Does a constitution-making process need to be deliberative ?

The fifth episode of our podcast “Constitutions for Democracy” discusses the experiments aimed at introducing ICTs in collective law and constitution making as well as their consequences. Revolutionizing democracy to include citizens in decision-making processes was an expectation of the 1990s. The digitalization of politics and the incorporation of institutions of citizen participation were two lines of action promoted to increase transparency, legitimacy and citizen engagement in times of growing distrust and electoral apathy. Extremist views attributed either unfounded over-optimism – a direct and interconnected global democracy, as the maximum expression – or on the opposite extreme pessimism, a cybernetic nightmare – big brother, the society of control. What happened and what balance can we make in 2022 is the focus on this episode.

In the last two decades, many citizens’ assemblies were launched in consolidated democracies, from Canada to Australia, including many experiences in European countries and at the European Union level. Citizens Assemblies (CA’s) are tasked with learning, deliberating and advising upon a low or policy.  Ideally, CA’s are expected to draw a unique picture of what the whole citizenry would think about a public issue if they had the time to access information, deliberate and decide on the matter. But as more and more CA’s are launched around the world, the debate about their possibilites, challenges and outcomes rise. What drives such initiatives? Is it just an experiment of wealthy countries and consolidated democracies?  Which criteria should they meet to become real instruments of empowered and democratic citizen’s participation?

The elaboration of new constitutions in stable and consolidated democracies is uncommon. Quite often, constitutions in force either do not regulate their replacement or put in place obstacles that make change very difficult. These difficulties in times of crises of legitimacy provide incentives for a the clash between the so called ‘popular will’ and the status quo. This represents a real contemporary challenge as recently observed in Iceland (where the attempt of a total replacement did not succeed) or Chile (where a constitutional convention is working at the time of writing). Given the relevance of the topic, the third episode of Constitutions for Democracy is devoted to explore why is it so difficult to change constitutions in democratic settings? With Gabriel Negretto is Professor of political science at the Catholic University of Chile. He holds a Law degree from the University of Buenos Aires, and both a Master of International Affairs with specialization in Latin American Studies and a PhD in Political Science from Columbia University Jane Suiter is Professor in the School of Communications at Dublin City University. She is the senior Research Fellow on the Irish Citizens' Assembly on gender equality and is co-PI on the Irish Citizen Assembly (2016-2018) and the Irish Constitutional Convention (2012-2014) and a founder member of We the Citizens (2011), Ireland’s first deliberative experiment. Yanina Welp is Research Fellow at the Albert Hirschman Centre on Democracy. She is also editorial coordinator at Agenda Pública and founder member of Red de Politólogas. Her main areas of study are the introduction and practices of mechanisms of direct and participatory democracy, and digital media and politics, i.e. ‘democratic innovations’.

In this second episode, we want to explore why non-democratic regimes quite often do engage in elaborating constitutions and why they sometimes promote or simulate the promotion of citizens engagement in participatory processes. Why if they seem to go govern without restrictions would they be interested in changing the role of participation, is it just a smoke screen or does it play a strategic role? Can it lead to the  opening of the system sooner or later?

Literature dedicated to analysing constitution-making has focused on the relationship between “the optimal design of the constitution-making process” (in Jon Elster’s words) and a “successful” constitution in terms of whether it is durable, supported by citizens and able to establish the desired framework of coexistence. Even though it cannot be said that there is agreement over the necessary characteristics for such success, authors have highlighted the importance of whether or not the constitution is drafted by a convention or constituent assembly created exclusively for that purpose, whether members of the body are popularly elected by means of a proportional system that allows for the representation of different social actors, whether deliberation and debate within the body is open to citizens and publicized, or whether the constitutional draft agreed upon is ratified by citizens in a referendum. Citizens participation and transparency are at the core of the idea of a legitimate constitution. With Guests: Elena García Guitián is professor of political science and public administration at Autonomous University of Madrid, in Spain. Since 1992, she has participated in several R&D research projects financed with public funds, mainly through the Center for Political Theory (associated with the UAM). Between 2009 and 2011 she was General Director of Relations with the Courts in the Ministry of Presidency (Spanish Government). Paul Blokker is professor at the University of Bologna, in Italy.  His research interests include the sociology of constitutional law and of human rights, constitutional change, constitutional and political imaginaries, civic participation, and populism, in particular (but not only) in the context of East-Central Europe.

Constitutions are expected to incarnate the will of the people but with few exceptions citizens have very few opportunities to directly influence them. Nowadays violent clashes and massive protests are much more likely to create new constitutions than a peaceful democratic process. With distrust in politicians on the rise many emerging social movements demand a ‘real democracy’. But what is a real democracy? A podcast by the Cost Action Constitution making and deliberative democracy and the Albert Hirschman Centre on Democracy Produced by Yanina Welp and Michelle Olguin