Democracy2013 Eisenstadt Levan
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Transcript of Democracy2013 Eisenstadt Levan
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The Gap from Parchment to Practice:
the Ambivalent Effects of New Constitutions on Democracy
Todd A. Eisenstadt ([email protected])
American University, School of Public Affairs
Washington, D.C.
Carl LeVan ([email protected])
American University, School of International Service
Washington, D.C.
Prepared for a Workshop at American University, Washington, DC
May 28-29, 2013
Abstract: The Third Wave of democratization brought regime transitions to scores of nations
since 1974, but empirical measures in recent years have shown unmistakable reversions to
authoritarianism by some countries. The 132 new constitutions promulgated in 118 countries
during that time played contradictory roles in these two opposing trends: while the level of
democracy increased in 62 countries following the adoption of a new constitution, it actually
decreased or stayed the same in 70 others. This finding contradicts normative theories about the
positive relationship between constitutions and democracy. Our project on constitutional change
attributes this disjuncture to post-promulgation participation, rather than participatory
constitution-making processes or intrinsic institutional characteristics.
Our main objective is to identify conditions under which constitution-making in
democratizing nations contributes to declines in democracy. Does the type and timing of
constitution-making matter? Upon demonstrating the empirical anomaly that many new
constitutions, even when created through participatory processes, do not contribute to
democratization, we outline a research design to test impacts of new constitutions on other sets
of outcomes, including law-bound rights such as human rights and the rule of law; resource
distribution including public service delivery; and political culture, incorporating citizen
satisfaction with governments. We expect participatory constitutional foundings to yield
important shifts in political culture but few demonstrable improvements in political rights. We
also expect that some disaggregations of democracy, such as law-bound rights, will have positive
relationships with implementation of new constitutions, while the relationship with economic
performance and other indicators may be less clear.
LeVan gratefully received a Dean’s Summer Research Award from the School of International
Service at American University to carry out a pilot study in Uganda. Eisenstadt thanks the Dean
of Academic Affairs for research funding to support a trip to Bolivia. The authors thank Ryan
Briggs, Ghazal P. Nadi, and Jennifer Yelle for research assistance.
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1. INTRODUCTION
Since the Third Wave of democratization began in 1974, constitutions have played contradictory
roles in struggles to expand political freedom. Among 118 countries that promulgated 132 new
constitutions, the level of democracy increased in 62 countries but it actually decreased or stayed
the same in 70 others. This finding contradicts normative theories about the positive relationship
between constitutions and democracy, but it is consistent with unmistakable reversions to
authoritarianism in recent years. Between 2005 and 2010 for example, 57 countries with modest
levels of civil liberties and political rights experienced declines in freedom, while only 38
showed improvement (Dizard et al. 2010). Despite recent research on these middle range
“hybrid” regimes in the democratization literature, and the vast work on comparative
constitutionalism, little is known about this surprising empirical disjuncture between new
constitutions and the level of democracy.
Under what conditions does constitution-making in democratizing nations contribute to
declines in democracy? Theoretical insights from the democratization literature, along with
numerous qualitative studies, suggest that participatory constitution-making should matter, and
institutionalist traditions offer evidence that well-designed institutions can restrain rulers and
empower citizens. We claim that post-promulgation participation, rather than the type of
constitution-making processes or intrinsic institutional characteristics, is a significant factor in
explaining the mixed effects of new constitutions on political freedom in democratizing
countries. Existing studies of constitutionalism have taken substantive and legalistic approaches
or process-oriented political approaches, but none has combined the two. Using variables to
reflect social and political cleavages as well as those reflecting constitutional process, this project
seeks to understand why the level of democracy increased in only half of the countries that
adopted new constitutions since 1991. In broad terms, we seek to build on social and legal
studies in order to understand how interest groups or branches of government such as the
executive “capture” constitutions, leaving countries with a parchment constitution that promotes
democratic rights and institutions but is subverted by ruling elites.
This paper outlines the multi-method research strategy in our larger study, incorporating
quantitative indicators of democracy, the content of constitutions, and ethnographies of political
processes used to establish them. First, we identify recent innovations, key insights, and gaps
from relevant literatures. Constitutionalism research, for example, has focused on comparing
different processes of constitution writing, explaining constitutional endurance, and analyzing
constitutional content (Ginsburg 2012). Recent democratization research has devoted significant
attention to the persistence of “hybrid” or “semi-authoritarian” regimes, which possess nominal
characteristics of democracy but significantly restrain political freedom (Schedler 2006; Levitsky
and Way 2010). We also note how legalistic studies of constitutionalism could benefit from
comparative institutional analysis, not only by specifying what constitutes constitutional change
but by linking constitutions to a range of potential outcomes other than the level of democracy.
Second, we describe our data and research design for exploring this puzzle in our broader
project. This includes a discussion of the logic driving case selection for qualitative analyses
based on field research. Third, upon demonstrating the empirical anomaly that many new
constitutions do not positively impact levels of democracy, we outline hypotheses that form the
basis for empirical testing. Noting again the sound theoretical reasoning from the literature that
participatory constitution-making processes should have lasting positive effects on the level of
democracy, we offer preliminary evidence from pilot studies and other research suggesting that
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this has often not been the case. We also list hypotheses to test the impact of new constitutions
on outcomes other than political freedom, such as (1) law-bound rights including human rights
and the rule of law; (2) resource distribution, including public service delivery and corruption;
and (3) political culture, incorporating citizen satisfaction with governments. We expect that
democracy-enhancing constitutions, rather than those with ambivalent – or negative - effects on
political freedom, may improve performance outputs in these areas. Comparative research in
these three areas will contribute to a better understanding of observable gaps between parchment
constitutions and their implementation across a broad range of cases.
The conclusion explains how this research also promises to offer an important corrective
to the democratization literature. Because transitions often entail constitution-making, new
constitutions were intuitively associated with improved levels of individual rights and
democratic representation. While this conventional wisdom mostly held for early “Third Wave”
democratizers in Eastern and Southern Europe, East Asia and the Southern Cone of Latin
America, the pattern does not hold for a more recent generation of constitutions representative of
post-transition cases in our dataset. Nor does it hold for countries examined by the literature on
hybrid regimes and authoritarian reversion (Levitsky and Way 2010), where authoritarians count
constitution-making among their repertoire of tactics to remain in power (Brown 2002). We
expect that the outcomes of our work will confirm our sense that the promulgation of new
constitutions can have many causes and that most of these are politically driven. This will
ultimately enable the specification of several ideal types of constitution-promoting interests,
including democratic reformers, 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.
2. LITERATURE REVIEW
Recent research on constitutionalism has focused on comparing different processes of
constitution writing, explaining constitutional endurance, and analyzing constitutional content.
Recent democratization research has devoted significant attention to the persistence of “hybrid”
or “semi-authoritarian” regimes, in which conventional authoritarianism coexists with a veneer
of political freedom. Bridging these literatures introduces a valuable dialogue between legal
scholarship and political science, clarifies urgent questions concerning the stalled state of
democratization studies, and contributes to the formulation of new hypotheses concerning the
consequences of constitutional change.
The significant project by Elkins, Ginsberg, and Melton focuses on the question
constitutional survival. They conclude that inclusive drafting increases the likelihood of
constitutional endurance, and that it is also associated with constitutional rights and democratic
institutions such as universal suffrage, the secret ballot, and a guaranteed role for the public input
into amending the constitution in the future (Ginsburg 2012, 54-7). More inclusive processes
enable the integration of new social forces conducive to constitutional survival because they “can
promote a unifying identity and invite participants to invest in the bargain” (Elkins et al. 2009,
211). These are important findings regarding endurance and content, but they leave unanswered
important questions about the impact of processes on levels of democracy and the de facto
protection of rights – as opposed to the de jure protections mentioned in the constitution.
Widner also analyzes the impact of participatory constitution-making, but her analysis
similarly lacks a direct test of participation on level of democracy. Her “Constitution Writing
and Conflict Resolution” data set covers 195 constitutions between 1975 and 2002 (Widner
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2004).1 Her results show that public consultation does not correlate with improved political
rights protection (Widner 2008). This finding conflicts with an influential analysis of twelve
countries by the International Institute for Democracy and Electoral Assistance (Samuels 2006),
as well as anecdotal evidence from a large project by coordinated by the U.S. Institute of Peace
on constitutional change in transitional states (Miller and Aucoin 2010). However neither the
IDEA nor the USIP study, which covers 18 countries on four continents, systematically
examines democratization or political rights as a dependent variable.
Carey’s cross-national study constitutes one of the few direct statistical tests of
constitution-making on democracy. He finds that a more inclusive constitution-drafting process
does increase the level of democracy over the subsequent three years, as measured using Polity
IV data on democracy and executive constraints. However he also notes it is a bivariate analysis
based on limited number of cases and bound by data constraints, including the use of
proportional representation as a proxy for the inclusiveness of institutional actors. In the end,
these limitations deterred him from testing his hypothesis using standard statistical models that
would provide a stronger basis for inference and making broader generalizations (Carey 2009).
To our knowledge, no large-scale study tackles the relationship between constitution-making
processes and democratization through a mixed methods analysis using qualitative techniques
and robust cross-national quantitative analysis.
The dearth of empirical studies on this relationship is surprising because numerous
theories of democratization expect participatory politics to have important benefits. Lindberg et
al. (2009) argue that elections improve levels of democracy over time as the civic ritual of voting
is repeated: going to the ballot box places expectations on politicians and educates citizens on a
practical level and, therefore, becomes a means over time of developing democratic political
culture. Hyden argues that constitution-making is even more important than elections as an agent
of cultural change: it leaves a deeper imprint on the polity as it is more empowering than
elections. Founding documents allow citizens to consciously and collectively consider what
democracy is all about, giving them a say at critical historical junctures. Reflecting on the
1990s, he predicted that broad-based and participatory processes would give African countries
“better prospects of succeeding with their regime transition than countries where such an
exercise has not been carried out” (Hyden 2001, 216). Another recent study argues that
participatory constitution-writing helps nations avoid violent conflict and build democracy,
concluding “it is this participatory inclusiveness that fosters legitimacy among a state’s populace
and, ultimately, constructs democracy” (Wing 2008, 2). Though they do not test for it, Elkins et
al. similarly observe that, “sometimes, we suspect, the process of re-writing higher law can be
therapeutic and empowering for citizens and leaders” (Elkins et al. 2009, 209). These studies
anticipate clear benefits of participatory constitution-making for democracy, but they are also
important because they suggest that such processes should more broadly induce changes in
political culture. Though the World Values Survey, Latinobarometer, and Afrobarometer all
provide extensive data on political attitudes, and studies of political trust remain popular in the
social sciences (Swedlow 2011), we know little about the impact of constitution-making on
democratic political culture.
A separate but related question concerns whether constitutional change itself – the act of
implementing new collectively binding rules on political society – positively impacts
democratization regardless of differences in the constitution-making process. Constitutional
change and democratization were so closely intertwined in the 1990s it is easy to conflate two
1 Efforts to further evaluate this data by Donald Horowitz, John Carey, and others are under way.
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distinct phenomena. In fact constitutional replacement occurred within a year of regime
transitions in only 19 percent of transitions to democracy and in 27 percent of transitions to
authoritarianism (Elkins et al. 2009, 59). For example, transitions occurred in countries such as
Algeria, Panama, and Mexico without significant constitutional change. Widner (2008) finds
that the level of violence usually drops after a country adopts a new constitution, regardless of its
content, and changing the constitution improves political rights, notwithstanding levels of ethno-
linguistic fractionalization. Carey (2009) also establishes a connection between constitutional
change and democracy, albeit with a limited number of cases. Overall though, after two decades
of democratization and extensive constitution-making, studying the broad effects of
constitutional change on democracy remains a surprisingly open field of research.
We take a view of constitutionalism grounded in civil society, invoking the
democratization literature about the importance of popular pressure in regime transitions (Bunce
and Wolchik 2011; Bratton and Van de Walle 1997) in order to appreciate constitution-making
as social re-contracting during rare “sovereign” moments. By arguing that civil society precedes
the state, Locke and Tocqueville took the social contract to necessarily precede the constituting
of government. Law comes from somewhere, and its cosmopolitan, comparative, and civil
society sources today are an important part of analyzing the effects of constitutional change. The
youthful revolts in Egypt and Tunisia in 2011 provide recent good examples of constitutional
change in which social re-contracting occurs alongside “political” re-contracting. This view
differs from some comparative constitutionalists who distance themselves from social contract
theory by taking the law as a necessary prior for political pluralism (Hatchard et al. 2004; Levitt
2012). This can lead to a rather orthodox institutionalist perspective that leaves constitutional
text to “speak for itself,” blaming weak compliance on stochastic factors such as quality of
leadership, and significantly understating the possibilities for stable – but illegitimate –
institutions.
A classic representation of the social context of constitutional change is the debate
between Madison and Jefferson over whether the “living generation” is bound by the rules of its
predecessors. For them, the issue was literal: should the ideas of the American Revolution
necessarily survive the death of those who articulated and codified them into a new constitution?
As in classical Greece, a conservative streak permeated 18th century thinking about democracy,
and too much change at the hands of popular passions was deemed dangerous. Scholars like
Holmes side with Jefferson and those who defend the right of the living generation to re-write
the rules (Holmes 1988). For us, Holmes’ position is important because it claims that
constitutions can serve as an agents of change (or democratization), a transformative political
process that entails expressions of consent.
Constitutionalists from the developing world often defend popular sovereignty as a basis
for change (Mutunga 2001). An influential African scholar for example reminds us that “a
constitution is not an act of government but of people constituting government,” meaning that
the constitution is a “living instrument” flowing from the consent of the governed. Preambles in
constitutions from Togo to Uganda invoke this spirit of Thomas Paine, but the citizens who form
civil society give such text meaning and force (Walubiri 2001). Significantly, this perspective on
constitutionalism acknowledges that constitutions might impede democracy. Elkins et al. for
example allow for the normative likelihood that some constitutions should die; old constitutions
should not be treated with “undue reverence” by equating age with quality (Elkins et al. 2009,
208). Recent research on comparative authoritarianism has increasingly drawn analytical
attention to formal institutional frameworks that stabilize illiberal regimes (Gandhi 2008; Lust-
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Okar 2009). Simply put, neither age nor stability should be equated with popular consent or
institutional quality.
There are good reasons to expect that when a constitution is changed, and how it is
changed, should theoretically impact democratization and the level of democracy. Even more
importantly, the existing research about the relationship between constitutional change and
democratization offers conflicting findings based on limited empirical testing or qualitative
studies. This leaves us with a weak basis for broader generalizing about one of the most
important political trends of the last several decades. For these reasons, our research aims to first
clarify the conditions under with constitution-making in democratizing nations deepens
democracy and when such processes undermine political rights. Next, we plan to test the impact
of new constitutions on different baskets of outcomes including law-bound effects on human
rights and the rule of law, effects on resource distribution, public service delivery, and
corruption, and impacts on political culture, including citizen satisfaction with their
governments. And finally, we aim to better understand gaps between implementation of
parchment constitutions and the degree of implementation of these laws across a range of cases
in developing democracies.
3. RESEARCH DESIGN AND DATA
Despite a robust democratization literature and opportunities for systematic large-N tests thanks
to new data, we know remarkably little about the effects of constitution-making on democracy
and a range of other outcomes. This project extends earlier scholarship by empirically testing the
impact of new constitutions, and the different types of processes for crafting them, on the level of
democracy. We analytically combine this aggregated information with case studies in order to
understand the micro-level impacts of regime reconstitution. These combined efforts will bridge
related literatures in legal studies and political science in order to provide a holistic portrait of
constitutionalism’s consequences for politics, economics, and society. By drawing on research
from Latin American (Eaton 2012; Bejarano 2011; Cameron and Hershberg 2010) and African
cases (Hyden and Venter 2001; Hatchard et al. 2004; Oloka-Onyango 2001), the project will
identify patterns that enable meaningful generalizations about the impact of constitutional
change.
Our larger study, “From Parchment to Practice: Explaining when Constitutions Fail to
Improve Democracy,” has four broad objectives: First, to carry out a comprehensive empirical
study directly comparing the influence of formal constitutional institutions with that of political,
economic, and social variables. Thus, in addition to testing for the impact on democracy, we will
also test how constitutions affect different baskets of outcomes including law-bound effects on
human rights and the rule of law, effects on resource distribution, public service delivery, and
corruption, and impacts on political culture, including citizen satisfaction with their
governments. Second, even though legal scholars have long appreciated distinctions between de
facto and de jure law and “informal” institutions have been a core debate in the neo-institutional
literature, political studies of constitutions have neglected the role that interest groups or units of
government often play in undermining constitutionalism. This analysis will advance the overall
state of knowledge about possible gaps between implementation of parchment constitutions and
the degree of implementation of these laws across a range of cases in developing democracies.
Third, democratization research links participatory processes to improved democratic outcomes
and increased levels of political freedom. However as we have noted, findings from the few and
limited comparative constitutionalism studies differ, with some associating constitutional
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reforms with increased rights and others reporting a decline in democratic freedoms. For the
regimes that underwent de-liberalization, the project strives to engage the emerging literature on
comparative authoritarianism. Finally, because constitutional design has been such a significant
focus of democracy promotion over the last two decades, our manuscript will carry implications
for applied knowledge: have external efforts to facilitate rulemaking mattered? Or would efforts
be better directed towards civil society, the private sector, or direct development assistance?
Constitutional and Democracy Database
To study these broad questions, we are constructing a “Constitutionalism and Democracy
Database” (CDD) covering 190 countries between 1974 and 2011. During this period 118
countries implemented a new constitution, 14 countries implemented more than one,2 and
approximately 72 countries did not implement a new constitution at all. Of the total 132
constitutions, Freedom House political rights improved in 62 instances, but declined in 22 and
remained the same (neither improved nor declined) in 48. In terms of temporality, we start the
data set in 1974 in order to include the entire Third Wave (38 years in our data set), as it
encompasses the transitions in the era of modern rights and constitutionalism, and because most
needed data is available for this period (but not earlier). We do not include nations of fewer than
500,000 people. The CDD builds on three extant data sets by Elkins et al. on the survival and
legal scope of constitutions from the beginning of the 20th
Century, by Widner on the political
processes yielding new constitutions and constitutional reforms since the 1970s, and by Hartlyn,
which evaluates the evolving autonomy of Latin American governments from chief executives
since the 19th
Century.
All three of these studies have grappled with a task of how to decide, for operational
purposes, what constitutes a new constitution. Phenomena such as the shift to single party rule in
Zambia, the president’s successful modification of the constitution to allow himself another term
in Cameroon, or the autogolpe in Peru, all present practical challenges about how to define
change. One approach is to focus on the content of constitutional changes. These types of
reforms have broad impacts on political space and the structure of competition, even if they do
not entail wholesale rewriting of the constitution. For her dataset, Widner codes these cases as
“regime-changing amendments,” due to the significant impact the changes had on civil and
political liberties, ethnic or regional autonomy, or property rights. A separate historical
examination of Latin American countries presents another approach. Cheibub et al. (2011)
consider whether reforms tilted the executive-legislative balance of power towards presidents.
For them, the key issue in operationalization is whether constitutional change took place outside
of the procedure specified in the existing constitution. This builds on Elkins et al.’s operational
definition which specifies that constitutional change that adheres to existing amending
procedures is coded as an amendment. On these terms, they find that constitutions perish on
average every nineteen years, arguing that a sufficiently flexible amending process can save a
constitution. They then combine this with extensive content analysis, reporting that replacements
match their predecessors in 81 percent of the topics (Elkins et al. 2009, 55-9).3
Meanwhile, political economy scholars theorize constitutional change as the period when
equilibrium breaks down for exogenous and endogenous reasons (Alston et al. 1996; Cooter
2000). Voigt for example defines constitutional change “as the consequence of some
disequilibrium,” and proposes endogenizing constitutions to clarify causal factors linked to status
2 Insufficient information was available on another three cases, and at least three countries implemented new
constitutions fewer than three years ago. 3 The Widner dataset also includes data on content though little analysis with it has been published.
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quo changes (Voigt 2011, 327). Modeling constitutions as equilibrium outcomes introduces a
status quo bias because non-change is the norm; tests are likely to be formulated as stimulus
associated with change. Incrementalism may be the most common disruption to such
equilibrium. Historical institutionalists point out that incrementalism is more common than
outright rule “displacement” through revolution. New rules might be “layered” on top of old
ones, or rules might acquire new meaning as political environments change (Mahoney and
Thelen 2010). This avoids biasing status quo stability but frequent incrementalism creates other
challenges for operationalization, requiring assessment of the impact of multiple amendments or
small scale reforms on the overall constitutional climate.
To limit such problems and reduce any subjectivity in classification, the CDD applies a
narrow definition of change that only counts constitutions that result from explicit
promulgations. We identify these discrete constitutional moments using information from
constitutional texts, information from the above datasets, and from the current edition of
Countries of the World and their Leaders Yearbook (Ellicott 2011). This criteria is meant to
minimize the risks of biasing stability through definitions of change based on disequilibrium
discussed earlier, while distinguishing between incremental (or overlapping) institutional change
and the more significant historical junctures that cumulatively result.
Equally important for our causal story is the formulation of a clear conceptual framework
for measuring participation in constitution-making. Elkins et al. break this process into stages of
writing, deliberation, and approval. They measure the inclusiveness of the writing stage using
two proxies: a variable for whether constitutions were drafted during foreign occupations, and
another on whether a country was democratizing at the time. This latter criterion would generate
autocorrelation problems when testing whether the constitution-making process improved levels
of democracy, as our study does. They then reduce the deliberation stage to whether an elected
body publicly debated the draft, and whether a public referendum approved the document
(Elkins et al. 2009, 97-9). Widner (2004) measures levels of participation and representation in
constitution drafting by coding five process characteristics: the type of deliberative body, the
method of selecting delegates to that body, the method of choosing delegates who draft initial
texts, the level of public consultation, and the existence of a public referendum. Each of these
five variables is coded in relation to participation and representativeness. Carey (2009) takes
perhaps the most straightforward approach, operationalizing the inclusiveness of “constitutional
moments” using one variable counting veto players and another indicating whether citizens voted
on the constitution via referendum. Because existing data on veto players exclude significant
portions of the developing world though,4 this approach would eliminate too many countries
from our sample.
Our strategy begins by conceptually distinguishing between participation and inclusion.
Inclusion is a slippery concept in the literature, in part because the term implies a bias against
models of democracy that trade some degree representation in exchange for accountability
through alternation of power. We thus understand inclusion in terms of a range of distinct
interests necessary to legitimate the exercise of aggregate political authority (LeVan 2011). To
this end, we seek to add variables from existing datasets that measure societal cleavages among
constituent groups. To measure participation, we start from the conceptual the categories used in
the Widner and Elkins et al. data sets, collapse them, and update them using information from
online sources (William S. Hein & Company ; Ellicott 2011). We are working to create a
4 See Konig, Tsebelis, and Debus (2010).
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participation variable that measures the level of participatory constitution-making, coded
according to the following criteria:
STAGE OF PROCESS
Drafting Deliberation Ratification
Decreed strong executive OR
exec appointed committee OR
party as central committee
strong executive OR
exec appointed
committee OR party as
central committee
No referendum or
decree by elected
body
Mixed
modalities
strong elite influence AND
(existing legislature OR
specially elected body)
strong elite influence
AND (existing
legislature OR
specially elected body)
strong elite influence
AND no referendum
AND ratification by
elected body
Polyarchic systematic civil input OR
transparency
Public debate OR
transparent debate
Referendum
As of early May 2013, we have coded 101 cases at the drafting stage (with 37 missing values),
95 at the deliberation stage (with 43 missing values), and 106 at the ratification stage (with 32
missing values. The distribution on our process variable is displayed in Figure 1.
Figure 1: Process Variable
0
20
40
60
80
100
120
Drafting (N=101) Deliberation (N=95) Ratification (N=106)
Polyarchic
Mixed modalities
Decree
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Paired Case Studies
A qualitative component of our analysis considers the effects of constitutions in four pairs of
countries, and builds some preliminary field research. This research aims to advance broad
understanding of the gaps between the promulgation of parchment constitutions and the degree
of implementation. A goal is to illustrate statistical patterns and to identify some of the informal
constraints on formal constitutional processes. For example, constitutions crafted through
elected assemblies and participatory public hearings elevate citizens’ expectations for
government performance and accountability, often leading to disappointments later when such
high standards are not met. We expect this to be manifest in attitudinal reactions to governments
and other indicators. Policy makers often mistake the level of openness during drafting and
deliberation for political leverage, leading to elite frustration once the debate shifts from
constitution-making to policy making. In contrast to the hopes generated by democratizing
regime transitions in the early 1990s, constitution-making in post-transition cases legitimizes
incumbent regimes, permitting reforms at the margins with minimal political inclusiveness while
protecting elite preferences.
We found evidence of such counter-intuitive effects of participatory politics in two pilot
studies carried out in summer 2012. For example during Bolivia’s constitutional debates,
government officials made threats against constituent assembly participants, and violence was
used against several people outside the deliberation chamber. While some studies praise Bolivia
as a promising innovative model of participatory democracy, the constitution-making process
offers a more mixed record. Negotiations within a broadly inclusive constituent assembly broke
down, leaving the extant Congress with the ultimate responsibility for the 2009 constitution.
Furthermore, the constitution offers a range of innovative new institutions, such as indigenous
communal autonomy, but there are no actual cases of groups adopting these institutions. In other
words, constitutional implementation is limited, even in substantive areas that constitute popular
victories for civil society.
The second pilot study took place in Uganda, a country with a famously participatory
model of constitution-making through a detailed process that was expanded to incorporate an
elected constituent assembly several years into the process. Influential early studies expressed
hope that participation would facilitate democratization, giving citizens a stake in the process and
educating them about their role in governance (Hyden 2001). The reality has turned out less
rosy, with citizens’ views often ignored by elites and participation cultivating cynicism in
government – rather than promoting institutional trust along the lines anticipated by social
capitalists (Moehler 2008; Tripp 2010). We found that citizens were encouraged to articulate
views about the 1995 constitution but their views on the major controversial issues such as
federalism, land reform, and the party system were marginalized. The ruling coalition agreed to
prolong the drafting and deliberation process to extend its tenure, and gave minority views an
institutionalized venue for expression. As a result, constitution-making entailed both public
participation and elite control. Legal activists, members of the 1995 constitutional commission
and a commission to amend the constitution in 2005, all argued that mechanisms for citizen
participation planned for post-promulgation were never put in place – and this has undermined
implementation of the constitution.
Several existing studies note the importance public participation in future amending of
the constitution as an important measure of the constitution’s inherent democratic qualities
(Miller and Aucoin 2010). So in this regard our research will add to the discussion about failed
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implementation by linking it to post-promulgation institutions that perhaps betray the promises
of participation generated during constitution-making. This presents difficult questions for the
political culture literature, since such changes in behavior post-promulgation suggest that
participatory habits are often lost quickly, even without conscientious government efforts to de-
mobilize citizens.
Our four pairs of future case studies will examine eight nations, including two with
improved democracy indicators since promulgation of new constitutions (South Africa 1996 and
Colombia 1991), two with precipitous declines in such indicators after new constitutions
(Thailand 2007 and Venezuela 1999), two which neither improved nor declined (Bolivia 2009
and Kenya 2010), and two where democratization transpired without a new constitution
(Botswana and Mexico). Our categories of selection are illustrated in the table below.
Case Category Cases
Democracy Improved after Constitution Colombia, South Africa, Nigeria
Democracy Declined after Constitution Thailand, Venezuela, the Gambia
Democracy the Same after Constitution Bolivia, Kenya, Uganda
Democratization without New Constitution Botswana, Mexico
4. EMPIRICAL TESTS
As noted, the puzzle that motivates our study begins with the empirical observation that over one
half of the 65 democratic or democratizing nations that adopted new constitutions since 1974
experienced no “democracy bump” at all after adopting a new constitution. Specifically, this
includes countries classified as “free” or “partly free” according to Freedom House. We test for
the impact of new constitutions on the level of democracy by averaging Freedom House political
rights scores during the three years prior to the constitution’s implementation and comparing this
average to the three year average after the constitution’s promulgation. We use only nations that
already have achieved a “medium” level of democracy to diminish the number of democratic
transition constitutions, such as those Eastern Europe and Latin America during the 1980s. More
importantly, focusing on already-democratizing countries allows us to distinguish between the
consequences of constitutions and the broader effects of democratic transitions. By definition,
political rights and civil liberties improve during transitions to democracy (otherwise they would
not be coded as transitions). Limiting the sample in our first set of tests to already-democratizing
countries therefore helps isolate the effects of constitutional change.
Our first aim is to identify the conditions under which the promulgation of new
constitutions in already-democratizing nations does not necessarily foster democratic deepening,
but in fact may produce a decline in nations’ levels of democracy. The overarching hypothesis,
which we believe will be disconfirmed, is Hypothesis One:
H1 – The crafting and promulgation of a new constitution improves a nation’s subsequent
level of democracy.
Graph I illustrates the empirical puzzle motivating our project. It shows that Freedom House
political rights measures improved in 27 of the 65 already free or partly free reconstituted cases,
stayed constant in another 21, and actually declined in 17 such cases. This finding challenges the
12
common expectation that new constitutions improve levels of democracy. To further specify the
broader political effects of constitutions, our analysis will draw on Mexico and a handful of other
case where democratic transitions occurred without new constitutions. The flurry of constitution
writing in Latin America in the 1980s and in Africa in the early 1990s stimulated a renewed
interest in institutional analysis – comparative studies testing the effects of different institutional
arrangements (Reynolds 2011). However this focus on the incentive structures reflected in the
content of these new constitutions overlooked some of the more fundamental questions about the
democratizing effects of constitutions, which are now coming to light in the twilight of the Third
Wave through reversions to illiberal politics.
The next step is to test causes of democratic improvement or decline, using a range of
explanations and the modality of the new constitution’s origins. This will incorporate a range of
modes of citizen participation captured by our participation variable. We seek to understand if
the procedure of constitution text drafting impacts level of democracy/democratization. We will
test degree of citizen participation on constitution crafting and assess whether degree and mode
of participation impacts whether democracy levels (measured as political rights) improve. We
expect that Hypothesis Two will be confirmed, that:
13
H2 – The degree of citizen involvement throughout the constitution-making process will
have a statistically significant effect on the level of political rights.
Our pilot studies in Bolivia and Uganda revealed some important benefits of participation in the
selection of constituent assemblies and in deliberations. However these cases, and others, also
suggest that citizen participation and the institutional balance of power following promulgation
have a more significant impact on constitutional compliance and political rights. This hypothesis
is a broader test for whether the ratification process has democratizing effects. On the one hand,
this tests intuitions from the democratization literature and numerous qualitative studies that new
constitutions prevent backsliding into authoritarianism when nations come together in a plural
national dialogue where all major social groups are included and given the tools to present
thoughtful positions. If this hypothesis holds, it will further our understanding the mechanisms
through which greater participation improves democracy. On the other hand, should
participatory constitution-making have no significant correlation with post-promulgation
political rights, this would confirm some of the skepticism about the inherent long term benefits
of such processes, as suggested by our pilot studies. It would also contribute to the comparative
authoritarianism literature by establishing general patterns about how participatory processes –
even those enabling public input into fundamental ruling-making – are compromised and can
therefore serve as a basis to legitimize illiberal politics.
Testing for the Broader Effects of Democracy-Improving Constitutions
After establishing whether representativeness in negotiating the constitution prompted greater
levels of democracy, we will assess whether the democracy-improving constitutions among our
118-country data set impacted outputs relating to performance, including: 1) rule-bound
outcomes such as human rights, rule of law, and equality; 2) services including resource
distribution, public service delivery, and corruption, and 3) political culture including overall
citizen satisfaction with government. Running separate analyses for each of these dependent
variables, and also constructing truth tables (Ragin 1987) and other small N causal and
descriptive analysis, we will gather data from sources such as the World Development
Indicators, the World Values Survey, the Quality of Government project, and others to test
among our 132 cases of constitutional promulgation. Beyond just testing whether democracy-
improving constitutions among the universe of new constitutions improve performance
indicators, we will also seek to use a broader sample of cases (including democratizing nations
which did not implement new constitutions). The operating hypotheses Three, Four, and Five
are:
H3 – The promulgation of democracy-improving constitutions, and the new social pacts
these represent, prompt improvements in citizen legal rights (measured as human,
individual rights, and rule of law).
H4 – The promulgation of democracy-improving constitutions contributes to
improvements in governance outputs (including resource distribution, public service
delivery, and corruption).
H5 – The promulgation of democracy-improving constitutions has a civic loyalty effect
on political culture, (including overall citizen satisfaction with government).
14
We have strong expectations that the democracy-improving constitutions among our set of new
constitutions will yield improvements in rule-bound outcomes (#3 above), and that participatory
processes are conducive to a democratic political culture (#5). But we also expect to show that
democratization theory has recommended participation on normative rather than empirical terms
by neglecting the importance of interest group capacities for enforcing compliance post-
promulgation and overlooking changing societal norms in non-participatory cases.
The impact on distribution and economic performance (#4) is much less certain.
However we believe this warrants examination given the political economy constitutions in
general to policy commitments conducive to long term growth (Weingast 1997). Moreover,
distributional failure is becoming a significant area of research on democratic performance,
given the persistence of economic inequality even in developed democracies, and
representational failures more broadly (Przeworski 2010; Taylor-Robinson 2010). Unlike the
large body of thoughtful literature on patronage (Kitschelt and Wilkinson 2007), this newer
research harkens back to the big questions posed by democratic theory about how economic
inequality persists even amidst advancements in political rights. rather than restraining rulers in
order to enhance efficiency and accountability.
The democratization literature has thoroughly explored how illiberal regimes – whether
Chile under Pinochet (Drake and McCubbins 1998) or Uganda under Museveni (Ndikumana and
Nannyonjo 2007) – may offer an alternative. However it has less successfully identified the
links between conventional institutional modes of interest aggregation (such as political parties)
and representative innovations such as Bolivia’s social movements. The result has been an
incomplete understanding of popular responses to failures of representation. Leaders and civil
societies in developing democracies are constructing a range of novel mechanisms for interest
articulation on the margins of democratic institutions. These innovations emerged due to the
shortcomings of democratic corporatism and pluralism alike, and through the representational
failures of substituted models such as ethnic multiculturalism. In both Latin America and Africa,
democratization has often perpetuated elite bargains which fragment the polity and do not reflect
the broader state of citizen preferences. A variety of democratic arrangements thus produce
surprising levels of maldistribution despite formalities of political equality and participatory
politics. As a result, we have an incomplete understanding of when participatory politics
facilitate distributional outcomes that do not correspond with even minimal democratic political
expectations or standards.
Significance of the Study
Our greatest contribution will be to offer a rigorous test of whether normative theory’s implicit
linkage between new constitutions and improved democracy is real, or just an oft-repeated
aspiration. Beyond this big question, this project links several other questions in the subfields of
democratic theory, constitutionalism/rule of law, and governance. First, policymakers and
scholars alike (Eaton 2012; Levitsky and Roberts 2011) have noted democracy’s backsliding
worldwide over the last several years, but without drawing generalized, explicit connections to
new constitutions which promulgate democracy-constraining measures under the guise of
codifying democratic principles. Second, the project would seem to side with skeptics of
institutional analysis who argue that constitutions have little innate value because they are at the
absolute disposition of their designers and their intentions (Hyden 2006). Yet we in fact expect
institutions, and the processes by which they are made, to have differential effects. Third, after
demonstrating the mixed effects of constitutions on levels of democracy, we seek to disaggregate
“democracy” into subordinate concepts. This will help ascertain how implementation of new
15
constitutions affects how citizens experience governance: through human rights and the rule of
law, economic distribution and service delivery, and behaviorally through attitudinal indicators
of satisfaction with governments and their key institutions.
Our findings should offer conclusions useful to scholars and analysts in explaining the
failure of constitutions in already democratic nations to improve levels of democracy using
statistical analysis of the CDD as well as carefully selected case study ethnographies of
constitution-founding moments. We argue that the degree of participation by citizens (either
directly or, as is much more likely, through designated representatives) is crucial in
understanding whether constitutional change improves levels of democracy. We expect more
participatory and broadly inclusive constitutional foundings to yield important shifts in political
culture, but few demonstrable improvements in terms of political rights. We expect that at least
some of our disaggregations of democracy, such as human rights and the rule of law, will have
positive relationships with implementation of new constitutions, while others, such as the
relationship between constitutions and economic performance (including distribution, public
service provision, and corruption) may be less clear.
5. CONCLUSION AND IMPLICATIONS The project lays the theoretical groundwork for analysis of constitution-making through the
academic literatures on democratization and institutionalism, relating key concepts and ideas to
new research from the field of comparative constitutionalism. One set of results will facilitate an
analysis of when constitutions promote democracy by limiting political authority and
establishing a social contract, and when they become authoritarian tools for consolidating power.
This is important not only for the large literature on democratization and institutional design, but
also for the study of comparative authoritarianism. A new generation of research breaks from
longstanding assumptions that illiberal regimes just happen to be in the early stages of
democratization, and instead argues for the possibility of authoritarian consolidation. Despite
this important shift in comparative politics, we still know little about the role constitutions play –
if any – in the rise of hybrid regimes and semi-authoritarian polities across the globe. This
project casts off the myth of constitutionalism necessarily improving democracy to understand
nuanced roles constitutions play, in deepening democracy, and in fostering authoritarianism.
A second set of results will likely challenge core assumptions about the nation-building
and civic education benefits of participatory constitution-making. A handful of single-country
studies, and our own feasibility studies, have exposed the vulnerability of such processes to elite
manipulation. These scenarios need to be examined both cross-sectionally and longitudinally,
which has only recently become a plausible research proposition, given the passage of time since
the fall of authoritarians with the Berlin Wall. If the citizen engagement that brought down
dictators has a mixed effect on the quality of constitutions and their enduring effects on political
culture and rule compliance, this could influence both donor priorities and the processes of
constitution-making deemed most effective.
Third, research now suggests that political institutions create the incentives for good
policy choices. This has been used to explain economic differences within the developing world
(Ndulu et al. 2008), as well as long-run historical divergence between the West and countries
that remain poor today (Acemoglu and Robinson 2012). While there may be some truth here,
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 geographical conditions. It is clear from the
16
empirical record that recent constitutions offer a mixed record in terms of political rights, and
this may be true of other areas of democratic performance. Normative democratic and legal
theories have been subjected to little empirical testing. This project will test effects of
constitutional promulgation on democracy and some of its most important substantive
components, allowing for more definitive generalizations about the role of law-making in
democratic governance. If constitutions do positively impact substantive components of
democracy, policymakers can use that information where institutional designers seek to forge
new democratic governments. Whatever the outcomes, new knowledge on the relationship
between constitutions and democracy will help scholars, analysts, and policymakers craft
institutions to cultivate democracy and promote good governance.
17
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