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New Institutional Mechanisms for Making Constitutional Law

18 Pages Posted: 4 Apr 2015 Last revised: 16 Jun 2015

Mark Tushnet

Harvard Law School

Date Written: April 2, 2015

Abstract

Traditionally, two general methods have been used to make constitutional law. The first involves creating a constitutional text, and has been done by constituent assemblies convened especially for that purpose or by legislatures either proposing replacement constitutions or more limited constitutional amendments. The second involves interpreting existing constitutional texts, and has been done by specialized constitutional courts or generalist courts. After describing briefly what we know about how constitutional law is made by these traditional methods, this essay turns to some recent innovations in making constitutional law, which I describe generically as involving substantially higher levels of public participation than in the traditional methods: the process of drafting a proposed new constitution for Iceland, and the practice of "public hearings" in the Brazilian Supreme Federal Court. My aim is to identify some features of these newer methods that might be of interest to scholars of comparative constitutional law. For that reason, the essay paints in deliberately broad strokes, isolating features that may point in the direction of a more general understanding of constitution-making processes while ignoring features that may play crucial roles in the two specific processes on which I focus.

Suggested Citation

Tushnet, Mark, New Institutional Mechanisms for Making Constitutional Law (April 2, 2015). Harvard Public Law Working Paper No. 15-08. Available at SSRN: https://ssrn.com/abstract=2589178 or http://dx.doi.org/10.2139/ssrn.2589178

Mark Tushnet (Contact Author)

Harvard Law School ( email )

1575 Massachusetts
Hauser 406
Cambridge, MA 02138
United States

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