Democratic Erosion and Constitution-Making Moments: The Role of International Law
Part I of this article frames the problem of constraint at the domestic level during constitution-making processes. While acknowledging that the issue is not universal, it argues that the absence of effective constraint from domestic institutions is a common one and that this absence is associated with a range of longer-term problems including the erosion of democracy and the increase in political tension associated with “failed” constitution-making. Part II considers the strengths and drawbacks of four distinct models of international intervention: (1) democracy clauses requiring that states abide by their own domestic mechanisms of constitutional change, (2) international norms directly governing the procedure or substance of constitution-making, (3) international organizations or NGOs wielding “best practices,” and (4) review of constitution-making processes and texts by advisory bodies at the supranational level. Part III concludes by arguing that since the problem of abusive constitution-making is particularly difficult to solve at either the domestic or international levels, the most feasible approach involves making some use of all of these distinct tools while recognizing each of their limitations.