Three Kinds of Constitutional Founding and Change: The Convention Model and Its Alternatives

Abstract

Constitutional regimes may be divided into three types, the Single Lawgiver Model, the Immemorial Customs and Usages Model, and the Constitutional Convention Model. Each type provides for change differently. The first type of constitution, common in ancient regimes, is typically founded by a single individual, justified by divine authority, and difficult to change. The second model, with less discrete beginnings, claims to be the product of the distilled wisdom of time and experience. While in some such systems, the legislature is technically sovereign and the constitution is therefore quite "flexible," typically change proceeds quite slowly, and major changes may prove difficult to accommodate. In the third model, a constitutional convention writes a constitution superior to ordinary legislation and provides for formal changes in discrete increments. This model, formulated in America, has not been instituted in pure form, and shares characteristics of the other two. The overlap among these models continues to explain and influence modem debates about constitutional change.