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Lorianne Updike Toler

Constitution writing was invented by Americans, whose newly united colonies-cum-states needed new forms of government once independence from Britain was declared (and sometimes before) in 1776. Between 1776 and 1787 when the federal document was signed and sent out for ratification, U.S. constitution-writing procedural ideology matured and was, in its final form, able to translate the theory of popular sovereignty-placing the loci of supreme, sovereign power to organize their own government in the hands of the people-into political and constitutional practice. This maturation was accomplished through six constitution-writing innovations, many of which were proposed by the most democratic elements of society themselves, all stemming from the basic belief that the people were sovereign: 1) special elections for the drafting body, 2) ratifying the final text, 3) allowing direct popular participation in drafting, 4) establishing a separate constitution-drafting body, 5) supermajoritarian or consensus decision-making, and 6) a legalism wherein the process became a proto-constitution for its drafters and transitional actors. Strikingly, this mature constitutional procedural ideology presages modern standards that find root in African constitution-building in the 1990s. This chapter provides partial explanation for the two hundred year gap in constitution-writing norms implementing constitutional popular sovereignty. In effect, while the idea of writing a constitution was successfully transmitted to Europe in the late 18th century, its unwritten companion of normative procedural practice did not. The reasons for this failure include networks of chance, the spread of premature ideology, dominant military power, and bad manners.

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Lorianne Updike Toler

It is generally accepted that process bears on constitutional outcomes, and drafters increasingly desire to divine predictive guidelines from comparison—a ‘roadmap to success’—drawn from the experience of others. Developing a methodology for such a comparison is difficult, and the appearance of a pre-written ‘recipe for success’ conceals obvious pitfalls. In particular, there is an inherent tension between comprehensiveness and granularity, in that the more jurisdictions studied the less country-specific details can be included. This paper sketches the findings of a chart prepared for the Libyan Constitutional Drafting Assembly (‘CDA’) in June 2014, which compares eighteen contemporary and historical constitutional drafting processes to aide the CDA in setting its own procedure under the terms of the Libyan Constitutional Declaration (2011). The methodology presented here breaks the constitution-making process into four ‘phases’, which together encompass 35 distinctive elements of process design, ranging from the mundane (e.g. appointment of a secretariat) to the complex (e.g. public participation programmes). These are analysed temporally to draw some preliminary conclusions about process design with the aim of identifying guidelines that lead to successful constitutional outcomes. As more countries enter one or the other phase of constitutional transition, developing a more rigorous methodology for comparative study would seem imperative.