This chapter aims to provide initial answers to the basic question of whether and how participation in constitution-making delivers for women. The chapter proceeds by first outlining the contours of the debate surrounding popular participation in constitution-making, identifying the benefits and potential pitfalls such participation may yield. The chapter then looks at three instances of popular involvement in constitutional change: the 2014 Scottish independence referendum, the 2012-14 Irish Constitutional Convention and the 2011-14 Tunisian constitution-making experience, analysing the level and nature of women’s participation in all these processes. Subsequently, the chapter evaluates the successes and failures of participatory mechanisms such as referendums, constitutional conventions and public consultations in empowering women as equal participants, and their ability to ensure gender-sensitive deliberations. The chapter also raises questions as to whether participation is to be resorted to in all cases of constitutional reform and the propensity for it to be an obstacle to, rather than a vehicle for, gender equality.
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The first chapter of the book has three main purposes. First, it defines what the New Constitutionalism is and documents how it has become the orthodox view in constitutional theory. In the terminology of the book, the New Constitutionalism refers to a particular institutional arrangement that comprises four tenets: (1) an entrenched and codified constitution; (2) a codified bill of rights; (3) constitutional judicial review with the power to strike down legislation; (4) the robust exercise of judicial review. However, the New Constitutionalism also refers to the view that the very idea of constitutionalism requires the aforementioned institutional arrangement. Second, the present chapter also addresses the question of why the New Constitutionalism has become the reigning paradigm of constitutional law and explores six possible explanations. Finally, Chapter One spells out the main methodological principles that underpin the book and provides the reader with an outline of the argument.