13 · Founding moments: the four routes to a constitution

The first half of this course read finished constitutions. The second half asks the harder question: where does a constitution come from in the first place? A constitution is the document that grants power to itself, so its own origin is a puzzle. It cannot be authorised by a higher law, because it IS the higher law. Something has to bring it into being from outside the ordinary legal order, and this section is about the four main ways that happens.

The bootstrap problem

Here is the puzzle in one line. A statute is valid because the constitution authorised it. What authorises the constitution? There is no document above it to point to. The answer is that a constitution rests not on a higher LAW but on a founding act, an exercise of what scholars call constituent power, the raw authority of a people (or whoever is actually in charge at the moment) to establish a new legal order. Who exercises that constituent power, and how, is the whole story of how a constitution is made, and it is why the maker matters as much as the text.

The four routes

Constitutions are made in recognisable ways. This course teaches four, each illustrated by one real case you will study next.

Read the last two rows against each other, because they are the subtle pair. Both Japan and Germany were defeated and occupied, yet they sit on two different routes: in Japan the occupier largely WROTE the text, while in Germany Germans drafted their own document within a framework the Allies set. How much the defeated nation authored its own constitution is a real and contested difference, and Lesson 16 teaches exactly that disagreement.

Two things to watch for in every case

As you study the four cases, hold two questions from the reading half of the course.

First, who really held the constituent power? "The people" is the usual claim, but look closer: at Philadelphia it was delegates the states sent; in South Africa it was negotiating parties plus an elected assembly plus a court; in Japan it was an occupying general's staff. The gap between "we the people" as a phrase and who actually drafted and adopted the text is one of the most honest things you can notice about any constitution.

Second, what system did they build? Each of these founding moments produced a constitution you can now classify on the three axes: the US built presidential and federal; Japan and Germany built parliamentary; South Africa built a parliamentary system with a strong bill of rights and a powerful constitutional court. The capstone will ask you to do both at once: trace how a constitution was made AND classify the system it produced. This is comparative description, not legal advice.

Sources

• Elster, J. (1995). Forces and mechanisms in the constitution-making process. Duke Law Journal, 45(2), 364-396.
• Elkins, Z., Ginsburg, T., & Melton, J. (2009). The endurance of national constitutions. Cambridge University Press.