by Adam S. Chilton & Eric A. Posner
VOLUME 56 :: No. 2
VOLUME 56 :: No. 2
Victim Testimony in International and Hybrid Criminal Courts: Narrative Opportunities, Challenges, and Fair Trial Demands
Democratic constitutional transition conjures up images of a better form of politics involving enhanced popular participation and rational deliberation. But what institutions should be used to create this higher form of politics? The universal answer—focusing primarily on enhancing popular participation—argues that extraordinary institutions such as constituent assemblies and referendums are preferable to ordinary legislatures in creating this kind of elevated politics. This universal account is drawn from the theory and practice of revolutionary constitution-making in eighteenth-century America and France and its legacy in Western developed democracies today.
Recent experience of post-communist constitution-making, however, challenges the universality of this answer. In this context, extraordinary institutions did not elevate the politics of constitutional transition. Instead, they did the opposite, providing a platform for partisan elites to claim popular mandates and then dominate constitution-making. These self-interested elites then abused this dominant position to insert constitutional rules into new constitutions that undermined individual rights and entrenched their own power. Ordinary legislatures, by contrast, were able to help build more impartial constitutional orders by constraining elite self-dealing and unilateralism in constitutional drafting.
This post-communist experience suggests the dangers of transplanting this revolutionary constitution-making tradition into post-authoritarian contexts. In these settings, an extraordinary and revolutionary form of constitution-making politics can enable elite self-dealing. Post-communism therefore suggests that an ordinary form of constitution-making politics—centered around ordinary legislatures and ordered politics as bargaining—can help to solve this elite threat and therefore encourage a more deliberative, popularly engaged, and therefore successful process of constitutional transition.
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