Democratic Constitutional Change: Assessing Institutional Possibilities
Democratizing Constitutional Law: Perspectives on the Future of Constitutionalism, ed. Thomas Bustamante, Forthcoming
24 Pages Posted: 16 Jul 2015
Date Written: May 18, 2015
This paper develops a normative framework for both conceptualizing and assessing various institutional possibilities for democratic modes of constitutional change, with special attention to the recent ferment of constitutional experimentation witnessed across the globe. The paper’s basic methodological orientation is interdisciplinary, combining research in comparative constitutionalism, political science and normative political philosophy. In particular, it employs a form of normative reconstruction: attempting to glean out of recent institutional innovations the deep political ideals such institutions embody or attempt to realize. Working on the assumption that contemporary constitutional democracies are attempting to realize the broader ideals of deliberative democratic constitution (ideals outlined briefly in the first section), the paper proposes an evaluative framework, comprised of six criteria, for assessing various mechanisms of constitutional change. I argue that democratic forms of constitutional change embody six distinct ideals — operationalizability, structural independence, democratic co-authorship, political equality, inclusive sensitivity, and reasons-responsiveness — and that we can use these ideals to gauge the normative worth of different mechanisms for carrying out such change. The framework is developed through a series of case studies (Venezuela, New Zealand, South Africa, Columbia, Ecuador, Bolivia, and Iceland, among others) highlighting distinct criteria and showing how they appear to capture the general direction of institutional innovation. The paper conjectures that the framework of the six criteria yields the best normative reconstruction of the crucial ideals embodied in the constitutional change mechanisms of contemporary constitutional democracies, and so, ought to be used for purposes of evaluating institutional design proposals.
Keywords: constitutional amendment, democracy, institutional design
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