Constitutional Theory and Design

, had such weighty matters as "the existence of the UNION" and "the fate of an empire" in the calculation that brought him to his summary view of The Federalist's significance to the task at hand. Nothing so consequential is at stake for us, but, beyond stating the obvious, we must address a preliminary question concerning what exactly it is our subject comprehends. A proper response might begin with the issue Hamilton raises in Federalist #1's opening paragraph, "whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force." 2 This question is as vital today as it was in the eighteenth century. The collapse of communism in Eastern Europe and authoritarianism in the Iberian Peninsula and Latin America led to renewed optimism about the possibilities of constitutional design at the end of the twentieth century. The populist, authoritarian headwinds buffeting long-standing democracies in the North Atlantic World in the twenty-first century, however, have undermined Whiggish views of democracy's progress while underscoring the continued importance of questions of design. The Federalist remains relevant to contemporary debates because it provides us with a methodology or a toolbox for thinking about problems of design that is grounded on reason and empirical observation. 3 The activity that today is conducted under the designation constitutional design is in no small measure attributable to the success of Publius' earlier effort. As one of our contributors, Stephen Tierney, writes in his chapter for this volume, "Constitutional theory is concerned with the notion of a well-or poorly-functioning 1 The Federalist No. 1 (Alexander Hamilton). 2 Id. As Sanford Levinson points out, "No sentence more marks Publius as child of the

Polls in the United States have long indicated that a clear majority of Americans believe that “the United States [is] a Christian nation.”1 At the same time they indicate that a minority – no more than 30% -support a constitutional amendment that would make the belief a feature of the nation’s fundamental law. But suppose it were the case that the sentiment for constitutional change corresponded with the public’s perception on this question, culminating in a successful deployment of Article V of the Constitution? Would the Supreme Court declare the amendment unconstitutional? The rationale for doing so is clear: the text of the First Amendment and generations of judicial interpretation of its religion clauses are unambiguous in affirming the official neutrality of the American regime with respect to religion. Whatever disagreement has existed as to the role of government in supporting religion in a non-preferential way, no serious constitutional position can be found for permitting...

Across the United States, voters in many states have enacted initiative constitutional amendments that abrogate protections for equality and fundamental rights. In most cases, state supreme courts have upheld the validity of these amendments, undermining protections for fundamental rights at the state level. This Article proposes a novel solution to this problem: it argues for the application of the basic structure doctrine in the review of constitutional amendments by state supreme courts. Under this doctrine, the Supreme Court of India (like constitutional courts in other nations) asserted the power to invalidate amendments that abrogate "basic features" of the Indian Constitution as defined by the Court. Drawing on this doctrine, this Article seeks to provide a methodological framework for articulating which foundational principles and rights should be entrenched within the constitutional framework. For instance, the application of the basic structure doctrine would hel...

This paper examines the legitimacy of judicial review of the merits of proposed new constitutions and constitutional amendments. But we first have to deal with a preliminary question: Are constitution-making and constitutional-amending organs subject to any internal or external constraints in terms of the substantive solutions they may employ in drafting new constitutions or amending existing ones?

The unconstitutional constitutional amendment doctrine has emerged as a highly successful, albeit still controversial, export in comparative constitutional law. The doctrine has often been defended as protecting a delegation from the people to the political institutions that they created. Other work has noted the doctrine's potential utility in guarding against abusive constitutionalism. In this article, we consider how these justifications fare when expanded to encompass claims against the original constitution itself, rather than a later amendment to the text. That is, beyond the unconstitutional constitutional amendment doctrine, can or should there be a doctrine of an unconstitutional constitution? Our question is spurred by a puzzling 2015 case from Honduras where the Supreme Court held an unamendable one-term limit on presidential terms, as well as protective provisions punishing attempts to alter that limit, to be unconstitutional. What is particularly striking about the case is that these provisions were not later amendments to the constitution, but rather parts of the original 1982 constitution itself. Thus, this article examines the possibility of 'an unconstitutional constitution', what we predict to be the next trend in global constitutionalism.

Public participation in constitutional reform can play a key role in legitimizing and constructing a lasting constitution. However, few resources have been invested in determining why exactly this is, and what factors should be considered when designing such a process. This paper tackles these difficult questions, investigating the justifications for including public participation in constitutional reform processes and outlining the factors that seem to be the most important to consider when creating a public participation program. After examining how public participation programs were run in Uganda, Kenya, and South Africa during their periods of constitutional reform, the paper then turns to outlining a design for a public participation mechanism for Liberia's current reform processes.

The 2009 Honduran constitutional crisis, in which sitting President Manuel Zelaya was captured from the Presidential Palace and flown to Costa Rica under the cover of night, illuminated the danger of entrenched and eternity clauses in fledgling democracies. This paper discusses the way such clauses have been used in the past, identifying three general categories of historical eternity clauses. These categories include clauses that address the character of the government, the spirit or principles of the constitutional regime and finally the character of the country. The article also discusses potential problems that arise when such clauses are written into constitutions of transitional democratic regimes.