States' Constitutions within Federations and constitutional transformations
I have mentioned in the introduction of this chapter that the ideas on popular participation while drafting a constitution (which I have gathered under the label of ‘new constitutionalism') had one of their high points in the amendments to some States' constitutions within federations.
Precedents on exploring new avenues of participatory and partially citizen-led decision-making processes on constitutional issues were seen in the citizen assemblies created on occasion of the electoral reform in British Columbia and Ontario (Suteu, 2015, p. 252). After those experiences, the integral drafting of a brand-new State constitution underthe principles of popular engagement might be found in the elaboration and approval of the Constitution for Mexico City (2017).
With some of those examples in mind, I would ask if such successes regarding constitutional change in States belonging to wider federations may contradict my thesis, suggested above, according to which constitutional transformations are likely not to happen in specific, inclusive, and deliberative contexts.
Some North-American authors such as Sanford Levinson (2014) John Dinan (2006), and Alan Tarr (2006) have argued that instead of focusing at the United States national level to search for the involvement of the people in creating constitutions, scholars should pay more attention to the State level, in which some satisfactory stories from the point of view of fulfilling democratic premises while drafting fundamental rules might be told. American State constitutions have been amended over 7,500 times, amounting on average to 150 amendments per State (Albert, 2019, p. 113) and, as John Dinan's historical analysis revealed (2006, p. 63), most of these amendments were achieved through the action of an informed, participatory, and peaceful citizenship.
However, some precisions might modulate such optimistic observations on the exercise of power to both create and amend constitutions at the State level.
On the one hand, it may be remarked that beside successful stories on constitutional change within the States, the shaping of State constitutions might be doomed to failure as well. Voters rejected, for instance, many times and in many American States the call for a State constitutional Convention to draft a new constitution (for instance, in New York in 1957 or in Missouri in 1962 and 1982).On the other hand, it is quite arguable that the State-level experiences in constitutional creation may be compared to the federal ones (or the “national ones” with all the significance that the use of the latter adjective reveals). The revision of a State constitution is always given in a limited way. With the sole exception of secessionist challenges or annexations (also reflected, for instance, in the wave of constitutional replacements that the Southern American States experienced as a result of the Civil War and its aftermath) existential decisions are only stated by the federal (national) level. In other words, issues related to sovereignty, to the profound constellation of powers that dominate a given political community, are not concerned by State constitution-drafting (and maybe it is not therefore casual that people's participation is more tolerated in that constrained locus, since the real fundamental decisions are not affected). Changing a State constitution in a frame of very limited public powers is somehow inoffensive for the given structure of domination ruling in a society and is not likely to lead to violence, but it is not likely to lead to a real constitutional transformation, either.