering the Importance of Pre-Constitutional Documents

Abstract

Many constitutional orders, including the United States, have yet to determine the legal and political status of pre-constitutional documents written prior to the enactment of a final constitution. This article argues that pre-constitutional documents should be critically analyzed by their respective constitutional communities. It maintains that pre-constitutional documents play a key role in constitutional orders by identifying conflicts that remain over time and contends that critical analysis of these documents will facilitate deeper understandings of constitutional politics. It demonstrates how pre-constitutional documents can be used as diagnostic tools for identifying and better understanding persistent constitutional tensions through a case study of a Peruvian pre-constitutional document. The case study indicates that even currently understudied pre-constitutional documents can broaden understandings of contemporary constitutional politics. The article concludes that pre-constitutional documents play a role in current constitutionalism and that legal communities should consider them more seriously.