Vol. 31 No. 3 (March 2021) pp. 73-76REDRAFTING CONSTITUTIONS IN DEMOCRATIC REGIMES, by Gabriel L. Negretto, ed. Cambridge: Cambridge University Press, 2020 (Comparative Constitutional Law and Policy Series). 264 pp. Hardcover $ 110.00. ISBN: 9781108839846.
Reviewed by Raul A. Sanchez-Urribarri, Department of Crime, Justice, and Legal Studies, La Trobe University. Email: R.Sanchezu@latrobe.edu.au.
I write this review only a few days after an overwhelming majority of Chilean voters agreed to establish a Constituent Assembly in Chile via referendum (October 25, 2020). This exciting process of constitutional change is the most recent exercise of its kind in Latin America, a region that has seen many constitutions replaced in the context of democratic regimes, including through constituent assemblies convoked to those ends (Colombia, Bolivia, Ecuador, and Venezuela come immediately to mind). The Chilean experience arrives at a time when reflections about the benefits and risks of constitutional reform are publicly discussed by different stakeholders. These discussions are happening as awareness increases about the fact that constitutional reform is not necessarily a panacea (or a curse) and that its effect on the consolidation and overall quality of democracy varies. Each country has its own experience that deserves to be weighed and analyzed on its own, but there is also cumulative comparative knowledge that can be developed about how these processes work, under what conditions, and to what effects across different cases. Studying constitutional change in a comparative perspective has become a growing interdisciplinary subfield with exciting theoretical debates informed by empirically rich analyses that capture the complications and nuances of a wide range of cases.
REDRAFTING CONSTITUTIONS IN DEMOCRATIC REGIMES is a thoughtful, well-assembled volume that succeeds in building on prior scholarship and, at the same time, propelling new debates in key areas of constitutional reform. Editor and author Gabriel Negretto – one of the most notable scholars in the field – has drawn on his own work over the years to develop this compilation of original contributions from fellow leading comparative constitutional reform scholars and practitioners. Whilst most of these contributions are anchored in comparative constitutionalism or comparative politics, they speak to and are informed by debates in other fields – including political theory, social theory, and law – thus expanding the book’s appeal and usefulness for a broader audience.
With regards to the book’s content, its main goals are “to provide a conceptual map and a comparative framework of analysis to understand the different alternatives available to channel these (constitutional replacement) processes, the consistency of these alternatives with the principles of democracy and constitutionalism, and the possible conditions that determine whether a constitutional replacement may result in the strengthening or weakening of democracy” (p. 1). The volume seeks to approach in a theoretic and systematic fashion a range of questions of constitutional reform. Such questions include: debates on the doctrine of constituent power and its applications; the tension between elite-driven and participatory approaches to constitution-making and reform; the links between constitutional reform and the broader socio-political processes at play; the disparate roles and influence of different actors on the dynamics and success of constitutional reform; different patterns emerging [*74] from consensual v. majority-driven politics of constitutional change; the advantages/disadvantages of different institutional solutions and arrangements regarding issues of timing, form, composition, deliberation, drafting, adoption and implementation of constitutional norms; the role of constitutional courts and other institutions of judicial adjudications in the different stages of the process, and other questions that typically arise in constitutional reform. Special emphasis is paid to constitutional change in the context of democratic societies. It also draws lessons that are applicable to other circumstances such as post-conflict societies or regimes transitioning from authoritarianism to democratic rule.
The volume’s structure is mainly divided between conceptual, normative, and empirical issues (Part One) and case studies (Part Two). Negretto’s theoretical introduction begins by addressing different aspects of constitution making in the context of democratic regimes (Chapter 1) and identifying a select number of cases where such change processes have occurred. From the start, Negretto dissects different reasons for constitutional change under democratic rule: perfecting institutions, addressing political crises, coping with changes in the balance of power, and updating or amending preexisting constitutional rules (p. 4). Some of these reasons can coexist in specific cases or sometimes succeed each other overtime in specific instances. Yet, they point to very distinct conditions and dynamics for comparison– some more conflictive with higher stakes than others. Understanding the nature of these conflicts, their actors and arguments, is essential to making sense of the trajectories that subsequently take place, and of the choices made regarding the different key aspects of the constitutional redrafting process (and their effects). At the same time, Negretto’s framework highlights the need to (re)think on the importance of elite cooperation in the constitution-making process as central to the enhancement of democracy (an argument he develops in extenso in Chapter 5).
Whilst Negretto acknowledges the importance of citizen participation in the constitutional reframing of democratic regimes, he makes a persuasive case for turning our gaze to elite actors, their relations, patterns of conflict or consensus among them and, overall, their commitment to honoring and safeguarding the constitutional choices made. This view emphasizes the need for more nuanced and better documented analysis of how exactly citizen participation and civil society involvement assist constitutional transformations, and to what ends (a topic of great importance for constitution-making studies, see Hudson 2021). It also has major implications for constitutional reform assistance in terms of how best to support constitutional reframing processes. Negretto’s implicit call for increasing scholarly attention to elite dynamics and agency is critical for broader questions about institution-building beyond constitution-making politics.
The volume’s theory section includes chapters exploring the possibilities of constitution-making through law (Joel Colón Ríos, Chapter 2); an analysis of revision clauses in democratic constitutions (William Partlett, Chapter 3); the role of courts in constitution making (David Landau, Chapter 4) and a theoretical and empirical analysis of the role of elite cooperation v. citizen participation in constitution making (Gabriel Negretto, Chapter 5, discussed above). In addition to conceptual discussions, all these chapters offer important reflections about different episodes of constitutional transformation in practice, and about how different legal-institutional solutions can facilitate, enhance, or impair constitutional change and its prospects. The chapters are linked to these authors’ respective works (e.g. Colón-Ríos 2020; Partlett 2016; [*75] Landau and Dixon 2015) and other recent debates in the field. They also succeed in raising questions, opening avenues for future work, and highlighting key aspects that can be followed in current and upcoming constitutional reform processes. These chapters can also provide very good introductions to these topics in the context of post-graduate coursework in relevant courses.
Next, the book explores select case studies, including examples from Latin America (the late Ana María Bejarano, and Renata Segura’s piece comparing the constituent assemblies of Colombia and Venezuela in Chapter 6); the cases of the constitutions of Poland in the mid-1990s and Hungary under Orban/FIDEZS in 2010-2011 (Negretto and Wandan, Chapter 7); the creation and legacy of the 1997 Constitution of Thailand (Tom Ginsburg, Chapter 8); the difficult journey that led to the creation of the 2010 Constitution in Kenya (Christina Murray, Chapter 9) and the interesting case of the unsuccessful attempt to create a new Constitution in Iceland (Thorvaldur Gylfason, Chapter 10). All these case studies exemplify different modalities of constitutional reframing in several contexts and regions, are thoroughly documented and, more importantly, are linked back to the book’s central theoretical propositions.
This book arrives at the crossroads of very important debates about constitutional reform, political participation, and democratization. It does not seek to end these conversations but, rather, to open new avenues of discussion and investigate constitutional processes more rigorously. This is, with attention to theory-building and empirical detail, and in a way that can capture different perspectives of constitutional reform and the nuanced role of different factors in these complex processes. One of the questions that could have received further consideration in the book’s individual contributions and overall reflections is the methodological challenges inherent to constitution-making processes, especially when studying events that happened in a distant past or for which the availability of data is affected by the socio-political context. This is particularly the case when studying aspects of the constitution-making process that have not been documented or are challenging to access, especially when analyzing constitution-making in the post-authoritarian contexts of the past.
All in all, this book will be an important reference in relevant fields for years to come. It goes beyond being a collection of essays on the topic to truly advancing compelling arguments needed to understand the key determinants of what makes constitutional redrafting work, especially in democratic regimes. It is a must-read for anyone interested in constitutional redrafting and general institutional reform.– not only scholars and post-graduate students, but also policy makers, advisors, and anyone with a need for a good compendium of theoretical and comparative reflections in the topic. Making sense of the disparate origins, trajectories and consequences of different constitutional reform efforts is more vital than ever, at a time where even the most established, long-lasting democracies in the world have been shaken to the core by social demands for change, and where calls for reform will be ever pressing in the coming years. The contributions in Negretto’s excellently edited volume couldn’t be timelier: this is a terrific book to have on hand to read during these times of change.
REFERENCES: [*76]
Colón Ríos, Joel. 2020. CONSTITUENT POWER AND THE LAW. Oxford: Oxford University Press.
Hudson, Alexander. 2021. “Political Parties and Public Participation in Constitution Making: Legitimation, Distraction, or Real Influence?” COMPARATIVE POLITICS April: 1-24.
Landau, David, and Rosalind Dixon. 2015. “Constraining Constitutional Change” WAKE FOREST LAW REVIEW 50(4): 859-890.
Partlett, William. 2016. “The Elite Threat to Constitutional Transitions.” VIRGINIA JOURNAL OF INTERNATIONAL LAW 56(2): 407-458.
© Copyright 2021 by author, Raul A. Sanchez-Urribarri.
