Comparative Constitutionalism

The Gap from Parchment to Practice: Ambivalent Effects of Constitutions in Democratizing Countries

Concept paper for the Mellon Foundation-Latin American Studies Association Seminar

American University, Washington, DC, May 28-29, 2013

Todd A. Eisenstadt, School of Public Affairs (eisensta@american.edu)
Carl LeVan, School of International Service (levan@american.edu)
Robert Albro, School of International Service (albro@american.edu)

Introduction

Over the last four decades, constitutions in democratizing countries have had a surprisingly ambiguous impact on the level of democracy.  Following the adoption of a new constitution, the level of political rights either decreased or stayed the same in more than half of the countries. This finding contradicts normative theories about the positive relationship between constitutions and democracy, but it is consistent with recent reversions to authoritarianism.  We believe it also prompts a series of questions relating to the type, timing, and scope of constitutional change in countries that already experienced democratic transitions.  With generous funding from a Mellon-Latin America Studies (LASA) Seminar Grant, and through a Collaborative Research Award from the School of International Service (SIS) at American University, we have invited a select group of scholars to meet for two days at American University in Washington, DC, just prior to the LASA Annual Meeting.  We expect the papers presented at the seminar to be published in an edited volume.

A new empirical examination of the  effects of participatory constitution-making:

A spin-off from this conference has been the creation of a new data set covering all 132 new constitutions in 118 countries between 1974 and 2011. In a paper I co-authored with Todd Eisenstadt and Tofigh Maboudi, we ask: under what circumstances do new constitutions lock in democratic gains? We disaggregate the constitution-making process into three phases: drafting, debating, and ratifying. Statistical tests find that overall increased participation positively impacts levels of post-promulgation democracy. However, the results also offer compelling evidence that the degree of citizen participation specifically in the first stage (drafting) has an especially robust impact on the resulting regime. This is important in light of the centrality of referenda and the last stage of constitution-making (ratification) during the Third Wave. Click here to download our DRAFT paper on participatory constitution-making.

In general, we seek to understand the broad consequences of constitutional change and different procedures for constitution-making.  As part of this process, we seek to build on legal studies of constitutions in order to understand how the incorporation of distinct political preferences in the constitutional process, and the “capture” of constitutions by interest groups or government branches such as the executive, leave countries with a parchment constitution that promotes democratic rights but can also be subverted. We also encourage innovative thinking about how best to combine techniques for measuring the scope of participation in constitution-making processes, with ethnographic case studies to encourage more critical examination of the assumptions regarding presumed benefits of such participation – which our own recent field research has begun to question.

We invite participants also to consider new conceptual formulations for understanding the self-interests of constitutional

Participants (most of them) in the seminar at American University, May 2013

Participants (most of them) in the seminar at American University, May 2013

reformers, as well as new categories for constitution-promoting interests. This could include democratic reformers, populist social movement leaders, authoritarian backsliders seeking to extend their terms in office, and “from above” imposers of new constitutions with reserve domain powers for groups like militaries and executives.  Specifically, we ask seminar participants to consider the following research areas and associated questions, which are central to this project.

 

 

(1) Constitutional Change and Democratization

If a new generation of research breaks from longstanding assumptions that illiberal regimes just happen to be in the early stages of democratization, we still know little about the role constitutions play – if any – in the rise of hybrid regimes and semi-authoritarian polities across the globe. Hence, we ask under what conditions does the promulgation of a new constitution in an already-democratizing nation not foster democratic deepening, and instead produce a decline in the level of democracy?  We define already-democratizing nations as those that were already “free” or “partly free” according to Freedom House, at the time of constitutional promulgation.  Focusing on nations that have already achieved a “medium” level of democracy limits the sample to the more difficult cases.  More importantly, it facilitates a research design that isolates the cases new constitutions promulgated as part of democratic transition (when the level of political rights by definition increases) from other cases involving new constitutions.

(2) Modalities of Constitutional Change

What are the most fundamental distinctions among different types of constitution-making processes?  How do the degree and modality of citizen involvement impact democracy and political culture?  With the term constitution-making, we have in mind the whole process of crafting a new foundational document, including drafting, deliberating, and ratifying by whatever means. This includes a broad range of modalities, such as sovereign national conferences, deliberation through specially-elected or previously constituted legislative bodies, military decrees, and public referenda.

These questions are important because democratization scholars have long suspected that participatory constitution-making reduces backsliding into authoritarianism by promoting democratic values. But there has been little systematic and comparative study of whether and how this is the case. Some recent research similarly suggests that regular civic engagement through elections (even if imperfect) promotes democratic consolidation. Other research, including our own preliminary field work, suggests that citizen participation has had less of an impact on democracy than expected.

As such we are particularly interested in discussion inspired by the following issues:

  • What constitutes constitutional change? Our starting point takes a narrow definition that focuses only on cases in which a new constitution was promulgated.
  • Some constitutions explicitly state that sovereignty resides in the people and not the state. What social histories lead to such provisions, and when do civil societies successfully invoke them?  How this this shape the interests and capacities of other interests, including anti-democratic ones?
  • Did proponents of different legal traditions (ex.  religious) adopt different advocacy techniques?
  • For countries that used special constituent assemblies, what are the best means measuring their “representativeness”?  Did delegates from across the social and political spectra attain sufficient information, input, and authority to play substantive parts in crafting constitutions?

(3) The Broader Consequences of Constitutional Change

New constitutions, and different modalities of constitution-making, should theoretically impact other types of government performance. In posing these questions, we note that contemporary constitution-making has differed in important ways from earlier eras, through involvement of competing donors, assumptions about the virtues of participation, and beliefs that human agency can prevail over adverse historical or structural conditions. We are especially interested in exploring the impact of constitutional change on these outcomes, and identifying potential bottlenecks:

  • Human rights, the rule of law, and equality – It is clear from the empirical record that recent constitutions offer a mixed record in terms of political rights, and this may be true in terms of other right-based outcomes.
  • Resource distribution and public service delivery – Participatory process, for example, should generate mechanisms and expectations for transparency conducive to diminishing corruption.  In addition, political economy research links institutional frameworks to policy commitments conducive to long term growth, but new constitutions might merely institutionalize political logics of distribution.
  • Political culture – this includes including citizen satisfaction with government and political attitudes about democracy. This will result in a better understanding of observable gaps between parchment constitutions and their implementation across a broad range of cases.

 

Seminar goals: This project is being funded by a grant from the Andrew Mellon-Latin American Studies Association Seminar series.  The seminar at AU will contribute to LASA’s ongoing missions by promoting collaboration with scholars whose geographic focus is beyond Latin America, adding new comparative dimensions to Latin American cases. Additional funding is being provided through an SIS Collaborative Research Award, since the seminar will bridge disciplines by bringing anthropological, legal, and political science perspectives together, and bring new quantitative and qualitative techniques to bear on urgent empirical questions facing democratizing countries.  We expect the seminar to produce an edited volume on constitutionalism across regional specializations, disciplines, and methodological approaches.

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