How Can Courts Encourage Constitutional Replacement?

Verdugo, Sergio

Publication:
How Can Courts Encourage Constitutional Replacement?

dc.contributor.author	Verdugo, Sergio
dc.contributor.ror	https://ror.org/02jjdwm75
dc.date.accessioned	2025-04-25T13:43:46Z
dc.date.available	2025-04-25T13:43:46Z
dc.date.issued	2024-10-14
dc.description.abstract	Courts often do not play a significant role in constitutional replacement processes. Observers have identified exceptions and theorized about the courts' possible functions during and after those processes. However, little has been said about the courts' work taking place before replacement processes occur. This essay shows that courts can help establish the conditions for constitutional change by encouraging the demand for such change. They can do that by fostering the perception that the Constitution has become a tool to help one side of the political struggle win over politically salient constitutional conflicts, thus contributing to the polarization among competing political groups. Observers have reported that backlash against the courts is possible. I claim that a backlash against the Constitution itself is also possible. Encouraging the losers of the constitutional conflict to either attack the court or the constitution is possibly an unintended consequence of judges deciding cases in politically consequential ways. The implication is that strategic judges must balance the need to resolve cases in ways they perceive correct with the longterm acceptance of the Constitution. Still, a collective action problem makes this task difficult to achieve. The essay explores these ideas using different examples and expands on how the Chilean Constitutional Court contributed to building opposition against the Constitution before the Constitutional Convention was convened.
dc.description.peerreviewed	yes
dc.description.status	Published
dc.format	application/pdf
dc.identifier.citation	Verdugo, S. (2024). How can courts encourage constitutional replacement?. Law & Ethics of Human Rights", Forthcoming. http://dx.doi.org/10.2139/ssrn.4950676
dc.identifier.doi	http://dx.doi.org/10.2139/ssrn.4950676
dc.identifier.uri	https://hdl.handle.net/20.500.14417/3780
dc.language.iso	en
dc.publisher	SSRN
dc.relation.department	Public Law & Global Governance
dc.relation.entity	IE University
dc.relation.school	IE Law School
dc.rights	Attribution-NonCommercial-NoDerivatives 4.0 International
dc.rights.accessRights	info:eu-repo/semantics/openAccess
dc.rights.uri	https://creativecommons.org/licenses/by-nc-nd/4.0/deed.en
dc.subject.keyword	Constitution making
dc.subject.keyword	Constitutional change
dc.subject.keyword	Constitutional courts
dc.title	How Can Courts Encourage Constitutional Replacement?
dc.type	info:eu-repo/semantics/workingPaper
dc.version.type	info:eu-repo/semantics/publishedVersion
dspace.entity.type	Publication
relation.isAuthorOfPublication	e79f958a-556c-4764-a06f-5483c5604817
relation.isAuthorOfPublication.latestForDiscovery	e79f958a-556c-4764-a06f-5483c5604817