What Writing Constitutions Does Not Do

Writing Constitutions aims to provide guidance on drafting constitutions, their correction and amendment under certain circumstances. It is not identical with “Comparing Constitutions” or “Comparative Constitutional Law”.^[13] It aims to provide material for a comparatively oriented constitutional writing, which offers suggestions and possibilities for comparison to the legislator writing or amending the constitution.

Writing Constitutions does not value a constitution of a country as such. It does not claim to have reviewed all existing constitutions with respect to all provisions. It does not claim to have captured many of the cross references within a constitution which are important. It can only partly consider constitutional practice or the interpretation of constitutional clauses by the respective constitutional court of a country. It does not claim to know the constitutional practice of provisions dealing with parliamentary procedures. It can, only to a certain extent, cover subconstitutional norms, which are of paramount importance to complete the picture of internal checks and balances and limitations imposed on the scope of the provisional norm.

Last but not least, Writing Constitutions cannot replace the application and adaptation of the analysis to the respective country’s needs. In other words, it can make suggestions as to the components a clause may need but cannot determine an appropriate component design for the individual country. The constituent/amending power will need ample discretion with regard to the details of institutions and organs in the constitutional texts and the relevant regulation can either be embedded in the constitutional text itself or by a clear reference to legislative acts (“parliamentary reservation”). The choice will largely depend on the constitutional traditions, flexi­bility of the constitution, transparency and understandability, as well as trust in the ability of parliament to find adequate solutions for the implementation of paramount constitutional norms.^[14] The authors have therefore refrained from drafting a model constitution as this would collide with the necessary individual needs of a country’s constitution. Rather, we encourage and aim to empower lawmakers to design their own constitutional model.