CONSTITUTIONS AND CONSTITUTION-MAKING Jon Elster [The text that follows is a draft of two chapters for a book on the two foundational constitution-making processes of the18th century: the Federal Convention in Philadelphia and the first French constituent assembly of 1789-1791. Because these chapters are intended to provide an independent and general framework for the study of these assemblies, I deliberately do not refer to them. I shall try to add the references later.]

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Chapter 1:

CONSTITUTIONS

I shall first consider, descriptively, the kinds of article that modern democratic

constitutions typically or frequently contain. Next I shall contrast written constitutions

with three other arrangements: ordinary statutes, unwritten constitutions, and what I

shall call, drawing on Polybius and Hume, “organic” constitutions. Finally, I shall

address the crucial issue of the causal efficacy of constitutions.

What is in a written constitution?

A constitution establishes the separation of powers. It prevents any single

political actor from concentrating all power in its hand. The single actor may be an

individual, a small group, or the people as a whole. The classical terms for their

unconstrained power are tyranny (absolute monarchy), oligarchy, and mob rule. When

constrained by the separation of powers, the regimes turn into constitutional monarchy,

aristocracy, and democracy. In this book I shall not consider rule by the few, but rule

by one and rule by the many will appear in various forms. To some extent, the

American constitution of 1787 was a reaction against what the framers, or some of

them, perceived, or claimed to perceive, as mob rule. The French constitution of 1791

was among other things a reaction against absolute monarchy.

The bulk of the present chapter focuses on how the separation of powers is

assured in modern democratic constitutions. Yet because one of the two constitutions I

consider in this book established a constitutional monarchy in reaction to an absolutist

system, it will be useful to briefly trace the history of the doctrine and practice of the

separation of powers in the pre-democratic era.

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Absolute monarchy – defended by Jean Bodin and Thomas Hobbes – rested on

the concentration of all power in the hands of a sovereign. It received an unusually

explicit statement in the Danish Kongelov (Regal Law) from 1665. It affirms that

among the major rights of the King is that of “after his own will and pleasure to

explain, multiply, diminish, yes even purely and simply abolish laws previously given

by himself or his ancestors, and to exempt what and whom he pleases from the general

command of the law”. The only exceptions were the king’s confession of the Lutheran

religion, the inalienability of the domain and of the king’s own powers, and the laws

of succession to the crown. Any separation or delegation of powers was thus explicitly

forbidden. The king had the power to do essentially anything, except to limit his

power. I shall return to some important implications of this fact.

Among the historical sources of the separation of powers, I shall only mention

two: the demand for popular consent to taxation and the demand for protection against

abuses of royal power. I shall not discuss efficiency arguments based on the benefits

of some institutional division of labor1 nor the theory of the “mixed government”

reflecting the class structure of society.2

The Regal Law expressly stated that the king had the exclusive power to tax. In

other countries, the principle of “No taxation without representation” contained the

germ of the separation of powers. Although that expression originated in the Anglo-

American world in the 18th century, the idea was much older. In England, Articles 12

and 14 of the Magna Carta (1215), confirmed by the Confirmatio Cartorum (1297),

established the principle of the consent of parliament for taxation. The French Estates-

General consistently tried, with little success, to transform themselves into a

permanent institution with the exclusive right to authorize taxation (see Ch. 00).

1 Vile (1998), pp. 31, 67. 2 Ibid, pp. 36-38.

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The idea of a separation of powers can also be traced back to that of a limitation

of the royal power. As noted, the Regal Law limited that power in a few respects. It

did not, however, establish a sanctioning mechanism in case the king transgressed

those limitations, for instance by selling off an island to pay for his debts. Although a

law can have causal efficacy by virtue of its moral authority (see the discussion of

efficacy below), this check on a ruler may be too weak. As Montesquieu wrote,

“constant experience shows us that every man invested with power is apt to abuse it,

and to carry his authority as far as it will go. […] To prevent this abuse, it is necessary

from the very nature of things that power should be a check to power.”3

The separation of powers can be traced back, therefore, to the authorization of

royal taxes and to the protection against royal abuse of power. Although the

distinction is not sharp, since excessive taxation can also be a form of abuse of power,

my point is only that the separation of powers arose as a control on the king. Today,

this function has disappeared in all but a handful of constitutional monarchies. Instead

we have the familiar separation of executive, legislative and judicial powers. Their

structure and function are briefly summarized below.

* * *

Descriptively, modern constitutions typically consist of four parts.4 First, they

determine and regulate the machinery of government. Second, they specify the rights

and sometimes the duties of the citizens. Third, they lay down rules for amending the

constitution, partly or wholly. Finally, they lay down procedures for suspending the

constitution, or specified parts of it, in times of an emergency. Below I describe each

of these parts in more detail.

3 Montesquieu (1748), Book XI. 4 In this chapter and the following, I limit myself to national constitutions. In Part III, I also consider the importance of American state constitutions for the adoption of the federal constitution.

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The machinery of government. The machinery has many nuts and bolts, as

well as cogs and wheels. The core institutions are the legislative, executive and

judicial organs. As Bentham argued, one should also include the electorate as an organ.

Other important institutions include the national auditing office and the Central Bank.

The procedures for selecting members of these institutions are equally central.

Many provisions relative to these organs are simply lists of their functions: the

power to coin money, to raise taxes, to increase the money supply, to sign treaties, to

enact legislation, to decide in civil and criminal cases, to vote in elections, and so on.

Other provisions involve relations to other organs. One may, perhaps,

distinguish two bundles of such relations. One bundle aims at preventing one organ

from trespassing on the domain of another. In Sweden, the government cannot instruct

the Central Bank in matters of monetary policy. In some countries it is also prohibited

from instructing the public prosecutor (see below). A ban on bills of attainder

similarly prevents the legislative power from encroaching on the judiciary.

Conversely, in France the fear of a “government of judges” blocked judicial review of

legislation for two centuries. The issue of legislative encroachment on the domain of

the executive can arise when the legislature claims the right to approve the dismissal –

and not merely the appointment – of ministers. Conversely, the executive must be

prevented from enacting by decree what it cannot persuade the legislature to enact by

law.

The other bundle of relations consists of mutual checks among these organs. The

notion of a check can be understood in two ways. On the one hand, an organ can

check another to prevent it from making formally unconstitutional decisions. On the

other hand, members of one body can check another to prevent it from making what

they think (or claim) to be substantively bad decisions. Judicial review and

bicameralism illustrate these two forms. Although a presidential veto is usually

exercised on substantive grounds, a president can also act as the “guardian of the

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constitution” by refusing to sign a bill into law on the grounds that it is

unconstitutional.5

The second bundle cannot be neatly distinguished from the first. For one thing,

if organ A checks organ B on the grounds that organ B has acted unconstitutionally,

the act may be one that encroached on the constitutional powers of organ A or of some

other organ C. For another, the dividing line between checks and encroachments is

relative. The right of the American Senate to veto the appointment of high federal

officials is usually presented as a desirable check on the executive, whereas the right

also to veto their removal is seen as an inappropriate encroachment.6 In other systems,

even the first right would be seen as an encroachment. Judicial review can be assessed

either negatively as an encroachment on the domain of the legislature or positively as

a check on its activities. This ambiguity is pervasive. For those who follow Bentham

in thinking that the lower house of parliament should be omnipotent, any check on its

power is an encroachment. His view is at one extreme of a continuum. The American

constitution with its triple check on the lower house - by the upper house, by the

president and by the Supreme Court - may be at the other extreme.

In constitutions that have a Supreme Court with the power of judicial review or a

Constitutional Court, these institutions serve as “unchecked checkers”. Some

exceptions exist. As I discuss below, the American Congress can in principle limit the

jurisdiction of the Supreme Court. Also, until 1937 the president and Congress could

“check the Court” by appointing new judges. (Even today, the written constitution

does not exclude this strategy.) Until 2003, the Romanian parliament could override

decisions by the Constitutional Court by a two thirds majority. This procedure – a

legacy from the Communist past – was a backdoor way of changing the constitution

5 Kokatt and Kaspar (2012), p. 804. 6 See Gerhardt (2000) and Calabresi and Yoo (2008) for, respectively, the appointment and removal powers.

7

without consulting the people. Revision also required a two thirds majority in

parliament, but had to be approved in referendum.

To be effective, a checking organ has to be independent of the organ it is

checking. At the same time, some organ has to appoint or elect members of the

checking organ. If the appointing or electing organ is the organ that is to be checked,

an obvious problem arises. The French constitution of 1875 offers an example. The

President of the Republic was elected in a joint session of the two chambers, the lower

house having about twice as many members. At the same time, the President could,

with the support of the upper house, dissolve the lower house and call for new

elections. Since the right of dissolution is undoubtedly a check on parliament, this

constellation created a clear incentive for the lower house to vote for weak candidates

for the presidency. The fact that Léon Gambetta was never elected president may be

explained by this fact. (Also, an unwritten norm emerged to deprive the President of

the dissolution power.) In other systems, the government of the day may appoint

“friendly” judges to courts that exercise judicial review. In Germany, this risk is

reduced by the need to have a two thirds majority in each house for the election of

judges on the constitutional court. In the United States, it is reduced when the

president’s party fails to command a decisive majority in the Senate; in France, when

it lacks a majority in one of the two houses. (The President and the presidents of the

two houses each appoints one judge every three years.) In other cases, the

government has both motive and opportunity to appoint “reliable” judges.

In federal systems, the relations between the state governments and the national

government also raise the twin issues of checks and defenses against encroachments.

The German constitution, for instance, states both that “Except as otherwise permitted

or provided by this Basic Law, the exercise of state power and the discharge of state

functions is a matter for the Länder” and that “Federal law shall take precedence over

land law”. The first provision protects the states from interventions by the federal

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government that are not explicitly authorized by the constitution, whereas the second

offers a check on state legislation.

The staffing of these organs is also important. In the past, many constitutions

contained elaborate rules about the right to vote and to be elected as a representative.

These have pertained to gender, literacy, income, property, and tax payments (whether

income tax or poll tax). More bizarre restrictions could also be cited. Today, these

rules are in the main limited to requirements of age and sometimes of residency and

nationality. In addition to regulating suffrage, constitutions also determine

apportionment, that is, the number of delegates to be chosen from a given electoral

district. In Norway, the 1814 constitution stated that the cities (with one ninth of the

population) were to have one third of the deputies in the parliament and the

countryside two thirds.

Over the centuries, universal suffrage has become the norm to an extent that

equal apportionment has not. When the apportionment rule in the Norwegian

constitution was changed in 1952, it was not replaced by a method that would render

the numbers of deputies proportional to population. On the contrary, the parliamentary

committee that prepared the law explicitly said that “In the allocation of seats in the

constitution, the smaller and more remote districts have always benefited from a

stronger representation than the more populous and central districts. It is the opinion

of the committee that this principle should be upheld, and we cannot recommend […]

the election of one deputy for each integer number of votes corresponding to one

hundred-and-fiftieth part of the population”. Although some have criticized the

overrepresentation of remote districts as undemocratic, it is by and large accepted. By

contrast, the current situation in Iceland, where each rural vote counts for between two

and four times as much as a vote in the Reykjvavik area, where two thirds of the

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population lives, has been widely decried and is probably a main cause of the recent

reform movement.7

In federal systems, the question of apportionment regularly arises in the design

of the upper house that is to represent the states rather than individuals. Often, these

systems reflect an intuition that smaller states should have a more than proportional

representation. In Germany, the ratio of highest-to-lowest number of state delegates is

2:1, whereas the corresponding population ratio is roughly 30:1. In Canada, the ratios

are 24:1 and roughly 400:1 (because of the representation of very small indigenous

communities). The importance of these discrepancies depends on the powers of the

upper house, which are strong in Germany and weak in Canada. Yet the fact that the

tiny city state of Bremen has half the number of upper-house delegates as North-Rhine

Westphalia does not appear to be a live contentious issue in German politics.

Unequal apportionment is one reason why some votes may count for less than

others. Electoral systems can have the same effect. In single-member first-past-the

post elections, a large national minority could in theory end up with no representation

at all in parliament. In practice, this extreme result will not occur, but

underrepresentation of some groups is common under this regime. In Great Britain,

the Liberal party has long complained about this effect of the electoral system.

Whereas suffrage and apportionment rules are usually regulated by the constitution,

the electoral law is much less frequently included, and rarely down to the level of

detail that would prevent manipulation by a small majority in parliament to enhance

its chances of reelection.8

The bill of rights. All modern constitutions (except Australia’s) include a bill of

rights, or at least an enumeration of rights. Civil and political rights are often defined

7 Gylfason (2012). 8 Apportionment at the subdistrict level (redistricting) can also be eminently manipulable.

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vertically: they forbid the government from taking certain actions against the citizens.

In the United States, for instance, the government may not discriminate on racial

grounds in its employment policy, but private employers can (although if they do they

may lose federal business). Other countries, notably Germany, allow rights to have

horizontal effect.9 In addition to these “first-generation rights”, modern constitutions

increasingly include “second-generation rights” (economic, social and cultural rights)

and the more diffuse “third-generation rights” (e.g. the right to development).

Whereas constitutional articles related to the machinery of government are (as a

general rule) formulated so sharply that it is unambiguous what can, what cannot and

what must be done, articles affirming rights acquire (again as a general rule)

implications for action only when filtered through statutory law or constitutional

jurisprudence. I shall return to this question.

Rights may be conditional or unconditional, a distinction somewhat obscured by

the common reference to the “universal” character of rights. In one of the bizarre

restrictions on voting rights that I mentioned earlier, the 1814 constitution of Norway

states that “The right to vote is suspended […] by stopping of payment or bankruptcy

until the creditors have received full payment, unless the failure is occasioned by fire

or by another unforeseen and provable misfortune”. Although the right was

conditional, its exercise depended on conditions that were under the control of citizens

exercising due diligence. Along the same lines, Bentham argued that since the literacy

requirement for the right to vote is based on achievement and not on ascription, it is

not discriminatory: “An exclusion which every man has it in his power to free himself

from whenever he thinks proper, and not to his detriment in other respects, can scarce

be looked upon as the invasion of the rights of any one”.10 The right is universal, in

9 See Gardbaum (2003) for a more nuanced analysis.

10 Bentham (2002), p. 248.

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the sense that it can be enjoyed by all who choose to fulfill the conditions for its

exercise, but it is conditional. By contrast, the right to choose one’s occupation freely

is both universal and unconditional. By another contrast, when suffrage restricted by

ascriptive criteria such as gender or ethnicity, it is not a universal right. Finally, a

conditional right is not universal if the conditions for its exercise are unreasonably

difficult to satisfy, e.g. by the need to amass a vast fortune.

Some modern constitutions also include a bill of citizen duties. These often

include the duty to pay taxes and to defend the country in times of war. Some

countries also impose the duty to vote in national elections. Although one might think

that there is or should be a duty to perform jury service, no constitution to my

knowledge affirms it. The right to be tried by a jury of one’s peers is, by contrast,

sometimes included.

Amending the constitution. Virtually all constitutions provide procedures for

their own amendment. Tocqueville observed that the French Charter of 1830 did not

contain an amendment clause, from which fact he drew the conclusion that judicial

review – “le gouvernement des juges” – would be too dangerous: “If courts in France

could disobey laws on the grounds that they found them unconstitutional, constituent

power would really be in their hands, since they alone would have the right to

interpret a constitution whose terms no one else could change”.11 There may have

been other wholly unamendable constitutions, but I doubt they are important. That

being said, some constitutions contain individual articles that are unamendable.

If common sense suggests the need to be able to amend the constitution, it also

suggests the need to make amendment relatively difficult. With insignificant

exceptions, it is in fact always more difficult to amend a constitution than to change

11 Tocqueville (2004), p. 114; my italics. When the Charter was amended in 1831, the change was anticipated in the Charter itself (Art. 68). For the complexities of the situation, see Rosanvallon (1994), pp. 129-35.

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ordinary laws. I shall return to the several rationales for this difficulty; here I only

enumerate some of the relevant techniques. Since they are numerous and often

complicated, my discussion will be selective and simplified. Here as elsewhere, I

mostly limit myself to Europe and the two Americas. For reasons of space, I neglect

the question of the right to initiate and propose amendments to the constitution.

Delays and requirements of a supermajority are the most important devices.

A delay means that the minimum time between the proposal of an amendment

and its adoption is longer than in the case of ordinary legislation. To achieve this end,

the constitution may require that the amendment be debated no earlier than one month

from its introduction (Bulgaria), that it be subject to two readings and two votes

(Brazil), that it be proposed in one parliament and adopted in the next one after a

general election (Belgium, Norway), or that it be passed by two successive

parliaments (Denmark, Estonia, Finland, Iceland, Sweden).

Supermajorities, in this context, include not only majorities larger than 50 % of

the votes, but also absolute majorities. Whereas a simple majority is defined as a

majority of those who cast a vote, an absolute majority is a majority of the members

of a voting body. Moreover, the requirement that amendments be passed by a simple

majority in each chamber of a bicameral assembly also amounts to a supermajority.

“The division of the legislative body […] will often have the effect of giving to the

minority the effect of the majority. The unanimity even of one of the two assemblies

would be defeated by a majority of a single vote in the other assembly.”12 A fortiori,

amendments are particularly difficult when they have to be passed with a

supermajority in each chamber of a bicameral assembly. In Brazil and in Romania13, a

12 Bentham (1999), p. 24. See also Condorcet (1789), pp. 77-85 and Przeworski (2010), p. 141. 13 At least this seems to be the current situation. “A referendum on modifying the size and structure of the Parliament from the current bicameral one with 137 senators and 334 deputies to a unicameral one with a maximum of 300 seats was held on 22 November 2009, at the same time as the first round of the 2009 presidential election. The electors approved by a percentage of 77.78% (50.95%

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2/3 majority is required in each chamber; in Spain and in the Czech Republic, a 3/5

majority. Except for the Czech Republic, all these percentages are calculated on the

number of members of these bodies, not on those in attendance.

In Romania and Spain, mechanisms exist for resolving stalemates between the

two chambers. An amendment proposal that does not pass the Spanish parliament in

the regular manner (3/5 + 3/5) is adopted if it receives an absolute majority in the

upper house and a two thirds majority in the lower house. (In the Polish constitution,

the same asymmetry between the upper and the lower house exists in the mandatory

procedure.) The Romanian constitution states that if the regular procedure (2/3 + 2/3)

fails, “the Chamber of Deputies [315 members] and the Senate [137 members] shall

decide, in joint sitting, by the vote of at least three quarters of the number of Deputies

and Senators” (Art. 151). In France, too, amendments can be adopted by a qualified

majority in a joint sitting of the two houses, with respectively 577 and 348 members.

(First, each house must adopt them by a simple majority vote.) Here, however, a

positive vote requires 3/5 of all expressed votes rather than of all members.

In Finland, Estonia and Bulgaria, there is a trade-off between the length of the

delay and the size of the supermajority. In the first two countries, there exist fast-track

procedures by which the normal time-consuming process can be bypassed if a large

majority (5/6 in Finland and 4/5 in Estonia) declares the need to revise the constitution

urgently and another majority (2/3 in both countries) then votes to amend it. In

Bulgaria, there exists a slow-motion procedure by which the normal supermajority of

¾ can be reduced to 2/3 but with a longer delay. In France, Michel Debré – the main

drafter of the 1958 constitution – said that revision by referendum would be the

turnout) the adoption of a unicameral Parliament, however as of 2012 the necessary constitutional changes to achieve this have not been put into effect” (Wikipedia, Entry “Senate (Romania)”. The referendum was held under Art. 90 of the constitution, which authorizes non-binding referendums.

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normal procedure, and that revision by a joint sitting of the two chambers would be

used only in the case of urgently needed changes.14 This claim, too, may be seen as

expressing a trade-off, since the slower procedure only required a simple majority of

the population with no quorum. In practice, however, all revisions but one (in 2000)

have been done by a joint sitting of the chambers. The Norwegian constitution may

also be seen as expressing a tradeoff, since ordinary revisions require both a delay and

a supermajority of 2/3, whereas the delegation of certain powers to an international

organization requires a supermajority of ¾ but no delay.

In most federal systems, Germany being an exception, amendments are subject

to ratification by the citizens or the legislatures of the member states. In Australia, a

referendum is required if the proposed change fails to achieve an absolute majority in

both chambers. In that case, the amendment is adopted “if in a majority of the States a

majority of the electors voting approve the proposed law, and if a majority of all the

electors voting also approve the proposed law”. More usually, ratification by the states

is mandatory. In the notoriously complex Canadian system, most kinds of amendment

can be passed only if identical resolutions are adopted by the House of Commons, the

Senate, and a two-thirds majority of the provincial legislative assemblies representing

at least 50% of the national population. Referendums are also used in some non-

federal systems, on an optional or mandatory basis. The required majority is usually a

simple majority of the voters, although in Latvia and Lithuania respectively 50% and

75 % of the electorate are required for certain amendments (see below). The Danish

constitution requires that a simple majority of the voters and 40 % of the electorate

approve the proposal. Quorums vary from 25 % (Colombia) to 50 % (Croatia). In

Sweden, a proposed amendment can be rejected in referendum if (i) a majority of

those who take part in the referendum vote against it and (ii) if these no-voters are

14 Documents pour servir (1988), vol. II, p. 186.

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more than half of those who voted in the simultaneously held elections to a new

parliament. Italy has no quorum for constitutional referendums, although other

referendums have a quorum of 50 %.

A constitution can declare narrowly that specific articles are unamendable or,

more broadly, that amendments may not touch certain basic principles of the

constitution. The Turkish constitution prohibits the amendment of three specific

articles, one of which, however, refers to a broadly formulated preamble. The Greek

constitution, too, prohibits the amendment of a certain number of specific articles. (In

neither constitution is the amendment provision itself immune to amendment.) Among

broad principles, the widest is perhaps he Norwegian one, which states that no

amendment may affect the “principles” or the “spirit” of the constitution. More

commonly, these principles are spelled out in more detail. The German constitution

affirms that amendments cannot affect the principles laid down in Art. 1 (expressing

the value of human dignity) and Art. 20 (expressing the value of democracy and the

rule of law). Amendments affecting the federal character of the country are also

inadmissible. The French constitution states that “The republican form of government

shall not be the object of any amendment”. Similar provisions are found in the

Brazilian, Italian and Romanian constitutions.

The constitution may also declare higher amendment hurdles for some

provisions than for others. The Lithuanian constitution states that “The provision of

Article 1 that the State of Lithuania is an independent democratic republic may only

be amended by a referendum in which at least three-fourths of the electorate of

Lithuania vote in favor thereof”. The Latvian constitution also allows for the abolition

of democracy (or independence or republicanism) by referendum, but only half the

electorate has to vote for it. In some constitutions the amendment clause itself is

especially hard to amend. In Canada, amending the amendment clause requires the

unanimous agreement of all the provinces. Article 77 of the Latvian constitution that

16

regulates amendments states that ‘If the Saeima has amended the first, second, third,

fourth, sixth or seventy-seventh Article of the Constitution, such amendments, in order

to come into force as law, shall be submitted to a national referendum” (my italics).

Suspending the constitution. Just as constitutions regulate their own

amendments, they sometimes, albeit less often, regulate their own partial suspension

during emergencies. The suspension may concern one or more of the other three parts

of the document, regulating the machinery of government, individual rights, and the

amendment process. In addition to determining the scope of the suspension, the

constitution may also identify the grounds for suspension, the organ that decides on

the suspension, and the procedures for ending the suspension. As with amendments of

the constitutions, the legal situation exhibits much variety and complexity. Here, too,

my discussion will be highly selective and simplified.15

An important difference between amendments and suspensions of the

constitution is that the latter may lack a basis in the constitution itself. The difference

is not absolute: in 1962 de Gaulle amended the constitution by the unconstitutional

means of a referendum. Yet the temptation to bypass the constitution is clearly much

greater in a case of force majeure. The suspension of the French constitution of 1793

immediately upon its enactment, in favor of a revolutionary government, had no basis

in the document. Saint-Just argued that “In the circumstances in which the Republic

finds itself, one cannot establish the constitution; one would destroy it through

itself”.16 Another famous example is Lincoln’s suspension of habeas corpus in 1862, a

decision that the Constitution vests in Congress. His famous response to criticism –

“Are all laws but one to go unexecuted, and the Government itself go to pieces lest

15 The best discussion known to me is Gross (2003), drawing on the emergency provisions in some 80 constitutions. The fullness and clarity of his exposition justify the brevity of mine. 16 My italics. Jouanjan (1993) has a full discussion.

17

that one be violated?” – was an echo of Saint-Just and in turn echoed in Justice Robert

Jackson’s dictum, “The constitution is not a suicide pact”.

One might, to be sure, make the same comment about amendments. If a

constitution urgently needs to be amended and the prescribed procedure is very time-

consuming, a literal adherence to the text might indeed be suicidal. It is perhaps for

that reason that some constitutions, as we saw, have fast-track amendment procedures.

One may in fact cite some cases in which urgency caused amendment by an

unconstitutional procedure. (De Gaulle’s action in 1962 does not fit that description,

except in an indirect sense to be explained shortly.) The Norwegian constitution of

May 1814 was written in the hope that the Danish prince Christian Frederik would be

the king of the new nation. Yet when the fortunes of war gave the throne to the

Swedish crown prince Bernadotte (Karl Johan), a former general of Napoleon’s, the

constitution was hastily – and unconstitutionally – adjusted to the new circumstances.

In May, the framers attempted to exclude Bernadotte from the throne by inserting a

clause in the constitution requiring that the King “confess and always have confessed

the Lutheran religion”. When they had to negotiate a new constitution with the

victorious Bernadotte in November, the words I have italicized were taken out. Other

important changes were also made. When the country became independent from

Sweden in 1905, equally urgent amendments were adopted by an equally

unconstitutional procedure.

Generally speaking, amendments and suspensions are framed in different time

perspectives. As part of the constitution, an amendment is supposed to be enduring –

not forever, but not with an expiration date either.17 Suspensions by definition are

temporary and are often enacted with a time limit – one, three or six months. As

suspensions can usually be and often are renewed, the distinction is sharper in theory

17 See Ch. 2 (“How long should constitutions endure?”) of Elkins, Ginsburg and Melton (2009) for a survey of the normative arguments and the book as a whole for the factual issue.

18

than in practice. Yet it is significant that several constitutions prohibit amending the

document while parts of it are suspended.18 The reason may be fear that the executive

will use the enhanced powers that it normally receives in a state of emergency to

create a more executive-centered constitution. Using informal means, that is what de

Gaulle did in 1962 when he exploited the heightened sense of emergency following

the failed assassination attempt at Petit-Clamart to push through an amendment

strengthening the presidency.19 The French notables would no doubt have been happy

to see him follow the example of Cincinnatus and return to his village after solving the

Algerian problem, as he had done in 1946. As has often been observed, the Roman

dictatorship, which is often taken as the paradigmatic emergency institution, was

essentially conservative, aiming at restoring the status quo ex ante rather than at

reforming the system.20

The grounds for declaring a state of emergence may perhaps be classified into

three categories: natural disasters, internal unrest, and external threats or attacks.

Whereas the first and the third often have the bright-line quality that leaves little room

for doubt or interpretation, the second is intrinsically more controversial and open to

abuse. In 1992 the Colombian government declared a state of social emergency, citing

the fear of disturbances among public servants due to low wages. This state was

declared under Art. 215 of the constitution, which says that in such cases the president

“may declare a state of emergency for periods of up to 30 days in each case, which, in

all, may not exceed 90 days in a calendar year”. Emergencies of the first and third

category are never to my knowledge subject to this total-duration constraint.

18 Examples in Gross (2003), p. 37, note 177. 19 Peyrefitte (1994), p. 214 recounts that when he asked de Gaulle whether the assassination attempt would make it easier for him to get the reform adopted, he answered “Il tombe à pic” (“It happened just at the right time”). 20 Ferejohn and Pasquino (2004), Manin (2008).

19

Emergencies in the second category may also trigger durable reforms. The same

Article states that “These decrees may […] in a provisional manner, establish new

taxes or amend existing ones. […] The measures will cease to be effective at the end

of the subsequent fiscal year, except when the Congress, during the subsequent year,

gives them a permanent character”. One might, for instance, raise taxes to increase the

wages of public servants.

The principle of the Roman dictatorship that the actor declaring a state of

emergency could not himself be the dictator is, with modifications and nuances,

maintained in modern constitutions. France is probably the major exception. When

emergency measures are entrusted to the executive, they usually first have to be

adopted by parliament, either on its own initiative or on that of the executive. When

they are carried out by parliament, as when individual rights are suspended by

legislative means, the assembly may first have to be seized by the executive (Bulgaria,

Slovenia). Alternatively, a qualified majority may be needed (in Hungary, 2/3 of all

deputies; in Greece, 3/5 of all deputies). Among the constitutions of the ex-communist

states that adopted the “parliamentary model” for declaring a state of emergency, “the

Lithuanian constitution is the only one departing from the principle that the

constitutional text should put procedural and institutional ‘obstacles’ in the way of

majoritarian passions raging in parliaments”.21 The system of checks and balances is

usually maintained in declaring a state of emergency, although once it is declared the

balance of power typically shifts towards the executive.

Among emergency measures, the most important seem to be the suspension of

rights, the transfer of power from the legislature to the executive, and, in federal

systems, from the member states to the central government. The unifying aim is to

enhance efficiency in crisis management, often constrained by an incompressible core

21 Ganev (1997), p. 589; see also Gross (2003), p. 32-33.

20

of individual rights. Details vary greatly. As it is out of the question to survey them

here, I shall only offer a representative sample of the first kind of measures, by

quoting the article of the Polish constitution that regulates the suspension of rights and

freedoms:

Article 233

1. The statute specifying the scope of limitation of the freedoms and rights of persons and citizens in times of martial law and states of emergency shall not limit the freedoms and rights specified in Article 30 (the dignity of the person), Article 34 and Article 36 (citizenship), Article 38 (protection of life), Article 39, Article 40 and Article 41, para.4 (humane treatment), Article 42 (ascription of criminal responsibility), Article 45 (access to a court), Article 47 (personal rights), Article 53 (conscience and religion), Article 63 (petitions), as well as Article 48 and Article 72 (family and children).

2. Limitation of the freedoms and rights of persons and citizens only by reason of race, gender, language, faith or lack of it, social origin, ancestry or property shall be prohibited.

3. The statute specifying the scope of limitations of the freedoms and rights of persons and citizens during states of natural disasters may limit the freedoms and rights specified in Article 22 (freedom of economic activity), Article 41, paras. 1, 3 and 5 (personal freedom), Article 50 (inviolability of the home), Article 52, para. 1 (freedom of movement and sojourn on the territory of the Republic of Poland), Article 59, para. 3 (the right to strike), Article 64 (the right of ownership), Article 65, para. 1 (freedom to work), Article 66, para. 1 (the right to safe and hygienic conditions of work) as well as Article 66, para. 2 (the right to rest). (Boldface added.)

The article is largely self-explanatory. Clearly, the framers strove for a balance

of a sort between liberty on the one hand and security or efficiency on the other.

This concludes my schematic description of the elements that typically go into a

modern constitution. Later, I shall ask some questions about their purpose and their

effects.

21

Written constitutions and statutes

Written constitutions may be distinguished from statutes by several

distinguishing features.22 I shall consider the following: constitutions regulate more

fundamental matters than statutes, constitutions regulate the creation of statutes,

constitutions take priority over statutes in case of a conflict, and constitutions are more

difficult to change than statutes.

Intuitively, constitutions regulate or are supposed to regulate the most

fundamental parts of political life, whereas less important issues can be left to statute.

If we use a sharper formulation and affirm that constitutions do or should regulate all

fundamental parts of politics and only fundamental parts, questions appear

immediately. For instance, what does “fundamental” mean? I postpone a fuller

discussion of this question; for the time being I rely on pre-theoretical intuitions that

most readers will probably share. The modes of operation and the powers of the

executive, legislative and judicial powers are obviously fundamental, and are in fact

included in virtually all constitutions. (The constitution of Iceland, though, says that

the judiciary shall be regulated by statute.) The constraints on government action that

are embodied in individual rights are also fundamental. Virtually all constitutions do

in fact provide some constraints of this kind. Finally, the basic aspects of the electoral

machinery – suffrage, apportionment, electoral laws – would appear to be

fundamental parts of political life.

Yet not all constitutions do regulate the electoral machinery. In particular, as

noted, many constitutions do not regulate the electoral law in great detail and some do

not regulate it at all. In France, the constitution is silent on this point, except that it

22 I shall ignore the category of “organic laws” that exists in some countries and that are, in some respects, intermediate between constitutional articles and statutes. In Hungary, for instance, their adoption requires a 2/3 majority of the members present in parliament, whereas amendments to the constitution require a 2/3 majority of all members.

22

affirms that deputies are chosen by direct elections and senators by indirect elections.

The Greek constitution is equally silent. The Polish constitution states that deputies

are to be chosen by a proportionate system, but does not mention or exclude a

threshold. It says nothing about the mode of election of senators. Examples could be

multiplied.

Some countries constitutionalize central bank independence, but most do not.

While the fundamental status of this provision might seem less intuitive, it allows us

to probe more deeply into the question. There are several theoretical arguments for

granting independence to the Central Bank, but I shall focus on one that is particularly

simple.23 If the government had full control over monetary policy, it could use it as an

instrument for reelection, notably by improving employment at election time. This

opportunistic behavior is not only a breach of faith with the voters, but can generate

undesirable “political business cycles”.24 By removing monetary policy from the

government’s toolkit and putting it in the hands of an independent central bank, one

can achieve two aims at once: prevent the government from distorting the democratic

process and – at least in theory – allow for greater social well-being in a long-term

perspective.

The first of these aims can be stated in a way that allows for generalization:

constitutions should make it more difficult – they can never make it impossible – for

those in power to use their power to stay in power. This statement needs to be nuanced,

for there is clearly nothing wrong in a government trying to improve the welfare of the

citizens in the hope that it will be rewarded by reelection. What should be made as

difficult as possible is for the government to use methods that cannot stand the light of

day. Some examples follow.

23 For the less obvious argument that an independent bank is needed to cope with the time -inconsistency of the government, see Kydland and Prescott (1977). 24 The empirical importance of such cycles is debated, however (Drazen 2000, Ch. 7).

23

Manipulations of the electoral system aim at aggregating a given distribution of

voter preferences in a way that favors the incumbent. Manipulations of monetary

policy aim at increasing the welfare of the voters shortly before election, on the

assumption that voters will believe (i) that the increase is the result of the

government’s policy and (ii) that it will be durable rather than temporary.

Alternatively, the government can manipulate the beliefs of the voters about the state

of the economy, for instance by rigging the numbers published by the Bureau of Labor

Statistics. To bolster these beliefs, it can also manipulate the news disseminated by the

state-owned media. To silence the political opposition, it can order the Internal

Revenue Service to audit the tax returns of its political enemies. To help its political

friends, it can order the public prosecutor to refrain from pursuing them or, if they are

brought to court, assign “reliable” judges to their cases. To punish unreliable judges, it

can limit their salary increases. In 1964, a Congress hostile to the Warren Court

increased the salaries of lower federal judges by $7, 500, but those of Supreme Curt

Justices by $4, 500 only. They were not increased again before Warren’s departure in

1969.

Sometimes, these practices are countered by constitutional provisions.

Increasingly, constitutions require the Central Bank to be independent of the

government. Some constitutions forbid the government from instructing the public

prosecutor (see below). Others describe the electoral system in sufficient detail to

make it manipulation-proof. The South African constitution instructs parliament to

establish an independent authority to regulate broadcasting in the public interest.

Other practices could in theory also be countered, although currently existing

constitutions do not do so. No constitution to my knowledge stipulates the

independence of the Bureau of Labor Statistics or of the Internal Revenue Service.

The frequent practice of assigning judges to cases by some mechanical (e.g.

alphabetical) or randomizing device is never, to my knowledge, constitutionalized.

24

Another non-existing reform would be to link the percentage increase in salaries of

judges to that of members of parliament or Congress.

In this perspective, the constitution is or should be a form of organized distrust.

Our pre-theoretical intuitions would probably not tell us that the Bureau of Labor

Statistics and the Internal Revenue Service are among the fundamental parts of the

political machinery, any more than we would make that claim about the National

Geodetic Survey. Yet the difference is that the last does not have the abuse potential

that the others have, at least not obviously. The proviso is important. On a

conspiratorial world-view, all institutions can be abused for partisan ends. A

government that was barred from using them for proper ends because they could be

used for improper ends would be paralyzed. The pre-theoretical intuition about the

parts of the constitution that are fundamental needs to be expanded to include

institutions to limit opportunistic behavior by the government, but only up to a point

that cannot be determined on a priori grounds.

Compared to the problem of under-inclusive constitutions, that of over-inclusive

ones is less important. Some constitutions certainly contain clauses that do not seem

to concern fundamental matters. The Brazilian and Austrian constitutions are cluttered

up with minute details concerning, for instance, (in Brazil) legal actions related to

sport offenses and (in Austria) the quorum requirements for school board meetings.

Such clauses may create unnecessary rigidity and perhaps undermine the respect for

the provisions that do belong in the document.

The second criterion for distinguishing constitutions from statutes derives from

Hans Kelsen. “The constitution in the material sense consists of those rules which

regulate the creation of general legal norms, in particular the creation of statutes”.25

While all constitutions satisfy this criterion, it seems awkward to say that

25 Kelsen (1999), p. 124.

25

constitutional articles directed to other matters than the creation of subordinate rules

do not belong to the constitution. Nothing important turns on this issue.

The third criterion is that the constitution takes priority over statutes in case of a

conflict between the two. In other words, statutes cannot be unconstitutional. This

much seems obvious, yet the question whether a given statute is constitutional or

unconstitutional does not always have an obvious answer. A Supreme Court or a

constitutional court that has to decide the issue may be divided. In the United States in

recent years, the Court has often been divided five to four. Until the constitutional

reform in 2011, the Swedish constitution tried to short-circuit this problem, by stating

that “If a court or other public body finds that a provision conflicts with a rule of

fundamental law or other superior statute, or finds that a procedure laid down in law

has been disregarded in any important respect when the provision was made, the

provision may not be applied. If the provision has been approved by the parliament or

by the government, however, it shall be waived only if the error is manifest” (my

italics).

Yet what for one judge is a manifest error may for another be obviously or at

least arguably constitutional. In the United States, the interpretive norm of respecting

“the plain meaning of the text” does not always give a clear-cut answer. Thus “In 21

[Supreme Court] cases decided with an opinion during the Spring of the 1993 Term,

conflict between majorities and dissents derived at least in part from disagreements

over the plain meaning of the statute at issue”.26 I believe that any impartial observer

will hold that in its plain meaning, the 2nd amendment to the American constitution

(“A well regulated Militia, being necessary to the security of a free State, the right of

the people to keep and bear Arms, shall not be infringed”) does not confer an

individual right to possess semi-automatic weapons. Yet in District of Columbia v.

26 Taylor (1995), p.356 n.162.

26

Heller (2008) and in McDonald v. Chicago (2010) the Supreme Court found that it

does. With regard to France, the same impartial observer will hold that the 1958

constitution cannot be amended by referendum only. The article regulating

amendment does not mention the path by referendum only, and the article regulating

the direct use of referendum does not mention its use for amendment purposes. De

Gaulle’s decision in 1962 was indeed “manifestly” unconstitutional. Yet prominent

constitutional scholars found that it was not.27

A document does not have constitutional status if it cannot, even in principle,

override legislation, legally or morally. The New Zealand Bill of Rights of 1990 falls

in this category. Art. 4 affirms that “No court shall, in relation to any enactment

(whether passed or made before or after the commencement of this Bill of

Rights), (a) hold any provision of the enactment to be impliedly repealed or revoked,

or to be in any way invalid or ineffective; or (b) decline to apply any provision of the

enactment by reason only that the provision is inconsistent with any provision of this

Bill of Rights”. The text goes on to state (Art. 6), however, that “Wherever an

enactment can be given a meaning that is consistent with the rights and freedoms

contained in this Bill of Rights, that meaning shall be preferred to any other

meaning”. One might perhaps refer to the Bill as quasi-constitutional.

I shall now consider the fourth criterion for distinguishing constitutions from

statutes: that it is more difficult to change the constitution than to adopt or change a

statute. For reasons I discuss in the next chapter, this greater difficulty does not

apply to the adoption of the constitution. This asymmetry between adoption and

amendment of the constitution is very important. It can allow, in theory and

sometimes in practice, framers to use a bare majority to lock in provisions whose

amendment or abolition will subsequently require a larger majority. This problem

27 See the survey in Conac (1987), pp. 433-45.

27

does not arise as clearly if the difficulty of amendment stems only from a more time-

consuming procedure.

The greater difficulty of amendment can be justified in several ways. The

constitution is supposed to provide a stable framework that allows long-term

planning, in political and perhaps especially in economic matters. If the rules of the

game are constantly changing, confusion will ensue and efficiency will suffer: “If the

vote of a simple majority could change the basic form of the government or

expropriate the wealth of a minority, enormous resources might be devoted to

seeking and resisting such legislation. In a sense, a supermajoritarian constitutional

provision confines legislative discretion to matters that do not matter all that much;

the stakes are not large enough to evoke a disproportionate expenditure of resources

on redistributing wealth or utility”. 28

This argument is less relevant for amendment procedures whose difficulty stems

from their time-consuming character. Generally speaking, in political contexts delay

procedures are often justified by the need to give passions time to calm down. This

argument is often used to justify bicameralism and, in unicameral assemblies, the

requirement that bills should have several hearings separated by some time interval.

Another argument is that the additional time can be used to learn more about the

issues. Concerning amendments, we need to distinguish between clauses that delay

decisions by weeks or months within a given parliamentary session, and those that

postpone them from one parliament to the next, separated by an election. The

arguments just cited may perhaps apply to the first situation. In the second situation,

the delay is often justified by the need to give the citizens a chance to vote on the

amendment by reelecting or not reelecting those who proposed it. This argument has

force when, as in Belgium, an amendment that is adopted by one parliament

28 Posner (1988), p. 9.

28

automatically triggers the dissolution of the assembly and elections to a new assembly

that will have to confirm the first vote. It has very little force when, as in Norway,

deputies routinely propose a great many amendments (many of them differing only in

minor details) prior to an election so that the next assembly will be free to adopt them.

When casting their votes, the electorate pays no attention to these proposals and is in

fact largely unaware of them.

While sometimes important, these substantive arguments for difficult

amendment procedures take second place to the simple argument that if amendments

were not difficult, there would be little point in having a constitution at all. One

should probably not say “no point”, since the moral authority of a body of articles

called “The constitution” might create a psychological obstacle to easy amendment.

As we shall see, A. V. Dicey made a similar argument about constitutions that do have

amendment causes with some bite but lack robust enforcement mechanisms.

Unwritten and organic constitutions

I now turn to socio-psychological mechanisms that shape and constrain the

behavior of political actors without doing so through an enforceable written

constitution. One such mechanism, unwritten constitutional conventions, is well

known and much studied, but not very well understood. Another, what I call “organic

constitutions”, is rarely mentioned in the literature on constitutions, but has

considerable intrinsic interest. Its main embodiment was in 18th century England.

A common term for an unwritten constitutional norm is “constitutional

convention”. That phrase has, however, acquired two distinct meanings. It can refer to

a distinct variety of constituent assemblies, namely, those called into being for the

express and often sole purpose of writing or revising a constitution (see next chapter).

It can also refer to the unwritten constitutional norms that arguably constitute all of the

British constitution and substantial parts of the constitution in other countries as well.

29

The two ideas may interact. In the United States, (state) constitutional conventions in

the first sense have been very numerous. Throughout the eighteenth and nineteenth

centuries there may have been a constitutional convention in the second sense to the

effect that the people can assemble to change their constitution even when the

legislature has not expressly authorized them to do so.29

Let me illustrate the idea of the unwritten constitution by three cases in which

similar rules, in different countries, exist either by virtue of the written constitution or

by virtue of an unwritten norm. One involves a comparison between Italy and Great

Britain, the other two between France and the United States.

Consider first the independence of the public prosecutor. Art. 108 of the Italian

constitution affirms that “The law ensures the independence of judges of special

courts, of state prosecutors of those courts, and of other persons participating in the

administration of justice”. In Great Britain, the unwritten norm that the Cabinet cannot

instruct the Attorney General dates from 1924, when MacDonald’s government was

defeated after the Attorney General had withdrawn a criminal prosecution after

intervention from the Prime Minister. 30 The norm arose more or less overnight

following a perceived scandal, and has existed ever since.

The second case concerns the independence or sovereignty of the court that

exercises judicial review. In France, the constitution does not say in so many words

that the Constitutional Council is sovereign, but, in the words of the Council itself, “It

follows from the totality of articles in Title VII of the Constitution that the constituent

power intended to guarantee the independence of the Constitutional Council”.31 The

American constitution, by contrast, does impose a limit on the exercise of judicial

review by the Supreme Court: “The Supreme Court shall have appellate Jurisdiction,

29 For suggestions to this effect see Kruman (1997), Ch.2 and Hoar (1917), pp.40, 56. 193. 30 Marshall (1986), pp. 111-19. 31 Décision n° 2008-566 DC du 09 juillet 2008.

30

both as to Law and Fact, with such Exceptions, and under such Regulations, as the

Congress shall make” (my italics). Congress has, however, virtually never used this

power. The independence of the court has been respected. When Congress once tried

to use the power in 2006, by adopting a law and explicitly declaring it exempt from

review, the Court struck it down in Hamdan v. Rumsfeld (2006). The Court’s

argument is impenetrable to a non-specialist. I conjecture, though, that the reason why

Congress had not previously tried to use that power was the existence of an unwritten

constitutional norm. I return to that question later.

The third case concerns the number of judges on these American and the French

courts. Whereas the 1958 French constitution fixes the number of judges on the

Constitutional Council to nine, the American one is silent on this point. In the 19th

century, it happened several times that Congress, either in an alliance with the

President or in opposition to him, changed the number of judges on the Supreme

Court for the purpose of influencing decisions. 32 (The phrase “packing the court” is

misleading, for there were cases of contraction as well as of expansion.) Yet in 1937,

when Roosevelt’s attempt to pack the Court to overcome its resistance to the New

Deal created an uproar, an enduring unwritten norm emerged to prohibit this practice

and fix the number of judges to nine.

The British constitution, on one view at least, consists entirely of unwritten

norms. These also exist in most countries that do have written constitutions. Let me

cite a few instances. In Canada, a member of the opposition chairs the parliamentary

committee that oversees public accounts. (In France, a similar norm is now part of the

written règlement of the National Assembly.) In Australia and in Norway, incoming

ministers do not open the archives of the former Government. In the United States, all

members of a state delegation to the Electoral College vote for the candidate who

32 Gerhardt (2000), p. 154 ff.

31

received most votes in their state. (Maine and Nebraska are exceptions.) In half of the

states this norm exists as a state law, but elsewhere it is unwritten. Also in the United

States, there used to be a norm that the President should address Congress only in

writing. Once Woodrow Wilson, a specialist in the matter, chose to ignore it, it burst

like a bubble, or perhaps it had never existed. In France, under the Fifth Republic, the

President can not only appoint the Prime Minister (as stated in the written

constitution), but also dismiss him (which the constitution does not say). This norm

holds only when the President and the Prime Minister belong to the same party. In

Norway, the leader of the parliamentary “Control and constitution committee” must be

a member of the opposition.

As is the case with many norms, the emergence and the disappearance of

unwritten constitutional rules are not easy to understand. The mechanisms that lend

them causal efficacy when they are in place are somewhat more tractable. They are

virtually never enforced by the courts, Norway being to my knowledge the only

exception 33, although they are sometimes cited in legal decisions. Instead, norm-

violators are often exposed to the informal sanctions of “naming, blaming and

shaming”. Among members of the political elite, informal ostracism is quite

common.34 Politicians may also suffer the punishment of non-reelection.

Other norms may be seen as “tit-for-tat” equilibria in repeated games. The party

in government may pull its punches – abstain from using its full powers to make life

difficult for the opposition – because it fears that when out of government it might

suffer the same fate. In the United States, a possible reason why Congress abstains

from using its power to limit the jurisdiction of the Supreme Court is that “once one

political faction uses certain means that threaten judicial independence, other factions

33 Sejersted (2002), pp.1063-70. 34 See for instance Matthews (1973) and Ch. 2 of Wavro and Schickler (2006) for the American Senate and Novak (2011) for the Council of the European Union.

32

will be more willing to use those devices in the future. The long-term stability of the

system, including the doctrine of separation of powers, is undermined by such

unconventional tactics.” 35 The Australian restraint in opening the archives of a

predecessor government as well as the French, Canadian and Norwegian practices of

letting the opposition chair important committees can also be seen in this light. In all

these cases, the strategic reasoning as probably cemented by informal sanctions.

These examples mostly illustrate how unwritten norms may supplement the

constitution. A vivid example will show how they can also subvert it. James Bryce

argues that even before indirect elections to the Senate were abolished by the

Seventeenth Amendment, the states managed to work around them.

Choice by a legislature had come to mean choice by a party majority in a

legislative caucus, and the determination of that caucus had often been

prearranged by a small group of party managers; or if that did not happen

secretly, it had been settled in a party convention which directed the members of

the party in the legislature how to cast their votes. There was anyhow little room

left for free selection by the legislature. The people or rather those wire-pullers

who manage the people and act in their name had usually settled the matter

beforehand. So hard is it to make any scheme of indirect election work

according to its original design; so hard is it to keep even a written and rigid

constitution from bending and warping under the actual forces of politics.36

Bryce also offers a striking example to illustrate the statements I have italicized:

In 1904 Oregon provided, by a law passed by the people under the initiative

method of legislation contained in the constitution of that state, that the political

35 Wilson (1992), p. 30, p.693.

36 Bryce (1995), p. 90.

33

parties might in the party primaries nominate persons for election as United

States senators, and that the people might at the ensuing election of the state

legislature select by their votes one of these nominees as their choice for senator.

Along with this it was also enacted that a candidate for the state legislature

might on his nomination either: (1) declare that he would, if elected, vote for that

person as United States senator who had received the largest popular vote and

thus become “the people’s choice”; or, (2) declare that he would consider the

popular vote as merely “a recommendation.” Or he might make no declaration at

all. In 1908 a majority of the members elected to the legislature, having made

the former declaration, felt bound to carry it out, and the person who had

received the highest popular vote was accordingly elected by that majority,

although he was a Democrat and they were Republicans. Thus the people got

their way and the federal Constitution was not formally transgressed.37

Thus the study of constitutional politics must go beyond the written text.

I shall also illustrate this proposition by what I called organic constitutions. I

understand these in a sociological rather than in a normative perspective, as systems of

checks and balances of social and political forces rather than of institutions.

In his analysis of the Roman constitution, Polybius did not explain it in terms of

“normative ideas of a necessary differentiation of governmental functions”, but rather

as “a social compromise between nobility and people”.38 Although “Polybius talks of

the power of the various elements in relation to one another, […] this power is not

simply that given constitutionally but that deriving from the exploitation of

constitutional power in sectional interests”.39 It is worthwhile to cite a passage in

37 Ibid., p. 90-91. 38 Nippel (1994), p. 9. 39 Lintottt (1999), p. 24.

34

which Polybius praises practices that, for any modern constitutionalist, would be

deplorable forms of corruption:

[The] people must be submissive to the senate and respect its members both in

public and in private. Through the whole of Italy a vast number of contracts,

which it would not be easy to enumerate, are given out by the censors for the

construction and repair of public buildings, and besides this there are many things

which are farmed, such as navigable rivers, harbors, gardens, mines, lands, in fact

everything that forms part of the Roman dominion. Now all these matters are

undertaken by the people, and one may almost say that everyone is interested in

these contracts and the work they involved. For certain people are the actual

purchasers from the censors of the contracts, others are the partners of these first,

others stand surety for them, others pledge their own fortunes to the state for this

purpose. Now in all these matters the senate is supreme. It can grant extension of

time; it can relieve the contractor if any accident occurs; and if the work proves

to be absolutely impossible to carry out it can liberate him from his

contract. There are in fact many ways in which the senate can either benefit or

indicate those who manage public property, as all these matters are referred to

it. What is even most important is that the judges in most civil trials, whether

public or private, are appointed from its members, where the action involves

large interests. So that all citizens being at the mercy of the senate, and looking

forward with alarm to the uncertainty of litigation, are very shy of obstructing or

resisting its decisions (The Histories, VI.17).

In his essay on “The independency of Parliament” Hume, citing Polybius

approvingly, defends corruption as part of the system of checks and balances:

The share of power, allotted by our constitution to the house of commons, is so

great, that it absolutely commands all the other parts of the government. The

35

king's legislative power is plainly no proper check to it. […] The principal

weight of the crown lies in the executive power. But besides that the executive

power in every government is altogether subordinate to the legislative; besides

this, I say, the exercise of this power requires an immense expence; and the

commons have assumed to themselves the sole right of granting money. How

easy, therefore, would it be for that house to wrest from the crown all these

powers, one after another; by making every grant conditional, and choosing their

time so well, that their refusal of supply should only distress the government,

without giving foreign powers any advantage over us? […] How, therefore, shall

we solve this paradox? And by what means is this member [the House of

Commons] of our constitution confined within the proper limits; since, from our

very constitution, it must necessarily have as much power as it demands, and can

only be confined by itself? How is this consistent with our experience of human

nature? I answer, that the interest of the body is here restrained by that of the

individuals, and that the house of commons stretches not its power, because such

an usurpation would be contrary to the interest of the majority of its members.

The crown has so many offices at its disposal, that, when assisted by the honest

and disinterested part of the house, it will always command the resolutions of the

whole so far, at least, as to preserve the antient constitution from danger. We

may, therefore, give to this influence what name we please; we may call it by the

invidious appellations of corruption and dependence; but some degree and some

kind of it are inseparable from the very nature of the constitution, and necessary

to the preservation of our mixed government.

The relevance of these arguments will appear in Parts II and III. The 18th-century

constitution-makers often discussed the British practice of governing by corruption.

Although the French framers were uniformly disapproving, a minority of the

36

American framers thought there was something to be said for the system.

The causal efficacy of the written constitution

“Il faut qu’une constitution soit courte et obscure. Elle doit être faite de manière

à ne pas gêner l’action du gouvernement.” (“A constitution should be short and

obscure. It should be written so as not to interfere with the action of the government.”)

This statement is often imputed to Napoleon in the context of the making of the 1799

French constitution. While it seems that he may have pronounced the second

sentence40, the first and more memorable one is more likely to have been uttered by

Daunou, the main author of the constitution. It has also been attributed to Talleyrand,

an hypothesis that is certainly consistent with his mischievous spirit.

Be that as it may, I shall ask how constitutions may in fact “interfere with the

action of the government” and have other effects as well. As Stephen Holmes has

emphasized, these can be enabling as well as disabling.41 A government in a country

without a hard-to-amend constitution would not be able to make credible promises.42

The constitution might also enable the citizens to engage in long-term economic

planning by removing the chilling fear that the government might confiscate their

gains. Yet these observations, while correct, presuppose that the constitution is not

only hard to amend, but also enforceable and credible. The main question I discuss in

this Section is how it can acquire these properties.

When he initially opposed the creation of a Bill of Rights, James Madison

dismissed it as a “parchment barrier”. In The Federalist no. 48 he applied the criticism

to the Constitution itself. How can a mere piece of paper stop the government from

40 Thibaudeau (1827), p. 229. 41 Holmes (1988), pp. 225-28. 42 North and Weingast (1989); Olson (1991).

37

confiscating the gains of the citizens if it decides it needs the money? Why would the

government behave like the proverbial chicken that stays inside the chalk circle it

could easily transgress? Why would the citizens attach any faith in the magical power

of the piece of paper to constrain the government?

I believe the first time the question was asked was on the occasion of the

enactment of Cromwell’s Instrument of Government (1653). It took the following

form: how can the legislature be made to respect a written constitution that limits its

power to encroach on the executive? Cromwell’s analysis was as follows:

It is true, as there are some things in the Establishment which are fundamental,

so there are others which are not, but are circumstantial. Of these no question but

I shall easily agree to vary, to leave out, “according” as I shall be convinced by

reason. But some things are Fundamentals! About which I shall deal plainly with

you; These may not be parted with; but will, I trust, be delivered over to

posterity, as the fruits of our blood and travail. The Government by a Single

Person and a Parliament is a Fundamental! It is the esse, it is constitutive. In

every Government there must be Somewhat Fundamental, Somewhat like a

Magna Charta, which should be standing, be unalterable. […] That Parliaments

should not make themselves perpetual is a Fundamental. [Yea; all know it:

taught by the example of the Rump!] Of what assurance is a Law to prevent so

great an evil, if it lie in the same Legislature to unlaw it again? [Must have a

single Person to check your Parliament.] Is such a law like to be lasting? It will

be a rope of sand; will give it no security; for the same men may unbuild what

they have built.43

43 Cromwell (1845), p. 120-21; my italics. The words in square brackets were inserted by the editor of Cromwell’s letters, Thomas Carlysle.

38

A rope of sand is perhaps even more apt than a parchment barrier as a metaphor

for the apparent causal inefficacy of a written constitution. Cromwell proposes to

lodge the causal power in the executive, so that he can use the powers at his disposal

to resist legislative encroachments.44 That proposal does not, however, offer a solution

to the problem of encroachments by the executive on the legislative power. Nor does

it say how the constitution might be a barrier to the subversion of individual rights by

either power.

The Instrument of Government did not leave an important legacy in the history

of constitutional theory. As we shall see (Ch. 00), a proposal similar to Cromwell’s –

but not inspired by it - was reinvented during the French Revolution. It was not

adopted. It took exactly 150 years before the general solution was found, in Marbury v.

Madison (1803). I shall shortly comment on that decision and on some similar later

decisions. First, however, I want to offer some examples from French constitutional

history to illustrate the problem of the causal efficacy of written constitutions.

In the ancien régime, the courts (parlements) performed a function somewhat

similar to both a priori and a posteriori judicial review in modern regimes.45 They

could make objections to an edict (in a remonstrance) and, if the King overruled them

(by a lit de justice), sabotage its execution. In many cases, they justified their action,

or inaction, by claiming that the edict contradicted “the fundamental laws of the

Kingdom”. In reality, there were no such laws, not even in the sense of unwritten

constitutional norms. “Everyone elevated to constitutional laws what they had an

interest in promoting to this dignity”.46 According to Tocqueville, this chaotic state of

44 Parliament, by contrast, argued that “the government should be in the parliament and a single person, limited and restrained as the parliament should think fit” (Worden 2012, p. 248; my italics). 45 See the special issue of Cahiers du Conseil Constitutionnel 28 (2010). 46 Marion (1979), p. 341, excepting as true constitutional laws only the Salic law and the inalienability of the domain.

39

affairs was not all to be deplored. “The irregular intervention of the courts in

government, which often disrupted the orderly dispatch of the public’s affairs, […]

served at times to safeguard liberty. It was a great evil that limited a still greater one.47

Once the Revolution of 1789 abolished the arbitrary monarchical regime, however,

the parlements no longer served any useful function. For almost two centuries, the

memory of their arbitrary, self-promoting and arrogant behavior fueled a deep

aversion to judicial review (commonly called le gouvernement des juges).

According to Dicey, “[the] restrictions placed on the action of the legislature

under the French constitution [of the Third Republic] are not in reality laws, since

they are not rules which in the last resort will be enforced by the courts. Their true

character is that of maxims of political morality, which derive whatever strength they

possess from being formally inscribed in the constitution and from the resulting

support of public opinion”.48 In other words, violations of the written constitution

might trigger “naming, blaming and shaming” and non-reelection in much the same

way as violations of unwritten constitutional norms are said to do. To tell how

effective this force has been in preventing the proposal of unconstitutional laws we

would need evidence about intentions to make such proposals. In public sources, at

least, such evidence is unlikely to be found.

In addition to de Gaulle’s unconstitutional reform of the constitution by

referendum, one can cite another case of unconstitutionality from French history.49 On

May 29 1849, President Louis Bonaparte gave orders for French troops to march on

Rome for the purpose of defeating the Roman Republic and restoring the papacy. The

47 Tocqueville (2011), p. 108. 48 Dicey (1915), p. 70; see also p. 87.

49 The “Paulin case” discussed vigorously by Mill (1834) seems to involve the misapplication of a constitutionally valid law and not (as claimed by Sweet 1992, p. 26) the application of an unconstitutional law.

40

action was clearly a violation of the constitution of 1848, which says that “The French

Republic […] never uses its troops against the freedom of any people”. In the National

Assembly, the radical deputy Ledru-Rollin stated on June 11 that “The constitution

has been violated; we shall defend it by all means, even by arms”, to which the

President of the Assembly Dupin replied, “The constitution cannot be violated in a

more scandalous manner than when in a legislative assembly one talks about

defending it by arms”. When Ledru-Rollin called for an armed manifestation on June

13, a few thousand unarmed persons showed up and were quickly dispersed by force.

When calling for a demonstration, and perhaps an uprising, Ledru-Rollin may

have counted on one or both of two grievances. On May 15 1848, the workers of Paris

showed their international solidarity when they invaded the National Assembly to

protest against the government’s refusal to come to the aid of Poland. The crushing of

the progressive Roman Republic was perhaps expected to trigger equally strong

feelings. Also, the violation of the constitution might anger the population

independently of the substantive issue at stake. Clearly, neither grievance proved

strong enough. With respect to the second grievance, it has been argued that voters

generally care little about the unconstitutionality (or even legality) of a proposal if

they approve its substance.50 In 1962, a large majority of the voters voted for de

Gaulle’s proposal (or for him) rather than voting against it to punish him for the

choice of procedure. Those who voted No mostly did so on grounds of substance, not

of procedure.51

In the Second and Third French Republics, the president of the National

Assembly sometimes took it upon himself, without being authorized by any text, to

dismiss legislative proposals on grounds of their unconstitutionality. On one occasion

50 Hume (17??), vol. VI, p. 482; Diller (2008), p. 334-35; Schauer (2010). 51 Goguel (1963); Guillaume (2004).

41

he almost affirmed an unwritten constitutional norm to that effect: “following

numerous precedents, the role of the President is to immediately stop unconstitutional

propositions”.52 In Sweden, Art. 61 of the constitutional reform of June 22 1866

explicitly gave this right to the President of the Assembly, adding that any doubts

would be settled by the constitutional committee. In France, no informal procedure

seems to have existed to resolve doubts that might arise in the exercise of the informal

power of the president.

Enforcement of the constitution by the executive (Cromwell’s proposal) is an

obviously inadequate solution. Enforcement by an officer or a committee of the

legislature (the French and Swedish practices) is inadequate for symmetrical reasons.

Enforcement by public opinion is unreliable. Hence the need for a specialized organ

becomes compelling. In The Federalist No 78, Alexander Hamilton offered the first

clear statement of this idea:

The complete independence of the courts of justice is peculiarly essential in a

limited Constitution. By a limited Constitution, I understand one which contains

certain specified exceptions to the legislative authority; such, for instance, as

that it shall pass no bills of attainder, no ex post facto laws, and the like.

Limitations of this kind can be preserved in practice no other way than through

the medium of courts of justice, whose duty it must be to declare all acts

contrary to the manifest tenor of the Constitution void. Without this, all the

reservations of particular rights or privileges would amount to nothing.

(Alexander Hamilton, The Federalist No 78).

The American Constitution forbids the enactment of bills of attainder and ex

post facto laws both by the state legislatures and by Congress. It is not clear, therefore,

52 Pierre (1893), p. 65, who also cites several other French examples.

42

whether Hamilton argued for judicial review of federal laws or merely, as also implicit

in the Supremacy Clause of the Constitution, of state laws.53

To simplify a complex situation judicial review of national legislation has been

established in three main ways: by what we may call judicial bootstrapping outside the

constitution, by constitutional assignment of the task to a Supreme Court, and by

constitutional assignment of the task to a specialized Constitutional Court.

On several occasions, the creation of judicial review has taken place by what

one might call a juridical coup d’état or judicial bootstrapping. Let me cite four of

them:

In Marbury v. Madison (1803) the American Supreme Court effectively created

judicial review of federal laws by declaring that a clause in the 1789 Judiciary

Act was unconstitutional.

The Norwegian constitution of 1814 does not mention judicial review. Yet in

two decisions of 1854 and 1866, the Supreme Court arrogated to itself the

power of judicial review, the first time implicitly and the second time

explicitly.54

In Israel, the second Kol Ha’am case (1953), in which the Supreme Court struck

down the ban on a Communist newspaper, is often cited as an incipient form of

judicial review, unauthorized by any legal text. A 1969 decision on campaign

financing edged closer to full-scale judicial review.

In France, judicial review by bootstrapping took place in the 1970s. Although

the Constitution of the Fifth Republic did create judicial review, it was mainly

intended to be used by the executive against the parliament. There was no

53 Kramer (2004), p. 81. 54 Slagstad (1995).

43

question of using the Constitutional Council to protect civil liberties until, in

1971, the Court decided to make the 1789 Declaration of Rights and other

“fundamental principles of the Republic” part of its jurisprudence.

These cases of irregular establishment of judicial review may perhaps be seen

as creating unwritten constitutional norms. The regular establishment of judicial

review authorized by the text of the written constitution - rather than by a court itself

acting outside the constitution - was pioneered in Latin America.55 An early example

is offered by the 1861 constitution of Bolivia, which asserts that the Supreme Court

has the power to “hear in sole instance matters of pure law, the decisions of which

depends on the constitutionality or unconstitutionality of laws”. In 1910, a reform of

the Colombian constitution also granted the Supreme Court the right to judicial review.

In 1920, Austria was the first country to adopt “pure” judicial review, by a

constitutional court that has that task as its only function. This “Kelsenian model”, so-

called after the name of its foremost theoretician, is today the dominant one, mainly

due perhaps to its adoption by the framers of the 1949 German constitution. Yet these

modern Kelsenian courts are often not as pure as Kelsen recommended, since they

sometimes perform other tasks as well.

The existence of a court with the uncontested power to exercise judicial review

does not, however, resolve the question of the causal efficacy of the written

constitution. Like the constitution itself, a decision by the court is just a piece of paper.

Moreover, courts exercising judicial review usually do not have a police force at its

disposal to enforce its decisions. (Nor, for that matter, do they have a separate budget

to fund decisions with important economic consequences.) Although the U.S.

Supreme Court can ask the President to send federal marshals to enforce its decisions,

55 See Eder (1960) for a survey.

44

he can refuse, as did President Jackson in Worcester v. Georgia (1833). 56 In an

apocryphal story, he is reported to have said, “Well, John Marshall [the Chief Justice]

has made his decision, now let him enforce it”. He did say, though, that the decision

was “still born”. The decision in Brown v. Board of Education (1954) would not have

been enforced had President Eisenhower not sent federal troops to Little Roc. 57

Undercompliance with decisions by the constitutional court has also been documented

in South Africa.58 In Russia, undercompliance seems to have been a serious problem,

given the 2002 amendment to the Law on the Constitutional Court that gave the

executive two months to abolish a law or regulation found unconstitutional.

Noncompliance could result in the dismissal of the executive; a local legislature's

refusal to pass necessary laws could mean its dissolution.59

In the American cases, opposition to the Court was rooted in the conflict

between the states, particularly the Southern states, and the federal government. It

might seem hard to imagine similar attempts to sabotage the decisions in, say,

contemporary France or Norway. In the case of a priori review of legislation, they are

virtually unthinkable. In the case of a posteriori review, however, decisions that entail

large expenditures by the authorities might be met with the answer, made in good or

bad faith, ”We don’t have the money”. Although the enforcement of economic, social

and cultural rights might be particularly expensive, the enforcement of civil and

political rights can also require substantial outlays.60 For this reason, the government

56 For this tangled story, see Long (196-17), Burke (1968-69) and Sundquist (2010). 57 Rosenberg (2008) argues that this case is typical of many momentous decisions by the U. S. Supreme Curt. 58 Hausman (2012). 59 Aron (2002). 60 Holmes and Sunstein (1999).

45

might, for instance, refuse to comply with court-ordered measures to reduce prison

overcrowding.

The last example can be used to introduce another reason why the constitution

may lack causal efficacy. Reacting to the arbitrary practices of the parlements,

Montesquieu said that judges “are no more than the mouth that pronounces the word

of law (la bouche de la loi), mere passive beings, incapable of moderating either its

force or rigor”.61 One interpretation of his statement is that the law, including the

constitution, always has a unique meaning that is to be determined by the judge. Some

constitutional provisions no doubt come close to having this character, notably those

that specify the machinery of government. Provisions stating individual rights, by

contrast, are notoriously ambiguous. The eighth amendment to the American

constitution prohibits the use of “cruel and unusual punishment”. One might ask

whether “double-celling” in prisons – two prisoners sharing one cell – is banned under

this clause. In Rhodes v. Chapman (1981), a majority on the U. S. Supreme Court

found that it was not, Justice Marshall dissenting.

It seems crystal clear to me that the eighth amendment by itself provides no

unambiguous resolution of this issue. The majority and the minority formed their

opinions on the basis of a vast body of prior jurisprudence, most of which has an

equally tenuous relation to the text of the constitution, and on their personal ideas of

what constitutes unusual and cruel punishment. Although both the majority and the

minority cited an earlier decision affirming that the state cannot impose punishment

that violates “the evolving standards of decency that mark the progress of a maturing

society”, they drew opposite conclusions from that shared premise. I believe that

many cases involving individual rights are similarly ambiguous. In Roe v. Wade

(1971), the Supreme Court very dubiously found a right to privacy in the constitution

61 Montesquieu (1748), p. 159.

46

and a right to abortion in the right to privacy. The idea of “substantive due process”

has equally poor foundations in the text of the constitution.

Many similarly creative decisions could be cited from other countries. Here, I

limit myself to a contrast between two decisions by the Colombian Constitutional

Court, C-221/1994 allowing personal drug consumption and C-309/1997 allowing

the mandatory use of safety belts. The question in both cases was whether the law

could restrict personal autonomy for the purpose of protecting individuals against

themselves. In the first decision, the Court argued that if the state wanted to reduce

drug consumption, it should use the less restrictive means of education. This idea is so

removed from reality that it is tempting to conclude that the Court was in the grip of

an ideology. Couldn’t drivers also be “educated” to use safety belts?

According to what one might call “The first law of pseudo-science”, everything

is a little bit like everything else. Because the human mind constantly engages in

pattern-seeking, it often finds meaning in similarities that have no intrinsic

significance. Legal interpretation can degenerate in the same way. “Just as no event

and no form completely resembles another, neither does any completely differ. [...]

All things are connected by some similarity; yet every example limps and any

correspondence which we draw from experience is always feeble and imperfect; we

can nevertheless find some corner or other by which to link our comparisons. And that

is how laws serve us: they can be adapted to each one of our concerns by means of

some twisted, forced or oblique interpretation.”62

Because of the abstract and often vague language of many rights provisions in

the constitution, they can indeed be “adapted to our concerns”, with the conclusion

generating the premises. To the (unknowable) extent that this is the case, the

constitution has no independent causal efficacy. Even if when it is not the case and

62 Montaigne (1991), p. 1213; my italics.

47

judges do their best to decide cases on their merits rather than twist the premises to

reach a predetermined conclusion, they are much more constrained by prior

constitutional jurisprudence than by the constitution itself. Moreover, that prior

jurisprudence itself often had, as noted, a very tenuous link with the original text. It is

easy to imagine a counterfactual world in which many key decisions were made

differently, because of the death and replacement of swing judges, with the cumulative

effect of creating a constitutional jurisprudence wholly different from the one under

which we live today. The constitution itself, though, would be the same.

I have discussed how constitutions may fail to have the causal efficacy that their

framers wanted them to have. I conclude by considering the opposite case, the

unintended consequences of constitutions. I do not have in mind the fact that

constitutional jurisprudence may lead to decisions that framers did not anticipate (and

sometimes could not have anticipated), but the fact that the “bare text” itself may

warrant actions that nobody had in mind when it was adopted. I first cite two cases

that turn on the fact that the conjunction of two articles may have absurd or

undesirable consequences, and then a case in which a constitution that was never

supposed to have any effects suddenly acquired causal efficacy.

According to Art I.3.4 of the American constitution, “The Vice President of the

United States shall be President of the Senate”. According to Art. I. 3. 6, the Senate

“shall have the sole power to try all impeachments”. It follows that the Vice President

would preside over his own impeachment trial. 63 This situation has not arisen,

although it was perhaps not far from happening in the case of Spiro Agnew.

A vastly more consequential conjunction of two clauses that taken separately

seem innocent enough is found in the Weimar constitution. Art. 48 says that “In case

public safety is seriously threatened or disturbed, the Reich President may take the

63 Paulsen (1998) argues that there is no way out of this conundrum.

48

measures necessary to reestablish law and order, if necessary using armed force. […]

The Reich President has to inform Reichstag immediately about all measures

undertaken which are based on paragraphs 1 and 2 of this article. The measures have

to be suspended immediately if Reichstag demands so.” The last clause was

presumably intended to provide a check on presidential discretion. It is undermined,

however, by Art. 25: “The Reich president has the right to dissolve the Reichstag, but

only once for the same reason. New elections, at the latest, are held 60 days after the

dissolution.” Using Article 25, the President could (and did) threaten to dissolve the

Reichstag should it vote to annul any measures taken under Article 48. This

mechanism opened the way to power for Hitler.

The last example is that of a constitution that acquired life only after death. In

Czechoslovakia, the 1968 constitution introduced, for the first time in the history of

the country, a federal structure with separate assemblies (National Councils) for the

Czech and Slovak lands and with strong power for these republics in the Federal

Assembly. As all Communist constitutions, this one remained a dead letter; the

National Councils were not even convened. The post-Communist constitutional

debates after 1990 were framed, however, by this document. The strong Slovak

autonomy now became a major obstacle to reform. An amendment to the constitution

required a 3/5 majority both in the proportionally elected lower house and in each of

the two equal-sized Czech and Slovak sections of the upper house (150 seats). The

power of 31 Slovak deputies in the upper house to block any change was arguably a

main cause of the breakup of the Federation.64

While constitutions may fail to have causal efficacy and may have causal

effects that were not intended, these facts should not obscure the real and predictable

importance of many constitutional provisions. If the constitution guarantees

64 Elster (1995).

49

overrepresentation of certain regions in parliament, one can expect these to get more

roads and bridges than they would otherwise have received. If it forbids the

government from instructing the central bank in matters of monetary policy, inflation

is likely to be lower than it would otherwise have been. Unemployment, though, may

be higher. If it makes it more difficult for the government to use its power to stay in

power, democracy will benefit. If it authorizes patents and bans retroactive laws, there

will be more economic growth. Civil and political rights create a hard core of

freedoms that no constitutional jurisprudence can undo, although much will remain

uncertain and sometimes arbitrary at the margins. Constitutions matter.

50

Chapter 2:

CONSTITUTION-MAKING

In this chapter, I discuss the process of constitution-making. I first consider the

question of individual versus collective authorship of constitutions. Next, I discuss the

upstream, midstream, and downstream contexts of constitution-making. Further, I

consider the motivations, beliefs, and prejudices of the framers, including their beliefs

about the motivations, beliefs, and prejudices of the future political actors whose

behavior the constitution shall regulate. For the sake of brevity, I shall refer to the

latter actors as the framed. Fourth, I distinguish among and discuss four main

varieties of constitution-making bodies. Finally, I ask: when does the people speak in

the constitution-making process? I assume throughout that the constitution is made in

a single, uninterrupted process culminating in its formal adoption, thus excluding the

Israeli constitution that consists of nine constitutional laws adopted separately over

many years.

Individual versus collective authorship

In the bulk of this chapter I focus on constitution-making by pure collective

authorship. It is nevertheless useful to locate this procedure at one end of a spectrum,

with pure individual authorship at the other end. Between the two pure forms there is a

mixed form of constitution-making as a written contract between a ruler and the

people. The genuinely mixed form must be distinguished from the pro forma

agreement by a ruler to a constitution proposed by an assembly, as in Sweden in 1809,

or the pro forma agreement by an assembly to a constitution proposed by a ruler, as in

51

Prussia in 1850. Also, the fact that a ruler consults with elected representatives before

handing down the constitution does not make them into co-framers. In 1958, the

Consultative Committee for the making of the new French constitution had little real

influence.65

Constitution-making by a single founder takes two very different forms. In one,

a wise man writes a constitution for his community and then withdraws from politics.

Plutarch tells us that Solon and Lycurgus (if he existed) took this path. It has never

been followed again. In the other, a ruler, presumably assisted by advisors, imposes an

“octroyed” constitution on his people. The French Charter of 1814 and Prussian

constitution of 1850 are often cited as examples. The 1958 French constitution can

also be seen in this perspective, although the submission of the proposal to referendum

placed some limits on what de Gaulle could impose.

For an octroyed body of laws to be a constitution it must have some stability. It

cannot be subject to the whims of the ruler, but must limit his actions to some extent.

As noted in Ch.1, the Danish Kongelov of 1687 did not satisfy this criterion. It may

usefully be contrasted with a passage from Spinoza’s Tractatus Theologico-

Philosophicus published a few years earlier:

[It] is by no means contrary to practice for laws to be so firmly established that

even the king himself cannot repeal them. The Persians, for example, used to

worship their kings as gods, yet even their kings had no power to repeal laws

that had once been established, as is clear from Daniel Chapter 6, and nowhere,

as far as I know, is a king appointed unconditionally, without any explicit terms.

This, in fact, is contrary neither to reason nor to the absolute obedience due to a

king; for the fundamental laws of the state must be regarded as the king's

permanent decrees, so that his ministers render him complete obedience in

65 Ghevontian (1992) , p., 810.

52

refusing to execute any command of his which contravenes them. We may

clarify this point by reference to Ulysses, whose comrades did execute his

command in refusing, in spite of all his orders and threats, to untie him from his

ship's mast while he was enchanted by the Siren's song: and it is put down to his

good sense that he thanked them afterwards for carrying out his original

intention so obediently. Even kings have followed the example of Ulysses; they

usually instruct their judges to have no respect for persons in administering

justice, not even the king himself, if by some odd mischance he commands

something which they know to contravene established laws. For kings are not

gods, but men, who are often enchanted by the Siren's song. Accordingly, if

everything depended on the inconstant will of one man, nothing would be stable.

Unlike the Kongelov, the 1814 French Charter and the 1850 Prussian

constitution did limit the power of their authors, since the King and the two chambers

were co-legislators. As noted in Ch.1, one can argue that a self-constrained ruler will

have more power – ability to get things done – than an absolute monarch. A despot

will lack credibility, because he is unable to make himself unable to break his

promises. This being said, it is not clear that the self-limitations of Louis XVIII or of

Frederick William IV were due to their farsighted prudence. They may simply have

known that they were not strong enough to impose a document along the lines of the

Kongelov. Even if that may in fact have been their first preference, their long-term

interest was better served by their weakness.66

It may be useful to reflect on the possible virtues of single founders, and the

corresponding flaws of assembly constitution-making.67 Descartes, probably echoing

Plutarch, wrote that “if Sparta was in earlier times very prosperous, that was not on

66 The argument in North and Weingast (1988) may also be understood along these lines. 67 For a general discussion, see Lanni and Vermeule (2013).

53

account of the goodness of each of its laws in particular, seeing that several were very

strange and even contrary to good morals, but on account of the fact that they were

devised by only a single man and thus they contributed towards the same end.”68 The

constitution of the Fifth French Republic was designed to be coherent in this sense.

All institutions were to serve the overarching goal of creating a strong executive. De

Gaulle did not foresee, however, a possibility that was to be realized three times: a

durable “cohabitation” of a President and a Prime Minister belonging to opposite

political groups. Omnipotence does not imply omniscience.

By contrast, the members of an assembly would typically not all work “towards

the same end”, but might either have different conceptions of the public good or prefer

their private good to the public good. Moreover, even if they agreed on the ends, they

might have different views about the means for realizing them and about the side

effects of these means. Even after arguing, some of these differences will inevitably

remain. Before the final resolution by voting, the options may be structured by

bargaining, notably by logrolling. There is a risk that the outcome may be lacking in

coherence. In stylized form, whereas both [A, B] and [A’, B’] might be viable

institutions, the compromises [(A, B’] or [A’, B] might not be.69

Compromises can also take the form of sweeping differences under the carpet

rather than resolving them. Carl Schmitt argued that the Weimar constitution

contained “series of compromises that are not genuine […] One could call these

specious compromises because they reach no substantive decision through reciprocal

concessions. Its essence, rather, is simply the drawing out and postponing of this

decision.”70 He cited several examples. The uneasy combination of regional autonomy

and national unity in the 1978 Spanish constitution offers another illustration. “[The]

68 Descartes (1637) § 2. 69 On constitutional compromises in general, see Koutnatzis (2005). 70 Schmitt (2008), p. 84 (modified translation).

54

price paid for such heavy compromise was that Spain, a country with relatively

intense regional difficulties, was given a poor and incomplete territorial formula with

the potential for worsening existing problems.” 71 Twenty-five years after this

observation was made, the potential seems close to being realized.

Social-choice theory has demonstrated that voting procedures can produce not

merely incoherent decisions, but indeterminacy of decision.72 Condorcet showed in

1785 that majority voting can fail to produce a unique collective preference. With

three voters and three options, a majority might prefer the first option to the second,

another majority the second to the third, and yet another the third to the first. With

such cycling majorities, it makes no sense to talk about “the” collective preference.

The mathematician Poisson showed in 1837 that majority voting can fail to produce a

unique collective belief. In his example, a majority on a jury considers that Peter is

guilty of a crime, another majority than Paul is guilty of the same crime, and yet only

a minority answers Yes if asked whether both are guilty. It is entirely indeterminate

whether one should take that answer or the conclusion that follows from the votes on

individual guilt as constituting “the” collective belief.

The empirical frequency and importance of these paradoxes is controversial. To

my knowledge, only one study (discussed in Ch. 00) claims to find a Condorcet

paradox in a constituent assembly, involving the mode of election of a president. I

believe the claim is demonstrably false. I do not think the Poisson paradox has even

been discussed in this context. In Ch. 00, I offer a stylized and hypothetical variant of

the paradox, involving the choice between bicameralism and unicameralism. Although

a close study of the preferences and beliefs of individual framers might reveal more

cases, such data are usually very hard to obtain.

71 Bonime-Blanc (1987), p. 89-90.

72 See Elster (2013), Ch. 1 for a fuller exposition.

55

The risk of incoherence and indeterminacy in constituent assemblies does not of

course offer any argument for believing them inferior to a single founder. It suffices to

read Rousseau’s ruminations about the “Legislator” in The Social Contract to realize

the emptiness of the idea. There are contexts in which comparisons between group

decisions and individual decisions make sense, such as the relative merits of having

legal cases decided by a judge or by a jury, but constitution-making is not one of them.

Finally, I shall briefly consider joint-constitution-making by an assembly and a

ruler. I shall not consider hypothetical Hobbesian, Lockean or Rousseauian contracts,

but only actual historical agreements. Also, I shall not consider the common practice

of joint constitutional amendment. The octroyed Prussian constitution of 1850

required amendments to be passed by both chambers as well as approved by the king.

Many other 19th century constitutions allowed for such joint amendments.73

Joint constitution-making thus understood would involve (i) arguing, bargaining

and voting within an assembly and (ii) arguing and bargaining between the assembly

and a ruler. The two processes could take place simultaneously or successively.

Nothing quite like this has ever happened. Louis XVI tried to obtain a veto over the

constitution, but failed. The French Estates-General between 1302 and 1614 tried to

use their power to authorize taxes as leverage to force the king to adopt (something

like) a constitution, but failed. Like other European estates, they might win occasional

victories in the ongoing struggle with the royal powers, but never a permanent

settlement.74

The closest approximation to joint-constitution making is perhaps the adoption

of the Magna Carta. In itself, there “was nothing particularly striking or extraordinary

in the fact that King John had to end a period of disastrous wars in 1215 with the grant

73 Holmøyvik (2012), p. 237 n. 864. 74 See Myers (1975) for an overview.

56

of a charter of liberties to his subjects”.75 Similar episodes took place all over Europe

in the 12th and the 13th centuries. What is striking is that the Magna Carta, unlike

many other charters conceded by bankrupt rulers, proved to be more than an

occasional victory. Frederic Maitland asserted that the Magna Carta “becomes and

rightly becomes a sacred text, the nearest approach to an irrepealable ‘fundamental

statute’ that England has ever had”. 76 Yet the making of this statute bore little

resemblance to a social contract between ruler and people. King John’s interlocutors

were a band of barons who could not credibly claim to represent anyone but

themselves, although some of the concessions they obtained ultimately benefited

larger groups.

In the remainder of this chapter I mainly consider the making of modern

democratic constitutions by an elected assembly. In Ch. 00, I shall expand on the

preceding remarks on the failures of joint constitution-making in France.

The context of constitution-making

I shall distinguish among upstream, midstream, and downstream influences on

the constitution-making process.

Upstream influences. Some actor or institution has to convene the constituent

assembly. Some actors or institutions have to select (elect or appoint) the delegates.

Often, these upstream agents will try to influence the work of the assembly.

Conveners usually have an influence through their power over the selection rules, but

may try to go further by imposing substantive or procedural constraints on the process.

Selectors always exercise an influence through their selection of delegates, but may

try to go further by instructing their delegates how to vote.

75 Holt (1992), p. 26.

76 Cited in ibid., p. 3. As Holt emphasizes, how near the approach was is debatable.

57

The convener may be a reigning monarch, an existing legislature, a provisional

government, an interim assembly, an occupying power, an international body, or a

self-created one. As the last category is less self-explanatory than the others, some

examples may be useful. On February 14 1814, the Danish regent of Norway

Christian Frederik met with a group of 21 Norwegian notables to call for the

convocation of a constituent assembly. “It was clear that the meeting was not

authorized to decide anything, yet all knew that the regent would follow the opinion of

a large majority. He limited his freedom of action by asking for advice.”77 In the

American states, there have been several attempts to convene unauthorized

constitutional conventions. In Michigan in 1835, the attempt succeeded: “Congress

accepted [the process] as satisfactory and by its acceptance ratified the action of the

irregular convention”. 78 On March 5 1848, 51 self-selected leaders from all over

Germany met to summon a Pre-Parliament that would organize elections to a

constituent assembly. In the Spring and Fall of 1989, several East European countries

organized “round table talks” between the government and various opposition groups,

outside any regular institutional machinery. To varying degrees they took it upon

themselves to prepare the ground for the first elections to a constituent assembly.

As noted, a convener can influence a constituent assembly by laying down the

rules for electing its members. Once they are elected, the conveners may not have any

legitimacy to shape the proceedings, for two distinct reasons. First, framers may claim

that an assembly that embodies the constituent power must be absolutely sovereign

and thus unconstrained. Independently of the validity or meaningfulness of this claim,

which rests on the metaphysical ideas of constituent power and sovereignty, it can

have considerable causal efficacy in a constituent setting. Second, and perhaps less

77 Steen (1951), p. 98. 78 Hoar (1917), p. 20.

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metaphysically, conveners may lack the necessary moral authority. In many cases, the

old regime is part of the problem to be solved by a constituent assembly. If the regime

is flawed, however, why should the assembly respect its instructions?

There are other and more down-to-earth reasons why a constituent assembly

may escape the attempted tutelage by its conveners. When the three Western allies

organized constitution-making in Germany in 1948-1949, they tried to use their

superior force to impose a highly decentralized federal constitution as well as

ratification of the document by referendum, against the wishes of the Germans. They

were largely unsuccessful, however, because the Germans could exploit divisions

among the allies as well as their impatience, in the Cold War context, to get the

constitution adopted quickly. The Germans got the upper hand not because they

possessed the metaphysical constituent power or because the allies lacked moral

authority, but because their political bargaining power proved to be a stronger

instrument than the blunt military force of the allies.

The actors who select the delegates to a constituent assembly presumably

choose those on whom they believe they can count to represent their wishes and

interests. In addition, they may try to constrain their votes by imperative mandates or

recall. More subtly, to enhance their bargaining power delegates may ask to be bound

by imperative mandates. A priori, it would seem that constitution-making in federal

countries and in countries split along lines of ethnicity, language, religion, order or

caste would be especially prone to such tactics. Since conflicts along these dimensions

are usually seen to involve rights rather than interests, they are less open to

deliberation and compromise solutions. This being said, there seem to be few

examples of framers being elected with imperative mandates and, when elected,

respecting them. (I discuss some marginal instances in Ch. 00 and Ch. 00.) Many

constitutions prohibit this practice in ordinary legislatures, and it would seem even

more inappropriate to do so in a constituent assembly. Framers are elected to legislate

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for “generations yet unborn”, not to represent their constituencies. I do not know,

however, whether this intrinsic feature of constituent assemblies has any causal

efficacy.

Midstream influences. Between the opening of the assembly and the adoption

of the final document, framers may be exposed to external influences if the

proceedings are open to the public and debates and votes reported in the press (or on

the Internet). Anticipation of such publicity may have a chilling effect on the

proceedings, if deputies are afraid of arguing and voting for unpopular views. The

effect on members who are undeterred by exposure and publicity can be more

dramatic. In September 1848, two right-wing members of the Frankfurt constituent

assembly were murdered by a crowd. “The effects [of this event] can hardly be

exaggerated…. [The] assembly was for the next period divided more rigidly into

moderates and radicals than before, thus removing any fundamental basis of unity

which was so essential for nationhood.”79 Publicity can polarize expressed views as

well as homogenize them.

Other midstream influences are more innocuous and possibly benign. The

“crowdsourcing” during the 2011 Icelandic process offers an example. According to a

member of the Constitutional Council, it “received 323 formal proposals that the three

committees of the Council discussed and answered. More than 3, 600 written

comments were posted on the [Council’s] website by visitors; the Council

representatives answered many if not most of them. Nearly all the proposals and

comments proved useful in one way or another”.80 In South Africa, the Constitutional

Court was mandated to verify that the constituent assembly complied with the

principles stated in the 1993 Interim constitution. After a first certification judgment

79 Eyck (1968), p. 313. 80 Gylfason (2012).

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found some discrepancies in the draft of the constitution, the constituent assembly

made the necessary changes. Incidentally, this episode also provides a counterexample

to the claim that upstream actors have no influence on the document once the framers

have been chosen. In South Africa, the Interim constitution - the outcome of hard

bargaining - had to be respected to prevent the country from falling back into civil war.

The behavior of international actors may also cause changes in the document

during the drafting process. A country that aspires to membership in the European

Union or the Council of Europe has an incentive to conform its constitution, notably

the bill of rights, to the standards of these bodies. Whereas an early draft of the post-

Communist Romanian constitution had only weak protections of minority rights, these

were enhanced by this “conditionality-based” process. The increasing weight of

international human-rights institutions suggests that future constitution-making will be

strongly shaped by such pressures.

Downstream influences. Often, the document adopted by a constituent

assembly has to be ratified before it takes effect. The ratifier may be a single person,

such as a monarch; popularly elected assemblies; a legislature or, in federal countries,

the state legislatures; or finally the population at large voting in a referendum. These

ratifications are not, of course, an influence on the constitution-making process, but

part of it. In slightly inappropriate language one might nevertheless refer to the

anticipation of ratification as a downstream influence. Assuming that framers want

their proposal to be adopted, they have an incentive not to include provisions that

might cause it to be rejected. To be sure, ratifiers might vote for a proposal they

disapprove if they dislike even more the prospect of having to start up all over again.

In the urgent circumstances of constitution-making, the fact that time is of the essence

can create a margin of freedom that the framers can exploit. The importance of this

effect would be reduced if the voters had before them two or more alternative drafts of

the constitution. In Germany in 1949, for instance, one might have presented a

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proposal of a centralized federal system together with a proposal of a more

decentralized one. To my knowledge, however, ratification almost always takes the

form of an up-and-down vote on a single proposal, some American state constitutions

being the only exception. One may note, however, that the French law of November 2

195 expressly stipulated that if the proposed constitution was rejected in a referendum,

one would proceed to the election of a new constituent assembly.

Let me examine the notion of a downstream influence more closely. We can

reasonably assume that framers will be influenced by their beliefs about what the

ratifier will accept, either on substantive grounds or because of time pressure.

According to a common conception of politics, these beliefs will be rational. The

framers are not infallible and may sometimes get it wrong, but their anticipations

about voter reactions will not be distorted in systematic ways. Moreover, rational

framers will take account of the fact that they are not infallible and refrain from

proposing measures that might command only a bare majority. If this view is correct,

we should expect that most constitutions submitted to ratification will be accepted.

I do not know of any systematic study of how often constitutions fail to be

ratified and, when they do, whether the failure is due to irrational beliefs of politicians.

One can cite striking examples, such as the rejection in 1946 by 53 % of the voters of

the first draft of a new French constitution and the rejection in 1999 by the voters in

each of the Australian states (with one minor exception) of a proposal to abolish

monarchy in favor of a republican system. (The nation-wide rejection rate was 55%.)

Yet apart from the fact that these are isolated cases, they cannot be used to cast doubt

on the assumption that politicians are rational, since the defeats were relatively narrow.

More striking evidence against that assumption is found in a study of the 12

referendums on state constitutions that were held in the United States between 1960

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and 1980.81 Seven of the proposals were rejected, in two cases with a large margin

(4:1 in Rhode Island and 3:1 in New York State). Yet even if the beliefs of the framers

turn out to be radically mistaken, they can still constrain and shape their proposals.

Motivations, beliefs, prejudices

To understand a constitution-making process we have to identify the

motivations, beliefs and prejudices of the framers. The category of prejudice is the

most difficult to capture, straddling as it does “hot” motivations and “cold” beliefs. At

the same time, we need to consider the framers’ beliefs about the framed:

THE FRAMERS: Motivations Beliefs Prejudices

THE FRAMED Motivations Beliefs Prejudices

Motivations. Drawing on the French moralists, I distinguish among reason,

passion and interest as the main motivational types.82

Reason may be understood either substantively, as the rational pursuit of the

long-term public interest, or procedurally, as the insulation of debates and decisions

from self-interest, passion, and other distorting factors such as bias and prejudice.

Madison embraced the substantive definition, when he referred to “the mild voice of

reason, pleading the cause of an enlarged [i.e. not selfish] and permanent [i.e. not

shortsighted] interest” (Federalist no. 42). Earlier, La Bruyère said succinctly that “To

81 Lenowitz (2007). 82 Elster (1999), Ch. II.2, Ch. V.

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think only of oneself and of the present time is a source of error in politics”. 83

Habermas is closer to the second, procedural definition, when he refers to an ideal

speech condition that relies only on the “uncoerced force of the better argument”.84

Passion will be understood as mainly including emotions such as anger, fear,

and enthusiasm, although other “hot” states such as intoxication may also be at work.

The emotions are episodic, usually triggered by events such as war, revolution, or a

financial crisis. In this respect they differ from prejudices (racism, xenophobia,

misogyny) which are permanent features of an agent.

Interest (partisan interest) will be understood as the pursuit of advantage at a

scale smaller than that of the collectivity as a whole, and further subdivided into

personal interest, group interest, and institutional interest. The last two subspecies

require a brief comment. Since groups and institutions are not actors, they cannot

pursue anything, yet their members may for reasons of their own seek to promote the

advantage of these larger entities. If a politician seeks reelection, it will usually be in

his personal interest to pursue the interest of his party. A member of an assembly

might, out of amour-propre, seek to enhance its importance. “One maxim, which will

be found to predominate, more or less, in the minds of individuals in every

corporation, consists, in an overweening opinion and extravagant zeal for the interest

of that body, to which, as it is often expressed, they ‘have the honor to belong’”.85 An

example from the Swedish constitutional reform of 1969 is offered below.

These motivations enter doubly into the analysis of constitution-making. On the

one hand, we must understand the motivations of the framers to understand their

choices. On the other hand, we must understand the beliefs of the framers regarding

83 La Bruyère (2007), p. 358.

84 In Elster (2013) I develop the second approach. 85 John Judd (1787), cited in Longford (1991), p. 210.

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the motivations of the framed. I begin by discussing the first issue, postponing the

second to a general discussion of the importance of the beliefs of the framers.

According to a common conception to which I have unfortunately contributed86,

framers are in the role of Peter when sober legislating for Peter when drunk. This

idea is based on faulty conceptual and empirical assumptions. In fact, the opposite

statement, while also inaccurate, would be closer to the truth: framers behave like

Peter when drunk legislating for Peter when sober. 87

Conceptually, “soberness” or dispassionateness does not imply a concern with

the public interest. If passion and reason were the only motivations of political actors,

that implication would hold, but since they may also be motivated by interest, it does

not. An example will bring out the point. The abolition in 1969 of the bicameral

system in Sweden, followed by a thoroughgoing reform of the constitution in 1974,

has been called “institutional change” rather than “constitutional change” because of

the routine manner in which was carried out.88 The main obstacles to the reform were

institutional interest and party interest. Regardless of party affiliation, members of the

to-be-abolished first chamber tended to be against the abolition.89 Also, the Social

Democrats had traditionally benefited from their dominance in the indirectly elected

first chamber. Yet since the party’s electoral losses in 1966 were widely attributed to

its procrastination on the question of constitutional reform, Prime Minister Erlander

decided that it had to be settled sooner rather than later.90 The implication is that if it

had not been for the electoral discontent, he would have been happy to retain the

status quo. This pattern of framers motivated by group interest but constrained by a

86 Elster (1984), Ch. II. 7, corrected in Elster (2000), Ch., II. 87 Rubenfeld (2001), pp.129, 130; see also Sajó (2011). 88 Immergut (2002). 89 Stjernquist 1996, p. 290. 90 Ibid., pp. 297, 312.

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more disinterested electorate is quite common, notably when the constitution is

submitted to popular ratification. When framers act as if constitution-making were just

“politics as usual”, the voters may punish them by rejecting the proposed constitution.

Examples include the Canadian referendum in 1992 on the Charlottetown Accord91

and the refusal of several proposed state constitutions in the United States in the1960s

and 1970s.92

Empirically, the Peter-when-sober paradigm does not stand up to the historical

record. In the majority of cases, framers have been “drunk” - under the influence of

passion – rather than dispassionate. Moreover, they will often assume that future

political actors will act out of interest rather than from passion. To the extent that

these statements hold, constitution-making is indeed a case of Peter when drunk

legislating for Peter when sober.

The demand for a new constitution arises in and from exceptional

circumstances. “No liberal democratic state has accomplished comprehensive

constitutional change outside the context of some cataclysmic situation such as

revolution, world war, the withdrawal of empire, civil war, or the threat of imminent

breakup”.93 Almost inevitably, passions run high. Although the 1969 Swedish reform

as well as Hungary’s adoption of a new constitution in 2011 show that these

statements are not universally true, constitution-making à froid is a rare event.

Clearly, framers do not act out of passion most of the time. Many of their tasks

do not involve any passions at all. Yet depending on circumstances, one of three

emotions is likely to guide them in some of their efforts: anger, fear and enthusiasm.

Before illustrating these cases by some examples, let me comment on three general

91 Russsell (1993), Ch. 111 92 Lenowitz (2007). 93 Russell (1993), p. 106.

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problems that affect emotional decision-making: the risk of failing to sustain an initial

motivation, the flaws of “hot cognition”, and a shortening of the time horizon. 94

Usually, emotions tend to be short-lived, or to have a “short half-life”. In

general, therefore, a process begun under the impetus of emotion may run out energy

before it has achieved its task. The idea of a “window of opportunity”, or striking

while the iron is hot, can be understood in this perspective. If the emotion is triggered

by a persistent state of affairs, the window may be larger than if it is caused by a

transient event. Even a small window may be sufficient if the process is not very time-

consuming.

Hot cognition may be flawed because emotions may lead us to favor beliefs that

are badly supported by the evidence. La Fontaine observed that “Each believes easily

what he fears and what he hopes”. The second part of that maxim – the affirmation of

wishful thinking – is uncontroversial. The first part – involving counterwishful

thinking – may seem more surprising. Yet the study of financial crises, including the

most recent ones, amply shows the tendency to believe the worst, not on prudential

grounds but out of visceral fear. In particular, the study of rumors demonstrates a

common tendency to believe what one fears rather than what one hopes.95 “Irrational

exuberance” often alternates with “irrational panic”.

Another flaw of hot cognition is that in an emotional state we may gather less

evidence than is rationally required. The subjectively felt urgency that is an important

feature of many emotions induces a preference for early action over delayed action

(not to be confused with a preference for early reward over later reward) that, in turn

may cause suboptimal investment in information gathering. Yet urgency can also be

adaptive, if external circumstances require a rapid decision. Moreover, the tendency

94 See also Elster (2009, 2010a, 2010b).

95 Elster (2010), pp. 125-44.

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for emotion to induce early action may neutralize the tendency for emotions to abate

quickly. This being said, there are many cases in which urgency is pointless and

maladaptive, as illustrated by the proverb “Marry in haste, repent at leisure”.

Urgency also leads to a shortening of the time horizon, for the simple reason

that the assessment of the long-term consequences of present choices is itself a time-

consuming process. This involves a cognitive deficit, not a motivational one. While it

is possible and perhaps plausible that emotions cause people to care less about the

distant future, the connection is not, to my knowledge, well-documented. By contrast,

if an agent feels an urge to act immediately, she will not gather much information and

hence will know less about the remote consequences of the various options, and

therefore choose on the basis of the more easily identifiable short-term effects.

It seems that anger was an important motive behind the Icelandic constitution-

making process that began in 2010. As a leading reformer has written, “When

countries crash, a natural thing for their inhabitants to do, inter alia, is inspect their

legal and constitutional foundations to look for latent flaws and to fix them. This was,

in fact, one of the demands of the ‘Pots-and-pan’ revolution’ that shook Iceland after

the country’s spectacular financial crash in October 2008”.96 In the words of another

observer, “the public outrage, which after the economic collapse was directed at the

government, converged on the issue of writing a new constitution”.97 The Icelandic

constitution did indeed have many flaws, among them two that I mentioned in Ch.1. It

did not regulate the judiciary, allowing for instance the minister of justice to appoint

singlehandedly the members of the Supreme Court. Also, it allowed for a vast

overrepresentation in parliament of the rural districts. It is not clear, however, whether,

and by what mechanism, these and other flaws were responsible for the financial crisis.

96 Gylfason (2012). 97 Ólafsson (2011); my italics.

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In fact, the Icelandic economy recovered faster than that of any other crisis-ridden

country in recent years, without any reform of the constitution. Although anger does

not seem to have been an important factor in the actual work of the Constitutional

Council, it may have been decisive for the process by which it came into being.

Moreover, the final adoption of the constitution may be jeopardized if the economic

recovery continues. The anger sustaining the popular process may abate if not fueled.

It is likely that visceral fear has been an important driving force in many

constitution-making processes. As plausible examples I shall cite the making of the

French constitutions of 1848 and of 1958. First, let me stress that I am dealing only

with visceral fear, not with prudential fear. The latter is a simple belief-desire complex:

I believe that X will happen (unless I do something to prevent it) and I desire X not to

happen. Visceral fear, by contrast, is a full-blooded emotion whose extreme form is

panic, in which we run away from danger but not necessarily towards safety.

Admittedly, it can be hard to decide whether a given episode instantiates visceral or

prudential fear. The evidence will have to come from examining the adequacy of

beliefs and behaviors to the situation that triggered them.

The making of the 1848 French constitution took place in a context of popular

violence. The workers of Paris rose up on three occasions. On February 22, their

rebellion brought down the reign of Louis Philippe and led to elections of a

constituent assembly; on May 15, they invaded the assembly to protest against the

government’s lack of solidarity with the oppressed Polish people; on June 23, they

took to arms and raised barricades in protest against the closing of the National

Workshops. By June 27, the insurrection had been violently crushed. The Committee

of the Constitution began its work on May 19, delivered it first report on June 19 and

its final report on August 30. Whereas the first report reflected fear of offering too

little to the workers, the second was inspired by fear of offering too much. Tocqueville,

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who was member of the Constitutional Committee in the Assembly, characterized the

atmosphere of its work as follows:

[The] nation had a sort of frenzied desire to see the work of constitution making

finished and to see authority established. […] The Assembly shared this longing

and was constantly goading us, though there was hardly any need to do so, for

memories of the 15th May and apprehensions of the days of June, combined

with the sight of a divided, weak and incapable government in charge of affairs,

were enough to drive us on. But the thing that most effectively deprived the

Committee of its freedom of mind was […] fear of outside events and the

enthusiasm of the moment.” It is difficult to appreciate how much this pressure

of revolutionary ideas affected even those minds least subject to such influence,

and how it almost unconsciously drove them farther than they meant to go, and

sometimes even in a different direction. There is no doubt that, had the

Committee met on the 27th June instead of the 16th [sic] May, its work would

have turned out to be entirely different. 98

As we shall see in Ch. 00, Tocqueville found the same mix of fear and

enthusiasm in the French Revolution of 1789.

A second example of fear at work in constitution-making can be taken from the

process that led up to the adoption of the French constitution of 1958. Although it

would be absurd to suggest that de Gaulle was in any way motivated by fear, the

parliamentarians of the 4th republic may well have been under the sway of this

emotion when they gave him a free hand to write a new constitution. In de Gaulle’s

inimitable telescoping, “In 1958 I had a problem of conscience. I could just let things

take their course: the paratroopers in Paris, the parliamentarians in the Seine, the

98 Tocqueville (1987), p. 169. In the phrase I have italicized, I deviate from the published translation by rendering the French “entraînement” as “enthusiasm” instead of “excitement”.

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general strike, the government of the Americans: it was written on the wall. Finally a

moment would have arrived when everybody would have come looking for de Gaulle,

but at what price? Thus I decided to intervene in time to prevent the drama”.99 It

makes sense to assume that some parliamentarians feared for their lives and that their

visceral fear affected their decision to abdicate from power.

If the French framers of 1789 and 1848 were motivated by a mix of fear and

enthusiasm, the making of the Norwegian constitution of 1814 offers an example of

framers animated by enthusiasm unmixed with fear.100 The foremost historian of the

process writes that the framers were characterized by “an incredible vitality and

restless activity”. They had “a happy belief in the perfection of mankind, and in their

own ability to attain it. Enthusiasm was their normal state of mind”.101 The framer

Jacob Aall might seem to express a different view, when he later wrote that “The first

steps towards our new constitution were simple, calm, and free from those fermenting

passions that usually dominate during great revolutions”.102 In the continuation of the

passage he clarifies, however, however, that the passions he had in mind were those

caused by “domestic ferment” or “a high degree of discontent with the status quo”.

The conditions for anger and fear were absent, but the awesome task seems to have

inspired enthusiasm. One may note, though, that when a leading framer renounced his

nobility for himself and his descendants, the two other nobles in the assembly did not

99 Peyrefitte (1995), p.262. 100 For a fuller discussion of the emotion of enthusiasm (which seems to be unknown to psychologists who study emotion), see Elster (2013), pp. 000, 000. 101 Steen (1951), p. 143-44. 102 Aaal (1859), p. 381.

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follow his example, unlike what had happened in the exuberant enthusiasm of “a hot

summer night 25 years earlier in the French national assembly”.103

La Bruyère asserted that “Nothing is easier for passion than to overcome reason;

its great triumph is to conquer interest.”104 One might add, as a corollary, that nothing

is easier for interest than to overcome reason, except when reason allies itself with

passion – not just with any passion, but with enthusiasm. Yet when allied with passion,

reason may lose some of its force. Above I offered a substantive definition of reason

as the rational pursuit of the long-term public interest. In a state of enthusiasm,

rationality may suffer. As a commentator on Kant’s discussion of enthusiasm observes,

the emotion illustrates how the best may become the enemy of the good.105 Obstacles

and objections that might have presented themselves to sober minds get overlooked or

are eliminated by wishful thinking. Irrational pursuit of the long-term public interest

may not serve that interest well.

The pursuit of the long-term public interest may be thwarted by the pursuit of

short-term goals and by partisan interests. While I cannot point to actual instances in

which the choices of framers have been shaped by a short time horizon, the effect

seems plausible if one accepts the two premises for which I have been arguing: the

importance of emotion in constitution-making and the tendency of emotion to induce a

shortening of the time horizon. For a hypothetical example, imagine that framers

choose a system of apportionment on the basis of current population patterns without

considering future demographic changes and geographical mobility.

103 Steen (1951), p. 167. I discuss that “hot night” in Ch. 00 below. Strictly speaking, the comparison is imperfect, since personal renouncements of nobility was not among the many self-sacrificial acts that took place on that occasion. 104 La Bruyère (2007), p. 98. 105 Allouche-Pourcel (2010), p. 105.

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It is much easier to document the role of partisan interest in constitution-making.

The role of individual interest seems for the most part to be relatively small, but let me

cite two examples from the recent transitions in Eastern Europe. The creation of the

Czech Senate in 1992 was not made on grounds of principle, but to create a place for

the Czech deputies to the Upper House of the dissolved Czechoslovak Confederation.

Art. 41. 7 of the Romanian constitution says that “Property is presumed to have been

acquired legally”, which is an unusual sort of provision. To make sense of it, we

might look to a decision by the Czechoslovak government on 26 September 1991, that

in the future bidders for state-owned businesses would have to prove where their

money came from. The measure was intended to block the use of “dirty money” that

had been illegally accumulated by members of the former nomenklatura. The law

created a presumption of guilt: the government did not have to show that the funds

had an illegal pedigree. Instead, citizens had to prove that their money was clean. It is

likely that the Romanian clause was intended to preempt such measures.

Party interest and group interest more generally play a major role in many

constituent assemblies. Routinely, large parties invoke the need for effective

governance to argue for electoral laws that favor large parties, whereas small parties

invoke the need for democratic representativeness to argue for laws that favor small

parties. The Swedish reform of 1974, for instance, conformed to this pattern. (It is so

unremarkable that it is more surprising to observe the opposite, as when some groups

in the Constitutional Committee of the Polish parliament after 1989 expressed a

preference for proportional representation despite a potential party interest to the

contrary.106) Equally routinely, parties with a strong candidate for the first elected

president argue for a strong presidency, whereas parties lacking a strong candidate

want the office to be a weak one. In Poland in 1921 and in France in 1946, constituent

106 Rapaczynski (1991), p. 617

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assemblies created weak presidencies because they expected them to be occupied by

the victorious presidents Pilsudski and de Gaulle, both of whom refused to stand for

the emasculated offices. In all these cases, to be sure, the groups invoked the public

interest, not their own. The same observation can be made about the provisions in

many old constitutions that imposed strong economic qualifications for active or

passive suffrage. The exclusion of the poor from the vote was routinely justified by

the interest of the poor.

Institutional interest may operate, as it did in Sweden, when the upper house in

parliament has to vote on its own abolition. More importantly, the constituent

legislatures that I consider in the next section may tend to create legislature-centric

constitutions, at the expense of the powers of the executive branch. To the extent that

this pattern is observed, it may be due either to the personal interest of legislators who

want to be reelected or to the general tendency of the human mind to enhance one’s

own importance in the scheme of things. For the same reason, the upper house of a

bicameral constituent assembly may insist on creating a bicameral constitution.

Beliefs. Framers have to make up their minds - or admit ignorance - on a

number of factual and causal issues. At the proto-constitutional First Continental

Congress in 1774, the state delegations had to decide how they were to decide in the

future: should each state have one vote or should votes be proportioned to population

and/or wealth? The Congress adopted the first procedure and “Resolved, That in

determining questions in this Congress, each Colony or Province shall have one Vote.

The Congress not being possess'd of, or at present able to procure proper materials for

ascertaining the importance of each Colony”. In this case, the urgency of the situation

made it impossible to gather reliable information for a proportional system.

In most other constitution-making settings, framers have probably possessed the

basic demographic and geographical information needed for the establishment of an

apportionment system. To my knowledge, other factual information about the current

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state of the nation has rarely been needed. By contrast, framers have often been

required to form beliefs about various future states of affairs. As noted, they have to

anticipate what ratifiers will or will not accept. If they are in a position to choose the

ratifying organ, they will also have to form beliefs about which organ will be the least

constraining. In Germany in 1949, the allies wanted to have the constitution ratified

by referendum, but the German framers succeeded in imposing ratification by the state

legislatures. Their official argument was that a referendum would not be appropriate

as long as Germany was not unified. That may indeed have been their private opinion

as well. It is also conceivable – although as far as I know not mentioned in primary or

secondary sources – that they believed a popular referendum would be too risky.

Before the advent of opinion polls, it was difficult to form accurate beliefs

about the outcome of popular ratification. It seems unlikely that the German framers

had any reliable data that could guide their choice. The lack of data can also be an

obstacle for framers who want to establish an electoral law that will favor their party.

The accurate prediction of electoral outcomes can be difficult even when both the

general effects of the electoral system and the intentions of the voters are reasonably

well known. When a society undergoing transition to democracy has to choose its first

electoral system under conditions of high uncertainty regarding the distribution of

voter preferences, there is no reason why a group of framers would be able to identify

the system that would maximize the number of its seats in the first freely elected

assembly. In the Polish and Hungarian transitions of 1989-1990, Communists,

members of the opposition, and external observers all overestimated the electoral

attraction of the Communist Party.

Since electoral laws are usually not part of the constitution, the preceding

remarks have only limited relevance for my purpose here. Yet electoral forecasts can

influence constitution-making by other mechanisms. If the constituent assembly is not

subject to a firm time constraint, some actors may be able to benefit from dragging

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their feet. Thus in the work on the 1949 Bonn constitution, “[t]he major parties had

different attitudes with regard to the time schedule of the work of the Council. […]

The sooner the elections took place the better for the SPD, whereas the CDU hoped to

gain time until the new economic policy and the seasonal upward turn in employment

might produce a shift to the right”.107 As in other bargaining situations the more

patient actor can obtain a substantive concession in exchange for an early decision.

Similarly, in the recent Iraqi constitution-making process the Kurds were able to

obtain concessions from the Americans because president Bush believed he “had to

have results quickly if he wanted to be reelected”.108

In addition to forming beliefs about ratifiers and voters, framers may form

beliefs about the motivations, beliefs and prejudices of the framed. I shall ignore

“beliefs about beliefs”, which are probably marginal. With respect to beliefs about

motivations, Hume argued that framers do not need to form beliefs, only maxims. “It

is [...] a just political maxim, that every man must be supposed a knave: Though at the

same time, it appears somewhat strange, that a maxim should be true in politics, which

is false in fact.”109 In other words, framers should act on the worst-case assumption

that the framed will be relentlessly self-interested. As I argued in Ch. 1, however, that

assumption is too drastic. There is no doubt a worst-case scenario in which the

National Geodesic Survey would turn into a hotbed of corruption unless it is made

subject to rigorous checks and controls, but is not a scenario one should worry about.

The Humean argument gives too much weight to the merely possible, and not enough

to the probable or the plausible. For another objection to that argument, see the

paragraph after the next.

107 Merkl (1963), p. 96. 108 Arato (2009), p. 173 109 Hume (1742).

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Framers have adopted a number of different strategies to reduce the impact of

partisan interest on the framed. To prevent the capture of elected officials by special

interest groups, many constitutions have imposed term limits. In a compelling

metaphor, John Lilburne told the private soldiers in the New Model Army, “Suffer

not one sort of men too long to remaine adjutators [delegates], least they be corrupted

by bribes of offices, or places of preferment, for standing water though never so pure

at first, in time putrifies”.110 Motivated by the desire to prevent self-dealing, the 27th

amendment to the U. S. constitution (first proposed in 1789) states that “No law,

varying the compensation for the services of the Senators and Representatives, shall

take effect, until an election of Representatives shall have intervened”. The

requirement in several constitutions that proceedings in parliament be open to the

public reflects the desire to prevent private deals that cannot stand the light of day.

“Sunlight is the best disinfectant.” At the same time, the secret ballot is essential to

prevent bribery of voters.

The idea that every man must always be assumed to be a knave is in flat

contradiction with the idea that people are often led by their passions and prejudices. I

postpone the discussion of prejudice, to focus first on passion. When designing

political institutions, framers often pay as much attention to the task of neutralizing

passion as they do to the task of neutralizing partisan interest. They worry that

legislators or voters might yield to impulsive bursts of passion, leading to unwise and

perhaps irreversible actions. To reduce this risk, one may either try to design

institutions so that passion is less likely to arise or build in a delay in their operations

to give passion time to cool down.

To neutralize the passions of voters, framers may notably deny them the right to

recall their representatives at will. Historically, however, the task of neutralizing the

110 Woolrych (1986), p. 192; my italics.

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passion of legislators has been seen as more important. Bicameralism is often chosen

as a means both to prevent passions from arising and to give them time to cool down.

By requiring members of the upper house to satisfy higher age requirements and

stricter economic qualifications, one will supposedly create a more reflective and less

impulsive body than a lower house with less stringent eligibility requirements. At the

same time, the slowing-down of decision-making inherent in any bicameral system,

even one in which the upper house is a mere carbon copy of the lower, will also lead

to a cooling-down of passion. Although these claims have often been made in

constitutional debates, there is little evidence that they are valid. The idea that income

and wealth are reliable proxies for intellectual or moral qualities is especially fragile.

There is little evidence that the American Senate is more panic-resistant than the

House of Representatives.111 Be this as it may, there is little doubt that containment of

the passion of legislators has been a major concern of constitutional engineering.

Finally, framers will often form beliefs about the main causes of structural

regime failure, and design institutions to prevent them. They do not and cannot take

precautions against all possible derailments. Rather, as suggested by the literature on

the “availability heuristic”112, their attention will often be focused on recent, salient

breakdowns. Constitution-making is sometimes reactive, in the sense that framers try

to address the flaws of the previous regime regardless of whether the problems are

likely to recur. The constructive vote of no confidence that the Germans adopted in

1949 was largely a reaction to the coalition of extremes - Nazis and Communists - that

brought down governments of Weimar. The situation in Germany in 1948-49 did not

in itself justify that measure. De Gaulle’s obsession with the negative role of political

111 For some skeptical comments, see Mueller (1996), p. 192-93 (citing the Gulf of Tonkin episode). 112 Kahneman and Tversky (1974).

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parties during the 3rd and the 4th Republics caused him to neglect their essential

democratic function. Examples could probably be multiplied.

In reactive constitution-making, a country’s own past constitution serves as a

negative model. In other cases, it may serve as a positive model. In Eastern Europe,

some post-Communist constitution-makers looked back to the pre-Communist

regimes. In Poland and Romania, for instance, arguments for having a Senate

regularly cited the presence of that institution in, respectively, the 1921 and 1923

constitutions. Some provisions of the German constitution of 1949 were inspired by

the short-lived liberal constitution of 1848. Constitutions of other countries may also

serve as positive model. 113 The Norwegian constitution of 1814 was strongly

influenced by the French constitution of 1791. Spain and Hungary adopted the

constructive vote of no confidence because of the apparent success of the German

regime. To my knowledge, no foreign constitution has ever served as a negative

model.

Prejudice. Article 2 of the Norwegian 1814 constitution affirms that “Jews

remain excluded from access to the Kingdom”. In the ordinary, pre-theoretical sense

of the term, the Norwegian framers seem to have acted on an anti-Semitic prejudice.

Before assessing this intuition, I need to say something about the nature of prejudice

in general and in constitution-making even more specifically. The latter topic has

never to my knowledge been studied.

Prejudice straddles the motivation-belief divide, combining beliefs about the

members of some social group with a negative attitude towards them. Often, the

attitude is an emotion, notably contempt or hatred. The perception that another is

inferior triggers contempt, the perception that he is evil triggers hatred. Hitler felt

contempt for the Slavs, but hated Jews. These emotions differ from other moral

113 Schach (200?).

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emotions such as anger and indignation in two ways. First, they do not have a short

half-life, but constitute durable dispositions. Second, and relatedly, they are not

triggered by anything the object of the emotion does, but by what he or she - in the

opinion of the prejudiced subject – is. Prejudice relies on essentialist beliefs about the

other.

With minor exceptions, such beliefs are never justified. They arise either

because people unthinkingly adopt the views that dominate in their environment or

because they are motivated to seek out negative ideas about a group for which they

feel a visceral dislike. In the first case, the direction of the causal chain is from beliefs

to attitude; in the second case, from attitude to beliefs. The first case is illustrated by

the prejudice against women as being essentially irrational 114 , the second by the

prejudice against American blacks.115 When the Norwegian framers voted to exclude

Jews from the kingdom, their prejudice seems mainly to have fallen in the first

category, although historically anti-Semitic beliefs belonged to the second.

In constitution-making, the issue of prejudice arises at two levels: with regard to

the motivations of the framers and with regard to their beliefs about the framed.

The most important instance of prejudice among framers concerns the denial to

women of the right to vote and to be elected as representatives. Sometimes, this denial

has explicitly been justified by claims about the immaturity and ignorance of women.

Often, however, the prejudice has been so widely and unthinkingly accepted as never

even to be a subject of debate or mentioned in the text of the constitution. Some

constitutions have also used religion to exclude persons from citizenship (as in

Norway) or from voting rights (as in many American states in the 18th century).

114 Lord Chesterfield’s letters to his son are a classical expression. 115 Sniderman, Brody and Tetlock (1991), Ch. 6.

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Exclusions on the basis of gender and religion are not always motivated by

prejudice, however. The denial of the right to vote to women can sometimes be

explained by party interest. Before French women got the right to vote in 1944, “the

left had been, by and large, opposed to granting the vote to women: its members

claimed that priests would dictate their votes”116. When the anti-clerical 1917 Mexican

constitution denied priests the right to vote and to hold office, it was due to a political

struggle against the Church, not to a prejudice against religion. By contrast, the

Norwegian denial of access to the kingdom for Jews represents a case of pure

prejudice, as it were, since there were no Jews in Norway at the time.

The framers may also try to make precautions against prejudice-based actions

by the framed. Modern constitutions usually contain a long list banning discrimination

(and sometimes affirmative action) on grounds of gender, ethnicity and race, religion,

language, age, sexual orientation, and several other criteria. A priori, one might think

such provisions unlikely to be adopted if prejudices along these lines are widespread

among the citizens and hence, presumably, among the framers they elect. Conversely,

anti-prejudice provisions should be more likely to emerge in non-prejudiced countries.

In Tocqueville’s words, “peoples are like individuals. They indulge their principal

passions to the hilt and then take care lest they yield more than they should to tastes

they do not possess”.117 I am unaware of any empirical examinations of this issue.

Four varieties of constituent assemblies

As I observed in Ch.1, constitutions differ from ordinary laws in a number of

ways. One might expect, perhaps, that the bodies adopting constitutions would be

distinct from those enacting ordinary laws. As I argue later, there are normative

116 Balinski and Laraki (2010), p. 36 n. 9. 117 Tocqueville (2004), p. 567.

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arguments in favor of a sharp separation between the constituent and the legislative

powers. In practice, however, this separation is the exception rather than the rule.

Some constituent assemblies are in fact elected only to write or propose a

constitution, and perform that task only. Examples include the Norwegian assembly

of 1814 (with a minor exception mentioned below), the Italian assembly of 1946-47,

the German assembly of 1948-9, and many American state conventions. Overall,

however, these “pure” assemblies or, as I shall call them, conventions are in a

minority. 118 The more common mixed assemblies take three forms: legislatures

elected with a dual legislative and constituent mandate (mandated constituent

legislatures), legislatures that arrogate the constituent power to themselves (self-

created constituent legislatures), and assemblies elected to write a constitution which

then also assume legislative powers (self-created legislating assemblies).

A mandated constituent legislature is explicitly elected with the double task of

adopting a constitution and performing the task of an ordinary legislature. Thus in the

election of the first French parliament after 1945 the voters were asked, “Do you want

the assembly elected today to be a constituent assembly?” 96 % of the voters

answered Yes. In 1776, John Scott argued that the existing Provincial Congress in the

state of New York “had the power to [frame] a government, or at least, that it is

doubtful whether they have not that power”. Gouverneur Morris argued strongly,

however, for calling a constitutional convention, and a compromise was reached in

the form of the election of a mandated constituent legislature, which took care of

Morris’s concern for the legitimacy of the new constitution. 119 In Delaware, by

118 Ginsburg, Elkin and Blount (2009), p.205 classify 406 constitutions adopted between 1789 and 2005, and found that only about 100 were written or proposed by a pure assembly. Their data are unreliable, however, as they also include Soviet-style sham constitutions. 119 Kline (1978), pp.54-56.

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contrast, the need for a new constitution was seen as more important than the need for

a mandate.120

A self-created constituent legislature is elected as an ordinary parliament and

then turns itself into a constituent assembly. This was a very common pattern among

the American states during the revolutionary years. Among the constituent assemblies

convened in this period, eight fell in this category. 121 The Second Continental

Congress, too, was a self-appointed constituent body when it enacted the Articles of

Confederation.122 The French National Assembly of 1871 offers another, albeit more

ambiguous case. Although elected only to conclude the peace negotiations with

Germany, the assembly took it upon itself, by “force of circumstance”, to fill the

constitutional vacuum created by the abdication of Napoleon III.123

A self-created legislative assembly is one that is elected as a constitutional

convention and then assumes legislative powers, following either of two maxims:

“He who can do more can do less”124, and “He who can create a power can also

exercise it”.125 The Norwegian constituent assembly of 1814 took it upon itself to

create a finance committee, a task that “normally would have belonged to a regular

parliament”126. With that exception, however, the assembly stayed within its role as a

constituent body. The self-created Frankfurt parliament of 1848 dissolved the

Assembly of the German Confederation and arrogated full legislative powers to itself.

120 Kruman (1997), p.28-29. 121 Hoar (1917). 122 Rakove (1979), Ch. VIII. 123 Bastid (1956), p. 216. 124 Le Pillouer (2003), pp. 98, 130, 133. 125 Le Pillouer (2003), p. 143 ; see also Hoar (1917), p. 65. 126 Steen (1951), p. 156-57.

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In the nineteenth century, a number of American states called conventions that

authorized themselves to legislate.127

The Spanish assembly of 1977 constitutes a unique case: elections to a

constituent body under a veil of uncertainty:

Arguably, the most “democratic mode of handling constitution-drafting is

through the creation of a constituent assembly. In the Spanish case, however,

much confusion and vagueness surrounded the subject. Nobody quite knew

whether the June 15, 1977 elections would result in a “regularly” elected

parliament (or Cortes) or an “extraordinarily” created constituent assembly.

The political parties were divided on the issue. Liberal and leftist parties

strongly favored the constituent option. The UCD [Union of the Democratic

Center], as the party in transitionary power, much preferred a regularly elected

parliament, with its potentially longer lifespan. The UCD’s view prevailed.

Their victory would permit them to remain in power once the new constitution

was adopted.128

Several factors may be at work in the choice of one of these four assembly

structures. In the absence of an existing legislature, the need for an organ to handle

current affairs and the perceived awkwardness of electing two assemblies to work in

parallel may have combined to make a constituent assembly assume legislative tasks

as well. The argument is not compelling, however, as current affairs can also be

handled by an interim government, as was done in Italy after 1945. De Gaulle wanted

this solution for the constituent assembly in 1945, but it was rejected by the

provisional consultative assembly that had been established in Alger in 1943 and

127 Hoar (1917), pp. 140-48. 128 Bonime-Blanc (1987), p. 35-36.

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transferred to Paris in 1944.129 When a legislature is in place, it may seem redundant

to elect a new one. This argument is not compelling either, as shown by the

coexistence in the summer of 1787 of the Continental Congress and the Federal

Convention (se Ch. 00). Finally, as in the Spanish transition, party interests may be

decisive.

I shall not repeat all the arguments I have offered elsewhere for the superiority

of conventions over the mixed forms,130 but focus on the one that seems the most

important from a general perspective. A mixed assembly may be subject to a self-

enhancing bias, in the sense of creating an excessively strong legislative branch with

correspondingly weak executive and judicial branches. The bias might stem from one

of two sources.

First, institutional interest, as defined above, may cause constituent legislators

to exaggerate the importance of the body to which they belong. This general tendency

is probably reinforced by the self-image of many framers as sovereign, unconstrained

and omnipotent. If they are unchecked qua constitution-makers, why should they

impose checks on themselves qua legislators? For similar reasons, a unicameral

constituent legislature might be reluctant to create a bicameral constitution.

Second, if the framers expect or hope to be elected to the first post-

constitutional assembly, they have a personal interest in being able to promote their

interest - or just to exercise power - at that later stage. The people at large may then

take steps to prevent this confusion. In 1780, the voters in Massachusetts turned down

a constitution proposed by a constituent legislature. One of their objections had been

eloquently stated in 1778 by the committee to which a town meeting in Boston had

129 Bougrab (2002), p. 270-71. As noted by Le Pillouer (2003), p. 282, the solution proposed in France and adopted in Italy amounted to “avoiding the confusion of constituent and legislative powers by creating the accumulation of executive and legislative powers”. 130 Elster (2013), Ch. 4.2.

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entrusted the task of writing instructions to the delegates of the city in the state

assembly:

You are hereby instructed by the Town of Boston to inform the Honorable

General Court [the lower house of the state legislature], that after mature

Deliberation in a very full Meeting, consisting of Nine hundred & Sixty eight,

we Voted unanimously, to Reject the Form sent out by the Convention, &

proposed by them for the Government of this State in future, & to assure them,

that a full Conviction of the Impropriety of this Matter's Originating with the

General Court, was the Reason which induced us, the last Year, to instruct our

Representatives, on no Terms to consent to any Proposals for this Purpose; &

we are free to declare, the Specimen we now have, in the Form proposed, has

confirmed us fully, even to Demonstration, that we were right in our

Conjectures of that Honorable Body's being improper for this Business : — A

Convention for this, & this alone, whose Existence is known No Longer than

the Constitution is forming, can have no Prepossessions in their own Favor,

while it is hard for the General Court, upon a Matter of this Kind, to divest

themselves of the Idea of their being Members; & the probability that they

may continue such, may induce them to form the Government with peculiar

Reference to themselves : — To this we suppose it is owing, that the

Legislative & Executive Branches are so blended, & that nothing appears, but

that the Members of the Court may monopolize to themselves a Variety of

Offices, which we are fully persuaded, the best Form of Government will ever

keep these Branches intirely distinct, & the Members confined to their

particular Duties, without Incumbrance”.131

The constitution proposed by a subsequent convention was ratified.

131 Report of the City Commissioners of the City of Boston (1895), p. 31; my italics.

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The arguments against legislative participation in constitution-making also

apply to participation by the executive. 132 While it may be possible to prevent any

involvement by the current head of the executive branch, it may be more difficult to

prevent deputies who see themselves as potential future heads of the executive from

giving the constitution an executive-centric bias, or from promoting a mode of

electing the executive that would favor their chances.

When does the people speak?

Today, it seems axiomatic that democratic constitution-making should involve

direct participation by the people in one form or another. Historically, however, this

has not always been the case. The delegates to the German constituent assembly in

1948-49 were chosen by the state legislatures, which were also entrusted with the task

of ratifying the constitution. The process was certainly democratic, but the people was

never consulted. If a constitution is proposed by a self-created constituent assembly

and not subject to popular ratification, as was the case in eight American states in the

revolutionary period133, the people never has a chance to speak.

Sometimes, then, the people never speaks. Often, it speaks once, either at the

beginning or at the end of the process. The people speaks at the beginning, and only at

the beginning, if it elects the deputies to a convention, a mandated constituent

legislature or a self-created legislative assembly, but has no ratifying role. This

practice of granting plenary powers to the assembly was followed in the making of the

Norwegian constitution of 1814, of the French and German constitutions of 1848, and

132 Ginsburg, Elkins and Blount (2009) p. 213 affirm that their data confirm the executive bias of executive framers but not the legislative bias of legislative framers. Given the problems mentioned in note 000 above, I am not confident they are right. Also, the fact that they count executives as involved in the process even if their only task is to sign the final document (ibid., p. 206) casts some doubts on their findings. 133 Hoar (1917), Ch. 1.

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of many constitutions of the 20th century. The people speaks at the end, and only at the

end, if the constitution is adopted by a self-created constituent assembly and then

submitted to the people. In the one instance where this procedure was followed in an

American state in the revolutionary period, the proposal was rejected.134

Sometimes, finally, the people speaks twice, at the beginning and at the end. (It

may even speak more than one time at the end of the process, if a first draft is rejected

by referendum and another draft subsequently adopted, as happened in France in

1946.) In today’s world, this is a common procedure. In a variant of this process, the

people speaks for a second time only if the constitution fails to obtain a supermajority

in the constituent assembly, a procedure that was laid down in the Interim constitution

of South Africa. The South African framers managed to adopt the constitution by the

requisite supermajority, perhaps because they were unsure of the outcome of a

referendum. This anticipatory effect differs from the one that is created by the need to

shape the constitution so that it will be accepted in a mandatory referendum.

134 Ibid.