The False Promise of Constitutionalism

Abstract

Constitutional engineering is a complicated practice, and much less is known about the relationship between constitutionalism and democracy than many are willing to admit. A cursory look at the political science literature reveals that constitutional design has only a moderate to small impact on the stability of a democratic regime. This is not to suggest that constitutionalism is altogether irrelevant, but the findings of different social scientists suggest that we should be humbler and more realistic about the role of constitutionalism and institutions in fostering peace, democracy, and development. Anna Saunders's article, “Constitution-Making as a Technique of International Law: Reconsidering the Post-War Inheritance,” provides an important contribution to such a realistic reassessment of constitutionalism. Nevertheless, her critique of constitutional assistance needs to be developed further, examining the limitations of constitutional law in itself as a promoter of peace and democracy, rather than just the fact that material and economic questions are often neglected in international constitution-making. A key question is not so much whether and how to create a better constitutional design that would integrate economic and structural issues more openly, but, more fundamentally, whether traditional constitutional approaches are in fact appropriate for the promotion of peace, democracy, and development in post-conflict settings. In this essay, I argue for a democratic and experimentalist form of constitutionalism, which is often at odds with the core ideas of traditional constitutionalism, namely, rigidity and entrenchment.