Constitutional Conventions in the Digital Era: Lessons from Iceland and Ireland

Mechanisms of constitutional development have recently attracted significant attention, specifically, instances where popular involvement was central to the constitutional change. Examples include attempts by British Columbia, the Netherlands, and Ontario at electoral reform, in addition to the more sweeping reforms sought in Iceland and Ireland. Each of these countries’ attempts exemplifies varied innovative avenues to reform involving participatory and partially citizen-led processes aimed at revitalizing politics. The little legal scholarship on these developments has provided an insufficient analytical account of such novel approaches to constitution-making. This Essay seeks to build upon the current descriptive work on constitutional conventions by focusing on the cases of Iceland and Ireland. The Essay further aims to evaluate whether the means undertaken by each country translates into novelty at a more substantive level, namely, the quality of the process and legitimacy of the end product. The Essay proposes standards of direct democratic engagements that adequately fit these new developments and further identifies lessons for participatory constitution-making processes in the digital twenty-first century

Eternity Clauses in Post-Conflict and Post-Authoritarian Constitution-Making: Promise and Limits

The literature on entrenchment as a means to achieve constitutional endurance has grown in recent years, as has the scholarship on unamendable provisions as a mechanism intended to safeguard the constitutional project. However, little attention has been paid to the promise and limits of eternity clauses in transitional settings. Their appeal in this context is great. In an effort to safeguard hard-fought agreements, drafters often declare unamendable what they consider the fundamentals to the political deal: the number of presidential term limits, the commitment to human rights and to democracy, the form of the state (whether republican or monarchical), the territorial integrity of the state, the territorial division of power, secularism or the official religion. This article explores the distinctive role and problems posed by eternity clauses in transitional constitution-building, as guarantees of the pre-constitutional political settlement in such fragile periods. The article also compares unamendability to other techniques of constitution-making in uncertain times, such as sunset clauses, deferring hard choices and other forms of constitutional incrementalism

The Scottish Independence Referendum and the Participatory Turn in UK Constitution-Making: The Move towards a Constitutional Convention

This article looks at the continued calls for popular participation in UK constitution-making following the 2014 Scottish independence and 2016 Brexit referendums. In particular, it discusses the prospect of a UK constitutional convention being set up to deliberate upon and make recommendations concerning constitutional reform. The article proceeds by first mapping the arguments in favour of setting up such a body in a country with little but growing experience with direct democracy. It then analyses three difficulties surrounding a UK constitutional convention: deciding on a manageable mandate, identifying the political community or communities it is to represent and the method for selecting its membership, and defining the place of such a convention within the UK’s broader constitution-making mechanisms. The article highlights fundamental unknowns in need of clarification before such an instrument could be used while at the same time admitting the limitations of a constitutional convention as a panacea for all of the UK’s constitutional woes. In exploring these questions, the article shows how constitutional reform debates in the UK are no less complex than were those surrounding Scottish independence and have been further compounded by Brexit

Women and Participatory Constitution-making

Popular participation has become a hot topic in constitution-making, taking the form of referendums, popular consultations, civic education, and citizen assemblies, among others. Underlying this rise of mechanisms of popular involvement in constitution-making are normative justifications for the direct participation of the people in such processes, including higher legitimacy and more inclusive and sustainable constitutions. Generally missing from these accounts, however, has been an investigation into the capacity of participatory mechanisms to incorporate and respond to the views of women. While appeals to the people have been justified on the grounds of their increased overall legitimacy, less attention has been paid to who, precisely, participates when these mechanisms are set up and whether women are adequately represented and listened to. This chapter seeks to begin filling this gap. It provides initial answers to the basic question of whether and how participation in constitution-making delivers for women. The chapter outlines the contours of the debate surrounding popular participation in constitution-making, then looks at three instances of popular involvement in constitutional change: the 2014 Scottish independence referendum, the 2012-14 Irish Constitutional Convention, and the 2011-14 Tunisian constitution-making experience, analysing the level and nature of women’s participation in all these processes. Subsequently, the chapter evaluates the successes and failures of participatory mechanisms such as referendums, constitutional conventions, and public consultations in empowering women as equal participants and the ability of these tools to ensure gender-sensitive deliberations. The chapter also raises questions as to whether participation is to be resorted to in all cases of constitutional reform and the propensity for it to be an obstacle to rather than a vehicle for gender equality

Recourse to the People in Semi-Presidential Systems: Lessons from Romanian Referendum Practice During Periods of Divided Government

This article investigates the interlinkages between constitutional referendums – their design, operation, and expected outcomes – and semi-presidential systems of government. In particular, it examines whether referendums in semi-presidential systems can perform a deadlock-breaking function or else whether the oft-repeated problems of politicisation and abuse of referendums are exacerbated in such systems. The article focuses on periods of divided government and the role performed by two types of referendums: the presidential recall referendum and the president-initiated referendum. Often, such periods are characterised by conflict between constitutional actors and competing authority claims. An important question thus becomes whether the referendum – as a blunt instrument invoking the final, direct authority of the people – will help or hinder conflict resolution. The article examines in greater detail Romania’s fraught experience with both types of referendums. It concludes that problems of both constitutional design and political practice permeate referendum use in Romania and hinder both its deadlock-breaking function and its deliberative potential

Brexit and the Courts: The Uncertain Fate of Constitutional Referendums in the UK

This article seeks to tell the story of the Brexit referendum and the constitutional litigation that followed it. It does so drawing on comparative material regarding the regulation of constitutional referendums as well as their implementation and litigation around contested votes elsewhere. Ultimately, the chapter argues that the EU referendum in the UK, and the Brexit process more generally, have revealed the many uncertainties underpinning the UK constitution accumulated over recent decades. These unsettled norms go to the core of the legal system. They concern: the status of EU law under UK law; the scope and limits of judicial power; the place of referendums and popular sovereignty within the constitution; and the weaknesses inherent in the latter's lack of codification. Rather than being confined to the idiosyncratic British context, however, such problems are shown to emerge wherever the voice of the people is sought to be approximated by way of referendums, and acted upon in order to bring about constitutional upheaval

The View from Nowhere in Constitutional Theory: A Methodological Inquiry

This chapter begins from the premise that constitutional theory is still on a quest of self-definition as a field of inquiry and consequently is ripe for methodological reassessment. The chapter explores the methodological assumptions – mostly unstated but widely shared – underpinning much constitutional theoretical work by focusing on the role of comparison in constitutional theorising. Insofar as it finds itself at the intersection of, or in close conversation with, other disciplines such as political and legal theory, constitutional theory has developed hybrid (or, less generously, hodgepodge) methodological tools. It often finds it difficult to occupy the space between ideal and non-ideal theory. It may employ tools such as analogy and extrapolation, but frequently decontextualises or generalises from cherry picked or ‘usual suspect’ case studies. This chapter seeks to mine the rich methodological advances in cognate fields such as comparative constitutional law and comparative politics for insights on how constitutional theory can embrace contextualism and robust comparison. Our aim should be to avoid a ‘view from nowhere’ approach in constitutional theory that mistakes for objectivity what are ultimately contextual impoverishment and comparative blindness. The inspiration for the chapter’s title, of course, comes from Thomas Nagel’s eponymous work.[1] His insight that we are constantly grappling with the reality of interconnected subjectivities and objectivity in the world and that these sometimes will be irreconcilable has farther-reaching consequences for scholarly inquiry than will be explored here. For my purposes, most relevant will be Nagel’s insight that recognising our own subjectivity is directly connected to recognising our possibility of detaching from it. In other words, recognising that we as scholars are 342always contextually situated and individually subjective does not preclude us from engaging in robust scholarship – quite on the contrary, it is a prerequisite for it, especially when drawing inferences we assume have wide application. I would not overemphasise the inspiration drawn from Nagel’s work, however. I use it, instead, as a reminder to resist lawyerly ‘amateurish … pseudo-philosophical efforts’ as Mark Tushnet once put it.[2] In other words, as a call for self-reflection and self-awareness when doing constitutional theory, aided by a comparative outlook. The chapter proceeds by, first, discussing the comparative turn in constitutional theory and its potential for correcting old assumptions and revealing new insights. I illustrate these benefits by revisiting two well-trodden debates in constitutional theory and comparative constitutional law, one around the legitimacy of constitutional review and the other around citations of comparative material in constitutional adjudication. The chapter then turns to investigating recent advances in comparative constitutional change literature, in particular new work on constituent power and on unconstitutional constitutional amendments. These are used as examples of the type of interdisciplinary, comparative, and also deeply contextual scholarship that has the capacity to shed new light on old core questions of constitutional theory. I ultimately argue that this is demanding work, but that much more rewarding for it