Before constitution-making: the struggle for constitution-making design in post-revolutionary Egypt

Abstract

Scholars have recently become attentive not only to the institutional designs that constitutions set up, but also to the constitutional change processes. Most authors, who are concerned with the effects the design of constitution-making processes have on outcomes, have focused on the main constitution-making bodies and their characteristics, leaving aside the question of what happens before members of constituent assemblies meet to deliberate. This article makes the point that to better understand constitution-making and its outcomes, we need to take into account the overlooked early stage of constitutional change when political actors debate and set the rules for how a constitution will be made. Building on various political science perspectives and the case study of the 2011–2012 constitutional reform in Egypt, it underscores the inevitably contentious nature of the design of a constitution-making process. It also highlights the impact that unresolved conflicts over the design can have for the agreement on a constitution between political opponents in the context of a democratic transition. In Egypt, adoption of a broadly accepted constitution was hindered by on-going struggles between Islamists and non-Islamists over their preferred constitution-making designs. The article also outlines the factors that make the settlement on constitution-making rules unlikely.