Seminar in Constitutional Processes

This course will examine issues related to the process of constitutional drafting. As opposed to the traditional focus of constitutional law courses which is on the substance of the document -- this class will focus on the processes through which constitutions are written and revised. We will look at the players in constitutional drafting, including political elites, government institutions (like the legislature), warring parties in states in conflict, the public, the international community, and outside experts. We will examine the issues raised by constitutions drafted as part of a peace agreement and the question of whether certain conditions must be met in the conflict in order to allow constitutional drafting to take place. We will look at the process of public participation in constitutional drafting and the issues raised in the design of that process in countries facing challenges such as illiteracy or gender inequality. Using case studies from some recent and historical drafting experiences in South Africa, Uganda, and Iceland, among others we will ask what lessons drafters might learn about the design of processes. And we will also look at the processes through which constitutions are amended, including the question whether it is possible for a constitutional amendment to be unconstitutional. Students grades will be based on class participation and a long research paper on a topic of their choice.