Making Constitutions Matter: The Dangers of Constitutional Politics in Current Post-Authoritarian Constitution Making
William Partlett
Stanford Law School
September 9, 2011
Abstract:
This paper will explore a critical normative question at the intersection of constitutional and democratic theory: Is the process of constitutional drafting and ratification important in determining whether a constitution will serve as a constraint on future government activity? Many constitutional theorists maintain that constitution-making process is critical in making a constitution “matter.” They argue that the best constitution-making process is one where the people divorce constitutional drafting and ratification as much as possible from pre-existing, ordinary rules and institutions by encouraging the “people” to directly act through irregular mechanisms such as referendums and constitutional conventions. This irregular expression of popular sovereignty – called “constitutional politics” – ensures that the constitution will transcend ordinary politics and therefore limit future legislative and executive action.
The massive wave of constitution making in post-communist Europe and Asia in the late 1980s and early 1990s – a valuable laboratory for testing constitutional theory – suggests serious problems with this approach. First, the most successful and legitimate post-communist constitutional orders were established without engaging in constitutional politics. Instead, these countries made wide use of ordinary political mechanisms - including parliaments - in the construction of robust constitutional orders. Second, post-communist nations that have sidelined ordinary political institutions and rules in favor of the mechanisms of higher lawmaking in creating constitutional orders have actually been far less successful in building constitutions that constrain government activity.
Post-Soviet constitutional development helps explain why constitutional politics has not helped create legitimate constitutional limitations on political power. Russia is the paradigmatic example. After two years of parliamentary constitution-making, Russian President Yeltsin – locked in a battle with parliament to control the fate of Russia – drew on the language of constitutional politics to sideline existing rules and institutions. After winning a referendum in which more than 50% of the voters declared their support for Yeltsin, he called an appointed constitutional convention, disbanded parliament, and dispersed the Constitution Court. He then ratified his own personally drafted authoritarian constitution.
The Russian example shows how constitutional politics can allow charismatic individuals to reassert dictatorship. In the absence of unwritten conventions or rules, the extralegal, popular mechanisms of constitutional politics can help charismatic leaders claim the mantle of popular legitimacy and assert dictatorship. Constitutional theorists therefore should appreciate the important role that ordinary political institutions and rules – even ones tainted by association with a prior regime – can play in the construction of legitimate constitutions. Otherwise, liberal constitutional theorists risk legitimizing the creation of authoritarian constitutions.
This paper will explore a critical normative question at the intersection of constitutional and democratic theory: Is the process of constitutional drafting and ratification important in determining whether a constitution will serve as a constraint on future government activity? Many constitutional theorists maintain that constitution-making process is critical in making a constitution “matter.” They argue that the best constitution-making process is one where the people divorce constitutional drafting and ratification as much as possible from pre-existing, ordinary rules and institutions by encouraging the “people” to directly act through irregular mechanisms such as referendums and constitutional conventions. This irregular expression of popular sovereignty – called “constitutional politics” – ensures that the constitution will transcend ordinary politics and therefore limit future legislative and executive action.
The massive wave of constitution making in post-communist Europe and Asia in the late 1980s and early 1990s – a valuable laboratory for testing constitutional theory – suggests serious problems with this approach. First, the most successful and legitimate post-communist constitutional orders were established without engaging in constitutional politics. Instead, these countries made wide use of ordinary political mechanisms - including parliaments - in the construction of robust constitutional orders. Second, post-communist nations that have sidelined ordinary political institutions and rules in favor of the mechanisms of higher lawmaking in creating constitutional orders have actually been far less successful in building constitutions that constrain government activity.
Post-Soviet constitutional development helps explain why constitutional politics has not helped create legitimate constitutional limitations on political power. Russia is the paradigmatic example. After two years of parliamentary constitution-making, Russian President Yeltsin – locked in a battle with parliament to control the fate of Russia – drew on the language of constitutional politics to sideline existing rules and institutions. After winning a referendum in which more than 50% of the voters declared their support for Yeltsin, he called an appointed constitutional convention, disbanded parliament, and dispersed the Constitution Court. He then ratified his own personally drafted authoritarian constitution.
The Russian example shows how constitutional politics can allow charismatic individuals to reassert dictatorship. In the absence of unwritten conventions or rules, the extralegal, popular mechanisms of constitutional politics can help charismatic leaders claim the mantle of popular legitimacy and assert dictatorship. Constitutional theorists therefore should appreciate the important role that ordinary political institutions and rules – even ones tainted by association with a prior regime – can play in the construction of legitimate constitutions. Otherwise, liberal constitutional theorists risk legitimizing the creation of authoritarian constitutions.
Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1924958
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