Opening session of the 2021 Chilean constitutional convention

A constituent assembly (also known as a constitutional convention, constitutional congress, or constitutional assembly) is a body assembled for the purpose of drafting or revising a constitution. Members of a constituent assembly may be elected by popular vote, drawn by sortition, appointed, or some combination of these methods.[1][2] Assemblies are typically considered distinct from a regular legislature, although members of the legislature may compose a significant number or all of its members.[3] As the fundamental document constituting a state, a constitution cannot normally be modified or amended by the state's normal legislative procedures in some jurisdictions;[4] instead a constitutional convention or a constituent assembly, the rules for which are normally laid down in the constitution, must be set up. A constituent assembly is usually set up for its specific purpose, which it carries out in a relatively short time, after which the assembly is dissolved. A constituent assembly is a form of representative democracy.[5]

Unlike forms of constitution-making in which a constitution is unilaterally imposed by a sovereign lawmaker, the constituent assembly creates a constitution through "internally imposed" actions, in that members of the constituent assembly are themselves citizens, but not necessarily the political leaders, of the country for which they are creating a constitution.[6] As described by Columbia University Social Sciences Professor Jon Elster:

"Constitutions arise in a number of different ways. At the non-democratic extreme of the spectrum, we may imagine a sovereign lawgiver laying down the constitution for all later generations. At the democratic extreme, we may imagine a constituent assembly elected by universal suffrage for the sole task of writing a new constitution. And there are all sorts of intermediate arrangements."[7]

By country

Australia

Australia held four constitutional conventions, one each in 1891, 1897, 1973, and 1998

Chile

As of May 2021 Chile is the most recently elected constitutional assembly. The 155 members of this assembly were elected between 15 and 16 May 2021. The assembly has gender parity (50% females and 50% males) and has 17 seats reserved for people belonging to indigenous peoples. The assembly is granted 12 months to draft a new constitution, which has to be ratified by referendum once written, with compulsory voting.

Costa Rica

Immediately after the 1948 Costa Rican Civil War that overthrew the Rafael Angel Calderón Government, the leaders of the victorious side called for the election of a Constituent Assembly in the same year. The Assembly successfully drafted and approved the current Costa Rican Constitution.

Denmark

The Danish Constituent Assembly. Painting by Constantin Hansen (1864).

The Danish Constituent Assembly (Danish: Den Grundlovgivende Rigsforsamling; lit. The Constitution giving Assembly of the Realm) of 1848 established the Constitution of Denmark in 1849 (Danish: Danmarks Riges Grundlov; lit. The Constitutional Act of the Realm of Denmark) and formalized the transition from absolute monarchy to constitutional monarchy. The assembly consisted of members of which 114 were directly elected in October 1848, 38 were appointed by the king and the rest were government ministers.[8] The constituent assembly met at Christiansborg Palace in Copenhagen and first met on 23 October 1848.[9] The assembly was overall split in three different groupings: the National liberals, the Friends of Peasants, and the Conservatives. A key topic for discussion was the political system, and the rules governing elections.[9][8] On 25 May 1849, the constituent assembly approved the new constitution, and on 5 June 1849 it was signed by King Frederick VII. For this reason, it is also known as the June constitution.[10] Today, 5 June is known as Constitution Day in Denmark.

European Union

The European Convention (2001) drafted the Constitution for Europe for approval by the European Council and ratification by the member states. This constitution was abandoned after being rejected in French and Dutch referendums, and was replaced by the Treaty of Lisbon in 2007

France

During the French Revolution (from July 1789 to September 1791) a National Constituent Assembly (Assemblée nationale constituante) was formed when representatives assembled at the only location available – a tennis court – and swore the Tennis Court Oath on June 20, 1789, promising that they would not adjourn until they had drafted a new constitution for France. Louis XVI recognized the validity of the National Constituent Assembly on June 27, 1789.[11]

See also 1848 French Constituent Assembly election.

Germany

Parlamentarischer Rat (Parliamentary Council) (1948) – Drafted the Basic Law of the Federal Republic for ratification by the Länder. This council was not recognized as legitimate by Soviet-occupied East Germany, which drafted its own constitution in 1949 and would not accept the Basic Law until German reunification in 1990.

Iceland

On 27 November 2010, Iceland held an election for a constitutional assembly, with 522 people competing for 25 delegate seats. The assembly, in session for four months from early April until late July 2011, drafted a new constitution and passed it unanimously with 25 votes and no abstentions. On 20 October 2012 the parliament put the bill to a national referendum, in which 67% of the voters supported the bill. Further, 67% of the voters supported equal voting rights (one person, one vote) and 83% supported national ownership of natural resources, two key provisions of the bill. Parliament has failed to ratify the bill, however, inviting accusations that the political class is trying to thwart the will of the people by disrespecting the result of the 2012 constitutional referendum.

Ireland

In Ireland, the government elected in March 2011 has committed to establishing constitutional amendments on six specified issues and others it may consider; the government has separately promised amendments on five other issues.[12]

India

The Constituent Assembly of India was elected to write the Constitution of India, and served as its first Parliament as an independent nation. It was set up as a result of negotiations between the leaders of the Indian independence movement and members of the British Cabinet Mission. The constituent assembly was elected indirectly by the members of the Provincial legislative assembly, which existed under the British Raj. It first met on December 9, 1946, in Delhi. On August 15, 1947, India became an independent nation, and the Constituent Assembly started functioning as India's Parliament. B. R. Ambedkar drafted the Constitution of India in conjunction with the requisite deliberations and debates in the Constituent Assembly. The Assembly approved the Constitution on November 26, 1949 (celebrated as Constitution Day), and it took effect on January 26, 1950 — a day now commemorated as Republic Day in India. Once the Constitution took effect, the Constituent Assembly became the Provisional Parliament of India.

Indonesia

The Constitutional Assembly of Indonesia was established to draw up a permanent constitution. Its membership was elected in November 1955, and it met for the first time in November 1956. After four sessions, it failed to agree on the fundamental basis for the state. It was dissolved in 1959, and the original constitution imposed by presidential decree.(OTP)

Italy

The Constituent Assembly of Italy was established in 1946 in the wake of Fascist Italy's defeat during World War II. It was elected with universal suffrage, simultaneously with a referendum about the adoption of Republic or the continuation of monarchy. Voters chose Republic, and the new assembly had the task to approve the new republic governments, as well as to write a new constitution. This was approved on 22 December 1947.

It was dissolved on 31 January 1948, to be replaced by the new Parliament of Italy.

Mexico

The Viceroyalty of New Spain sent deputies to the Cortes of Cadiz, which enacted the 1812 Constitution. By the time this Constitution was enacted, an insurgency fighting for independence from Spain was already established.

The first Constituent Congress of independent Mexico, known as the Congress of Anahuac, was first gathered in Chilpancingo whilst the war of independence was still ongoing. During the opening of Congress, José María Morelos outlined its program in a document called Sentimientos de la Nación (Feelings of the Nation), which was the first antecedent of the various Constitutions of Mexico. Being persecuted by royalist troops, the Congress fled Chilpancingo and gathered in Apatzingán.

On October 22, 1814, the Congress enacted the Constitutional Decree for the Liberty of Mexican America (Decreto Constitucional para la Libertad de la América Mexicana), known as the Constitution of Apatzingán. The 1814 Constitution entered into force in the territories dominated by the insurgents, but as the war continued and the first insurgent leaders (like Morelos) were defeated, it was largely forgotten.

After independence was consummated on September 27, 1821, and based on the Plan de Iguala and the Treaty of Córdoba, the Provisional Governing Junta was stablished. The Junta proclaimed the Act of Independence of the Mexican Empire and acted as a de facto legislative assembly until February 24, 1822, when the Constituent Congress was gathered. On May 19, 1822, the Constituent Congress proclaimed Agustín de Iturbide as Emperor. The relations between Emperor and Congress were always problematic, a situation that led to the dissolution of Congress by Iturbide on October 31, 1822, without a formal Constitution being enacted.

After the dissolution of Congress, Iturbide created the National Instituent Junta, which enacted the Provisional Political Bylaws of the Mexican Empire on December 18, 1822. The dissolution of Congress had resulted in an armed revolution under the Plan de Casa Mata, which called for the establishment of a Federal Republic and for the restoration of the Constituent Congress. Iturbide was forced to abdicate and he reinstalled the Constituent Congress.

The Congress then created a provisional government, called the Triumvirate, and enacted the Constituent Act of the Mexican Federation, by which the former Provinces of Mexico were transformed into free and sovereign States. After this, a Constituent Congress was formed with the participation of the States and it enacted the 1824 Constitution.

Many disputes aroused between federalists and centralists, which resulted in political instability and in 1836 the Siete Leyes (Seven Laws) were enacted. The Siete Leyes dissolved the federation and created a unitary republic, but that ended in 1846 when the Constitutive and Reforms Act was enacted and the 1824 Constitution, and thus the federation, was restored.

On October 16, 1854, President Juan Álvarez, under the Plan de Ayutla, decreed the formation of another Constituent Congress, which met in 1856. During the presidency of Ignacio Comonfort, the Constituent Congress enacted the 1857 Constitution, which was liberal in character. The Constitution was not well received by the church and Mexican conservatives, and the Plan de Tacubaya called for its derogation. This events led to the Reform War, which the liberals won, then restoring the 1857 Constitution and adding to it the Reform Laws.

After the Porfiriato, and whilst the Mexican Revolution was still being fought, President Venustiano Carranza formed a Constituent Congress, which met in Querétaro and enacted the still-current Political Constitution of the United Mexican States of 1917.

Nepal

Nepal had two Constituent assemblies, the last one being elected after its predecessor failed to deliver a constitution, despite multiple extensions. It also served as the country's parliament. Finally Nepal had made constitution with 89% majority. Nepal has adopted Federalism since.

Poland

The Great Sejm (also known as Four-Year Sejm) was held between 1788 and 1792. Its principal aim became to restore sovereignty to, and reform, the federative Polish-Lithuanian Commonwealth politically and economically. These attempts were made by writing Constitution of 3 May 1791 that was designed to redress long-standing political defects of the Commonwealth and its system of Golden Liberties. The constitution lasted for merely a year because of the Polish-Russian War of 1792 and the Third Partition of Poland.

Philippines

The Philippines has had several conventions:

Russia

The Russian Constituent Assembly was established in Russia in the wake of the October Revolution of 1917 to form a new constitution after the overthrow of the Russian Provisional Government.

Sri Lanka

The Sri Lankan Parliament approved the creation of a Sri Lankan Constitutional Assembly on March 9, 2016, proposed by Prime Minister Ranil Wickramasinghe. The assembly will draft a new constitution for Sri Lanka.[13]

Turkey

Constituent Assembly of Turkey was established in 1961 after the 1960 Turkish coup d'état to prepare a democratic constitution. The constitution was prepared and approved by the voters in a referendum of 1961.

United States

Federal

Scene at the Signing of the Constitution of the United States, by Howard Chandler Christy (1940)

The U.S. Constitutional Convention drafted the still-current United States Constitution in 1787. Its delegates were appointed by the states, not directly elected, and not all states sent delegates; moreover, the convention was originally charged with drafting amendments to the Articles of Confederation rather than a new constitution.[14]

The US Constitution contains no provision for its own replacement (and because of the presence of entrenched clauses it cannot be revoked through an amendment). Article V of the Constitution does permit Congress to appoint a national constitutional convention to propose amendments but it has never done so. While Congress has the option to submit both its own proposals for amendments and those of a national convention to state conventions rather than the state legislatures for ratification; this process has been used only once (for the Twenty-first Amendment).

States

The Virginia Constitutional Convention, 1830 (George Catlin, ca. 1830). Many state constituent assemblies, like the 1830 Virginia Constitutional Convention, were highly formalized but the legitimacy of the constitution they drafted depended on whether it was authorized by the people, not whether a particular procedure was followed.

A long tradition in the use of constituent assemblies exists at the state level of Constitutionalism. In fact, constituent assemblies met in the states before the formation of the Federal Constitution in 1787 as well as after its ratification. Since 1776 nearly 150 state constitutional conventions have met to draft or revise state constitutions.[15]

These early state constitutional conventions frequently did not use procedural steps like popular ratification that became commonplace in the mid-19th century. Yet they were considered to be constituent assemblies that exercised their authority as that of the people.[16] As American Sovereigns: The People and America's Constitutional Tradition Before the Civil War by Christian G. Fritz notes:.

"A legitimate constitution depended on whether the sovereign people authorized it, not whether a particular procedure was used or whether revolutionary conventions were free of other responsibilities, such as passing ordinary legislation. It was the people as the sovereign who authorized drafting those first [state] constitutions that gave them their legitimacy, not whether they used procedures that matched what was later understood to be necessary to create fundamental law."[17]

American state constituent assemblies in the 19th and 20th centuries reflected many qualities of a citizen's movement.[18] From the start of state American constitution-making, delegates to constitutional conventions studied earlier state models of constitutions. They often self-consciously "borrow[ed]" constitutional text and provisions from other states. They often used in their drafting and debates compact and pocket-sized compilations of all the existing American constitutions, so that the constituent's assembly could draw upon the latest in constitutional design.[19] The powers of these state constituent assemblies were also highly contested, with some claiming that they had unlimited legal power and others claiming that they must operate within the pre-existing legal landscape.[20] In the end, a common law of constituent power emerged which held that elected constituent assemblies had limited powers.[20]

Several U.S. states have held multiple conventions over the years to change their particular state's constitutions.

  • Missouri has held four,[21] in 1820, 1865, 1875 and 1945.
  • Michigan has held four,[22] in 1835,[23] 1850, 1908 and 1963.[24]
  • Massachusetts has held six, in 1778, 1779–80, 1820–21, 1853, 1917–18, and most recently 2016.
  • The Constitution of New York has been amended, or re-established de novo, through nine Constitutional Conventions: in 1776–1777, 1801, 1821, 1846, 1867–1868, 1894, 1915, 1938, and 1967; a Constitutional Commission in 1872–1873; and a Judicial Convention in 1921.
  • Vermont's first constitution was drafted by a convention that met in July 1777 and revised by a convention that met in 1786, both of these conventions occurring when Vermont was still independent of the United States. Vermont was admitted into the United States in 1791 and its government continued to function under the 1786 constitution. Two years later in 1793 held another convention to bring some provisions of its constitution into line with the Constitution of the United States.
  • Virginia Conventions have included six unlimited meetings. Constitutions were promulgated by fiat in 1776, 1864 and 1901–02, and ratified by referendum in 1829–30, 1850, and 1868. Limited Conventions and Constitutional Commissions resulting in revisions were held in 1927, 1945, 1956 and 1968. Subsequently, the state legislature proposes amendments that are ratified in popular referendum.[25]

State constitutional conventions

All 50 states have had at least one Constitutional Convention, numbering over 233. 11 were illegal and defeated by arms (Confederacy and Dorr's Rebellion). 12 were illegal and won through arms (Revolutionary War, Republic of Texas, and Vermont Republic). 37 were made in accordance with a Federal enabling law. [26]

State Constitutional conventions
Alabama 1819 1861 1865 1867 1875 1901
Alaska 1955–56
Arizona 1910
Arkansas 1836 1861 1864 1868 1874 1917–18 1969–70 1978–80
California 1849 1878–79
Colorado 1875–76
Connecticut 1818 1902 1965
Delaware 1776 1792 1831 1853 1897
Florida 1838–39 1861 1865 1868 1885
Georgia 1777 1788 1789 1789 1789 1795 1798 1883 1839 1861 1865 1868 1877
Hawaii 1950 1968 1978
Idaho 1889
Illinois 1818 1847 1862 1869–70 1920–22 1969–70
Indiana 1815 1850–51
Iowa 1844 1846 1857
Kansas 1855 1857 1858 1859
Kentucky 1792 1794 1799 1849–50 1890–91
Louisiana 1812 1845 1852 1861 1864 1868 1879 1898 1913 1921 1973–74
Maine 1819
Maryland 1776 1850–51 1864 1867 1967–68
Massachusetts 1779–80 1820 1853 1917–19
Michigan 1835 1850 1867 1907–08 1961–62
Minnesota 1857
Mississippi 1817 1832 1851 1861 1865 1868 1890
Missouri 1820 1845–46 1861–63 1865 1875 1922–23 1943–44
Montana 1866 1884 1889 1971–72
Nebraska 1871 1875 1919–20
Nevada 1863 1864
New Hampshire 1776 1778–79 1781–83 1791–92 1850–51 1876 1889 1902 1912 1918–23 1930 1938–41 1948 1956–59 1964 1974 1984
New Jersey 1844 1947 1966
New Mexico 1848 1849 1850 1872 1889–90 1907 1910 1969
New York 1776–77 1801 1821 1846 1867 1894 1915 1938 1967
North Carolina 1776 1835 1861–62 1865–66 1868 1875
North Dakota 1889 1971–72
Ohio 1802 1850–51 1873 1912
Oklahoma 1906–07
Oregon 1857
Pennsylvania 1776 1789–90 1837–38 1872–73 1967–68
Rhode Island 1841 1842 1944 1951 1955 1958 1964–69 1973 1986
South Carolina 1790 1861 1865 1868 1895
South Dakota 1883 1885 1889
Tennessee 1796 1834 1870 1953 1959 1965 1971 1977
Texas 1836 1845 1861 1866 1868–69 1876 1974
Utah 1895
Vermont 1777 1786 1793 1814 1822 1828 1836 1843 1850 1857 1870
Virginia 1776 1829–30 1850–51 1861 1864 1867–68 1901–02 1945 1956
Washington 1878 1889
West Virginia 1861–63 1872
Wisconsin 1846 1847–48
Wyoming 1889

Legislative restrictions surpassed

State legislatures put restrictions on conventions that were not followed in these cases.[27]

  • Georgia 1789 proposed alternatives instead of accepting or rejecting a constitution.
  • Illinois 1862 and 1869 disregarded a requirement for an oath.
  • New York 1867 worked past its deadline and submitted its work later.
  • Pennsylvania 1872 against restriction altered the Bill of Rights.
  • Alabama 1901 increase delegate pay above limit.
  • Michigan 1908 submitted its work in November not April.

Countries without an entrenched constitution

A few countries do not have an entrenched constitution, which can thus be amended by normal legislative procedures; the United Kingdom, New Zealand and Israel are examples. In these countries there is no need to call constituent assemblies, and no provision to do so, as the legislature can effectively modify the constitution.

Although it lacks a written constitution, the United Kingdom has had several conventions at the subnational level including:

The constitution of New Zealand consists of a collection of statutes (Acts of Parliament), Treaties, Orders-in-Council, Letters Patent, decisions of the Courts and unwritten constitutional conventions. Because it is not supreme law, the constitution is comparatively easy to reform, requiring only a majority of Members of Parliament to amend it.

The constitutional law of Israel is determined by the Knesset which, since 1949, serves as the country's ongoing constituent assembly. The Knesset has the power to create Basic Laws of Israel, laws which are entrenched legislation and will become part of a "future" constitution of Israel, as well as "regular" statutory legislation.

See also

References

  1. ↑ Oloka-Onyango, Joseph. (2001). Constitutionalism in Africa : creating opportunities, facing challenges. Fountain Publishers. ISBN 9970-02-271-7. OCLC 849441803.
  2. ↑ Ghai, Yash. "The Role of Constituent Assemblies in Constitution Making" (PDF). Archived (PDF) from the original on 2021-03-28.
  3. ↑ "3.1.2 Constitutional assemblies". Constitution Making for Peace. Retrieved 2021-10-31.
  4. ↑ Macfarlane, Emmett, editor. (2016). Constitutional Amendment in Canada. ISBN 978-1-4426-1900-5. OCLC 1046612703. {{cite book}}: |last= has generic name (help)CS1 maint: multiple names: authors list (link)
  5. ↑ Newar Bdair. (2001). Newar Bdair – The Constituent Power. Fountain Publishers. ISBN 9970-02-271-7. OCLC 3286293. SSRN 3286293.
  6. ↑ Id. at 125
  7. ↑ Axel Hadenius, ed., Democracy's Victory and Crisis, Ch 7: Ways of constitution-making by Jon Elster (p. 123); Cambridge University Press, 1997. 431 pp ISBN 9780521573115
  8. 1 2 "Demokratiets etablering: Den Grundlovgivende Forsamling". danmarkshistorien.dk (in Danish). Archived from the original on 24 September 2020. Retrieved 8 February 2019.
  9. 1 2 "Den Grundlovgivende Rigsforsamling | Gyldendal – Den Store Danske". denstoredanske.dk (in Danish). Retrieved 8 February 2019.
  10. ↑ "Danmarks Riges Grundlov, 5. juni 1849 (Junigrundloven)". danmarkshistorien.dk (in Danish). Retrieved 2018-12-10.
  11. ↑ Paul R. Hanson, The A to Z of the French Revolution (2013) pp 85–86
  12. ↑ Dáil debates Vol. 728 No. 3 p. 5 March 22, 2011
  13. ↑ "Resolution on Constitutional Assembly passed in Parliament". www.adaderana.lk. Retrieved 19 March 2018.
  14. ↑ See The Records of the Federal Convention of 1787 (Edited by Max Farrand; revised edition in Four Volumes, Yale University Press, 1966).
  15. ↑ Albert L. Sturm, "The Development of American State Constitutions," 12 Publius (1982), 57–98.
  16. ↑ Marc W. Kruman, Between Authority and Liberty: State Constitution Making in Revolutionary America (Univ. of North Carolina Press, 1997), 1–33; Christian G. Fritz, "Alternative Visions of American Constitutionalism: Popular Sovereignty and the Early American Constitutional Debate," 24 Hastings Constitutional Law Quarterly (1997), 322–29; Christian G. Fritz, American Sovereigns: The People and America's Constitutional Tradition Before the Civil War (Cambridge University Press, 2008) at pp. 31–35 ISBN 978-0-521-88188-3
  17. ↑ Fritz, American Sovereigns: The People and America's Constitutional Tradition Before the Civil War (Cambridge University Press, 2008) at p. 33 ISBN 978-0-521-88188-3 For more on the role of the requirement of complying with specific procedures and processes, see Christian G. Fritz, "America's Unknown Constitutional World," Archived 2011-05-11 at the Wayback Machine Bonus Article, Common-Place, Vol. 9, No. 1 (Oct. 2008)
  18. ↑ Laura J. Scalia, The Remaking of State Constitutions: The Uses of Liberalism in Designing Electoral Laws, 1820–1850 (Northern Illinois Univ. Press, 1999); John J. Dinan, The American State Constitutional Tradition (Univ. Press of Kansas, 2006).
  19. ↑ Marsha L. Baum and Christian G. Fritz, "American Constitution-Making: The Neglected State Constitutional Sources," 27 Hastings Constitutional Law Quarterly (2000), 199–242.
  20. 1 2 Partlett, William (16 December 2014), The American Tradition of Constituent Power, doi:10.2139/ssrn.2538970, SSRN 2538970
  21. ↑ "A Celebration of Two Constitutions". archive.is. May 29, 2007. Archived from the original on May 29, 2007.
  22. ↑ "CONSTITUTION OF MICHIGAN". www.legislature.mi.gov.
  23. ↑ 19th Century Michigan History
  24. ↑ "Michigan Legislature – CONSTITUTION OF MICHIGAN OF 1963". www.legislature.mi.gov.
  25. ↑ Dinan, John. "The Virginia State Constitution: a reference guide", ISBN 0-313-33208-8, 2006, pp. 8–24.
  26. ↑ Sturm, Albert L. (1982). "The Development of American State Constitutions". Publius. 12 (1): 57–98. doi:10.2307/3329673. ISSN 0048-5950. JSTOR 3329673.
  27. ↑ Hoar, Roger Sherman (1917). Constitutional conventions, their nature, powers, and limitations. Robarts - University of Toronto. Boston, Little. p. 111.


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