Constitution-Making and Constitutional Design–Boston College Law School


Boston College Law School Symposium on Constitution-Making and Constitutional Design October 31, 2014

Richard Albert Convenor


Keynote Address: Ran Hirschl, University of Toronto

Panel I: The Period Between Old and New Constitutions

1. Joel Colon-Rios, Victoria University of Wellington 2. Oran Doyle, Trinity College Dublin 3. Kate Glover, McGill University 4. Mark Graber, University of Maryland 5. Rick Kay, University of Connecticut (Moderator) 6. Carissima Mathen, University of Ottawa 7. Ozan Varol, Lewis & Clark Law School

This panel will examine the extraordinary period of time in the life of a country when its citizens decide to abandon one constitutional order and adopt another. How should we understand the time frame before a new constitution-making process actually begins, when the state’s existing constitution may have been rejected but a new constitution is not yet in place? What principles and legal institutions should guide the exercise of political power during such periods, so as to maintain the maximum level of stability and promote the legitimacy of the emerging constitutional order? These are some of the questions that scholars interested in the transition between old and new constitutions must address.

They are questions about the nature and limits of constituent power, about the nature and risk of a break in the chain of legality, and about how constitutionalism should deal with a successful revolution. When examined from the perspective of constitutional design, questions like these move our attention away both from the constitutional text and the internal dynamics of the constitution-making process and force us to analyze and develop mechanisms and strategies to facilitate the birth of a new constitutional order. They also require us to consider the role of the institutions established under the old order (such as courts), as well as the role of principles recognized by the international community (such as fundamental human rights), in controlling the political power of would-be constitution-makers.

The papers presented in this panel will reflect on these and other questions through both theoretical and comparative analysis, and in so doing, they will seek to better understand and analyze the time period in which constitutional transitions occur.

Papers to be published in the peer-reviewed National Journal of Constitutional Law.

Panel II: Constitution-Making and -Breaking

1. Andrew Arato, The New School for Social Research 2. David Landau, Florida State University 3. Eugene Mazo, Wake Forest University 4. Mark Tushnet, Harvard University 5. Mila Versteeg, University of Virginia (Moderator)

This panel will probe the process of constitution-making, rather than the period of time in which it takes place. Scholars have yet to develop robust theories to explain the internal dynamics of the constitution-making process itself, including theories concerning who should write a new constitution, how constitutional framers should be selected, the ways in which they should deliberate, and how new constitutions are best ratified. The existing theories of the constitution-making process tend to be parsimonious and incomplete, and they also do not transfer well across different cultural and political settings. To the extent that the “constitutional moment” provides a useful heuristic device for thinking about constitutional-making, this panel will bring together several leading scholars to explain how the process of constitution-making should be carried out. How should we choose constitutional framers? Where do the ideas that framers have come from? And which factors most influence the provisions that these framers write? By examining the internal dynamics of the constitution-making process from both theoretical and comparative perspectives, this panel will seek to address these questions.

In focusing on these issues, the scholars on this panel will examine the internal mechanics of constitutional moments. As a sovereign state seeks to be governed by a new basic law or to abide by the rules of a new founding document, this panel will seek not only to illuminate the outcome of constitutional deliberations, but also to elaborate on how the process of constitution-making is carried out. The scholars on this panel will also discuss the ways in which old constitutions may be legally retired before they are replaced, and they will work to distinguish the process of constitution-making from the period in which it takes place. These two concepts have been conflated, though they are theoretically and conceptually distinct.

Papers to be published in the Wake Forest Law Review.

Panel III: The Role of Constitutional Courts in Constitutional Design

1. Mathilde Cohen, University of Connecticut 2. Kevin Cope, Georgetown University 3. Erin Delaney, Northwestern University 4. Ruti Teitel, New York Law School (Moderator) 5. William Partlett, Columbia University

This panel will consider the role of courts in constitution-making. Conventional wisdom holds that courts should play a highly limited role in a process of constitution-making. From a normative standpoint, constitution-making is viewed as a process of higher lawmaking, where “the people” should not be limited by courts in the expression of their “constituent power.” From a more pragmatic standpoint, however, constitution-making is viewed as a process involving highly politicized, non-judicial questions that courts cannot adequately solve. A number of legal doctrines reflect these rationales, including the constituent power doctrine in Latin America, the acts of sovereignty doctrine in the Middle East, and the political question doctrine in the United States. Yet comparative experience reveals that courts often intervene in highly contentious disputes when they engage in the constitution-making process. This panel will consider this involvement. Is it improper for courts to intervene in constitution-making? Do courts help improve the process of constitution-making by forcing compromise and consensus? If courts are indeed to play a productive role in constitution-making, how do we ensure that they do not become captured by a minority faction and undermine the popular will? Finally, how should courts actually confront powerful political forces?

The scholars on this panel will consider these and other questions from both theoretical and comparative perspectives. Drawing on a wide range of sources—including comparative experience and judicial doctrine—they will seek to expand our understanding of the complex relationship between judicial review and constitutional design.

Papers to be published in the Wake Forest Law Review.

Panel IV: Non-Constitutional Influences on Constitutional Law and Constitutional Design

1. Richard Albert, Boston College 2. Francesca Bignami, George Washington University 3. Mohammad Fadel, University of Toronto 4. Vanessa MacDonnell, University of Ottawa 5. Russell Miller, Washington & Lee University 6. Bart Szewczyk, Columbia University 7. Katharine Young, Boston College (Moderator)

This panel will examine the interaction between constitutional and non-constitutional sources of law and the institutions that interpret and apply them. The papers on this panel suggest that constitutional law and constitutional design may invariably be influenced by the conceptual underpinnings and methods of extra-constitutional mechanisms, and vice versa. Constitutional scholarship must therefore account for the sometimes complex relationship between these two bodies of law.

The scholars comprising this panel will focus on how international law, statutes, administrative law, Islamic law and the common law interact with domestic constitutional law. They will also examine the role of institutional actors—including international organizations and tribunals, administrative decision-makers, and legislators—in shaping and pushing the boundaries of domestic constitutional law.

Papers to be published in the peer-reviewed Osgoode Hall Law Journal.