This chapter chronicles the triumph of a Protestant notion of religious liberty at Independence. The Protestant victory took the form of the late colonial state's domestication of an international legal provision—Article 18 of the Universal Declaration of Human Rights. Article 18 emerged from the concerted effort of international Protestant ecumenists to protect Christianity from the ravages of secularism, manifesting in restrictions on missions in places like Northern Nigeria, among other things. Protestant ecumenists emphasized two religious liberties: the liberty of the proselytizer to preach and the target audience to convert. Further, Protestant ecumenists argued that the Protestant notion of religious liberty trumped arguments about the empire's need to be separate (or distanced) from Christian missions. By narrating the Protestant effort to neutralize a mission-hostile secularist separation with a mission-friendly notion of religious liberty, the chapter argues that these constitutional ideas take shape in specific contestations. Consequently, the chapter makes a case for apprehending these ideas by closely studying the struggles that galvanize them.

Utilizing historical case studies from Iran, Afghanistan, Egypt, and Iraq, Chapter 4 delves into the question of how, why, and when the Islamic supremacy clause entered constitution making in the Muslim world and how it affected the incorporation of human rights in the constitutions of Muslim-majority states. It illustrates that both human rights and Islam are often democratically and popularly demanded by majorities in some Muslim countries; therefore, both represent popular aspirations rather than theocratic imposition. That is, they are often carefully bargained and compromised provisions in constitutions.

Chapter 1 introduces the theory of Islamic constitutionalism and examines the popularity of Islamic constitutional clauses in political life and how they originated along with constitution making in the Muslim world. It describes the constitutional history in four monarchies: Tunisia, the Ottoman Empire, Egypt, and Iran. The chapter demonstrates that the idea of "Islamic constitutionalism" itself originated in parallel to, and not in isolation from, the idea of modern European "constitutional democracy," beginning with the Ottoman and Persian "constitutions" of the mid-nineteenth and early twentieth centuries, respectively, partly as a defense mechanism in the face of ubiquitous "Europeanization" of politics. As such, it traces how and why, in an era of European colonial domination, the constitution becomes the focal point in the state where the negotiation or balancing between "Islam" and "liberal" democracy takes place. It is thus the starting point for realizing the twin popular ambitions – of rights and Islam.

Constitution-making has changed dramatically in recent decades. Compared with constitutional processes in earlier eras, we observe the increasing role of the international community in constitution making, often as part of a broader intervention into a conflict, and increasing penetration of international norms into national contexts. There has also been a trend toward public participation in the process of constitution-making. In addition, constitution making is now iterated over time, with multiple rounds of decision making and bargaining.This chapter draws on the framework of Jon Elster to frame the seven case studies in the volume, drawing toegether themes and trends.

The question that I explore in this chapter is the following: what should delegates in a constitutional assembly do, in order to properly take into consideration the demands of rival groups, which are usually present in the context of multicultural, divided societies? In my analysis, I make reference to four different responses to the fact of pluralism, which we find in the history of constitutional conventions, namely “imposition,” “synthesis,” “silence” and “bundling”.After describing these four different responses, I concentrate my attention on the analysis of the latter –“bundling”- which has been the more significant and influential approach, within the history of constitutionalism in the Americas, and also one very important in other parts of the world..

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.

Although many contemporary democracies face popular pressures to profoundly transform or replace their constitutions, there is little systematic academic discussion on the legal and political challenges that these events pose to democratic principles and practices. This book is a collaborative effort by legal scholars and political scientists to analyze these challenges from an interdisciplinary and comparative perspective. This introductory chapter discusses the phenomenon of constitutional redrafting in democratic regimes around the world and the contributions each chapter in the book makes to an understanding of the factors leading to the adoption of new constitutions in the context of free and fair elections, the procedural and political features of these episodes, and the relationship between constitutional replacements in democratic regimes, democratic theory, and democratization.

Does the absence of a legal rupture, the failure to put into practice the idea of a legally unrestrained popular sovereign, necessarily mean that an exercise of constituent power has not taken place? Can constituent power be exercised through law? These are questions that indirectly challenge one of the features normally attributed to constituent power: its unmediated and uncontrollable nature. This chapter will compare two traditions of constitutional thought (that of Sieyès and Rousseau) that provided different answers to those questions and explore the ways in which the idea that constituent power can be exercised through legally recognised procedures has figured in later constitutional theory and practice.

This chapter compares the processes through which the constitutions of Colombia and Venezuela where rewritten during the 1990s. It argues that participatory constitutional redrafting, such as the one which took place in these two countries, generally results in constitutions that widen democracy through the introduction of novel participatory mechanisms and expansive bills of rights, allowing for the inclusion of new actors, interests and demands. However, the internal dynamics of negotiation between the drafters will determine whether the resulting text also creates institutional architectures that are favorable to competition, dissent and accountability. In cases such as Colombia, where a variety of political forces present in constitutional assemblies participate in a centripetal dynamic of negotiation and bargaining, the process often results in a consensual and balanced constitutional text that disperses power. By contrast, cases such as Venezuela, where there is a dominant force or coalition that does not need to engage in negotiations with other actors present in the assembly, tend to produce institutional arrangements that concentrate power in the executive at the expense of those institutions that place limits on the use of power thereby reducing opportunities for dissent and the possibility of accountable governments.

This chapter reviews aspects of the constitution-making process in Iceland after the financial collapse of 2008, emphasizing the differences between the provisional constitution of 1944 when Iceland separated unilaterally from Nazi-occupied Denmark and Denmark’s 1849 constitution which served, with notable exceptions, as the prototype for Iceland’s 1944 constitution. The comparison and contrast between the Icelandic and Danish constitutions invites a comparison also between Iceland’s 1944 constitution with the new post-crash constitution from 2011 accepted by two-thirds of the voters in a national referendum in 2012 and waiting to be ratified twice by a reluctant Parliament. Against this comparative background, the chapter proceeds to discuss political and procedural aspects of Iceland´s constitutional reform project, and concludes by proposing lessons to be learned from Iceland´s experience thus far.

Constitutionalization encompasses a variety of ways in which constitutional rules emerge and change. Chapter 3 addresses the emergence and development of constitutional rules in the national context. It begins with a conceptual discussion of constitutionalization, defined as any process that brings about and changes constitutional rules. Spanning a spectrum between two ideal–type revolutionary and evolutionary pathways, constitutional processes vary with regard to frequency, intensity, output, and means of change, as well as the underlying political intentionality and contestation. The variability of constitutionalization is demonstrated empirically through a systematic analysis of national constitution–making in the United States, Sweden, and Britain in terms of the five constitutional elements identified in Chapter 2, emphasizing their similarities and differences. While this analysis will not be entirely novel to the comparative constitutional law and politics readership, it is an important building block for conceptualizing constitutionalization in the international setting.

This chapter examines the constitution-making processes in the history of the Turkish Republic to provide an alternative explanation for the authoritarian foundations of Turkish constitutions different from the established explanations based on the center-periphery dichotomy or military tutelage argument. Drawing on Claude Lefort’s theory of modern democracy, the chapter argues that the dominant constitution-making practice in Turkey has been the hegemonic-totalitarian logic, which causes the performative closing of the empty place of power by one actor that claims to exclusively represent the people’s will. This embodiment claim constitutes the authoritarian foundation of Turkish constitutions. These embodiment claims were made by the Republican Peopleʼs Party for the 1924 Constitution, by the military following a coup for the 1961 and 1982 Constitutions, and by the Justice and Development Party as a populist actor holding the parliamentary majority in the 2007, 2010, and 2017 amendment processes. The Constitutional Conciliation Commission ‘Anayasa Uzlaşma Komisyonu, AUK’ could have achieved a democratic departure from the path-dependent authoritarian constitution-making approach.