4 - Courts and Constitution Making in Democratic Regimes

Summary

Recent constitution-making episodes in countries such as Venezuela, Bolivia, Hungary, and Iceland have highlighted the important, varied roles that courts might play during constitution-making processes undertaken from a democratic starting point. This chapter develops a typology of the functions that courts have played during these processes. In some cases, courts have played a catalytic function, spurring constitution making that otherwise might not have occurred; in others, they have played a blocking function, stopping constitution making from taking place; and in a third set of cases, they have played a shaping function, neither catalyzing nor preventing constitution making, but instead impacting the nature of the process. These functions, in turn, tend to be tied to different theories of constitution making. What emerges from this survey is that there is no single best mode of judicial intervention during constitution making; the optimal response is contextual. A key descriptive goal is to understand how political context affects the ways in which courts act; a key normative goal is to improve the fit between the nature of judicial action and the needs of a given context.