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The Upstream Problem in Constitutionalism

47 Pages Posted: 13 Nov 2015 Last revised: 18 May 2016

Eugene D. Mazo

Rutgers Law School; University of Baltimore School of Law; University of Maryland Francis King Carey School of Law

Date Written: September 25, 2015

Abstract

Scholars possess three basic approaches to studying constitutions. The first is known as the midstream perspective, the second as the downstream perspective, and the third as the upstream perspective in constitutionalism. Each of these perspectives enhances our understanding of constitutions in a different way. Midstream approaches to constitutionalism focus on a constitution’s existing written provisions. These are studied and interpreted in the present and applied to resolving a specific ongoing conflict. Lawyers and judges study constitutions from the midstream perspective. Downstream approaches focus on understanding a constitution’s effects at a later point in time. Scholars who work in this tradition are interested in how constitutions impact politics, the economy, or some other aspect of society. The downstream perspective often looks at constitutions on a macro scale, comparing different constitutions with one another. Social scientists study constitutions from the downstream perspective. The upstream perspective, meanwhile, focuses on understanding how constitutions are created in the first place. Instead of examining how constitutions affect society, scholars who study constitutions from the upstream perspective are interested in examining the influence of society on the constitution. In the past, historical scholarship has been most closely associated with the upstream perspective.

While each of these approaches to understanding constitutions has its merits, the upstream perspective remains the most heavily neglected. Examining a constitution from the upstream perspective involves determining the factors that shaped that constitution in the first place. Yet it turns out that we possess few robust theories of constitution-making. Most of the existing upstream literature is comprised of single-case studies, and the scholars who have worked in this tradition have not traditionally sought to explain how new constitutions take shape with any kind of broad theoretical lens. This article seeks to reorient our approach to the study of constitutions and to advance a new understanding of how constitution-making should be understood. It attempts to contribute to our knowledge of the world’s constitutions by providing a new perspective on how constitutions come into existence. The author urges scholars to pay much closer attention to the choices that constitutional framers make, and ultimately to re-examine how we incorporate constitution-making into our overall study of the world's constitutions.

Keywords: constitutional design, constitution-making, path-dependency

Suggested Citation

Mazo, Eugene D., The Upstream Problem in Constitutionalism (September 25, 2015). Wake Forest Law Review, Vol. 50, 2015; Wake Forest Univ. Legal Studies Paper No. 568726. Available at SSRN: https://ssrn.com/abstract=2689379

Eugene D. Mazo (Contact Author)

Rutgers Law School ( email )

123 Washington Street
Newark, NJ 07102
United States
(973) 353-5332 (Phone)

University of Baltimore School of Law ( email )

1420 N. Charles Street
Baltimore, MD 21201
United States
(410) 837-4509 (Phone)

University of Maryland Francis King Carey School of Law ( email )

500 West Baltimore Street
21201, MD 21201
United States
(410) &06-3932 (Phone)

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