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Constituent assemblies in democratic regimes: the problem of a legally limited convention

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2018-06-21
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Cambridge University Press
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Abstract
The election or appointment of an assembly responsible for drafting a new constitution has historically been associated with episodes of deep political transformation, such as revolutions or regime change. However, these bodies are also invoked when it is necessary to replace a constitution within an established democracy. It is argued that compared to a constituent legislature, an assembly specially commissioned to write a constitution may better reflect citizens¿ preferences and promote an impartial constitutional design. From this perspective, conventions may help to create a more solid democratic foundation for new constitutions, contribute to a more balanced distribution of powers among state authorities, and ensure constitutional stability. In this chapter, I make the central claim that these advantages are not inherent to conventions. Whether a constituent assembly is more or less able to reflect the diversity of interests and views of the electorate or prevent a partisan design depends on institutional rules unrelated to the nature of its task. I also propose that these bodies may incur significant risks when a constitution is replaced within a democratic regime in which legal continuity must be preserved.
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Democracy, Revolution, Constitutional change, Constitutional conventions, Legal limits
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Negretto, Gabriel Leonardo (2018). Constituent assemblies in democratic regimes: the problem of a legally limited convention. Constituent assemblies. Estados Unidos De America: Cambridge University. Pp. 31-56