Democratic Constitution-Making in Comparative Perspective

• In Event: Constitution Making and Constitutional Courts

Abstract

Constitution-making processes often arise after major political conflicts, such as civil wars, transitions from authoritarian rule, or popular uprisings (Elster, 1995; Russell, 2004; Negretto, 2017). Recent literature shows that their democratic characteristics, namely, the degree of citizen participation and elite contestation, are linked to desired political outcomes, including reduced post-conflict violence (Widner, 2007) and enhanced democracy (Eisenstadt et al., 2015; Negretto and Sanchez-Talanquer, 2021). When do democratic constitution-making processes arise? Despite the importance of the previously mentioned desired political outcomes, the factors influencing the emergence of democratic constitution-making processes remain unclear. This article fills this gap by presenting and testing a theory that explains the democratic nature of these processes.

This theory posits that the configuration of the relevant political elites in terms of veto players (Tsebelis, 2002) and the type of conflict (elite conflict or citizen uprising) in which constitution-making processes occur are the main determinants of their democratic nature. Specifically, I theorize that (i) Processes of constitutional change initiated by a single political actor are less contested than agreed upon by several actors; (ii) processes that begin as a cause of a conflict (e.g., civil wars) or post-conflict political elites (e.g., transitions to democracy) scenario tends to be more contested than processes that arise in the absence of such conflicts; (iii) processes that begin as a consequence of citizen mobilization tends to be more participatory than processes without such mobilization; and, (iv) processes that begin after a conflict among political elites are associated with lower citizen participation in constitution-making.

More interestingly, the key independent variables interact: while the scenarios of conflict impact the level of contestation in all stages of a constitution-making process (origination, deliberation, and ratification) when the process is agreed between several veto players, their effects will focus on the ratification stage when a single actor unilaterally trigger the process of constitutional change. I also argue that legitimacy is the critical component that explains the theoretical trade-off between contestation and participation, especially when authoritarian leaders maximize participation to minimize contestation.

I test this theory using a mixed-method approach combining quantitative and qualitative analysis. For the quantitative analysis, I am creating a new dataset encompassing the democratic characteristics (comprising 31 indicators) of all constitution-making processes globally since 1945. With this dataset, I produced measures of elite contestation and citizen participation, my dependent variables for the statistical analysis. Controlling for country-time factors, I assess the association between my key dependent variables (the configuration of actors and the conflict scenarios) and the degree of participation and contestation in constitution-making. Preliminary results support the four hypotheses derived from the proposed theory.

I complement these results with a qualitative analysis of illustrative cases. In particular, I use case vignettes from the Arab Spring and the Latin American transitions to democracy to provide deeper insights into the theorized dynamics, showing that my theoretical claims and quantitative results hold across cases from different parts of the world.

This article contributes to the literature in several ways. First, it helps policy-makers to identify the relevant dimensions that cause democratic processes of constitutional change, favoring the design of constitution-making processes that can promote peace and democracy more effectively. Second, it provides an original conceptualization of democratic constitution-making, which facilitates distinguishing between truly democratic processes and those that only pretend to be so by using referendums to obtain a democratic seal as a façade. Finally, it creates a new dataset that will be particularly helpful in deepening the growing literature on the empirical effects of constitution-making (e.g., Saati, 2015; Maboudi, 2020; Fruhstorfer and Hudson, 2022).

Author

• Simon Ballesteros, Georgetown University