The Dangers of Popular Constitution-Making
Melbourne Law School
September 9, 2011
38 Brooklyn Journal of International Law 193 (2012)
This paper - which was selected from over 30 papers to be presented at the American Society of Comparative Law Annual Conference - will explore a critical question at the intersection of constitutional and democratic theory: Is the process of constitutional drafting and ratification important in determining whether a constitution will serve as a constraint on future government activity? Many constitutional theorists maintain that constitution-making process is critical in making a constitution “matter.” They argue that the best constitution-making process is one where the people divorce constitutional drafting and ratification as much as possible from pre-existing, ordinary rules and institutions by encouraging the “people” to directly act through irregular mechanisms such as referendums and constitutional conventions. This irregular expression of popular sovereignty – what I term "popular constitution-making" – ensures that the constitution will transcend ordinary politics and therefore limit future legislative and executive action.
The massive wave of constitution making in post-communist Europe and Asia in the late 1980s and early 1990s – a valuable laboratory for testing constitutional theory – suggests serious problems with this approach. First, the most successful and legitimate post-communist constitutional orders were established without engaging in popular constitution-making. Instead, these countries made wide use of ordinary political mechanisms - including parliaments - in the construction of robust constitutional orders. Second, post-communist nations that have sidelined ordinary political institutions and rules in favor of the mechanisms of popular constitution-making in creating constitutional orders have actually been far less successful in building constitutions that constrain government activity.
Post-Soviet constitutional development helps explain the dangers of popular constitution-making. Russia is the paradigmatic example. After two years of parliamentary constitution-making, Russian President Yeltsin – locked in a battle with parliament to control the fate of Russia – drew on the language of popular constitution-making to sideline existing rules and institutions. After winning a referendum in which more than 50% of the voters declared their support for Yeltsin, he called an appointed constitutional convention, disbanded parliament, and dispersed the Constitution Court. He then ratified his own personally drafted authoritarian constitution. Other countries in the former Soviet Union soon followed this model.
The Russian example shows how popular constitution-making can allow charismatic individuals to reassert dictatorship. In the absence of unwritten conventions or rules, the extralegal mechanisms of popular constitution-making can help charismatic leaders claim the mantle of popular legitimacy and assert dictatorship. Constitutional theorists therefore should appreciate the essential role that ordinary and pre-existing political institutions and rules – even ones tainted by association with a prior regime – can play in the construction of legitimate constitutions. Otherwise, liberal constitutional theorists risk legitimizing the creation of authoritarian constitutions.
Number of Pages in PDF File: 46
Date posted: September 9, 2011 ; Last revised: January 29, 2013