Russia’s continued aggression against Ukraine has sent shock waves around the world. Russia has violated the most fundamental rule of international law and most people intuitively feel that the war in Ukraine has changed the entire landscape of international society. Given what is clearly a turning point, it is difficult to assume that global constitutionalism founded on ‘human rights, the rule of law and democracy’, called ‘the constitutional trinity’, will not undergo any changes. Can global constitutionalism survive such a difficult moment? This is a fundamental question that global constitutionalists must address. This article answers this question in the affirmative. First, despite its gross violations of international law, Russia is not necessarily attempting to withdraw from the current framework of international law. The existing individual-centred elements in international law, which are the central pillar of global constitutionalism, will not be replaced by any alternatives. Second, even if the existing framework of international law remains viable, there is an undeniable risk that the polarization of international law accelerated by the ongoing war will negatively affect global constitutionalism. Such polarization may hollow out the constitutional trinity in international law. However, global constitutionalism will continue to function as the principal cognitive framework for international society because the exercise of individuals’ rights embedded in international law will incessantly provide energy for global constitutionalism. This article concludes that insofar as international law keeps its individual elements, global constitutionalism will be able to retain its normative power under the present predicament in the world.

The Russian war against Ukraine has challenged fundamental norms such as sovereignty, non-interference and the prohibition of the use of force. It has led to diverse reactions from the international community. Only very few states sided with Russia, some states remained neutral, while the vast majority condemned the attack and supported Ukraine in its right to self-defence. Thus, although there is no legal obligation, many states display behaviour that goes beyond diplomatic support. They support Ukraine financially and even deliver weapons to support Ukraine in its right to self-defence. In this article, we conceptualize different types of actors’ behaviour in world politics. We distinguish between responsible, irresponsible, appropriate, and inappropriate behaviour. We apply this typology to states’ reaction to the Russian war against Ukraine. The typology enables us to analyse the variation of the responses with reference to norms and responsibility, two core concepts of International Relations (IR) Theory and global politics. Counterintuitively as it might seem, we argue that the support of Ukraine with weapons can be categorized as responsible behaviour as it displays an over-fulfilment of the right to self-defence norm, which leads to the emergence of a new norm: the responsibility to support norm.

In this article, we argue that the 2022 Chilean draft Constitution helps to articulate the distinction between a transformative constitutional project and a utopian one. Whereas a transformative project lays down markers for social change that will take time to achieve, a utopian project sets out goals that are unlikely to be achieved within any reasonable timeframe. Utopianism is a product of two relationships. The first is the internal relationship between the transformative goals laid out in a constitution and the institutional pathways through which changes will occur. The second is the external relationship between the goals in the text and the views and support of key groups. In Chile, both relationships were problematic. First, the Convention adopted a draft that was heavy on ambitious programmatic content but lacked a clear vision of how to implement it. Second, the Convention produced a draft that was supported by the ephemeral civil society groups galvanized by the 2019 protests but divorced from the vision of Chile’s parties and public opinion. Some of this was a product of the peculiar electoral context in which the Convention acted, which has already been corrected. But some of it reflects deeper tensions within transformative constitutionalism.

This introduction to the symposium ‘How do Constitution-Making Processes Fail? The Case of Chile’s Constitutional Convention (2021–22)’ situates the project in the field of constitution-making, provides context regarding the Chilean case, summarizes some possible explanations for the failure, and describes how each article contributes to the symposium as a whole.

The Constitutional Convention in Chile, like other constitution-making mechanisms in democracies, carried out its work within the democratic institutional framework. In a democracy, the success of a constitution-making process depends not only on internal factors, such as its capacity for representation and the procedural rules by which it is governed, but also on external factors such as participation, the government’s role and other contingent factors. When the process – including both internal and external factors – fails to produce adherence to the new constitution, institutional resistance to changes is very likely to occur. This article argues that the manner in which the political and social spectrum was represented in the Chilean Convention, combined with the way participation was implemented and the rules governing the Convention, insulated it from society and the rest of the democratic institutions. As a result, party and public adherence to the proposal made by the Convention was low and its contents generated institutional resistance from outside.

This article extends the study of the shortcomings of the constitution-making design that contributed to the failure of the Chilean process by addressing a largely overlooked aspect: the 2020 entry referendum. By placing two competing constitution-making models on the ballot, the political elites delegated to the voters a highly conflictual aspect of the process design that prevented cooperation among them. While some political parties approached the disagreements placed on the ballot as an opportunity to reopen discussions already settled by the 2019 Agreement, others interpreted the move as a cancellation of the political insurance contained in the Agreement. This exacerbated the existing polarization among political elites and imperiled prospects for the success of the process.

In this article, I ask about the extent to which the Conference on the Future of Europe (CoFoE) has advanced democracy in the European Union. I critically engage with the claim that the CoFoE’s success should not be measured by whether it enabled constituent power, or ultimately results in treaty reforms, but by the fact that, by introducing citizens’ assemblies to EU politics, it has laid the foundation for participatory democracy in the European Union. Drawing on established theories of participatory democracy, I argue that this interpretation misses the point. To put forward an alternative view, I revisit James Bohman’s concept of a democratic minimum. The best democratic defence of permanent EU citizens’ assemblies is that they could provide citizens with the capacity to initiate deliberation about common concerns – and thus function as a nucleus for constituent power in the European Union. Nevertheless, the idea should be viewed with caution, as permanent citizens’ assemblies could just as well become a democratic fig-leaf allowing EU institutions to reject calls for fundamental reforms. Much therefore depends on their institutional design.

The various and diverse academic responses to the Conference on the Future of Europe’s efforts at democratic renewal, including those by Ben Crum, Markus Patberg and Sandra Seubert, speak not only to the lack of a clear institutional locus or pathway associated with the Conference, but also to differing understandings of the basic conditions of existence – or political ontology – of the European Union. These differing understandings are reflected in different attitudes to the European Union’s constitutional standing and prospects. This article explores how the special place of constitutional retrofitting in the European Union – of reconstructing and reimagining an originally pre-constitutional system in constitutional terms – helps to illuminate the different understanding of political ontology in play, and helps clarify what is at stake in the continuing debate over fundamental reform.

The contemporary crisis in relation to constitutional literacy relates not to the lack of knowledge that citizens possess about fundamental constitutional texts, but to the considerable lack of development in relation to what constitutional literacy itself entails. This article accordingly unpacks the notion of constitutional literacy: its importance, its characteristics, and its variable nature. Using a comparative lens, the article invites reflection on the role we expect citizens to play in our democracies, and especially the associated knowledge and skills required for successful state performance. We suggest that constitutional literacy is exceptionally multifaceted and fluid in nature, which serves to make its conceptualization and measurement challenging endeavours, and certainly more so than the easy invocation of this notion may assume at first blush. In this regard, engaging with the constitutional text, while an integral component of constitutional literacy, is ultimately only one part of the puzzle.

In 2021, the Chilean Convention became the first constitution-making body with gender parity. However, the draft – which reflected many gender-related norms – was rejected by 61.89 per cent of voters in the exit plebiscite of 2022. In this article, we argue that although parity constitutionalism has promise and, in the Chilean case, was linked to gender-related outcomes in the constitutional text, parity’s promise may fail to materialize. We thus caution against a naïve view of parity constitutionalism as one of the key legacies of the 2020–22 Chilean constitution-making process.

This article suggests that the conditions under which the Chilean constitutional process of 2021–22 undertook its task held the seeds of its doom. Constitutional conventions are always tasked with reaching agreements on the controversial allocation of decision rights, and doing so is no simple feat. The Chilean process combined (1) very dispersed preferences regarding the problems the new constitution should solve and the institutions to best enable solutions, with (2) a brief timeframe to allow for agreements to emerge, aggravated by (3) a composition of the Convention that was dominated by independents lacking experience in legislative bargaining, and (4) a severe disenchantment of the population with parties and politics as the backdrop. Together, these hurdles proved impossible to overcome. Despite the notorious political achievements of the Committee we study here, the proposal that came out of Chile’s Constitutional Convention in 2021 was plagued by controversy and a negative perception of the Convention’s work, and was ultimately rejected by the people.

This article shows how failed constitutional proposals may contribute to future constitution-making processes by exploring the relationship between the recently failed Chilean constitution-making process (2019–22) and the previous unsuccessful one led by former President Michelle Bachelet (2015–17). Comparative constitutional scholars are yet to fully understand how constitutional failures of this kind can take place, and Bachelet’s process has not received the attention it should. This article fills that gap by showing how both processes were driven by shared principles initially set by Bachelet. It also shows how those principles may serve as a blueprint for future constitutional changes in Chile. Bachelet had campaigned on the basis that any constitutional replacement attempt should be participatory, institutional and democratic – all ideas that have remained popular in Chile’s political landscape. Those ideas have served the purpose of both reducing transaction costs among constitutional negotiators and securing large compromises in polarized political scenarios.

Constitutions change in different ways, and some constitutions – such as the Chilean Constitution – change often. The significant changes to the Chilean Constitution have been frequent and fast, and they have accompanied the failed constitution-making processes of the previous years. Examples include crucial sub-constitutional statutes such as the electoral system regulation and same-sex marriage, political practices challenging the power of the president in the law-making process, constitutional rules such as term limits for legislators, judicial practices such as the enforcement of social rights and the amendment procedures of the Constitution itself. Despite the successful attempts at reforming the Constitution and the failed attempts at replacing it, Chileans are still trying to replace the constitutional document. However, the constitutional framework has become unstable, making it harder to agree on what exactly is wrong with it. This article seeks to open a conversation in the constitutional literature. It argues that constitutions can become moving targets and uses the Chilean case to show the need to theorize more about the moving target problem.

The relationship between balancing and proportionality has not always been clear. Because part of the literature falls short of adequately differentiating between the two tools, many people have become conditioned to see an instance of proportionality whenever the word ‘balancing’ is dropped. As a consequence, the ubiquity of balancing brought about the feeling that proportionality is equally ubiquitous. In this article, I show that the proportionality test is necessarily linked to judicial review and how this link is key to understanding why not every instance of balancing is part of the proportionality test and that proportionality cannot be as ubiquitous as many have claimed. This has not only analytical relevance, but also institutional consequences.

This essay proposes the epistemic ethos of passionate humility for knowledge production about global constitutionalism in the aftermath of Russia’s full-scale invasion of Ukraine. By employing the conceptual strategy of elucidation, passionate humility can reveal a counter-intuitively counter-hegemonic use of the global constitutionalist triad of human rights, democracy and the rule of law in the Ukrainian resistance against Russia’s war. As an approach to knowledge production, passionate humility addresses epistemic ignorance by retrieving situated non-imperial knowledges while also confronting the ambivalent politics of such knowledges. It therefore hints at how we can both decentre and make use of resources associated with global constitutionalism, without valorizing western elitist discourses, reinscribing the inter-imperial mode of knowledge production or sanitizing vernacular knowledges. Passionate humility does so in three moves: it problematizes hegemonic epistemic frames (either west-centred or Russia-centred); it foregrounds complex social agency, which resists a fixed theoretical or ideological language; and it reveals the contextual deployment of the Occidentalist language of global constitutionalism in the Ukrainian public discourse as a practice of negotiated subjecthood. Such practice can be counter-hegemonic without being inherently progressive.

Chile’s experience with its Constitutional Convention from 2021 to 2022 sheds light on an important issue for comparative reflection: the role of procedures in constitution-making processes. The Constitutional Convention was bound by procedures that were both externally imposed and internally created. Our assessment is that, while some procedures improved representation and deliberation, the most important decision-making procedures were pernicious to the process. We argue that looking at procedures is fundamental when analysing constitutional processes, as the rules that bind rule-making processes can significantly impact not only their functioning, but also their outcomes.

Digital constitutionalism is a strand of scholarship that focuses on the relationship between constitutional law and the socio-legal challenges posed by the digital revolution. However, such scholarship often builds uncritically on the tenets of liberal, state-centred constitutional theory, giving rise to contradictions between analytical starting points and normative aspirations. Against this background, with an approach inspired by societal constitutionalism, this article engages with digital constitutionalism as both an object and a means of critique. As an object, digital constitutionalism is assessed in the light of its contradictions. As a means, digital constitutionalism is used to assess the limits of traditional, liberal, state-centred constitutional theory. In other words, societal constitutionalism is the theoretical lens used to both deconstruct and reconstruct digital constitutionalism according to its normative aspirations. The article has three main goals: first, linking different discourses within digital constitutionalism, highlighting its critical potential; second, advancing some proposals based on such reflections; and third, bringing digital constitutionalism closer to the broader global constitutionalism discourse. After an overview of societal constitutionalism, the article focuses on digital constitutionalism’s definition and three functionally differentiated systems: politics, economy and law. For each of them, it highlights analytical and normative gains deriving from the societal constitutionalism-based approach as well as policy proposals to be developed further.

Feminists and women activists use manifestos to express their frustrations with legal and political systems, expose the harms suffered in their lived experiences under patriarchy, colonialism and capitalism, and call for radical political, legal and social change. This special issue on feminist manifestos and global constitutionalism considers the role of feminist manifestos in global constitutionalism. It interrogates the role of feminist manifestos in bringing about legal and political reform, their role as historical texts and sources of global constitutionalization, and their limitations as tools that are potentially both exclusionary and de-political. In their article, Ruth Houghton and Aoife O’Donoghue outline a role for feminist manifestos within feminist approaches to constituent power. Sheri Labenski uncovers from the archives the Women’s International League for Peace and Freedom manifesto from 1924 and the outline for a ‘New International Order’. Gina Heathcote and Lucia Kula centre Lusophone African feminist action in Luanda, Angola, to problematize an approach to feminist manifestos that reiterates dominant feminisms, and instead argue for active silence by those more dominant feminist voices. In her conclusion to the special issue, Emily Jones uses posthuman feminism to interrogate and critique the claim of universality in global constitutionalism. Across this special issue, key themes emerge: the potential of inclusion and exclusion, and the role of manifesto as a method in knowledge production.

In Chile, many commentators, academics and political leaders have spent years arguing that the limited nature of the social rights in the national constitution is partially responsible for the country’s economic and social inequality. It is thus unsurprising that changing the scope of the country’s social rights was a major focus of the recently failed constitutional reform effort. However, we argue that the long-running claim that Chile’s social problems were due to the limited nature of social rights can be thought of as social rights scapegoating, by which we mean that commentators blamed outcomes on constitutional rights, even though there is little evidence that countries’ socio-economic outcomes are a product of their social rights.

The Conference on the Future of Europe (CoFoE) was the first initiative to include citizens in deliberations about the future of European democracy since the failed Constitutional Convention of 2002/03. Although embedded within broader trends to involve ordinary citizens in the political process, it is of specific relevance in the European context because it raises expectations of democratic catching up and relates to ongoing discussions and struggles about the constitutional character of the European Union. This article argues for a citizen-centred perspective on constitutional renewal in the European Union that places European citizens as constituent subjects at centre stage. It outlines how making the European Union accessible as a political arena allows citizens to regain control over developments that have evolved behind people’s backs. It concludes that deliberative tools of citizen participation should be used to pave the way for a wider reorganization of public authority and a renewal of the European Union’s constitutional basis.