William Partlett

History is central to comparative constitutional scholarship. But the methods and approaches of professional history (historiography) are not. This is a problem. Historiography - the critical study of how history is written and applied - provides important historical literacy for comparative constitutional researchers. This article will begin the process of unpacking its implications for CCS. First, historiography helps to counter the use of incorrect, incomplete, or simplified historical accounts. Second, it helps to show both the limitations and possibilities of applying history to contemporary constitutional questions. These historiographical methods can improve the use of history in comparative constitutional scholarship.

The constituent power of the Australian people has long been neglected. This article will turn to the transnational history of the Australian founding period to provide a clearer understanding of Australian constituent power. This history shows that the Australian framers adopted a version of constituent power borrowed from the American tradition of constituent power and which gives the people legal sovereignty to alter constitutional law outside of Parliament but in a way regulated by law. Remembering this constituent power tradition holds both conceptual and practical lessons for the way we understand Australia's constitutional order and the way that the Australian people exercise their constituent power to alter their constitutional order. In particular, it shows the importance of separating Australian constitution-making from ordinary, parliamentary politics. It therefore suggests that a fully-elected convention for drafting proposed constitutional amendments could revitalise the people's role in constitutional change. Furthermore, it also demonstrates the broader importance of theorising a constituent power tradition that allows the people to make constitutional law outside of Parliament but in a cooperative process regulated by ordinary law and institutions.

This article will place the 2020 amendments to the Russian Constitution in comparative perspective. Although these amendments were officially justified as strengthening the Russian state in order to tackle emerging new problems, they constitutionalise already-existing legislative trends from the last twenty years. They therefore do little to overcome existing problems of Russian state building. What was the reform process about then? It was intended to project the image of reform by involving the people in a staged process of constitutional change while further entrenching the power of the current political elite. The constitutional reforms therefore demonstrate the symbolic role that constitutional law can play in seeking to ensure the survival of mature or later-stage forms of authoritarian populism. This kind of 'theatrical constitutionmaking' is a broader reminder of how the expressive aspects of constitutional change can be (ab)used by established authoritarian regimes.

This article will theorize a previously unidentified type of constitutional design that I call "crown-presidentialism." Crown-presidential design combines constitutional powers exercised by elected presidents in both presidential and semi-presidential systems. First, as in presidentialism, crown-presidential constitutions grant the elected president final management power over the makeup of the executive-branch government. Second, as in a semipresidentialism, crown-presidential constitutions afford the elected president guardian powers to control the legislative branch as well as important judicial, prosecutorial, and integrity institutions. This formal design has provided presidents an important tool for dominating both formal and informal politics while claiming fidelity to democratic constitutional design. Crown-presidentialism is therefore an important tool in the super-presidentialism of many new authoritarian regimes. This finding is a reminder of the importance of formal design rules in shaping political behavior-even in some forms of authoritarian governance.

Lawyers and judges often use history in constitutional adjudication to provide context for constitutional interpretation. But there is debate about the extent to which historiography-the critical study of how history is written, developed by professional historians-is relevant to constitutional adjudication. This article argues that historiography has little relevance to constitutional reasoning grounded on historic legal sources such as court cases or legislation. But when constitutional reasoning relies on non-legal, general historical sources, historiography provides important insights. Arguments based on general historical sources-particularly originalist ones-can and should be critiqued on historiographical grounds. These methods show that general historical sources are unlikely to generate precise and objective constitutional meaning but can be used to develop and constrain many constitutional arguments, including those concerning constitutional practice, purpose, or values. Historiographic methods are important for lawyers and judges seeking to critique or make constitutional arguments grounded on general history.

The separation of powers is a normative concept at the centre of democratic constitutionalism which focuses on the correct constitutional organization of the state. This entry will describe how this concept has combined normative ideas about the importance of institutional balance and divided state functions into four well-known constitutional forms. It will then examine three current debates that focus on the concept's central ideas of form, balance and function. A critical theme throughout is that the separation of powers remains a dynamic concept that involves arguments about the best way to use constitutional balance, function and form to achieve better types of democratic politics.

Formal constitutional change can be an important moment of popular renewal in constitutional democracies. It allows the people themselves to reshape their governmental structure in order to improve governance and modernize institutions.  But it is also a potentially dangerous period that can lead to democratic backsliding if the process of formal change is captured by partisan factions.  This chapter describes how expanded revision clauses can help to improve the legal regulation of formal constitution-making and ultimately balance the promise and perils of formal constitutional change.

A century after it was delivered, the High Court's judgment in the Engineers' Case continues to cut off Australian federalism jurisprudence from the insights of American federalism cases.  The High Court should abandon this comparative legacy.  American federalism jurisprudence—particularly the jurisprudence seeking to protect key political safeguards of federalism—can provide important insight and ideas for developing the High Court's federalism docket.  This is particularly the case in the High Court cases considering the effect of Section 96 grants on Australian federalism.

Since the fall of communi.sni, liberals have soughr to reclaim the mantle of revolution. This new age of liberal revolution, they argue, culminates in a tran.sfbrmative moment when the people unite to throw off their shackles and establish a democratic constitution. These founding moments are therefore extraordinary periods of unconstrained politics, where the sovereign people transcend the formal borders of institutionalized politics and legality to draft the constitutional boundaries of their new liberal order. Russian President Boris Eltsin placed his violent and illegal dis.solutioii ot the Russian Parliament and period of authoritarian dictatorship within this tradition of liberal revolution. TTiroughout 1993, El'tsin justified his decision to disband Parliament as the necessary action of an agent of the people in a period of extraordinary (and ex-tralegal) politics. Western commentators have generally placed Russia's cotistitutional foundation within this revolutionary paradigm of extraordinary politics. In Russia, however, both El'tsin's methods and this revolutionary tradition are increasingly viewed with suspicion. This viewpoint is best expressed in the writing of the Chairman of the Russian Constitutional Court, Valerii Zor'kin. Steeped in the anti-revolutionary ideology of the late t.sarist Russian constitutionalists, Chairman Zor'kin argues that El'tsins actions at the Russian founding helped spawn a culture of lawlessness that has undermined Russian democracy. Although Zor'kin's approach is flawed, it is an important reminder for liberal constitutional thinkers to reexamine the concrete effects of a desire for a democratically pure founding moment.

Formal constitution-making is now an increasingly common phenomenon. But how should we understand the politics of constitutional lawmaking-what we call constitutional politics? Should it be structured differently from ordinary politics? As a descriptive matter, there seem to be important differences between constitutional and ordinary lawmak-ing. Constitutional lawmaking makes entrenched rules about rules and determines the institutional landscape of the state while ordinary lawmaking formulates non-entrenched rules within rules. Sometimes-and we argue preferably-constitutional politics takes place within consensus rules and institutions, which encourage the formation of coalitions that include all major social groups. Furthermore, constitutional politics frequently includes participatory mechanisms that are absent from, or peripheral to, ordinary politics, which tends to be driven more by competition among political parties. By contrast, ordinary politics generally-and also preferably, in our view-takes place within institutions that operate under more majoritarian rules and institutions. Although such differences have been noted before, previous scholarship has not fully theorized why these settings should be structured differently (Ackerman In this article, we develop a theory, or more precisely, a rational reconstruction (Gaus, 2013), to explain the difference between ordinary and constitutional politics in a democracy. Elucidating this distinction is practically important, we argue, because organizing constitutional politics as if it were ordinary politics or vice versa will tend to result in dysfunctional versions of both types of politics. In making this case, we engage directly with two bodies of literature: empirical research on institutions by political scientists and research of constitutions and constitutionalism by legal and political theorists. The distinction between constitutional and ordinary politics-or dualism-remains underdeveloped in both bodies of work, though for different reasons. Empirical political scientists frequently ignore this distinction altogether. Constitutional theorists, by contrast, discuss dualism but, mistakenly, tend to portray constitutional politics as superior and less subject to partisan dysfunc-tion than ordinary politics. This is particularly the case in times of constitutional replacement where, many argue, the people rise above their normal partisan concerns in adopting wholly new constitutional arrangements. We challenge both positions. We argue for the importance of the dualism distinction but also contend that constitutional politics is not a higher quality political form. What previous analyses have missed is the fact that constitutional and ordinary politics respond differently to the threat of the faction-that is, the risk of a majority "united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community."

This chapter will examine why many of the countries in the post-Soviet space – which spans eight time zones from Western Ukraine to the Russian Far East and has a population of around 300 million – continue to diverge from divided state constitutionalism. This divergence stems from the persistent influence of a competing constitutional discourse embedded in the region’s contested constitutional tradition. This distinctive discourse argues that a constitution should centralize state power and retain the political supervision of legality to fulfill particular collective goals. This “centralized state discourse” therefore competes with divided state constitutionalism to shape constitutional text and implementation across the post-Soviet space.

Cooperative federalism is now commonplace in the prosecution of street-level drug and gun crime in the United States. This Article argues that this cooperative federalism presents new-and largely unexplored-constitutional problems. In particular, unlike the civil regulatory context, cooperation threatens the constitutional rights of individual criminal defendants by allowing executives to circumvent local juries, judges, and laws. Moreover, this cooperation also potentially weakens the ability of states to function as political entities that can hold their law enforcement officers accountable in an area of traditional state police power. These problems suggest an important larger project exploring the solutions to these problems of cooperative federalism in criminal law.

In this blog post for the International Association of Constitutional Law, William Partlett of Melbourne Law School responds to Manuel José Cepeda Espinosa’s lecture “The peace process and the Constitution: Constitution making as peace making?”

This Article will examine an important – but largely ignored – approach to constitution making: The use of restored constitutional orders as the basis for the creation of a new constitutional order. Looking at this 'restoration constitution-making' in post-communist constitutional transition, it will describe how restoration held both advantages and disadvantages. On one hand, restoration improved the politics of constitution-making by helping to avoid the elite manipulation of extraordinary institutions during constitutional drafting. On the other hand, the restoration of decades-old constitutions also led to restored laws that privileged past generations and undermined broad popular participation. Finally, restoration was an important part of gaining international recognition for independence. This international component suggests that constitution-making is about more than just domestic politics. These fi ndings are an important fi rst step in understanding the potential of restoration to ensure a successful constitutional transition.

Formal constitution-making can represent one of the most dramatic and hopeful periods in political change. In weakly institutionalized and nascent democracies, it can also be a highly dangerous period. In particular, partisan elites can win electoral mandates and use constitutional law to undermine individual rights and weaken the power of checking institutions. In the face of this partisan use of constitutional change, legal scholars have recently argued that judicial review can block this abuse of formal constitutional law. Relying heavily on judicial review of constitution-making in three judiciaries in the “global south” (India, South Africa, and Colombia), they argue that robust judicial review can help to promote democracy by improving the politics of constitution-making.

This judicial activism is very important in revising the dominant view that courts cannot play a democratically legitimate role in constitution-making. But wider comparative perspective suggests that these exemplar courts are the exception. Many courts have been unable to improve formal constitutional change. More ominously, other courts have exercised this power to undermine democratic expression in constitution-making. This experience demonstrates that the interesting and important questions about judicial review of constitutional change are not whether unamendability clauses are democratic or courts have a legitimate role in the constitution-making process. Instead, the more pressing questions include what motivates courts to play a democracy-promoting role in constitution-making and how these courts gain compliance. Looking at the three exemplar courts of the global south, this Article will argue that a combination of benevolent judicial attitudes and ambitious intervention have helped underpin the success of these courts.

How do “the people” exercise their “constituent power” to replace the current constitutional order?  The conventional answer—drawing heavily on the American Founding period—is that the people act through specialized constitution-making bodies like constitutional conventions in an extralegal form of constitutional politics. Comparative experience, however, suggests self-dealing majorities can dominate these specialized constitution-making bodies, claim to represent the limitless constituent power of the people, and then unilaterally draft new constitutional law that entrenches their power or policies.

This Article will recover the American tradition of constituent power—which is still present in the common law of the American states—that limits the powers of specialized constitution-making bodies.  This tradition in turn minimizes a serious agency problem in constitutional replacement: It allows the people (the principal) to better control their representatives (agents) in extraordinary constitution-making bodies.  A recovery of this American practice therefore represents an important step in helping revise the universal claim that courts should play no role in constitutional politics. It suggests that judicial review can—in certain contexts—play an important role in ensuring a fuller and more deliberate expression of constituent power in formal constitutional replacement.

Political constitutionalism has long been strongly associated with the conceptual categories and debates of British political constitutionalism. Analysing the Australian convention debates of the 1890s, this article will show how the text of the Australian Constitution broke with British political constitutionalism by guaranteeing 'the people' a direct role in Australian political constitutionalism. This system of Australian 'popular political constitutionalism' has since led to distinct practices and debates. First, this unique form of political constitutionalism explains the implications the High Court has drawn from Sections 7 and 24 of the Constitution. The critical question for this jurisprudence is how the Court can protect the role of the people without undermining Australian political constitutionalism. Second, this popular political constitutionalism has also shaped the role of proportionally elected upper houses in representing more than a simple majority in Australian parliamentary governance. This practice raises the question of how Parliament can move beyond majoritarianism without creating too many checks on political majorities.