constitutional engineering

constitutional engineering, process by which political actors devise higher law, which is usually—but not always—specified in a formal written document and labeled the constitution. Any particular instance of constitutional engineering must deal with certain basic questions of organization and process. Those include designating who is to be involved, when that involvement takes place, and how the actors are to proceed in formulating, discussing, and approving a text. Although there are conceivably as many variants in the process as there are constitutions, several common patterns emerge. This article describes the factors that distinguish instances of constitutional engineering and some of the typical patterns.

Stages

Constitution making occurs in discernible stages, some of which resemble an ordinary legislative process familiar to many drafters in established democracies. A schematic design of those phases might include, in sequential order, the mobilization of interests (and counterinterests), drafting, consultation, deliberation, adoption, and ratification. Those different stages interact with the possible actors who might fill the roles to create a matrix of options for designers. Afghanistan’s constitution of 2004, for example, was drafted in relative secrecy by a commission with foreign advice and then sent to the president’s office before deliberation and adoption at an inclusive constituent assembly, the Loya Jirga. In that model—which appears to be relatively common—each stage is potentially consequential, although it is likely that inertial forces and the power of agenda-setting will apportion disproportionate influence to actors involved at earlier stages. Still, it is quite possible that early-stage actors will anticipate the preferences and needs of later-stage actors, thus mitigating any sequence effects. Ratification by public referendum, for example, is a downstream constraint that can hamstring leaders in an earlier stage who recognize that their document must ultimately obtain public approval.

Actors

Perhaps the most critical variable in constitution making has to do with which actors are included in the process. Actors involved in constitution making can include expert commissions, legislative bodies or committees, the executive, the judiciary, national conferences, elite roundtables, transitional legislatures, specially elected constituent assemblies, interest groups and nongovernmental organizations, foreign advisers, and the public itself. Public involvement has become the subject of particular attention in recent years and is encouraged by scholars, governments, and international organizations. But not all constitutions involve the public, and some are drafted by a handful of leaders behind closed doors.

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Certainly, a central dimension on which constitution-making processes differ is the degree of public participation. Because the constitution is the highest level of lawmaking and provides the foundation for all lawmaking processes, it arguably requires the greatest possible level of legitimation in democratic theory. In an ideal world, one might desire universal consent over the rules of society, a standard that is obviously impractical. Higher levels of participation are presumed to restrict the adoption of undesirable institutions and to protect prospective minorities in the democratic processes that are established. Participation thus legitimates and constrains, substituting inclusive processes for universal consent to make effective government possible.

Public participation in constitutional design often takes the form of a referendum on the final document as a whole. Available data suggest a significant trend, beginning in the early 20th century, toward seeking public ratification for draft constitutions. Approval by referendum may be an increasingly popular mode of public involvement, but it is clearly a limited one in that it involves only a yes or no vote over a package of provisions. Since at least World War II, however, public participation in constitutional design has become more direct and has penetrated more deeply (or at least earlier) in the process. One common approach is to involve the public in selecting those who will draft or deliberate over aspects of the charter. The representative group may be a constituent assembly elected expressly for the purpose or a regular legislature that takes on the project in addition to other duties. Some constitutional processes have experimented with more bottom-up methods of direct democracy, such as the citizen initiative, in which ideas can bubble up from civil society.

Still another mode of participation involves direct consultation with the public or representative groups at various stages, which might occur before, during, or after the drafting of the initial text. The drafting phase seems to be especially crucial, given the effects of inertia in the later stages of the process, but it is also likely to be the least participatory, given the challenges of writing by committee, much less writing by nation. Indeed, in some well-known cases, the public is excluded from the drafting process and not consulted at all.

Of course, actors may come from outside, as well as inside, a state’s borders. An extreme case is that of the “occupation constitution,” a document drafted when a country is under the control of a foreign military power. Such constitutions are usually presumed to have less involvement on the part of local actors and, hence, to be less legitimate. Some scholars believe that international involvement creates disincentives to enforce the constitution locally, as actors will strategically acquiesce to conditions they have no intention of fulfilling simply to remove external oversight.

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External influence, however, need not be as blatant as it is in the case of occupation constitutions. Constitutional drafting often attracts international advisers and interests, be they donors, creditors, interested states, or the United Nations. The prospect of future membership in the European Union, for example, led some eastern European countries to make modifications to their draft constitutions at the behest of the Council of Europe. Many accounts of foreign borrowing point to the decisive role of influential consultants who appear to be part of a cottage industry of constitutional advisers.

Constitution making is often undertaken during moments of crisis when states are at their most amenable to accepting foreign models and suggestions, and scholars have long noted a high degree of similarity across documents. The persistence of presidentialism in Latin America, the use of French and Westminster models of government in former colonies, and the use of national conferences in Francophone Africa are all examples of the diffusion of governmental forms.

Other conditions

There are potentially consequential aspects of the process of constitutional engineering other than the identities of the actors involved. Among those aspects are the circumstances that lead to the making of a constitution in the first place. Conventional wisdom holds that constitution making is generally coincident with a cataclysmic event of some kind, such as a war, a coup, an economic crisis, or a revolution. In fact, some evidence suggests that, although crises do frequently precede constitutional reform, the number of constitutions drafted in noncrisis situations is probably underestimated. Sweden’s 1975 reform of its 165-year-old constitution is a prominent example of crisis-free reform. The various socialist constitutions, such as those in the Soviet Union (1936 and 1977) and China (1982), seem to follow the installation of new leaders, a practice that was often justified by the Marxist view of evolution in stages. These different patterns, reflecting various degrees of crisis or continuity, will affect the process, creating an atmosphere of either urgency or deliberation.

The process can also vary in terms of time involved. At one extreme, the secretive process that led to Myanmar’s (Burma’s) 2008 constitution took 17 years. At the other extreme, a small group of American bureaucrats working for the occupation authorities drafted the basic form of Japan’s 1947 constitution in a little over a week, and the entire process, including elections, legislative deliberation, and approval by the emperor, took a mere eight months. Both of those cases are distant outliers. On average, constitution making takes about 16 months. Anecdotally, constitution-making processes involving either a very short or very long amount of time seem to occur in non-democracies. Speedy processes do not allow sufficient time for mobilization of the public and civil society, whereas extended processes are unlikely to hold public attention for the duration.

Another dimension on which processes differ is the size of the deliberative body, an issue that has also plagued those who design legislatures. The concern is that large bodies—which have the advantages of minimizing deal making and assuring representativeness—can be unwieldy and lead to collective action problems.

Constitutions and their design have been central to the work of political scientists since at least Aristotle’s time, but scientific study of the rules that govern the process of constitutional engineering has lagged. Speculation about the processes of constitutional design and adoption is common, but, because those processes vary along a number of identifiable dimensions, more rigorous analysis is possible.