Constituent Process and Constituent Assembly: the making of Constitutions through the larger involvement of citizens

Abstract

Until recent times, democratic constitutions were generally the product of a ‘constituent assembly’. More recently, this mode of functioning of the constituent power has been challenged by new forms of its exercise on the basis of ‘participatory democracy’ schemes whereby ordinary citizens are encouraged to take part, within the ‘public space’, in the taking of public decisions. This kind of procedure, which first emerged mainly in the legislative and administrative sphere, is now increasingly frequent also in the creation of new constitutions, or in cases of amendments which bring major changes to the original text. Recent experiences show that there may be a close complementarity between the classic notion of ‘constituent assembly’ and a new concept of the ‘participatory constituent process’ which could accompany it.This paper takes advantage of the light cast by some recent cases in order to reflect on what effects are more likely to derive from constitutions which are written or amended in a participatory manner; that is, in terms of procedural construction, legitimacy, and outputs. The paper’s main findings suggest that the idea and practice of participatory constituent processes can be seen as a way to give citizens a greater sense of ‘ownership’ of their constitutions, thus challenging the present situation in which that relation seems increasingly affected by the general perception of a legitimacy crisis in representative democracy. Similarly, such constituent processes seem to offer added value in terms of content elaboration and other outputs, although such conclusions are not always generalizable.