Edited by Tom Ginsburg and Rosalind Dixon
Chapter 3: Participation in Constitutional Design
Justin Blount Ours is an era of constitution-making. Approximately one-quarter of the world’s written constitutions have been promulgated since 1974 (Elkins et al., 2009a). The trend over this period has been one of increasing public participation in the constitutional design process. To cite but one example, among currently in-force constitutions specifying their own promulgation procedure, more than 40 percent required public ratification via referendum. The comparable figure for 1950 is approximately 5 percent, even though the proportion of texts specifying any promulgation procedure whatsoever is roughly equivalent (Ginsburg et al., 2009). The new constitutionalism that has emerged over this period places as much emphasis on process as it does on outcomes (Hart, 2001). In light of this, the formal provision of democratic institutions is no longer sufficient to establish the democratic bona fides of a constitution. Because a constitution is the highest level of lawmaking and provides the ultimate rule of recognition for lawmaking processes (Kelsen, 1945; Hart, 1961), it requires the greatest possible level of legitimation in democratic theory. This need for legitimation dictates that a democratic constitution must be fashioned by democratic means in acknowledgment of the moral claim of a people to the right to participate in the creation of the rules under which they will be governed (Hart, 2001 and 2003; Samuels, 2005). Participation through input, through ratification and through oversight all differ conceptually, but all are treated as contributing to a process in which the citizen is ‘involved’ in some sense. Like constitution-making in general,...
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