Reassessing Public Participation In Constitution-Making Processes

Abstract

Scholars have long debated public involvement in constitution-making and will continue to do so. Yet, despite the multitude of opinions, we are no closer to resolving some of the most fundamental questions regarding the role of the public in constitution-making processes than decades ago when these discussions first started. The recent participatory Chilean constitution-making process, the growing wave of authoritarian constitution-making, and the plethora of new empirical evidence present another occasion to revisit this topic. In contrast to earlier literature, this article approaches this topic by addressing both the normative and the sociological dimensions of public participation in constitution-making. It first argues that public participation in constitution-making should only be considered a sociological necessity, not a normative one. Second, using a bottom-up approach, it provides a list of guiding principles to ensure that public participation in constitution-making, when conducted, allows for a net negative for both the constitution and the society it governs.

Keywords: Constitution Making, Public Participation, Democracy, Referendums, Authoritarianism.