This chapter explores the ways that the concept of a “disharmonic constitution” provides a useful analytic lens for the comparative study of constitution making in religiously divided societies. We consider constitutional design strategies that enable and allow for disharmonies – including choices to include ambiguity and even contradiction within a constitutional text, as well as to defer certain questions for incremental resolution through ordinary politics rather than textual entrenchment. These strategies demonstrate the utility and even centrality of dissonances in interpreting the “unfinished symphony” that is constitutional identity. In the chapter, we explore these themes by considering constitutional design in the Turkish and Israeli cases. We highlight the ways in which the concept of “disharmonic constitutionalism” and the significance of dissonance in constitutional design point towards a toolkit of options for religiously divided societies that seek to draft constitutions that manage rather than resolve underlying tensions over questions of constitutional identity. We share with Jacobsohn an appreciation for constitutionalism as an expression of contingent and local identities, negotiated across historical processes of contestation and meaning-making with more of an evolutionary than a revolutionary character, even in countries that may undergo moments of sharp political rupture, reversal or transformation.

States in the Middle East and North Africa (MENA) region since independence have had limited experience with stable constitutional arrangements for decentralization of decision-making to regional or communal governments. Experiments from non-MENA countries provide models that might be borrowed to help hold together MENA’s culturally plural societies. These other countries have experimented with nonterritorial, homeland, subdivided homeland, and multiethnic jurisdictions. These constitutional arrangements vary in the powers they allocated to the subnational jurisdictions to select local leadership and make cultural and economic policies. The constitutional arrangements also vary in the guarantees against central intervention in the internal affairs of the sub-national jurisdictions. To make these arrangements more stable, these experiments have tried various provisions for limiting unilateral constitutional amendment, sharing rule in the central government, balancing different types of jurisdictions against one another, and subordinating the constitutional order to international guarantors.

Constitution-making has changed dramatically in recent decades. Compared with constitutional processes in earlier eras, we observe the increasing role of the international community in constitution making, often as part of a broader intervention into a conflict, and increasing penetration of international norms into national contexts. There has also been a trend toward public participation in the process of constitution-making. In addition, constitution making is now iterated over time, with multiple rounds of decision making and bargaining.This chapter draws on the framework of Jon Elster to frame the seven case studies in the volume, drawing toegether themes and trends.

In recent years, nations around the world have fallen prey to what might be described as a crisis of ineffective government. Basic governmental functions and services, such as ensuring education, health care, and a strong economy, are deeply compromised. Not only does ineffective governance undermine the general welfare, it can also pave the way for authoritarian regimes to take hold in erstwhile democracies. In their bid for power, autocratic leaders have often capitalized on citizens’ disenchantment with governance failures. In response to the rise of authoritarianism in democratic nations, considerable scholarly attention has been paid to the relationship between constitutionalist structures and democratic sustainability.

When the constitutional bargain process is non-inclusive and nonparticipatory, and when civil society fails to operate as a democratizing force, the constitutional outcome is not likely to resolve the political and societal ills of authoritarianism. Chapter 6 addressed several of these constitutional design issues. It first examines cases where constitutions failed to limit the arbitrary powers of the monarchs (Morocco and Jordan) or presidents (Egypt and Algeria) by utilizing a constitutional design that lacked textual clarity, adopting contradictory provisions, and creating parallel institutions. Next, the chapter examines “non-consensual” constitutional designs in deeply divided societies. First, in countries where an ethnoreligious minority ruled against the majority’s will (Bahrain and Syria), new constitutions failed to institutionalize power-sharing. Second, where regional cleavages, rivalries, and grievances were prominent issues, as in Yemen and Libya, federalist and region-based power-sharing constitutional arrangements failed to prevent conflict. Lastly, where a country was deeply divided across ideological and identity lines (as was Egypt in 2012), winner-take-all approach to constitutional drafting alienated half of the population, leading to the failure of the constitution and the democratic transitional process.

Comparative constitutional law has experienced a resurgence in recent decades. Whereas two decades ago the field was focused on the North Atlantic and the issue of rights adjudication, there now exists a vibrant literature on many different jurisdictions and issues, covering a wide field of global constitutional arrangements. This chapter will review the history and rapid progress of the field of Constitutionalism in Context. The most encouraging and visible manifestations of this progress include a shift away from Eurocentrism and the traditional focus on apex courts. It will also identify lacunae in the existing literature and questions that would benefit from further exploration. This essay will conclude by proposing a next-generation research agenda for the field.

Scholars are increasingly taking note of a species of government institutions that fall outside the traditional separation of powers and have come to be known as the “fourth branch”: these institutions are created by constitutional design to engage in independent oversight and investigation of the other branches. Using South Africa as a case study of “fourth branch” institutions, this chapter dives deeply into the South African cases on corruption (such as the Scorpions litigation, set in its political background) before turning to the more general theme of Chapter 9 institutions in South Africa, then surveying the rise of the furth branch in constitutional systems around the world. The chapter concludes by evaluating both the value and the limits of the “deep dive” case study approach to understanding topics in constitutional design.

Cross-cutting cleavages have long moderated party conflict in American politics and thereby contributed to democratic stability. Over recent decades, however, many of these cross-cutting cleavages have declined, sorting Americans into mutually antagonistic camps. Here I present data on the social composition of the parties in Congress indicating that they are increasingly differentiated by race, gender, and religion. Drawing on comparative work on democracy-building in divided societies, I argue that the deeper social divide between the parties makes American democracy more dependent upon political institutions that routinely impose power-sharing requirements on the major parties. Although polarization stresses the political system in numerous ways, American institutions still tend to block one party from running roughshod over the other. Such a political system risks immobilism and ineffectiveness, but it also promotes democratic stability.

In democratic regimes, formal constitutional change is an important opportunity for the people to express their sovereign power and improve their constitutional system of government. But how should this process be designed in order to live up to this promise? Democratic theory prioritizes an open process that allows the people to bypass entrenched elites and restructure their democratic orders through extraordinary institutions. Yet this open process can create an even larger problem: That a self-interested majority faction captures these extraordinary institutions and uses constitutional law to entrench itself. This problem of faction is best solved through legal regulation and institutional checks and balances. Looking to comparative experience, this chapter will examine ways to balance the need for openness and regulation in democratic constitution making. This analysis in turn can help us design expanded revision clauses in democratic constitutions that will allow constitutions to improve the process of constitution making.

All constitutions involve a balance between preservation and transformation, that is, between retaining some elements of an old order and reaching toward a new one. It is in the first period of constitutional implementation that these tensions are worked out, and in which many constitutions fail. Drawing from the contracting literature, we identify two general sources of constitutional crisis or failure during the first period. We call these deficits of drafting and deficits of implementation: the first involves incomplete or imperfect text, and the second involves problems of political will and cooperation. Both reflect the immanent conflict between those factions and groups that benefit from transformation, and those that seek transformation.