Why Consult? Toward a Theory of Public Consultation in Constitution-Making

• In Event: Constitution Making and Constitutional Courts

Abstract

Why do regimes consult the public when drafting a new constitution? Since 1974, more than one out of every three national constitutions (37.3%) were prepared by processes that integrated some form of public consultation, whereby the regime amassed public input. Public consultation thus has become a key part of modern constitution-making, and it is here to stay. The reasons for using public consultation in constitutional design, however, have gone largely unexplored from a cross-national perspective, in part due to missing data. I introduce the Public Consultations in Constitution-Making Data Set, which records all public consultations in constitution-making processes since the start of the third wave of democracy in 1974 through 2021(n = 330). I propose a minimalist definition of public consultation, situating the concept in the landscape of participatory design procedures. I then present a variety of descriptive statistics on the use of public consultation, probing variation across time, region, and regime type. I argue that public consultation serves as a tool for elite contestation of power in the constitutional arena. In democracies, I contend that insurgent elites and coalitions, when they dominate the drafting body, drive the use of public consultation in order to legitimate a rupture from the status quo. In autocracies, I expect that ruling coalitions, when they face leadership crises, push the use of public consultation in order to preserve favorable power-sharing arrangements. To test my arguments, I perform a series of ordinary least squares (OLS) and logistic regressions.

Author

• Matthew James Martin, University of Texas at Austin