Interconstitutionalism: A Global Investigation

Jason Mazzone & Cem Tecimer

University of Illinois & Harvard Law School

The U.S. Constitution has lasted 234 years. That makes it an anomaly. Globally, constitutional replacement, not endurance, is the norm. As Elkins, Ginsburg and Melton report, the average life expectancy of a national constitution is a mere 19 years. This rate of turnover invites two important questions: When interpreting and applying an existing constitution, do judges (and other constitutional interpreters) examine and invoke its predecessors? Should they?  

In our article, Interconstitutionalism, published recently in the Yale Law Journal, we demonstrate that invocations of prior constitutions are indeed routine. Although new constitutions are often perceived to break from the past, judges often read their provisions by reference to and in light of abrogated charters. Our article catalogs and assesses such interconstitutionalist practices and draws out some lessons for constitutional adjudication, constitutional change, and popular sovereignty. We show, for example, that the willingness of courts to invoke a predecessor constitution makes replacing a constitution with something new more difficult than it might seem. For example, drafters and ratifiers of the new constitution who repeat language from a predecessor charter might inadvertently end up bound by the meaning that language previously carried, not the meaning they themselves anticipated. So, too, interconstitutionalist courts can thwart constitutional change by deeming a repeated provision to incorporate and ratify judicial interpretations of the provision under the abrogated charter. 

In exploring these and other issues, our article focuses on the U.S. context (which we know best), tracing uses of the Articles of Confederation when interpreting the U.S. Constitution and, at the state level (more than half of the American states have had multiple constitutions), uses of a state’s past constitutions when interpreting its in-force constitution. We take up also some practices outside of the U.S., exploring instances of interconstitutionalism by apex and constitutional courts in a dozen countries around the world. We did not, however, conduct a comprehensive examination of interconstitutionalism on a global scale nor did we tease out all of its comparative dimensions.  A variety of intriguing questions remain that further comparative analysis can help answer. 

For instance, how does the rate at which new constitutions are adopted impact the significance attributed to predecessor constitutions? Is interconstitutionalism disfavored in nations that break from an oppressive regime and from a charter now deemed illegitimate—or is the practice more relevant, say as a means for drawing contrasts with the past? Likewise, what is the impact of the process by which a constitution was created? Are imposed constitutions associated with less interest in looking backward? How about populist charters that replace constitutions adopted by elites? Variations in the composition, power and orientation of courts around the world also offer useful points of investigation. If, for example, the membership of the nation’s constitutional court does not change even as a new constitution is adopted, perhaps the court’s members are strongly inclined to find continuities with the abrogated charter. More generally, comparative analysis can shed light on the role that courts play in advancing or hindering change in constitutional meaning intended by drafters. As our article shows, some new constitutions contain provisions that specifically preserve elements of the predecessor regime. Comparative study could usefully examine the frequency and effectiveness of such textual commands.                      

We are very grateful to the IACL-AIDC Blog for hosting the present symposium on interconstitutionalism as a global practice. The symposium brings together esteemed scholars from around the world with deep expertise on the practices of national courts and in comparative analysis to consider whether they see, globally, practices that resonate with the interconstitutionalist framework our article offers and to explore some of the implications and lessons that emerge. We are excited to have the opportunity to learn from and engage with this exceptional group of contributors:        

Francesco Biagi (University of Bologna) [Italy]

Justin Collings (Brigham Young University) [Germany]

Ece Göztepe (Bilkent University Law School) [Turkey]

Gábor Mészáros (Princeton University) [Hungary]

Ana Beatriz Robalinho (Yale Law School) [Brazil] 

Shanil Wijesinha (University of Colombo) [Sri Lanka]

Jason Mazzone is the Albert E. Jenner, Jr. Professor of Law and Director of the Program in Constitutional Theory, History, and Law at the University of Illinois College of Law

Cem Tecimer is an S.J.D. Candidate at Harvard Law School

Suggested citation: Jason Mazzone and Cem Tecimer, ‘Interconstitutionalism: A Global Investigation’ IACL-AIDC Blog (2 May 2023) https://blog-iacl-aidc.org/wmps-interconstitutionalism/2023/5/2/interconstitutionalism-a-global-investigation.