Why Ratification? Questioning the Unexamined Constitution-making Procedure

My dissertation focuses on ratification--the submission of a draft constitution to the people for their approval in an up or down vote--and has two central aims. First, it explores the mechanics, current usage, and possible effects of ratification and argues that despite its intuitive nature and ubiquity, it is in need of justification. Ratification is increasingly common and regularly included within the framing recommendations given by consultants, NGOs, transnational institutions, and the like. In addition, the procedure has significant effects: it can influence the behavior of framers, subsequently alter the contents of what they produce, is expensive to implement, and can lead to costly constitutional rejections. Despite this, both practitioners and scholars treat ratification as a given and provide no explanation or justification for its use. I argue that this is a mistake. Second, the primary aim of my dissertation is to ask what justifies the use of ratification, i.e. what reasons constitution-makers might have for implementing the procedure. Drawing from the history of ratification and the empirical and theoretical literature on constitution-making, I explore a series of possible justifications for the procedure, each of which connects to a central topic or theme in democratic theory. First, I ask whether ratification plays a role in a representative process ongoing during constitution-making, and whether the importance of fostering representation justifies its use. Second, I examine whether the need for ratification stems from its function as a moment of constituent power, an instance where the people manifest and exercise their will to make a constitution their own. Third, I explore whether ratification helps legitimize constitutions; this entails articulating a three-part theory of legitimacy corresponding to the concept's legal, moral, and sociological manifestations, and analyzing the role of ratification within this scheme. I test these potential justifications by looking at their theoretical coherence, applicability to cases of constitution-making from the 18th century to the present, and their compatibility with the actual dynamics and mechanisms of the constitution-making process. The results of my analysis are as follows. I argue that the only role ratification might play in a representative process is as an accountability mechanism, but that the possible divergence between how a voter evaluates a draft constitution and the behavior of his or her representative framer makes the procedure unable to take on this role. I find that theories of constituent power only justify ratification if the procedure is the sole moment during constitution-making in which the people take direct action on the constitution. This limits the justification to ratification procedures involving referenda, and requires that voters make a meaningful choice on the proposed constitution, i.e. they must choose whether to accept or reject a constitution on the basis of their understanding of its contents and the likely result of its rejection. However, this standard of meaningful choice, which requires a far greater level of voter informedness than ordinary instances of direct democracy, is unlikely to be met because voters cannot be expected to possess or obtain the sort of highly technical and specialized information such constitutional evaluation requires. Finally, I show that legal legitimacy collapses into sociological legitimacy when it comes to new constitutions and that ratification might produce sociological and moral legitimacy by making the contents of a constitution more likely to fall within the bounds of actual or perceived legitimacy, or by procedurally legitimating the outcome regardless of its substance. However, each of these pathways has considerable explanatory weaknesses and do not in themselves justify ratification. Thus, I ultimately conclude that there seems to be no convincing general justification available for ratification. The initially compelling arguments in favor of the procedure apply only occasionally, ignore differences between constitutional and ordinary lawmaking, contradict some of our central theories and assumptions about constitutionalism and democracy, or assume the prior existence of robust democratic norms. This does not amount to a wholesale rejection of ratification, for contextual variables might produce reasons for its implementation and I explore what these might be, but it does give reason to question the automatic application of this procedure, as well as the similar treatment of other peripheral components of constitutional and institutional design processes the merits of which are assumed rather than critically evaluated