David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Jack Alan Reynolds
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When the world is once again preoccupied with constitution-making, this article challenges us to rethink our most basic conceptions regarding the adoption, ratification and amendment of popular-based constitutions. The conventional thought is that written constitutions may only be adopted within a short window of opportunity in the aftermath of a great revolution. Scholars primarily draw on the American and French revolutions of the late 18th century for lessons in successful or failed exercises of popular sovereignty. We further believe that constitution-making entails one document that embodies the will of the sovereign. We hold that the regular organs and tools of government cannot be used in the service of popular-based written constitutions. Only constitutional conventions and special ratification processes may qualify to express the will of a sovereign nation. This article suggests otherwise by drawing on the seemingly opposite experiences of Britain, a State without a codified constitution, and the U.S. According to new findings presented herein, British lawmakers developed a "referendal" model of constitutional transformations based on popular sovereignty, which foreshadowed Ackerman's renowned "dualist" model. The Article analyzes similarities and differences between the two models and assesses their significance for comparative study. In light of the comparison, it asserts that a common Anglo-American evolutionary model for constitutional transformations can be found. It is a model that maintains the distinction between the People and their representatives, yet allows for adoption of constitutional changes in stages, in multiple documents, and even statutes, using the regular mechanisms of government in extraordinary ways, which enable the People's voice to be heard. Its lessons are invaluable to every new exercise of popular sovereignty.
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