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Blount, Justin --- "Participation in Constitutional Design" [2011] ELECD 363; in Ginsburg, Tom; Dixon, Rosalind (eds), "Comparative Constitutional Law" (Edward Elgar Publishing, 2011)

Book Title: Comparative Constitutional Law

Editor(s): Ginsburg, Tom; Dixon, Rosalind

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848445390

Section: Chapter 3

Section Title: Participation in Constitutional Design

Author(s): Blount, Justin

Number of pages: 19

Extract:

3. Participation in constitutional design
Justin Blount



Ours is an era of constitution-making. Approximately one-quarter of the world's written
constitutions have been promulgated since 1974 (Elkins et al., 2009a). The trend over this
period has been one of increasing public participation in the constitutional design process. To
cite but one example, among currently in-force constitutions specifying their own promulga-
tion procedure, more than 40 percent required public ratification via referendum. The compa-
rable figure for 1950 is approximately 5 percent, even though the proportion of texts
specifying any promulgation procedure whatsoever is roughly equivalent (Ginsburg et al.,
2009).
The new constitutionalism that has emerged over this period places as much emphasis on
process as it does on outcomes (Hart, 2001). In light of this, the formal provision of democ-
ratic institutions is no longer sufficient to establish the democratic bona fides of a constitu-
tion. Because a constitution is the highest level of lawmaking and provides the ultimate rule
of recognition for lawmaking processes (Kelsen, 1945; Hart, 1961), it requires the greatest
possible level of legitimation in democratic theory. This need for legitimation dictates that a
democratic constitution must be fashioned by democratic means in acknowledgment of the
moral claim of a people to the right to participate in the creation of the rules under which they
will be governed (Hart, 2001 and 2003; Samuels, 2005).
Participation through input, through ratification and through oversight all differ conceptu-
ally, but all are treated as contributing to a ...