Revolutionary constitutionalism

摘要

One important recent trend in constitution-making around the world has been revolutionary constitutionalism: using the constitution-making process to attempt to institutionalize and bring to a successful conclusion a political revolution. Although a good deal of attention has been paid to the specific revolutions involved, there has been far less on the general phenomenon of revolutionary constitutionalism as such. This article attempts to begin redressing this gap by offering some reflections on the general phenomenon and then employing them to inform an analysis of constitution-making in the revolutionary context. It makes three main claims. The first is that revolutionary constitutionalism is a useful category within comparative constitutional law. Empirically, it encompasses a range of situations that implicate constitutionalism in a particular way and raise special challenges. Analytically, it is a distinct concept from the neighboring term "constitutional revolution." Recognizing this permits us to distinguish between, for example, the New Deal constitutional revolution and the American Revolution. The second is that revolutionary constitutionalism contains within itself certain paradoxes and practical problems that have their source in the combination of initial radical transition and subsequent resistance to further radical change that constitutionalization brings. The final claim concerns the role and importance of constitution-making in the revolutionary context. Although relative to a broad array of socio-political variables, this role is generally less central to the ultimate outcomes of revolutionary constitutionalism than constitutional lawyers often think, it can respond to one distinctive challenge: the need to reestablish political authority lost by the old regime. As the comparison between post-2011 experiences in Egypt and Tunisia suggests, constitution-making can make a key contribution here as one source of the legitimacy that the new regime must acquire.