Mandatory Review Provisions in Constitutional Design: An Overview

Within the burgeoning scholarship on constitution-making and constitutional design during political transitions, one distinctive constitution-making strategy has thus far received little systematic scrutiny. Several transitioning societies around the globe have drafted constitutions that mandate a one-time or periodic revisions after ratification. These mandatory review provisions may encompass either the entire constitution or apply to certain (often controversial) provisions therein. They effectively extend constitution-making beyond the single, commonly glorified “founding moment” and require that the constitution be negotiated and constructed over time. In this Article, I explore these mandatory periodic review provisions in constitution-making and examine why constitutions mandate them and reopen debates over hard-fought settlements. I argue that constitutions mandate a one-time or periodic revisions to facilitate agreement during the initial moment of constitution-making, lower the stakes of compromise, and allow room for an ongoing process of constitutional evolution and renewal. More specifically, in conflict-ridden environments, mandatory constitutional revisions play a crucial role in encouraging parties to sign onto a constitution that they would not otherwise embrace. I also examine the promise and limits of mandatory periodic revisions as compared to other forms of constitution-making in stages and explore the conditions under which these provisions are more likely to produce positive outcomes.