Constitution Makers on Constitution Making: New Cases

Tom Ginsburg and Sumit Bisarya

University of Chicago & International IDEA

Tell us a little bit about the book

Constitution-making is a major event in the life of a country, with constitutions often acting as a catalyst for social and political transformation. But what determines the visions, aspirations and compromises that go into a written constitution? In this volume, constitution makers from countries around the world come together to offer their insights. Using a collection of case studies from countries with recently written constitutions, Constitution Makers on Constitution Making provides a common framework to explain how constitutions are created. Scholars and practitioners who were inside the room when constitutional negotiations took place illuminate critical insights into how participants see constitutional options, how deadlocks are broken, and how changes are achieved. This volume also draws lessons concerning the role of courts in policing the process, on international involvement, and on public participation.

What inspired you to take up this project?

We have been working together on constitutional reform projects for more than a decade, in a number of countries and regions.  We thought it would be interesting to gather together some of the insiders we had met, along with others involved in constitution-making processes, to assess their own experiences within a joint theoretical framework.  We decided to convene a group to spend a month together in the Hague on a joint writing retreat, under the auspices of International IDEA. We started with common readings and discussion of a framework, then had the participants write their chapters, coming together to discuss their progress and drafts.  Later we added a couple additional chapters to get additional case coverage.

Whose work was influential on you throughout the project?

The whole project could be seen as a response to and extension of Jon Elster’s 1995 article, Forces and Mechanisms in the Constitution-Making Process, which appeared in the Duke Law Journal. It is one of those rare pieces that still repays close reading three decades later. At the same time, the world of constitution-making has changed a lot since 1995, and we wanted to provide something of an updated framework.  We were definitely inspired by Elster’s article.

What challenges did you face in writing the book?

The project was in some sense a difficult one, but we hope the effort was worth it. One case study author dropped out rather quickly for personal reasons, and we never replaced him.  Those who stayed varied quite a bit in terms of their comfort with writing.  Their final products also varied in terms of the level of depth, and the personal perspective authors were willing to share.  We then decided to invite some other chapters, which caused some delays.  Working with busy professionals as opposed to full-time academics created some challenges, but also unique payoffs.

One of our regrets is that we could not be as comprehensive as we would have liked. We could have included additional countries, but that would have led to delays. There are always tradeoffs!

What do you hope to see as the book’s contribution to academic discourse and constitutional or public law more broadly?

We think the project brings together theory and practice in a really interesting way. There are relatively few accounts of constitution-making written directly by participants, and none that tried to address them within a common framework. Even though we have been close observers of dozens of constitutional processes, we sill learned a good deal about particular cases and about the general patterns. The final volume has seven case studies: Burundi, Ecuador, Kenya, Kosovo, Nepal, South Africa, and Tunisia. Scholars looking at these particular cases will want to take a look, but we hope the Introduction will have some general impact in the field.

For scholars of the particular countries, there are some valuable insights. For example, Mabrouka M’barek, our representative from the Tunisian process, took a strong normative stance that the counter-revolution had co-opted the implementation process in her country. Her account looks prescient in light of the self-coup by President Keis Saied in 2021. Our Nepal chapter was written by Jeetendra Dev, a prominent Madhesi politician, and provides insights from that perspective.  Christina Murray participated in the Kenya process as a member of the Committee of Experts, but also brings a host of other experience to bear in her reflections on the role of outsiders.  These are just some of the many contributions.

What’s next?

We have some plans to do more writing together, but the topic is still secret!

Tom Ginsburg is Faculty Director Malyi Center for the Study of Institutional and Legal Integrity, Leo Spitz Distinguished Service Professor of International Law, Ludwig and Hilde Wolf Research Scholar, and Professor of Political Science at University of Chicago Law School.

Sumit Bisarya is the head of the Constitution-Building Programme at the International Institute for Democracy and Electoral Assistance (International IDEA).

Constitution Makers on Constitution Making is available from Cambridge University Press. Blog readers can enter the code CMCM2022 at the checkout for a 20% discount.