O Fututo do Constitucionalismo - Caderno de Resumos [2014][l]

2
Michele Brandt, Jill Cottrell, Yash Ghai, and Anthony Regan, CONSTITU-
TION-MAKING AND REFORM, iv, [2011]. In contrast, Jennifer Widner, CON-
STITUTION WRITING IN POST-CONFLIC SETTINGS: AN OVERVIEW, 49 Wm.
& Mary L. Rev. 1513, [2008]. She points out “During the past forty years, over
200 new constitutions have merged in countries at risk of internal violence”.
3
Tom Ginsburg, Zachary Elkins, and Justin Blount, DOES THE PROCESS OF
CONSTITUTION-MAKING MATTER Annu. Rev. Law Soc. Sci., 5, [2009].
4
Jon Elster, FORCES AND MECHANISMS IN THE CONSTITUTION-MAKING
PROCESS, 45 Duke Law Journal, 368, [1995].
5
Elster, supra note 4, at 364.
6
See generally, Elster, supra note 4. Andrew Arato, FORMS OF CONSTITU-
TION MAKING AND THEORIES OF DEMOCRACY (1995). Cardozo Law Review,
Vol. 17, [1995-1996]. Angela Banks, EXPANDING PARTICIPATION IN
CONSTITUTION MAKING: CHALLEGES AND OPPORTUNITIES. 49 Wm. &
Mary L. Rev. [2008].
7
See generally, Institute for Democracy and Electoral Assistance, [I.D.E.A], supra
note 2. Widner, supra note 3. Ginsburg, Elkins, and Blount, supra note 4. Cfr. Kirsty
Samuels, CONSTITUTION BUILDING PROCESSES AND DEMOCRATIZATION:
A DISCUSSION OF TWELVE CASE STUDIES, [2006]. Yash Ghai and Guido Galli,
CONSTITUTIONBUILDING PROCESSES AND DEMOCRATIZATION, [2006].
8
Elster, supra note 5, at 370.
9
Peter H. Russell, CONSTITUTIONAL ODYSSEY: CAN CANADIANS BECOME
A SOVEREIGN PEOPLE, 116, [1993] “No liberal democratic state has accomplished
comprehensive constitutional change outside the context of some
cataclysmic situation such as revolution, world war, the withdrawal of empire,
civil war, or the threat of imminent breakup.”
10
Institute for Democracy and Electoral Assistance, [I.D.E.A], supra note 2, at 8.
11
Ludsin, Hallie, PEACEMAKING AND CONSTITUTIONAL-DRAFTING: A DYS-
FUNCTIONAL MARRIAGE. U. Pa. J. Int´L., 239, [2011] In this sense, Hallie
Ludsin considers that the compatibility between those tools and their goals
has been presumed, even though “deep and inherent tensions surface during
the merger of these two processes”. Given that constitution-building goals are
generally subordinated by peacemaking achievements, constitutions promulgated
as a tool to create sustainable peace tend to design deficient governance
frameworks and poor human rights guarantees, among others. In other words,
“using constitution drafting to make peace sets up the merge process for failure”.
12
Kirsti Samuels and Vanessa Hawkins Wyeth, STATE-BUILDING AND CON-
STITUTIONAL DESIGN AFTER CONFLICT, 3, [2006]. See also, Yash Ghai,
Constitution-Building Processes and Democratization: Lessons Learned, in
DEMOCRACY, CONFLICT, AND HUMAN SECURITY: FURTHER READINGS, 234,
[2006], “Constitutions have not always functioned to promote or consolidate