Territory, Power and Constitutional Transitions: Political Mobilization, Constitution-Making Process and Constitutional Design
George Anderson & Sujit Choudhry, eds., Territory and Power in Constitutional Transitions (OUP, Forthcoming).
81 Pages Posted: 5 Sep 2018 Last revised: 10 Sep 2018
Date Written: August 24, 2018
The constitutional politics of territorial cleavages—that is, territorially concentrated, politically salient, collective demands for constitutional accommodation—are a pervasive feature of modern political life. Claims for the constitutional accommodation of territorial cleavages have generated substantial literatures on political mobilization, constitution-making, and constitutional design, but there is little work that addresses the intersection of these three strands of research.
This chapter seeks to integrate these three strands of research by posing this overarching question: how do patterns of territorial political mobilization shape the processes of constitution-making and the choices of constitutional design?
Our core argument is as follows. In constitutional moments in which political mobilization around demands for the constitutional accommodation of territorial interests is important, three crucial contextual variables shape the structure and dynamics of the constitutional moment: 1. The political geometry of territorial cleavages, which are products of demography and narratives; 2. The antecedent circumstances of peaceful, legal and institutionalized means or violent and extra-legal means used to advance or reject demands for territorial accommodation; and 3. The relative power of the key actors, as shaped by tests of strength both peaceful and violent.
The configuration of these variables in the lead-up to a constitutional moment shapes its dynamics as well as the agenda for constitution-making processes and the options for constitutional design. Our emphasis is largely on constitutional moments where the relative power of the key actors is divided, and no party is dominant so that the outcome of the constitutional process cannot be dictated by one side.
In these constitutional moments, the principal agenda items are to frame a process that engages the key power holders as well as the possible options to deal with claims for territorial accommodation. The constitutional design option being considered, especially by those seeking territorial accommodation, will closely track political geometry, but the actual choice will be influenced by power relations as well. A critical issue will be whether the ensuing constitutional design, with whatever degree of territorial accommodation, can be interpreted, implemented, and adapted in a sustainable way over time. Our cases include both transitions to democracy and transitions within democracies; they also include cases of significant constitutional change and of little or no change.
Violent struggles can lead to a military stalemate, either in a civil war or with a regional insurgency, in which case the key actors must design a process that combines peace negotiations and constitution-making, which can pull in opposite directions. There may have been a collapse of the legal order requiring the invention of a new process and constitutional design, or the government may insist on the existing legal and constitutional order being maintained while seeking to reconcile the combatants to accepting it on revised terms—most notably with respect to peripheral rebellions. Violent struggles can also end in victory by one side or the other, in which case the victor is largely able to determine what process will be adopted regarding constitutional change.
By contrast, where the conflict over territorial claims has developed within a peaceful context of competitive politics, political actors address the issues of process and design within a context of constitutional and institutional continuity, which can bring significant constraints, especially regarding process. However, on occasion, existing processes for constitutional deliberation and change may lack political legitimacy among one or more actors—perhaps precisely because they do not adequately accommodate the claims of territorial or other actors for change—so there may be a need to negotiate modified or supplementary processes, while preserving legal continuity.
Keywords: Constitutional Design; Federalism; Territory; Constitutional Transitions; Peace Agreements; Constitutional Theory; Constitution-Making; Conflict Resolution
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