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Constitutions Un-Entrenched: Toward an Alternative Theory of Constitutional Design

American Political Science Review (Forthcoming)

Virginia Public Law and Legal Theory Research Paper No. 2016-35

34 Pages Posted: 16 May 2016 Last revised: 29 Aug 2016

Mila Versteeg

University of Virginia School of Law

Emily Zackin

Johns Hopkins University

Date Written: August 28, 2016

Abstract

This Article highlights a gap between a great deal of constitutional theory and a great deal of the practice of democratic constitution-making. Drawing on data from democratic national and state constitutions, we challenge the consensus among constitutional theorists that a central purpose of constitutionalism is the entrenchment (the fortification against future change) of broad principles. The empirical reality is that the majority of democratic constitutions today are subject to frequent revision, and are therefore ill-equipped to facilitate the entrenchment of their contents. To explore the logic of these un-entrenched documents, we identify the historical periods in which different geographic regions moved away from highly entrenched constitutions, and we examine the political contexts of these transformations. We find that, in each context, constitution-makers were attempting to limit the discretion of constitutional interpreters and implementers by drafting highly specific texts and by updating them in response to continually changing circumstances.

Suggested Citation

Versteeg, Mila and Zackin, Emily, Constitutions Un-Entrenched: Toward an Alternative Theory of Constitutional Design (August 28, 2016). American Political Science Review (Forthcoming); Virginia Public Law and Legal Theory Research Paper No. 2016-35. Available at SSRN: https://ssrn.com/abstract=2780494

Mila Versteeg (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

Emily Zackin

Johns Hopkins University ( email )

Baltimore, MD 20036-1984
United States

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