Constitutional Legitimacy in the Real World: How Constitutions Gain and Lose Popular Support

Two of the most important qualities of a constitution are legitimacy and longevity. Fittingly, we have theories describing the grounds of constitutional legitimacy, and empirical work on the predictors of constitutional longevity. However, the linkage between these two qualities has been less well addressed. In this article, I begin from the premise that contemporary constitutions derive their initial legitimacy from the democratic credentials of the drafting process. However, the ongoing sources of constitutional legitimacy are less well understood. Does the legitimacy of the founding moment sustain the constitution, or is it replaced by other sources of legitimacy? Building on a case study of South African, I develop an argument about the shifting grounds of constitutional legitimacy, and the role of generational changes in creating periods of constitutional instability.

The Legitimacy of Boycotted Referendums

The appeal of constitutional referendums as legitimating tools revolves around their participatory promise: by triggering large scale participation and possibly also deliberation, they are said to inculcate national ownership. Recent work has also argued in favour of referendums’ potential for deadlock breaking and even peacemaking in divided and post-conflict societies. This paper investigates a common occurrence in such instances: referendum boycotts. One or several of the key players in the polity may call for a boycott in order to block or delegitimise the constitutional reform process. The international community itself may see a boycott as evidence of the process’s lack of democratic credentials. This paper draws on comparative practice to investigate the questions raised by boycotted referendums, options to avoid or manage boycotts, and how such results are to be interpreted. The backdrop to this is the possible vote on Irish unification and the risk of a boycott therein.

10 Years after Iceland: Recent Developments Digital Public Participation in Constitution Making

Constitutional reform sits prominently on governance agendas across the global north and south. Under pressure from citizens, states face unprecedented legitimacy crises that threaten longstanding political institutions. But constitution-making still remains one of the few processes dominated by political elites – a deep irony given that constitutions claim to represent ‘the people’s will.’ Policy makers and activists are working to change such constitutional conventions by harnessing the democratic and deliberative potential of digital technologies to redefine citizens' relationship to the state. This paper provides an overview of efforts over the last decade to deploy technological tools in bottom-up constitution making initiatives. Assessing the impacts of technology on these processes, it points to the potential of recent technological advances in contributing to democratic will formation, while also emphasising the limits of technological interventions on constitution making.

Referenda and Autocratization: Explaining Constitutional Referenda in Non-Democratic Regimes

Why do autocratic leaders resort to referenda to create a new constitution or amend an existing one? While the need to legitimize autocratic goals is rationally understandable and has received widespread scholarly attention, little is known about constitutional referenda as a tool to pursue this goal. A constitutional referendum puts the question about a decrease of parliamentary oversight, institutional accountability or just the plain abolishment of term limits to the people. If successful, the autocratic leader turns this plebiscite into the servant of autocratization. This poses an interesting theoretical and empirical puzzle. Through a comparative analysis of constitutional referenda in non-democratic countries, I show that they are primarily used when the constitution requires the autocratic leader to do so and that the existence of a hegemonic party significantly reduces the requirement for constitutional referenda.