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New papers on transnational constitutionalism

There are two new papers up on SSRN concerning the contribution of outsiders to the formation and interpretation of national constitutions. As recently previewed here, Rosalind Dixon and Vicki Jackson have a forthcoming paper in  Wake Forest Law Review called  Constitutions Inside Out: Outsider Interventions In Domestic Constitutional Contests. See Mark Tushnet’s review of the article here.

Kevin Cope has just posted a study, forthcoming in the Virginia Journal of International Law, of constitution-making in South Sudan entitled, The Intermestic Constitution: Lessons from the World’s Newest Nation.   Cope characterizes the exercise as one of “intermestic” constitution-making, in which both international and domestic forces are intertwined.  He emphasizes greater outsider roles in the area of constitutional rights than in structural provisions.  Noting the dangers, he warns that “indigenous structures designed to bolster power of drafters and would-be leaders may concentrate power in the executive, subvert an independent judiciary, and/or otherwise diminish checks and balances, thereby undercutting the constitution’s robust, internationally-approved progressive bills of rights.

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Published on November 18, 2012
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2 Responses

  1. Cope’s concept of “intermestic” constitution-making highlights an important dynamic around the international influence on domestic constitution-making. In fact, it suggests that international observers might be influencing the wrong debates in constitution making.

    In Russian constitution-making in 1992 and 1993, international advice givers/commentariat focused on the inclusion of broad rights provisions in the final draft. The Russian drafters gave this international community what they wanted knowing that these provisions were largely meaningless. Indeed, most of the serious domestic debate in the Russian constitution-making process ignored rights discussions altogether but instead focused on structure. This bifurcation of the debate allowed the drafters to argue that their constitution was democratic to the international community (because of wide rights protections) while simultaneously giving the Russian Presidency near dictatorial powers by elevating the Russian President above the system of separated powers. It is this constitutional position that Vladimir Putin has exploited since coming to power 12 years ago.

    It is well know that many of the drafters of the US Constitution saw constitutional structure as the primary protector of rights. Maybe the international advice giving community should too?

  2. Tom Ginsburg

    Nice comment, Will. The problem is that we often dont know enough about structural provisions and their impact. the comparative politics literature is carried out at a high level of abstraction (“presidentialism” v. “parliamentarism”) which makes it hard to make prescriptive statements about any particular configuration of institutions with high levels of confidence. further, there is almost no research on the interaction of different institutional choices with each other.

    Perhaps the exception is the literature on constitutional design for ethnically divided societies, but even here there are some profound disagreements in the field (I think).

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