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International Journal of Constitutional Law
Article . 2018 . Peer-reviewed
License: OUP Terms of Use and Content Access Policy
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Democratic constitution-making bodies: The perils of a partisan convention

Authors: Negretto, Gabriel Leonardo;

Democratic constitution-making bodies: The perils of a partisan convention

Abstract

Constituent conventions have traditionally occupied a privileged position within normative theories of constitution-making. It is claimed that compared to a constituent legislature, an assembly specially commissioned to write a constitution is better able to reflect citizens' preferences and promote an impartial constitutional design. This article argues that the superiority of conventions over any type of constituent legislature has no support on either theoretical or empirical grounds. It also proposes that conventions may incur significant risks when a constitution is replaced within a democratic regime. Conventions often transgress their mandate by asserting their right to express or submit their decisions to the legally unbound power of the people. This claim to incarnate or represent the sovereign popular will increases the likelihood of conflicts between the convention and established institutions and, most crucially for the preservation of democracy, facilitates the use of this body by a dominant political group to legitimize its capture of state power. These arguments are supported with a critical analysis of the alleged virtues of conventions, a discussion of the history and theory of these bodies in the USA, and a comparative study of recent cases of constitutional replacement by conventions in Latin America.

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Keywords

Perils, Derecho, Constitutional Conventions, Política, Democracy, Popular Sovereignty

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selected citations
These citations are derived from selected sources.
This is an alternative to the "Influence" indicator, which also reflects the overall/total impact of an article in the research community at large, based on the underlying citation network (diachronically).
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popularity
This indicator reflects the "current" impact/attention (the "hype") of an article in the research community at large, based on the underlying citation network.
BIP!Popularity provided by BIP!
influence
This indicator reflects the overall/total impact of an article in the research community at large, based on the underlying citation network (diachronically).
BIP!Influence provided by BIP!
impulse
This indicator reflects the initial momentum of an article directly after its publication, based on the underlying citation network.
BIP!Impulse provided by BIP!
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