Varieties of constitutional-making processes

INTERNAL CONSTITUTION-MAKING PROCESSES

INTERNAL → Constituent power is mainly exercised by autochthonous political actors (actors embedded in the political
community where the constitution is destined to operate). In this field there are certain submodels:
a)Democratic or revolution-based constitution-making processes → the first element is “bootstrapping” related to the story of the
Baron of Munchausen. He fell into a swamp, he had to pull the straps of his boots in order to re-emerge. In this context it means
that these constitutional systems emerge without the support of anything else, they are the genuine product of a community that
decides to adopt a constitutional text breaking with the previous constitutional experience, it does not lean on the previous
constitutional experience.
There are typically two ways in which constituent power can be exercised by the people in a democratic way:
Indirectly → when a constituent assembly or a convention is established. Assembly or conventions are bodies where people
exercise indirectly the constituent power because there are just representatives of the people sitting in a constituent assembly.
Directly → there are also circumstances in which constituent power is exercised democratically involving directly the people,
when a referendum is held to approve a new constitutional text.

In both circumstances, when people are directly and indirectly involved, we observe, in revolutionary times, a high level of
political mobilisation. Revolutions are times where people are distracted from their ordinary lives and mobilise because it is a
radical moment in politics; this gives a high degree of political energy to the exercise of constituent power and to democratic
constitutions.

EXAMPLE OF INDIRECT POPULAR INVOLVEMENT: ITALY (1943-48)

In 1943 after the fall of Fascism, a provisional constitution was adopted and established that there would have to be a referendum
to decide if retaining the monarchy or shift to republican regime and that a constituent assembly had to be voted and its task was
to draft a new constitutional text. Both the referendum and the election of the constituent assembly were held on 2nd June 1946.
Republic prevailed over Monarchy so the constituent assembly worked for over a year and drafted a new constitutional document.
The constitutional text was voted by 90% of the constituent assembly and no popular referendum was held because the
assumption was that the constituent assembly had been elected and the political parties, represented in it, enjoyed a high degree of
representativeness. The membership of political parties at the time was remarkable, so there was no need to involve directly the
people the moment in which political parties had agreed on it in the assembly.
The working of the constituent assembly operated under the veil of ignorance (Rawls), a condition favouring decisions based on
moral considerations rather than on particular interests. Why did the “veil of ignorance” favour the adoption of the constitution?
The parties that rolled the constitution were uncertain about which party would have won the election. When the constituent
assembly was elected, there was a party leading (DC, the Christian-democrats) but this majority was relative and there were other
political forces which appeared to be particularly influential (the Socialists and the Communists).

EXAMPLE OF DIRECT POPULAR INVOLVEMENT: FRANCE (1958)

In 1945, the Resistance movement in France was formed by two forces: on one side De Gaulle and on the other hand the left-wing
parties, Communist and Socialist parties. In the same year a decision is taken: a referendum will be held, and it will ask the
citizens whether to retain the Constitution of the 3rd Republic or to write a new constitutional text. There was this first referendum
which led to the adoption of a new constitutional text which was not approved. It was subjected to a referendum. After the failure
of this referendum, a new text was drafted and approved. The discontent for the approval of the new constitution comes from
General De Gaulle, he disagreed with the main political parties, and he expresses his dissatisfaction towards the text of 1946
because he thinks it assigns too much power to the Parliament. He rejects the Parliamentary government because the experience of
the 3rd Republic, which followed that model, had been revealed to be rather unstable. The main political parties started operating
under the 1946 Constitution and what De Gaulle had predicted turned out to be correct: in the period between 1946 and 1958
France recorded twenty-one different cabinets, a condition of instability. In 1958, this condition of instability came to a head with
the rebellion in Algeria and the following war of independence, however, the decolonization was opposed by the army and the
colonists living in Algeria. The president of the Republic asks the assistance of De Gaulle who is offered the position of Prime
Minister. In fall 1958 a referendum on the new text was held. The left-wing parties’ lose. 71% of the people go to the poll, so they
are directly involved and endorse the new constitutional text which is still employed but was subjected to some amendments. So
this is the example of a charismatic leader emerging and bringing about a democratic revolution with a new constitutional regime
centred on the role of the head of state, the President of the Republic. In this process the people are directly involved by means of
a referendum.

b)Federal processes → constituent power is exercised by autochthonous political actors but these political actors are not political
parties or charismatic leaders. The people are involved in some ways but do not play the key role. The political actors are states
willing to set up a federation. In federal processes we observe the birth of a federal state out of a coming together (coming
together = process in which states that used to be independent, decide to confer sovereignty to the federal state, to a higher level of
government). Fifty states once independent came together to form a federal state, the US.
Federal Big Bang = start of a federation, a political process where what used to be independent states confer their sovereignty to
the newly built federal state and become federated entities.
1st step : independent sovereign states decide to confer power to a federal state with this coming-together.
2nd step : the federal states just established are transformed into federated entities, no longer independent.