This collection of essays contributes to the study of constitutional reform from comparative perspective. Its particular focus is on the roles of constituent assemblies in drafting new or revised constitutional texts, primarily at the national level. Considering its relative compactness compared to similar works, this volume has commendable scope geographically, temporally, and theoretically.
Constituent Assemblies has nine primary chapters, along with a brief introductory chapter. The introduction identifies some of the distinctive characteristics of constituent assemblies, relatively broadly conceived, and classifies them according to a number of criteria. The focus is on the “making” (in the sense of “framing”) by popularly elected or otherwise constituted “assemblies” of “non-sham” national constitutions in the modern era (p. 3). The editors distinguish such assemblies on the basis of their size, duration, authority, internal rules and procedures, and relationships to popular political activities and ordinary legislative assemblies. The contributors, in turn, explore limitations on the independence of constituent assemblies and highlight examples of constitutional failure along with successful episodes of constitutional framing.
Chapter 1, by Robert Gargarella, examines problems of constitution making in plural societies, using examples from Latin America. He criticizes, in particular, the use by constituent assemblies of an “accumulation strategy” aimed at accommodating the competing demands of rival factions in ways that lead to persistent constitutional tensions. Gabriel Negretto argues in Chapter 2 that constituent conventions are not inherently superior to all forms of constituent legislatures, either from the point of view of democratic legitimacy or rational decision making. Likewise drawing on examples from Latin America, he endorses several strategies to reduce the risks of partisan majorities capturing state power through the actions of constitution-framing conventions or legislatures.
In one of the more theoretically rich chapters, Hanna Lerner argues (Chapter 3) that distinctions between “higher law” and “ordinary politics” break down in societies divided over fundamental matters of political identity. Among other things, she suggests that factors internal to the functioning of constituent assemblies are less substantial in facilitating the enactment of a democratic and inclusionary constitution in such societies than are external factors (p. 61). More specifically, she examines the roles of preconstitutional agreements in influencing the drafting process successfully in some cases (postpartition India, Sri Lanka, and Tunisia) but unsuccessfully in others (prepartition India, Israel, Indonesia, and Egypt).
Mara Malagodi engages similar issues in Chapter 4, which seeks to account for the failure of two constituent assemblies—those in Pakistan (1947–54) and Nepal (2008–12)—and traces the long-term impacts of these failures. Malagodi’s central claim is that the initial constituent assemblies in these nations failed because of the interplay of specific structural and contextual factors in the constitution-making process, along with the behavior of key political leaders who were threatened by the processes of constitutional reform. According to this author, the dissolution of the constituent assemblies by executive actions subsequently ratified by judicial decisions had long-term destabilizing effects in these nations, in addition to being major setbacks for democratic engagement.
In Chapter 5, Udit Bhatia counters the conventional view that India’s constitution, by establishing universal adult suffrage, marked a clear break from India’s colonial past and suspicions about the people’s capacity for democratic citizenship. He argues instead that the founders of the Indian Constitution drew on provisions found in American, British, and Irish constitutions to deprive purportedly incompetent citizens of political power and to bolster the power of those viewed as more competent. He suggests that this tension between democratic ideals and anxieties about the competence of the citizenry has persisted across political space and time.
In his chapter on constitution making in Iceland, Thorvaldur Gylfason argues that “the chain of [democratic] political legitimacy . . . is on the verge of being broken” (p. 182). Gylfason details a convoluted series of events in the aftermath of the 2008 financial crises—including the drafting in 2011 of a proposed new constitution (the “constitutional bill”) for Iceland by a council (on which he served) chosen by the parliament based on popular elections; approval of the bill and some of its key provisions in a nonbinding 2012 national referendum; and weakening of the bill’s provisions by a constitutional committee (which met from 2013 to 2016) that, he claims, was designed to fail. Gylfason criticizes Iceland’s parliament for refusing to give effect to “the will of the people” as expressed in the 2012 referendum (p. 180).
Chapter 8 examines relationships between constitution-making processes and outputs from those processes. More specifically, the authors support a position that constitutions written by constitutional assemblies/legislatures or sitting legislatures “are more likely to result in strong legislative involvement in government formation[,] while constitutions written by the executive are more likely to result in no or weak investiture rules” (pp. 194, 200). The chapter thus supports the intuitive expectation that “political interests and outcomes are not just shaped by constitutions, but also shape constitutions” (p. 202).
The final chapter, by Jon Elster, offers a wide-ranging micro-level account (at the level of the individual) of the political psychology of constitution making. In this chapter, Elster explores relationships among reason; personal, group, and institutional interests; passions and emotions including fear, enthusiasm, anger, urgency, and pridefulness; prejudice; and belief formation. Drawing on his treatment of these elements of individual decision making, he hypothesizes that constitutions tend to be flawed in relation to norms of impartiality and other political ideals.
Issues of political psychology also run through Elster’s earlier chapter on the making of the Norwegian Constitution of 1814. In Chapter 6, Elster argues that unrealistic beliefs about what was politically possible were largely self-fulfilling. In that connection, he emphasizes how the constitution’s framers were influenced by a variety of emotions and other behavioral factors, not only reason and rationality. In this case, the outcome was favorable: “Enthusiasm, aided by luck, may work wonders” (p. 159).
As indicated, the chapters as a whole cover a good bit of theoretical, geographical, and temporal terrain. The inclusion of chapters that focus on problems of constitutional framing in Latin America, the Middle East, and Southeast Asia is especially refreshing. Among other things, these chapters explicitly and implicitly engage important questions about the viability of constitutionalism in regimes with authoritarian, nonliberal, or weak liberal-democratic traditions, cultures, and institutions. Relatedly, the essays in Constituent Assemblies are also valuable to the extent that they highlight the potentiality and actuality of constitutional failures and not only tout alleged successes. The volume also offers sustained analysis, across several fronts, of relationships among constitution-framing structures and processes, broader political and social norms and institutions, human choice, and historical contingency. Thus, it complements and supplements existing literatures on constitutional framing and constitutional development.
The volume’s primary limitations are largely a function of its genre. This collection of essays does not purport to provide an exhaustive treatment of constituent assemblies, and there are some disjunctions among the analytic approaches of the various authors. An advantage of this genre, on the other hand, is that it offers a range of perspectives toward an institution that continues to play important roles in constitutional development throughout the world. In addition, the primary chapters, along with the introduction, point interested readers toward additional materials on constituent assemblies and constitutional reform more generally.
Overall, the introduction does a good job providing a conceptual overview of constituent assemblies, highlighting the distinctive contributions of the chapters, and emphasizing recurring threads of analysis. Even so, I would have appreciated a more robust treatment, especially in the introduction, of problems of constitutional authority and legitimacy. More specifically, as a complement to its treatment of stages of popular involvement in constitutional founding, the introduction might have addressed more fully the relationships between normative commitments to popular sovereignty, democracy, and popular representation, on the one hand, and practices of constitutional reform involving constituent assemblies, on the other. It also would have been helpful if the introduction had situated the roles of constitution-drafting bodies in relation to problems of constitutional implementation and enforcement beyond the framing and ratification stages. Rounding out the introduction along these lines would have been fitting, considering that many of the chapters explicitly or implicitly engage these issues; and they have been analyzed extensively elsewhere by several of the contributing authors. Regardless, specialists and generalists alike will benefit from reading Constituent Assemblies.
