The first is the widespread, cross-cutting, and increasingly visible, loss of authority of the old regime that is the necessary precondition of a revolutionary opportunity. The second stage is the revolutionary moment itself, the point at which the old regime loses power in addition to its previously evaporated authority.
This loss of power may be immediate and total, as where an authoritarian ruler is driven from office—perhaps killed or exiled—and a power vacuum ensues among all state institutions, but it need not be. As we have seen, this revolutionary moment can manifest itself in a variety of ways, from popular uprisings both peaceful and violent, to demands by or invitations to the revolutionary movement to begin negotiations leading to a formal transfer of power. The third stage of revolutions, at least if they are successful enough at stage two to reach it, is the establishment of the new regime in replacement of the old.
For revolutionary constitutionalism this is also typically the final stage, although it may not be for other types of revolutions, and the end arrives in one of four main ways.
Successful constitutionalist revolutions tend to conclude with a constitution that institutionalizes revolutionary principles and brings stability and popular legitimacy to the new regime, thereby completing the cycle of reestablishing governmental authority lost by the old order. Examples of such successful constitutionalist revolutions of course include the American, Indian, South African 42 and, so far, the Tunisian. The second potential ending, and first failure of revolutionary constitutionalism, is the establishment of a new form of non-constitutionalist rule, as in the French example of Louis Bonaparte after This scenario is to be distinguished from a non- or counter-constitutionalist revolution ending successfully in the establishment of the intended type of regime, as for example the October Revolution and in Iran after The third is restoration of the old order, as in England after , most European countries that experienced revolutions in , and Egypt under General el-Sisi since July The final outcome is the failure of any regime to establish or reestablish itself following the replacement of the old one, with essentially permanent breakdown, chaos, and contestation, and perhaps civil war.
This appears to be the story in Libya so far, although it is certainly questionable how far the toppling of the regime as stage two was internally, as distinct from externally, generated. This variant obviously requires that the preexisting regime includes a system of reasonably free and fair elections, which explains its relative newness and limits its applicability, and perhaps also is more likely to involve a lesser loss of governmental authority, so that the moment at stage two is ripe for electoral transformation but not yet for immediate revolution.
The range of endings is also similar, with two additional possibilities. First, the revolutionary government learns pragmatism in office and evolves to espouse reform rather than revolution. Second, the revolutionary government transforms itself into a new form of authoritarian or non-constitutionalist rule.
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Revolutionary constitutionalism is one scenario in which constitution-making takes place, and, as noted at the outset, a significant and visible one in recent years. Are there any distinctive features or challenges of constitution-making in the revolutionary context as compared with the other scenarios, or is the particular occasion for constitution-making relatively unimportant once the process begins? Does its constitutionalist nature and goal impact constitution-making in a way that differs from other types of political revolution?
At least two such features of the revolutionary scenario seem highly relevant. First, constitution-making typically takes place in a context of political limbo and fragility, during the period in between the second and third stages when the new regime needs to reestablish political authority following loss of power by the old. In other words, the revolutionary context is not merely once- but twice-removed from ordinary politics. Although the general parameters of possible constitutionalist outcomes may be flexible, typically any particular revolution will be made with certain fairly specific principles or demands in mind, as either conceived in advance by the revolutionary movement or forged in the context of the spark that lit the uprising.
In terms of the impact of the constitutionalist goal on constitution-making as compared with other types of political revolution, it is likely that more intrinsic value will be attached to the enterprise, as the culmination of the revolution. Of course, this difference hardly guarantees success.
The constitution-making process has been described generally as a key moment in shaping the character of any new regime. In the larger scheme of things, is constitution-making necessarily or always the critical variable? Is it simply a conceit of constitutional lawyers to believe that success turns significantly or mainly on the process, content and quality of the finalized document, or the priority that is attached to producing it?
Any general relationship between constitution-making process, finished product and political outcomes is obviously a highly complex one.
Nonetheless, it seems incontestable that a range of broader political, economic, social and cultural variables can critically affect the likelihood of a successful constitutionalist revolution once the third and final stage is reached. For example, of the two main scenarios in which revolutionary constitutionalism occurs in its classic or primary sense, colonial revolutions are more likely to succeed than internal revolutionary regime changes. This is so for reasonably clear reasons. Relatedly, a country is typically more united around the goal of independence than internal regime change, where the relevant interests are likely to be more divided: between rich and poor, town and country, the religious and secular, insiders and outsiders, etc.
To be sure, after independence, once the colonial power has withdrawn, divisions will often emerge in the course of reconstruction that were dormant or muted while the common goal remained, but that experience of original unity can nonetheless be a valuable resource in events that follow. Thus, an explanation that Arendt provides for the different outcomes of the American and French revolutions is that the former overthrew only the top i. The Libyan revolution has resulted in the dismantling of the weakly institutionalized state and an almost total authority vacuum.
Other key non-constitutional factors that appear to help explain the three different outcomes so far of revolutionary constitutionalism in Tunisia an elected government operating under the new, post-revolutionary constitution , Egypt a successful coup against the elected government that was operating under the new constitution , and Libya civil war and no progress towards a new constitution are the respective roles of the military, the degree of polarization in the country, the existence and control of valuable natural resources, and perhaps external intervention.
Thus, whereas the Tunisian army stayed largely on the sidelines while first the interim and then the elected politicians took control of the constitution-making process, the powerful military in Egypt, with massive economic interests of its own to protect, took firm control of the revolution after convincing Mubarak that he had no choice but to resign. The Supreme Council of the Armed Forces SCAF appointed itself the interim government, drafted the initial series of constitutional amendments that was put to a referendum in March , and determined after consultation the order in which regular elections and the constitution-making process would occur.
Even once elections were held for the civilian government, the military remained a constant factor and power player. By contrast, Libya had no institutionalized military but rather a series of rival militias. These reflect the greater polarization of political forces in a territory deeply divided along ethnic, clan, and geographical lines. Finally, there are some indications that the size, importance and historical centrality of Egypt in the Sunni Muslim world compared to the relative marginality of Tunisia has resulted in greater external i.
One other important political variable that distinguishes the South African—as well as the Venezuelan and Bolivian—situation from those in Egypt, Tunisia, and Libya is the difference between a mostly leaderless revolution and one that is controlled by a revolutionary movement, and especially a popular, charismatic revolutionary leader.
For the historical record strongly suggests that this is a key factor in the success or failure of political revolutions of all types. Notable failures range from the leaderless French and February Russian revolutions to Libya and Egypt, while successes include the American, Indian, Polish, South African—all with popular, charismatic leaders—as well as the non-constitutionalist revolutions led by Lenin, Mao, Castro, and Ayatollah Khomeini.
If these are some of the important non-constitutional factors that help to determine the outcomes of revolutionary constitutionalism, is there anything beyond the almost definitional point that successful constitutionalist revolutions tend to end in a constitution that speaks to the practical importance and priority of constitution-making in the revolutionary scenario? Is the constitution more cause or effect of success? One more substantive reason that constitution-making may be important after the revolution occurs is that it can serve as an independent source of legitimacy for the new regime.
As we have seen, revolutions begin only once the old regime has lost the authority to govern, and the new regime, if it is to succeed, must not only replace the old one in power but also in authority, by establishing its own and reestablishing that of government generally.
Where the new regime lacks or loses legitimacy, this creates the conditions for continued struggle and potential overthrow, as with the military coup in Egypt in July Despite the power of the military, the success of the coup was only possible because by this point legitimacy had drained out of the Morsi regime.
So how can the new regime achieve this, what are the sources of such legitimacy? In the general revolutionary context, there are broadly-speaking three. The first is that the revolutionary movement and leader ship have built up and acquired legitimacy as a result of their long struggle and sacrifice on behalf of the people to be rid of the old regime. This is one reason that such revolutions tend to be more successful than the leaderless variety.
George Washington brought his legitimacy, acquired during the revolutionary war, to the new office of President of the United States rather than the other way around, as with at least all post-revolutionary generation presidents. This is why it was so important that he was persuaded to accept the position.
A second source of legitimacy derives from performance: delivering what the people most want.
Where these are plausibly satisfied, this brings its own distinct legitimacy to those responsible for the result, whether a revolutionary movement or otherwise. Sometimes, where the revolution appears to be either losing direction or gaining momentum, and especially where this is manifested by increased levels of violence, chaos, and breakdown of order, a new popular desire for stability may emerge and begin to replace the yearnings for democracy.
But a third source of legitimacy, and one that is especially relevant for a constitutionalist revolution, is the process and content of constitution-making. Sometimes this distinct source of legitimacy will be super-imposed on one or both of the other two, as for example in India and South Africa. Sometimes it will be missing, but not essential in light of the others, as arguably in Poland in and after , where the revolutionary movement and leader came to power and gave the people what they most wanted independence, democratic elections, movement towards a market economy , but without engaging in the process of constitution-making—as distinct from selective amendment by the legislature—for several years.
Tunisia seems to be an example of this in that, in the context of a mostly leaderless revolution, a major source of legitimacy for the current unity government appears to be the widespread sense that it is the product of a largely successful experience of constitution-making. The process of constitution drafting by the National Constituent Assembly, directly elected by universal suffrage and proportional representation, was viewed favorably and as appropriate by most from the outset, and this carried over to the final document produced, even though its adoption did not require a popular referendum.
In the case of Egypt, both the process and product of the constitution-making experience after the revolution were seen at the time as deeply flawed and perceived as such by large sections of the population. Thus, the circumstances surrounding the first and second constituent assemblies appointed by the parliament in Egypt, with claims of partisan packing on the part of the Muslim Brotherhood, walk-outs by liberal-secular members, as well as actual and threatened court disbanding, 58 virtually guaranteed that the eventual document would be treated as illegitimate by broad sections of the political spectrum and population whatever its content and whatever the result of the popular referendum 64 percent in favor on a low, 33 percent turnout.
Although potentially true in the case of any type of political revolution, it is likely to be an especially important or key source of legitimacy in a constitutionalist revolution.
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To the extent that constitution-making can play an important role in the ultimate outcome of episodes of revolutionary constitutionalism, for the reasons just discussed or others, what contributes to its success? What features of its process and substance seem to be most critical? Starting with process, one fairly clear lesson of the recent episodes is the importance of ensuring that as many of the leading political groups and factions as possible feel a commitment to, and sense of investment in, a joint or common enterprise.
Absent such a temporarily ascendant group, a proportionally elected constituent assembly and a roughly parliamentary form of interim government, as in Tunisia, will generally be consistent with this priority by resulting in some form of de facto power-sharing. But where such a group exists, as it turned out in Egypt following the toppling of Mubarak, the situation is more difficult in this respect—especially of course where a strong army with a history of intervention is carefully monitoring developments.
Here, more formal power-sharing arrangements for both the interim government and constituent assembly to ensure the full involvement of as many constituencies as possible may be necessary. In short, taking the political context into account is critical. A comparison of the Egyptian with the South African and Tunisian cases also suggests that timing and sequencing in revolutionary constitution-making processes can be a significant factor. The latter examples involved the usual two-stage process of an interim regime that constitutes the rules for its successor followed by a final regime that is constituted by them, although the South African version involved the unusual phenomenon of two different constitution-making processes: an interim one arrived at essentially by elite pact and the final one by the elected Constitutional Assembly.
Admittedly, this factor is mostly formal in the case of the revolutionary leader—the George Washington, Nehru, Mandela—who will almost certainly fill whatever new permanent top office is created. In the case of Egypt, the perhaps well-meaning but ill-fated decision to hold regular presidential and parliamentary elections i. Unlike the common abusive variety, revolutionary constitutionalism does not start from ordinary politics; but, if successful, ends with it.