1116 | Comparative Constitution Making

We often study constitutional law doctrinally without even knowing why a particular provision was added and the motivations behind its inclusion. Do constitutions create constitutional courts to protect rights and safeguard democracy? Yes, that is what most would say. However, Tom Ginsburg, Ran Hirschl, Mila Versteeg and countless others disagree (and are likely correct). Studying constitutional law requires way more than an examination of case laws. It requires understanding how constitutions are made, why they are made, and what can be expected of them. Only then can we comprehend the full extent of constitutional law and think about cases constitutional courts render.

Nevertheless, beyond these meta-questions, there are several other important questions relating to constitutions and constitution-making that require attention as well: Does a country need a written constitution? How long do constitutions last on average? Is it good if a constitution lasts long? Does putting something in the constitution mean the elected branches will follow it? Why do most attempts at making a democratic constitution fail? Why do most instances of authoritarian constitution-making in democratic regimes succeed? The list is endless.

This course will be organized as a seminar and will entail discussions of academic literature on constitution-making (particularly empirical literature drawn from different disciplines) and would aim to teach comparative constitutional studies through the lens of constitution-making. In this course, we will study examples of constitution-making from all across the globe, such as Hungary, Poland, Mexico, India, USA, South Africa, Bolivia, Venezuela, Iraq, Afghanistan, Israel, Iceland, Kenya, etc.

While on the face of it, this is a course on the ‘What, Why, and How’ of constitution-making, it aims to be more ambitious. It hopes to give newer and fresher insights into both the current state of comparative constitutional studies and the methods used in the academic discourse on the same. As important a role the substantive contents of this courses’ reading will occupy, so will the authors’ methods in their respective works. At every stage, we will question whether a particular work has done comparativism right and what can be extrapolated from it (and what cannot or should not)?