The King versus the People: The Abolition of Monarchy and Constitution Making in Nepal

A ratification referendum is a procedure in which framers submit a constitution to the people for binding approval before implementation. It is widespread, recommended, and affects the contents and reception of constitutions, yet remains unstudied. Moreover, the reasons or justification for using the procedure remain unexplored. This is troubling because ratification referenda are optional, and thus should only be implemented for good reasons that, today, are no longer given. This article begins correcting this oversight by identifying those that brought about the first ratification referendum and explaining why they did so. I demonstrate that the Berkshire Constitutionalists called for the procedure during the events leading up to the creation of the 1780 Massachusetts Constitution, and that they justified their actions by asserting that the people have an unalienable right to ratify their constitution through a referendum, for this provided needed protection against potentially corrupt elites. This argument remains the most fully developed justification for the procedure to date. My analysis not only reveals ratification referenda to be another product of early American political thought, but also points the way forward for future evaluation of the procedure, and forces reflection upon the importance of having solid grounds for the choices involved in structuring a constitution-making process.

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Constitution Building as a Panacea to Identity Conflicts in Africa: The Case of Nigeria

Mediterranean Journal of Social Sciences ◽

10.1515/mjss-2017-0002 ◽

2017 ◽

Vol 8 (4) ◽

pp. 17-26

Author(s):

Chidi M. Amaechi ◽

Obinna U. Muoh

Keyword(s):

Civil Wars ◽

It Projects ◽

Basic Principles ◽

Good Opportunity ◽

The Past ◽

The People ◽

Building Process ◽

Identity Conflicts ◽

Constitution Building ◽

Constitution Making

Abstract Africa is rife with sectional discontents which metamorphose into protracted conflicts, civil wars, and terrorism. With forlorn hopes of survival in the system and without a say in the constitution building process, disgruntled groups easily cloak their political and socio-economic dissatisfaction with ethnicity, religious or similar identities in order to arouse group affection. At present, Nigeria is at the brink of disintegration as a result of this problem. The country has witnessed about six constitutional arrangements since independence. Yet, the clamour for a new constitution remains constant and, invariably, influenced the convening of the 2014 National Constitutional Conference in the country. Since constitution building provides a good opportunity for the citizens and groups to enshrine their wishes in the instrument of governance and thereby preventing the degeneration of grievances into conflict, questions have continued to arise. Does the constitution making process in Nigeria involve the people for whom the laws are meant for? Are the leaders mindful of the peace potentials of constitution building? This paper seeks to ascertain the extent to which the citizens were involved in the making of the previous constitutions in Nigeria. It projects the view that the failures of the past attempts and the prevalent identity conflicts in Nigeria are attributable to non-adherence to the basic principles of the indispensable people-oriented process of constitution building.

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Constitution-Making in the Informal Soviet Empire in Eastern Europe, East Asia, and Inner Asia, 1945–1955

10.31235/osf.io/2cy4b ◽

2021 ◽

Author(s):

Ivan Sablin

Keyword(s):

Soviet Union ◽

Separation Of Powers ◽

Political Subjectivity ◽

State Institutions ◽

Soviet Empire ◽

The Soviet Union ◽

The People ◽

Archival Documents ◽

Second World ◽

Constitution Making

This chapter provides an overview of dependent constitution-making under one-party regimes in Albania, Bulgaria, China, Czechoslovakia, East Germany, Hungary, North Korea, Mongolia, Poland, Romania, and Yugoslavia during the first decade after the Second World War. Employing and further developing the concept of the informal Soviet empire, it discusses the structural adjustments in law and governance in the Soviet dependencies. The chapter outlines the development of the concepts of “people’s republic” and “people’s democracy” and discusses the process of adoption and the authorship of the constitutions. It then compares their texts with attention to sovereignty and political subjectivity, supreme state institutions, and the mentions of the Soviet Union, socialism, and ruling parties. Finally, it surveys the role of nonconstitutional institutions in political practices and their reflection in propaganda. The process of constitution-making followed the imperial logic of hierarchical yet heterogeneous governance, with multiple vernacular and Soviet actors partaking in drafting and adopting the constitutions. The texts ascribed sovereignty and political subjectivity to the people, the toilers, classes, nationalities, and regions, often in different combinations. Most of the constitutions established a parliamentary body as the supreme institution, disregarding separation of powers, and introduced a standing body to perform the supreme functions, including legislation, between parliamentary sessions, which became a key element in the legal adjustment. Some constitutions mentioned socialism, the Soviet Union, and the ruling parties. The standardization of governance in the informal Soviet empire manifested itself in the constitutional documents only partially. Propaganda and archival documents revealed the prominence of nonconstitutional institutions, parties and leaders, as well the involvement of Soviet representatives in state-building. Domestic parties and leaders in the Soviet dependencies were also presented as subordinate to their Soviet counterparts in propaganda.

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Protecting popular constituent power: Examining New Zealand's role in the constitution-making episodes of the Cook Islands and Niue

10.26686/wgtn.17007427 ◽

2021 ◽

Author(s):

◽

Sarah Mead

Keyword(s):

Self Determination ◽

Democratic Legitimacy ◽

Stage Model ◽

Political Will ◽

Constituent Power ◽

Cook Islands ◽

Island States ◽

The People ◽

External Actors ◽

Constitution Making

<p>This paper assesses the democratic legitimacy of the constitution-making processes that brought into being the Constitutions of the Cook Islands and Niue. New Zealand’s role in the decolonisation of its former colonies has generally been seen as quite benign. New Zealand’s status as an external actor however raises questions regarding the effect its influence had on the democratic legitimacy of the respective constitution-making processes. Constituent power theory demands that a constitution is the product of the popular political will; an act of self-determination undertaken by the people, for the people. This paper argues that the existence of external influence in the constitution-making process is not necessarily at odds with this. The democratic legitimacy of the constitution-making process is dependent on the constitution being a manifestation of the people’s constituent power. Insofar as external actors do not displace the people’s constituent power but rather enhances it, there is no reason to exclude such influence; there may even be reason to encourage it. By drawing on New Zealand’s experience in decolonisation, this paper ultimately advances a two-stage model for constitution-making in the context of small, dependent non-self-governing island-states. As on-going political ties with an external state are often sought, the aim of the model is to provide an avenue for that external state to participate in or contribute to the constitution-making process while maintaining the process’ democratic legitimacy.</p>

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Revisiting the legitimacy question of the Nigerian 1999 Constitution

Global Constitutionalism ◽

10.1017/s2045381721000162 ◽

2021 ◽

pp. 1-28

Author(s):

Jacob O. Arowosegbe

Keyword(s):

Pragmatic Approach ◽

Normative Claim ◽

Constituent Assembly ◽

Theoretical Perspectives ◽

The People ◽

Constitutional Legitimacy ◽

Constitution Making

Abstract This article revisits the legitimacy question as it touches the Nigerian 1999 Constitution, bringing to the discourse a review and application of pertinent theoretical perspectives on constitution making and constitutional legitimacy. This theoretical and pragmatic approach introduces a refreshing angle to the debate, revealing the paucity of any attempt to ascribe any legitimacy claim to a constitution with a doubtful normative claim and fraudulent attribution of its source and legitimacy to the people. The author finds the consent basis of constitutional legitimacy as most attractive to a divided state like Nigeria, and concludes by advocating the adoption of a blend of the principles of the constituent assembly and post sovereign constitution-making models for the production of a new people-driven and inclusive constitution to meet the needs of the Nigerian people.

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Democracy, Constitutionalism and the Rule of Law: Beholden to Constituent Power

10.26686/wgtn.17007460 ◽

2021 ◽

Author(s):

◽

Ivan Sage

Keyword(s):

Rule Of Law ◽

Constituent Power ◽

The Rule Of Law ◽

The People ◽

Egalitarian Society ◽

Parliamentary Supremacy ◽

The Government ◽

Principle Of Legality ◽

Ultimate Principle ◽

Constitution Making

<p>Democratic government serves two purposes, both requiring that the substantive element of the rule of law be adhered to. A living constitution is required by a government to able to maintain civil society, which is the main occupation of the rule of law and, secondly, the rule of law also vouchsafes rights and freedoms. Hence, the rule of law enforced by the courts is the factor that controls the constitution, and increasingly this includes controlling the government, both the legislature and executive. This paper considers the capacities of democracy, constitutionalism and the rule of law, in the context of both New Zealand’s unwritten and America’s written constitutions, with the view of locating the constitution making power (constituent power). The power that makes and changes the constitution was originally found with the people, parliament, and the executive. However, a modern formulation of the rule of law that seeks to replace parliamentary supremacy as the ultimate principle of legality appears to be arising. An egalitarian society is becoming the preferred option by all parties. In this context, the constitution making power will be with the vessel that is working towards creating such a society. To that end, the paper recommends a Constitutional Commission for New Zealand that would review legislation for constitutionality, including adherence to the rule of law. The objective of the Constitutional Commission would be to recommend the review of law for constitutionality, including adherence to the rule of law.</p>

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Of Constituent Nations

Constituent Power and the Law ◽

10.1093/oso/9780198785989.003.0005 ◽

2020 ◽

pp. 101-126

Author(s):

Joel Colón-Ríos

Keyword(s):

French Revolution ◽

Common Good ◽

Electoral Rules ◽

Constituent Power ◽

Spanish Constitution ◽

The People ◽

Different Types ◽

The Common ◽

The Creation ◽

Constitution Making

This chapter examines the ways in which the debates about the nature and implications of the theory of constituent power that arose during the French Revolution reappeared in later constituent episodes. It pays particular attention to the electoral rules regulating citizen activity and to the types of constitutional forms that resulted from them. In Part I, the chapter explores the distinction between the constituent power of the people and the constituent power of the nation. From each of these notions, emanate different types of legal and institutional demands on the juridical order. After distinguishing between these two approaches, the chapter examines, in Part II, the ways in which they were (or not) put into practice in the constitution-making process that resulted in the creation of the Spanish Constitution of 1812. Part III focuses on the creation of the Venezuelan Constitution of 1811 and Part IV examines the process that led to the adoption of the Colombian Constitution of 1886. During these three processes, constituent power became an extraordinary constitution-making jurisdiction directed at the identification of the common good, and as a power that could be exercised through mechanisms that excluded important parts of the population.

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Sovereignty of the People — the New Constitutional Grundnorm?

Federal Law Review ◽

10.22145/flr.26.1.7 ◽

1998 ◽

Vol 26 (1) ◽

pp. 165-194

Author(s):

HarleyG A Wright

Keyword(s):

The People ◽

Constitution Making ◽

The Revolution

[I]t was natural once the conflict with Britain reached the stage where independence was the only real alternative to submission that the men of the Revolution should turn to constitution making.1

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Eternity Faces ‘the People’

10.1093/oso/9780198858867.003.0007 ◽

2021 ◽

pp. 204-233

Author(s):

Silvia Suteu

Keyword(s):

Constitutional Design ◽

Popular Participation ◽

High Point ◽

Alternative Design ◽

The People ◽

Participatory Processes ◽

Constitution Making

This chapter looks at a trend that seemingly contradicts the global rise of eternity clauses: popular participation in constitution-making processes. It discusses whether the deeper democratic embeddedness of constitutions as pursued through participatory processes can help address democratic anxiety about eternity clauses. It maps several processes of constitution-making that can be characterized as participatory, with a view to determining whether unamendability was incorporated into the final constitutional drafts, how it was debated, and why alternative design choices have been adopted. This chapter seeks to test empirically those theoretical arguments about eternity clauses that view them as repositories of constituent intent. It also explores eternity clauses as the high point of the battle between rigidity and openness in constitutional design.

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