Courts and Constitution Making in Democratic Regimes: A Contextual Approach
in REDRAFTING CONSTITUTIONS IN DEMOCRATIC ORDERS: THEORETICAL AND COMPARATIVE PERSPECTIVES __ (Gabriel Negretto, ed., Cambridge University Press, forthcoming 2020)
38 Pages Posted: 30 Apr 2020
Date Written: 2020
Abstract
Recent constitution-making episodes in countries such as Venezuela, Bolivia, Hungary, and Iceland have highlighted the important, varied roles that courts might play during constitution-making processes undertaken from a democratic starting point. This chapter develops a typology of the functions that courts have played during these processes. In some cases, courts have played a catalytic function, spurring constitution-making that otherwise might not have occurred; in others, the have played a blocking function, stopping constitution-making from taking place; and in a third set of cases, they have played a shaping function, neither catalyzing nor preventing constitution-making, but instead impacting the nature of the process. These functions, in turn, tend to be tied to different theories of constitution-making. What emerges from this survey is that there is no single best mode of judicial intervention during constitution-making; the optimal response is contextual. A key descriptive goal is to understand how political context affects the ways in which courts act; a key normative goal is to improve the fit between the nature of judicial action and the needs of a given context.
Keywords: constitution-making, courts, constituent power, Bolivian constitution-making process, Venezuelan constitution-making process, Icelandic constitution-making process, Hungarian constitution-making process
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