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Advanced Introduction to Comparative Constitutional Law: Second Edition

Mark Tushnet

Mark Tushnet, a world-renowned scholar of constitutional law, has excelled in extending and revising his essential introduction to comparative constitutional law.
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Constitution-making

Mark Tushnet

Extract

.2 The conceptual and practical role played by the “constituent power” in constitution-making is a pervasive theme.

Why make a constitution? Consider first a “new” nation, perhaps one that has successfully struggled to secede from another, or one that emerges from deep intra-national conflict. Such a nation might “need” a constitution for several reasons. The primary one is that in the modern world a constitution is probably regarded by the international community as a prerequisite to statehood, perhaps not as a matter of formal international law3 but as a matter of practical reality. Second, and perhaps only the obverse of the preceding point, domestic actors may treat the existence of a constitution as establishing or symbolizing the nation’s existence as a state. Third, constitutions are convenient ways of laying out the formal contours of the mechanisms for exercising public power. Finally, in nations with heterogeneous populations – an increasingly large proportion of the world’s nations – a constitution can serve as an expression, perhaps the only one available, of national unity.

Constitutions as maps of power may be somewhat inaccurate. The realities of power may not be fully reflected in a constitution. For example, a nation’s constitution might adopt a presidential form of government, yet the formal powers conferred on the president might not correspond to the practical power that the charismatic leader for which it was written actually has. Or the leader of the dominant party may hold a relatively minor public office yet be the effective...

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