Constitutional Design Without Constitutional Moments: Lessons from Religiously Divided Societies

Abstract

High stakes constitution-writing exercises have burst into the headlines in recent years from Iraq and Afghanistan to Egypt and Tunisia. In some cases, heated debates have given way to conflict and even violence as transitioning societies struggle to resolve fundamental conflicts over identity. The challenges of constitution-making are more acute in societies that are marked by deep religious divisions, as is the case in many Muslim-majority countries that are currently undergoing political transitions. In this Article, we examine a distinctive feature of the current wave of new constitutional exercises: the challenge of constitution-drafting under conditions of deep disagreement over the state’s religious or secular identity.The Article offers three major contributions. First, we provide a detailed qualitative examination and comparison of constitution-making in the seven relatively understudied cases of Egypt, Indonesia, India, Israel, Lebanon, Tunisia and Turkey. Second, our examination of these cases informs a critical assessment of some common assumptions in the literature that are drawn from well-studied, Western cases of constitution-drafting like those of the United States and France. We argue that an understanding of constitution-drafting as higher-order law-making that is designed to resolve questions of identity and entrench a foundational definition of “we the people” is inapposite at best and, at worst, may exacerbate conflict in religiously-divided countries. Thirdly, we develop a framework that expands the range of constitution-drafting tools and strategies discussed in the comparative law literature by identifying novel design features drawn from the qualitative cases and their potential merits.