From Parchment to Practice: Implementing New Constitutions

10/13
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Room V
1111 East 60th Street, Chicago, Illinois 60637
By invitation only

Constitution-making is a process of transition across time, from one regime to the next. As a conceptual matter, it is possible that constitutions can be either agents of change or of continuity. Constitutions often reflect elements of extant political and social orders even as they seek to create new democratic processes, rights, and patterns of economic and social life. Sometimes continuity is an objective of the drafters. Sometimes it is a brute imperative, especially when powerful factions must be placated in order for a document to be enacted. Even the process of drafting a constitution reflects a balance between change and continuity: if sufficiently inclusive, the process might alter the boundaries of the political community, even if this was not intended at the outset of constitution-making.

The possible dynamics of change and continuity from the period before a text is adopted to the period after its installation are manifold and varied. Yet little systematic work has addressed either the theoretical questions or the practical

ones raised by this variance. The aim of our conference is to understand how, when, and why written constitutions can be agents of social, economic, and political transformation in both the short- and long-term.

Theme One: The “First Period” Problem in Constitutional Design

Constitutional transformations are confronted with a set of immediate challenges: determining the sequence of elections and institutional creation; the use of transitional provisions; the management of potential spoilers; and decisions about how to prioritize. The “first period” can have profound effects on downstream constitutional performance, and can make or break constitutional implementation writ large. Our first set of papers will address how first period problems are managed, or mismanaged.

Theme Two: Managing Legacies and Continuity

The process of constitutional adoption and installation relates to the likelihood of stable constitutional substance and effective implementation. Does increasing the democratic pedigree of constitutional creation increase the stability of the resulting institutions? If not, how are desirable new forms of politics—e.g., ones that are more inclusive of women or of religious/ethnic minorities—effectively fostered in the context of constitutional creation?

Theme Three: Change and Continuity in Moments of Constitutional Creation. The tension between preservation and transformation in constitutional design implicates several questions of theoretical interest. To the extent that the efficacy of written constitutions always depends on political forces, there is a question whether such documents can ever have any transformative effect, and if so why. To the extent that constitutions are effective, can they be important instruments of social or political transformation, and if so, under what conditions? The preservation/transformation binary plays out in constitutional interpretation, where subsequent readers of a constitution must choose to be either forward- or backward-looking. We anticipate papers on managing colonial legacies or authoritarian transitions as well as in the issues of interpretation.

Agenda: From Parchment to Practice: Implementing New Constitutions

  • Friday, October 13, 2017
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      • Continental Breakfast

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      • Session I: The First Period Problem and a Classic Case

        • Welcome
        • Tom Ginsburg and Aziz Huq, The Theory and Practice of Constitutional Implementation
          • Commentator: Rosalind Dixon, University of New South Wales 
        • Sandy Levinson, Texas, The First Period Problem in the United States
          • Commentator: Eric Slauter, University of Chicago American Studies
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      • Coffee Break

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      • Session II The United States

        • Alison LaCroix, Chicago: The “Long Founding Moment” and period 1 ½ in the US
          • Commentator: James Pfander, Northwestern Law
        • Erin Delaney, Northwestern Law, Institutions and Inspiration: Judicial Design and Constitutional Transformation
          • Commentator: Federica Carugati, Indiana University, Ostrom Workshop
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      • Room 203 | Faculty Workshop
      • Lunch

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      • Session III Transformation

        • Ros Dixon and Theunis Roux, UNSW: Marking Constitutional Transitions: the Law and Politics of Constitutional Implementation in South Africa

          • Commentator: Richard Joseph, Northwestern University Political Science

        • Madhav Khosla, Harvard Society of Fellows: India’s First Period
          • Commentator: Raj Gandhi, University of Illinois
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      • Coffee Break

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      • Session IV Challenges

        • Melissa Crouch, UNSW: Authoritarian Transformation in Myanmar
          • Commentator: Dan Slater, University of Michigan Political Science
        • Claudia Flores et al, Women’s Rights and the Challenge of Social Transformation
          • Commentator: Mary Anne Case, University of Chicago Law School
  • Saturday, October 14, 2017
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      • Continental Breakfast

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      • Session V: Cases

        • James Gathii, Loyola Law School: Kenya
          • Commentator: Tom Ginsburg, University of Chicago Law School
        • Tom Ginsburg, University of Chicago Law School, Transitional Authoritarian Constitutions 
          • Commentator: Jeff Staton, Emory University Political Science
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      • Session VI: Cases

        • Daniel Abebe, University of Chicago Law: Ethiopia
          • Commentator: Aziz Huq, University of Chicago Law
        • Diego Gonzales, Constitutional Court of Colombia, The Early Constitutional Court
          • Commentator: Leopoldo Fergusson, Los Andes University, Economics
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      • Room 203| Faculty Workshop
      • Lunch

Constitutional democracy