Objections and Open Questions

In this paper I have sketched a framework of six evaluative criteria—operationaliz- ability, structural independence, democratic co-authorship, political equality, inclu­sive sensitivity, and reasons- responsiveness—that we can use to assess various ways of institutionalizing processes of constitutional change in contemporary con­stitutional democracies.

The arguments presented here are then open, first and foremost, to empirical objections: for instance, that the evidence employed here is factually incorrect, that the evidence is not representative of the nature of most democratic systems and their development, or, that the paper has ignored significant counter-examples. But the arguments are also open to reconstructive objections: for instance, that the paper has distilled the wrong conception of relevant ideals out of particular institutions and practices, or that it has ignored other significant ideals or values that those institu­tions and practices embody. Only attention to a significantly greater number of examples would be able to address such objections and thereby substantiate the empirical and reconstructive conjectures made here.

Of course, the paper’s general approach is also open to normative objections: for instance, that democracy should not have the priority assigned to it here, or, that the correct conception of democracy ought to include a thick catalog of substantive legitimacy conditions that must be guaranteed no matter what any contingent demos happens to say.

Let me further flag three areas where this project opens up intriguing areas for future research. First, there are critical questions about the relationship between the six evaluative criteria I’ve identified and the contextual specificity of institutional design proposals for amendment mechanisms. Clearly such a framework of norma­tive criteria cannot be translated directly into universally applicable institutional proposals. To begin, there are simply too many other relevant variables differing across contexts that normative content alone cannot address. But even within that normative framework, I think we should fully expect different criteria to have dif­fering weights and relative priorities depending on specific socio-historical and political contexts, including differing constitutional regime types and histories. For instance, ensuring and heightening structural independence is crucial where the constitutional change process can be easily harnessed by the current regime to entrench itself in power, as in strongly presidentialist systems like Venezuela. But structural independence is much less important where—for example, as in Great Britain—there are robust traditions highlighting constitutional change, a diverse, vigorous and independent press and deliberative public spheres including diverse and active civil society organizations specially attuned to proposed constitutional changes. In short, it seems absurd to expect one definitive or universally preferred set of amendment institutions or procedures—the suitability of particular proce­dures is a matter of complex and sensitive contextual judgment.

Such contextual judgments refer, secondly, to issues concerning the interrela­tions between the evaluative criteria.

A third area of questions opens up around the disruptiveness of constitutional transitions in general. Processes of constitutional change not only frequently arise from out of societal and political ferment and conflict, but the processes themselves can add significantly to instability and turmoil, with real possibilities of political violence and repression hovering nearby as a specter. Might we perhaps then need to add some criterion of stability to the set of six normative criteria adumbrated here, maybe say, some measure of the degree to which an amendment institution promotes legal continuity, or continuity of governmental authority, or peaceful tran­sitions? While non-violent constitutional change is surely normatively preferable, its unclear how that might be assessed as a differential measure of various institu­tions.

Acknowledgments I owe a special debt of gratitude to Tanya Stepasiuk for significant research assistance about existing mechanisms of constitutional change, and I thank Joel Colon Rios for discussions about South American mechanisms; errors about these processes are, of course, my own. Earlier drafts of this paper were presented at the 1st International Congress on Constitutional Law and Political Philosophy; On the Future of Constitutionalism: Perspectives for Democratizing Constitutional Law, organized by Thomas da Rosa de Bustamante at Federal University of Minas Gerais, Belo Horizonte, Brazil, and at XXVII World Congress of the International Association for the Philosophy of Law and Social Philosophy (IVR) in Washington, D.C. I am indebted to many participants of both conferences for insightful discussion, especially to very helpful comments made by Marcio Luis de Oliveira.