Is there any safe and effective way to completely replace a constitution?

                

In countries all over the world, populations regularly amend or even replace their constitutions. But complete overhaul is almost never a simple trick, and in some places -- like here in the U.S., where substantial alterations seem to me to be desperately needed -- even minor amendments are almost impossible to enact.

 

Joshua Braver's new book, We, the Mediated People: Popular Constitution-Making in Contemporary South America (OUP, 2023) provides a sort of manual (one might even call it a hornbook!) for achieving such transformations. Braver, a faculty member at the University of Wisconsin Law School, argues that a successful process will likely involve illegality, but it should never be allowed to devolve into complete lawlessness. Getting what Braver calls "Extraordinary Adaptation" right is tricky. But failure can bring utter chaos, civil war, or totalitarian dictatorship. (Or numerous attempts may result in no changes at all.) The book also contains thoughtful discussions of the views of Hobbes, Sieyes, Schmitt, and Arendt on these matters.

I review Braver's valuable contribution to the literature on constituent power and constitutional change here.