Constitution-writing rules

• Autores: Lorianne Updike Toler
• Localización: International journal of constitutional law, ISSN 1474-2640, Vol. 22, Nº. 4, 2024, págs. 1031-1058
• Idioma: inglés
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• Resumen

  • The new gold standard for constitution-writing is consensus. Such consensus is grounded on inclusivity and deliberation within the drafting body. Yet such consensus is under-theorized. It does not appreciate the impact of rules on constitutional outcomes. That parliamentary procedure is generally associated with majoritarian politics may explain this deficiency, but it is unjustified, as many procedural rules may facilitate a culture of trust among drafters that makes consensus possible. This study is the first to formulate a theory for how rules can contribute to consensus and identifies specific rules that are most likely to contribute to corporate trust upon which constitutional consensus depends. It then provides a case study in how the US Constitutional Convention deployed rules and benefited from physical strictures and structures that helped produce a high level of consensus.