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The right to participate in choosing or changing a constitution is becoming established in law and theory. The means of realising that right in the formation of Bills of Rights, and the consequences for democratic legitimacy, are matters of debate and experimentation. This chapter explores the processes used to develop Bills of Rights (or proposed Bills) in the United Kingdom, Canada, Australia, and New Zealand, and analyses key aspects of the design of those processes. It examines the context for creating a new UK Bill of Rights, including the work of the Commission on a Bill of Rights established in 2011. It reflects on the challenges facing the Commission in the light of experience overseas. It concludes that, on present evidence, the Commission is highly unlikely to achieve an outcome which might enjoy democratic legitimacy, in the sense of having been subject to inclusive and informed public deliberation.

This chapter continues Chapter 7's defense of constitutional law and judicial review, focusing on both the relative impartiality and the reasonable competence of constitutional procedures. It explains how the most frequently criticized aspects of constitutional process—its obsession with the past, its constraint by a text, the political insulation of its judges—give it a crucial advantage in impartiality over ordinary democracy with respect to issues of democratic authority. The chapter also contends that the superdemocratic nature of the framing and amendment processes, the long-term political dynamics of constitutional decision making, and the participatory nature of constitutional adjudication combine to generate reasonable democratic competence. It rejects strict formalism and open-ended pragmatism in constitutional interpretation, offering instead a methodology based on the concepts of semantic intention and justification discussed in Chapter 5. It closes by comparing the dispute-resolution approach to the popular responses to the countermajoritarian difficulty canvassed in Chapter 7.

New constitutional subjects have emerged in the course of globalization: international organization, transnational regimes and networks. They are characterized by denationalization and fragmentation, a high level of autonomy, and an issue-specific orientation. This chapter discusses the quality tests that the norms of a transnational regime must pass in order to count as constitutional norms. These cover constitutional functions (constituent and limitative), constitutional arenas (the economy: consumer activism, corporate social responsibility, money creation by the central banks), constitutional processes (reflexivity of legal and social processes), and constitutional structures (the emergence of constitutional/unconstitutional as a hybrid binary meta-code).

This chapter assesses the real-life case study of Iceland to illustrate some of the principles of open democracy. It closely examines the 2010–13 Icelandic constitutional process from which many of the ideas behind this book originally stem. Despite its apparent failure — the constitutional proposal has yet to be turned into law — the Icelandic constitutional process created a precedent for both new ways of writing a constitution and envisioning democracy. The process departed from representative, electoral democracy as we know it in the way it allowed citizens to set the agenda upstream of the process, write the constitutional proposal or at least causally affect it via online comments, and observe most of the steps involved. The chapter also shows that the procedure was not simply inclusive and democratic but also successful in one crucial respect — it produced a good constitutional proposal. This democratically written proposal indeed compares favorably to both the 1944 constitution it was meant to replace and competing proposals written by experts at about the same time.

This chapter addresses some understandable worries about the feasibility and desirability of open democracy. It discusses the fact that the Icelandic constitutional process ultimately did not succeed in putting in place a democracy closer to the open democracy model this book advocates for; the issue of whether the size and heterogeneity of a country would get in the way; and the issue of the competence of non-elected representatives. The chapter then examines the risk of capture of open institutions by powerful bureaucracies and interest groups, as well as the possible illiberalism of more majoritarian institutions. It also considers the lack of accountability of a non- or less electoral democracy at the systems level and the possibly time-consuming nature of decision-making under open democracy. The chapter ends on a more general reflection about the transition from classically representative to open democracy.

The traditional doctrine of the sovereignty of Parliament in the UK is being transformed. The change is the cumulative result of a series of legislative acts, judicial decisions, statements of officials, and academic opinions. This Chapter is not directed to the extent or the propriety of this change, but examines the process by which it has been effected. In contrast to most of the world changes in the UK constitution are generally understood as arising from a series of uncoordinated events by different actors. The new constitution has not been designed; it has been revealed over time. It is thus the work of a “blind” sovereign. I survey these developments, contrast them with constitutional orthodoxy elsewhere and, finally, qualify the comparison by raising doubts about the plausibility of the standard model of constitution-making.

This chapter analyses the constitutional reform processes that have taken place in the MENA countries since the social uprisings in 2011. The purpose of this study is to examine and compare the constitutional reform processes in order to offer key insights into these processes and to propose a typology of the dynamics of constitutional reform, and its scope in the MENA region. The aspects for analysis include procedures, consensus and dissent during the course of the constitutional process, and the content of the constitutional reforms. The emphasis is placed on the most important elements of the processes of constitutional change and of the content of the new constitutions, while paying particular attention to aspects related with the power of heads of state, the most frequently-debated reforms and the advancement of gender equality and women’s rights. The authors conclude that constitutional processes are relevant, but not determinant for democratic change, with the exception of Tunisia. The scope of the constitutional amendments has been limited and has perpetuated the dominance of the authoritarian rulers. Many of the constitutional reforms after the Arab Spring have been the product of strategies for survival by the respective regimes and were promoted ‘top-down’ through a process that, in many countries, excluded the revolutionary movements and opposition groups that were not loyal to the regime.

This chapter illustrates the Colombian Constitutional Court's explicit and implicit powers to undertake the judicial review of constitutional amendments. It begins by describing and analysing the 'explicit' procedural limits of the Colombian 1991 Constitution and the doctrine about the implicit unamendability. Through a quantitative analysis of both types of judicial review, the chapter demonstrates how the two approaches have developed in Colombia, and how in that context, there is an inverse relationship between the claims based on implicit limits (increasing behaviour) and those of explicit limits (decreasing behaviour). It then sheds some insights on the discretion that judges deploy when enforcing these implicit limits. The chapter raises some criticism on the fact that the Colombian Court does not have a clear interpretation on its own competence and scope to review constitutional amendments. It also claims that the excessive use of the doctrine of implicit unamendability has the undesired effect of focusing only in these principles, thus 'relaxing' procedural judicial review, giving the idea of less strict examination of the compliance with the rules governing the constitutional amendment process, and thus decreasing the quality in deliberation.

This chapter explores how it can be that, despite the attention of international institutions and experts in a particular constitutional process, and despite the application of international norms relating to democratic processes and fundamental rights, a constitutional process can give rise to a text that is incapable of achieving acceptance within the relevant country's borders. It argues that local context is the most important factor that should be considered if a constitution is to have any chance of acquiring some form of internal legitimacy in the future. The chapter begins by defining constitutional legitimacy and by arguing that although the 2006 Constitution has been endorsed by the international community, it was essentially dead on arrival in Iraq. It presents two case studies, to explain how this situation was brought about. The first shows how the drafters' lack of understanding of Iraq's institutional context led to the collapse of its system of parliamentary oversight under the 2006 Constitution, while the second shows how the constitutional drafters (and the internationals who advised and guided the constitutional process) had misjudged the relative popularity of the parties that were allowed to control the drafting process and that dictated the final text's content. Finally, the chapter attempts define the meaning of “local context” and identify its different components, particularly with a view to encouraging greater attention and understanding of local considerations and interests by all parties involved in a constitutional process in the future.

Macharia shows how the process of negotiation, a new social contract, and a constitution can be used to broaden the Voice of communities over land rights. She attributes Kenyan conflicts of land access and use rights to the history of colonization and the tension between community land rights and property regimes imposed during colonial rule. However, community based organizations participated in the drafting process of a new constitution and were able to voice their grievances and aspirations. Moreover, institutions were created to monitor the process of land reform – creating the possibility for continuing dialogue and thus Reflexivity. This case offers some perspective on how processes of institutionalization can further inclusion and contribute to social peace.

The book has provided four sets of conclusions. First, the examination of territorial strain, the nature of territorial problems and the characteristics of background conditions gives us a lens through which to evaluate critically the social, economic and cultural context to territorial politics. The second set of conclusions relate to the approaches used in the movements for territorial constitutional change in exploiting the support they did have and overcoming those weaknesses that still existed. As part of the reality of how territorial change happens it is to be expected that in the particular case of the UK that all territorial movements emerged out of party political contestation and self-interested party choices, and then had to define approaches heavily determined by party constraints. The third set of conclusions relate to UK central government. The UK centre was also in part defined by the pursuit of party power, and the key party at the UK level ready to address territorial constitutional reform — the Labour Party — faced large challenges and anxieties after 18 years out of office when they prepared for the 1997 general election. The final set of conclusions relate to the importance of constitutional policy processes to the resolution of conflicts in centre–periphery relations. Approaches to the development of devolution policy were followed which made the best efforts to achieve territorial balance under the constraints that they faced. The policy processes in Scotland and Northern Ireland achieved sometimes high, but at least sufficient, levels of inclusiveness in their mechanisms of negotiation.