Constitution-Making: Process and Substance

This article considers the procedural and resulting legitimacy issues of constitution-making and fundamental constitutional amendment. These procedures are partly related to the different historical scenarios and substantive (material) factors that give rise to e-constitutions. It considers only those political and economic factors which contribute to specific constitution-making features. In this regard, revolutions, regime change, and state-building are particularly relevant. In the case of revolutions there is a deliberate departure from, a rupture with, the existing constitution and the processes of legal and therefore legitimate change. This raises a fundamental issue of legitimacy: What gives the right (authority) to enact a new constitution? The article refers to the process that is not based on pre-existing rules of procedure as one of creation and the related constitution-making is called creation ex nihilo. In the case of regime change or reform the procedural modalities of the existing constitution might be observed.