“Constitutional Transitions and Territorial Cleavages” (with G. Anderson) (The Center for Constitutional Transitions and International IDEA, 2015).
Increasingly, an important—even central—issue in constitutional transitions is dealing with the diversity of populations in different regions, i.e., with territorial cleavages. When this territorial dimension is important, it can greatly complicate both the process of constitution making and the design of legitimate and stable constitutional institutions. Put simply, the theory and practice of constitution making often implicitly presupposes that there is a single people, and that the purpose of constitution making is for that entity to decide on the constitutional framework under which this people will govern itself. However, in many cases the very idea of a single people is not accepted—or is seriously qualified by deep diversity that creates a layered or composite national identity. Such demographic diversity can have serious implications for how constitutional processes are conducted and how constitutional institutions are designed, especially when it has a strong territorial dimension. This is an increasingly pervasive phenomenon in contemporary constitution making. In the last two or three decades, many countries that have engaged in constitutional debates have had to address (or are continuing to address) the territorial character and structure of the state. The diversity of these countries suggests that no single process or institutional design provides policy makers with a simple formula to address their different circumstances. This paper presents a framework for considering constitutional transitions that involve significant territorial cleavages. It is designed to assist political leaders, citizens and advisers engaged in a process of constitutional transition where the territorial character and structure of the state is an issue alongside other constitutional questions. After briefly discussing the significance of constitutions and the nature of constitutional transitions, it considers the political nature of territorial cleavages, the challenges they can present for constitutional processes that are not always framed with territorial issues in mind, and some options for constitutional design that may help manage or accommodate such cleavages.