Forms of Constitution Making and Theories of Democracy

Abstract

There are those who still think that constitution making is a task that rests wholly within the realm of lawyers. Indeed, all constitutional texts in modern times have been drafted by lawyers. Behind the texts, however, are the most important political actors and forces of a given society, persuading some interpreters to take the view that constitution making represents the work of the political, of political politics, and of le pouvoir constituant. In such a conception, whoever holds the "constituent power," or acts in its name, hires the lawyers. But does the method of constitution making really matter? Either way, the method itself may be deemed epiphenomenal - a formalistic facade either for the activity of experts or for the fundamental self-expression of an unlimited sovereign power.

Yet, from the point of view of democratic theory, the type of process that establishes the rules of the game for democratic politics can hardly be seen as irrelevant. Given the compromises with non-democratic concerns that are involved in "normal" politics, under liberal democracies, it is especially important that the constituent process itself be democratic in a relatively strong sense. However, since any democracy is conceivable only according to specific rules and guidelines, one easily runs into the problem of circularity when demanding constitutions be made democratically.