Ratification without Reason: Exploring an Unexamined Constitution-making Procedure
My book project focuses on ratification, the submission of a draft constitution to the people or their representatives for final approval before implementation. My book will be the first sustained study of the procedure and has three parts.
First, I look at the history, use, effects, and various forms that ratification can take, and argue that despite its intuitive nature and ubiquity, ratification is in need of justification. The procedure is increasingly common and regularly included in the constitution-making recommendations given by consultants and transnational actors. It also has significant effects: it can influence the behavior of framers and the contents of what they produce; it is costly and can lead to costlier rejections; and it can impact the political climate following the constitution-making process. Moreover, the procedure is entirely optional. Constitutions—such as the celebrated constitutions of South Africa, India, and most recently Tunisia—can be implemented directly following the drafting process. Despite all of this, both practitioners and scholars treat ratification as a given and provide no explanation or justification for its use. I argue that this is a mistake. Ratification is a constitution-making procedure in need of good reasons explaining its implementation.
Second, I look at what these reasons might be. Relying on historical and contemporary cases, constitutional and democratic theory, and comparative constitutional law, I articulate and test a variety of justifications for the procedure. These include conceptualizations of ratification as a filter for substantively illegitimate constitutions, as a means of ensuring representation in the constitution-making process, as the unique moment of constituent power in which the people manifest and exercise their will, and as a procedure that increases the likelihood that citizens will see the new constitution as authoritative. Ultimately I conclude that even the most convincing forms of these and other arguments fail to justify ratification, for they apply only occasionally, ignore the differences between constitutional and ordinary law, are limited in scope, contradict central constitutional theories, or assume the preexistence of robust democratic norms in every setting.
Third, I examine the implications of my findings and apply them to the present constitution-making landscape. I conclude that as of yet no convincing general justification for ratification exists, and that until one is discovered the procedure should cease being included among the constitution-making best practices distributed to framers today. This is not a wholesale rejection of the procedure, for ratification might be beneficial in specific contexts and circumstances and I explore what these might be, but it does give reason to question the automatic application of the procedure, as well as the similar treatment of other components of constitutional and institutional design process the merits of which are assumed rather than critically evaluated. I conclude the book noting that the most common form of ratification today, the referendum, is unlikely to ever be justified and in fact may cause a great deal of harm, and in its place I offer several procedural alternatives.