The Importance of Constitution-Making

In this short invited contribution, I argue that scholars and policy-makers need to shift focus from the moment at which the break with the old regime occurs towards the moment at which new constitutional orders are constructed. The constitution-making process in countries like Tunisia, Egypt, and Libya, for example, is likely to determine in large measure what these new regimes are likely to look like. In particular, I draw off of a case study of the 2009 military coup in Honduras, which was provoked by ex-President Zelaya’s attempt to call a constituent assembly, to make two points. First, both constitutional theory and international law and politics have allowed constitution-making processes to occur in a vacuum—neither provides any real restraints on these processes. Second, the main risk of constitution-making is that powerful individuals or political parties use either real or manufactured majorities to impose constitutions on the rest of their societies. An urgent task in constitutional design and theory is therefore to construct models that will constrain this kind of constitution-making, and to find ways to en-force those constraints