CONFERENCE ON DEMOCRATIC TRANSITION AND CONSOLIDATION
Working Group1: Constitutional Design
Coordinator: Richard Simeon
Constitutional Design
Alec Stone Sweet
Although I emphasize rights and constitutional adjudication throughout this
discussion paper, other aspects of constitutional architecture - executive/legislative
relations, the legislative process and administrative oversight, the electoral systems, and so
on - are as, or more, important in consolidating practices that may be crucial to stable
democracy.
Session One
a. How do we strike the balance between the constitution as defender of rights, protecting
minorities, and limiting government; and the constitution as an instrument of democratic
governance and majority rule?
Unfortunately, there is simply no easy or right answer to this question in any polity
that seeks, through constitutional design, to establish, for the long term, (1) sufficient
protection of basic human rights (and/or a viable federalism), and (2) responsible
democratic government. The tension between values associated with fairness and justice
(which are furthered through rules that limit government and protect minorities) and values
associated with majority rule and decisionmaking efficiency (which are furthered through
rules that enable those who are elected to enact their preferred policies) is both constant and
inevitable.
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In Western Europe after World War II, in Southern Europe in the 1970s, and in
Central and Eastern Europe in the 1990s, no major party involved in constitutional
negotiations opposed (re)establishing a parliamentary system of government.
The
parliamentary model owes its popularity to its capacity to combine centralized government
and representative democracy. At the same time, the disastrous experiences of Fascism, the
Holocaust, and authoritarian state socialism fatally subverted the dogma that political
majorities, or legislatures, could do no wrong, and placed the issue of human rights and
limited government at the heart of the constitutional design agenda. Put very simply, the
ideology of majority rule, and its corollary parliamentary sovereignty, was replaced by the
ideology of higher law constitutionalism: every act of public authority must conform to the
dictates of the constitution, including rights provisions, as interpreted and applied by some
independent jurisdiction (e.g., a judge), or be considered unlawful.
• Any polity that actually does protect human rights with minimal effectiveness, will limit
majority rule in ways that will periodically be uncomfortable, sometimes unbearable, for
political majorities. Rights provisions, after all, constitute substantive constraints on the
exercise of all public authority.
Yet with few exceptions, every successful new constitution that has appeared during
the past fifty years contains extensive catalogues of rights - both negative and positive - as
well as some form of judicial authority to enforce these provisions, especially against
conflicting statutory authority. Across Europe, such constitutions were typically negotiated
among representatives of the established political parties, who disagreed fundamentally
about the nature and scope of rights to be enshrined.
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Conflicts over rights has actually turned out to be an advantage, where it leads the
parties to agree to disagree, to the benefit of expanding rights protection, and orients the
parties, and then citizens and groups, towards constitutional deliberation - argument,
interpretation, and adjudication - as a proper and effective way to adapt the constitution, on
an ongoing basis, to the polity's needs. In any case, it is never better for negotiating parties
to set aside arguments about rights and their protection, simply because such arguments
threaten to paralyze the rest of the constitution-making project.
Last, the importance of constitutional adjudication to the protection of rights and
minorities in any polity is heavily conditioned by how the constitution is designed in other
ways.
Where electoral systems chronically reproduce coalition governments, where
legislative processes are laden with veto points, where competences are shared between
national and subnational units of governments, radical reform legislation is less likely to be
produced than in polities where policymaking powers are relatively centralized (i.e, veto
free). A legislative reform is radical to the extent that it moves the situation away from the
status quo (the initial situation governed by legislation then in place). By its very nature,
reform provokes resistance because, its implementation will be costly to those who benefit
from existing social relations and legal entitlements. Radical reforms strain or tear the web
of existing legal regimes, administrative practices, and case law that has developed as
reforms have been consolidated and institutionalized over time. Thus, we can expect that,
other things being equal, the more a political system produces reform, the more it will
produce a complex set of constitutional disputes that the courts will be asked to resolve.
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Session Two
b. How can the constitution - including mechanisms for amendment and interpretation - be
designed to ensure sufficient flexibility to meet changing needs, yet be rigid enough to
withstand subversion by transient majorities?
Assume that a central objective of constitutional design is to foster practices that
will induce elected officials, administrators, and judges to engage in meaningful
constitutional deliberation on their own, and in their interactions with other actors, and thus
to participate in the continuous negotiation of the balance between the values of majority
rule and efficiency, on the one hand, and those of fairness and justice, on the other.
First, rights should be entrenched by giving them some kind of supraconstitutional
status, through raising thresholds for their amendment (Spain), or insulating them from
revision altogether (in effect, Germany). Rights texts, are, by their nature, flexible: they
are typically open-textured, often vague; they may contain their own exceptions, or appear
to be in contradiction with one another. Once entrenched, they become both flexible and
rigid, in the strict sense that their revision can normally take place only through
constitutional adjudication, that is, through processes of constitutional deliberation.
Second, the diffusion and institutionalization of constitutional deliberation among
important actors in the system can be provoked by establishing liberal rules of standing,
that is, through permitting a wide range of people to challenge the constitutionality of
public acts before a judge or court. Germany and Spain, for example, permit parliamentary
minorities to attack legislation proposed by parliamentary majorities before the
constitutional court; they permit parties to judicial disputes to raise constitutional questions
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in litigation before a judge; and they permit any individual to send a constitutional claim
directly to the constitutional court.
Third, the constitution ought to specify the rights and duties of judges. Provisions
should guarantee judicial independence, at a minimum by fixing judges' terms of office and
insulating them from removal or punishment by political officials (in all but the most
extreme situations), and require that courts justify their decisions with reasons.
Taken together, transient majorities, as well as state officials more generally, will be
placed in the shadow of constitutional adjudication, and thus have an interest in taking
seriously the requirements of that law in their day-to-day decisionmaking.
c. Should the constitution attempt to resolve all outstanding issues and spell out detailed
rules for governance; or is it preferable to leave some issues outstanding, with gaps,
abeyances, and silences left for future resolution?
Some provisions must be drafted with clarity in mind, including provisions that (1)
guarantee regular, free elections, (2) constitute the various institutions of government and
their jurisdictional attributes, and (3) determine how statutes and other legal acts are to be
made. These are "rules of the game" which can only provide the benefits to all competing
parties to the extent that they are consensually understood and accepted.
For other provisions, significant gaps should be tolerated, even encouraged,
including those spelling out rights and the precise boundaries governing jurisdictional
relationships in federalism. These are areas in which flexible, on-going, case-by-case
deliberation and adjudication are the appropriate methods of adapting the constitution over
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time, precisely because it is impossible at any ex ante moment to fix their terms in a
determinant way.
d. Can the gap between constitutional ideals and governmental performance erode the
legitimacy of the constitutional order?
Yes, if by "constitutional ideals" we mean provisions that are expected to be binding
but are ignored by those in government. There can hardly be a worse situation than one in
which elected officials choose to ignore or violate constitutional provisions with impunity.
No, if by "governmental performance" we mean the failure of political majorities to
enact good policy.
The "legitimacy of the constitutional order" should be clearly
distinguished from the support or lack of support for a given policy, or of that policy's
apparent success or failure, so long as the policy in question has been produced through
lawful, constitutional means. Of course, the degree to which this distinction is made is only
an indicator, rather than an explanation, of a constitution's success.
Session Four
b.
What are the strengths and weaknesses of alternative methods for constitutional
adaptation:
judicial interpretation, formal amendment, and evolving practices and
conventions?
Where constitutionalism is relatively robust, these three methods are rarely
"alternatives" at all, but are often linked processes. Judicial interpretation can provoke
amendment, either to ratify or consolidate what judges have done, or to reconstruct or undo
it. Conventions, too, once developed, may serve as the basis for amendment, if the rules
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they contain have been shown to be useful to the major parties or other actors. And
conventions may simply be best strategies adopted as a result of how the constitution has
been interpreted by a judge.
It is difficult to imagine a new constitution being silent on rights. Yet if a polity
chooses to protect rights through constitutional provision, then it also has little choice but to
establish a mechanism for the enforcement of the normative superiority of the constitution
over statute and other norms.
The same applies to the question of federalism.
Constitutional judicial review, wherever it is effective, leads to the relative dominance of
interpretation and adjudication over constitutional development. The statement does not
imply a government of judges, since judges are only one set of actors who engage in the
interpretation of the constitution, in interactions with other actors.
The effective adaptation of the constitution through judicial interpretation is a
powerful indicator of the success of a constitution.
Going to judges to resolve
constitutional disputes legitimizes the higher law and reinforces the centrality of
constitutional judicial review, even when, in response, a constitutional decision is
"overturned" through formal amendment. Again, this does not imply that judges "control"
constitutional development in any definitive way, to the extent that: courts are activated by
a wide range of non-judicial actors;
they settle legal problems that are raised by a
prexisting matrix of law and policy laid down, at least in part, by executives and legislators;
and they take decisions that fall within the parameters established by the larger, ongoing
policy debates. Judges are just one set of actors who engage constitutional issues; but
where they do their jobs effectively, their work powerfully structure how non-judicial
actors pursue their constitutional objectives.
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The rules governing formal amendment of the constitution should be more
restrictive than the rules governing amendment of a statute, e.g., by requiring a supramajoritarian vote, and/or the consent of other institutions or of the citizenry through
referendum. Where this is the case, state officials become players within arenas governed
by relatively stable rules, rather than masters of the rules themselves. Where this is the
case, judicial interpretations of the constitution and declarations of unconstitutionality can
only be overruled when there is a relatively wide political consensus that the judges got it
wrong. Put differently, it is appropriate that some controversial legislative reforms be
adopted only through the revision of the constitution, to the extent that the procedures for
amending the constitution provoke or require wide constitutional deliberation.
c, d. What are the most appropriate fora and decision rules for constitutional discussion?
How can the processes of constitution-making and constitutional change be structured so
as to minimize self-interested behavior?
"Self-interested behaviour" should not be "minimized," per se. Where constitutionalism is
robust, self-interested behaviour is what animates processes of constitutional development,
while not necessarily determining outcomes.
To take an example, in Europe abstract review of legislation is initiated by opposition
parliamentarians, for three reasons, each of which is self-interested. They hope to (1) block
the majority's reforms, thus maintaining the status quo, (2) deal the government a defeat, to
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be registered in the press and public opinion, and (3) shape constitutional development in a
direction that will best conform to the opposition's policy priorities. Of course, the majority
will defend its projects as best it can, based on its own interests, and the argument will be
transferred to the constitutional court for consideration and resolution. In places like
France, where abstract review is the only mode of review available, the constitution would
have little vitality or agency in the polity if political actors did not behave in a selfinterested manner.
A similar analysis could be made about American-style judicial review (and
European concrete review). Interests (social, political, economic) set judicial agendas and
fix parameters for argumentation and decisionmaking. To be effectively pursued, interests
have to be expressed in the language that a judge can hear and understand, typically a
language that emphasizes judicial doctrine and precedent. A robust constitutionalism is one
in which self-interest combines with principled discourse to produce outcomes.
The trick is to channel self-interested behavior through processes established by the
constitution (e.g., through liberal standing rules, rules establishing the independence of the
judiciary). Underlying all of these points, of course, is the problem of uncertainty. Can
those who negotiate constitutions be induced to pre-commit themselves to living under
rules whose development they will not be able to directly control?
It bears noting that are good reasons to be deeply critical of the expansion of
judicial power and the attendant "juridification" of political life. In the view of some
scholars, a polity is made worse off when it recasts most or all social problems as legal
ones; juridification privileges lawyers and their way of doing politics, and stifles what
some consider to be a more liberating, "deliberative," democracy. I disagree: to the extent
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that it is exercised with effectiveness, constitutional adjudication generates an expansive,
relatively participatory deliberative mode of governance, one that would not have emerged
in the absence of constitutional review.
Session Five
a. What is the contribution of a constitution to the processes of democratic transition? b.
What is the contribution of a constitution to democratic consolidation?
A "transition" that delays dealing with constitutional design issues is much more
likely to be stillborn than one that works hard, even obsessively, to get the constitution
"right." For reasons that are well known and can be expressed in a variety of theoretical
languages, it is difficult to imagine a successful democratic transition and consolidation
absent the prior elaboration of a sustainable constitution. By "constitution," I mean, at
least, the authoritative higher-order rules that govern how all other authoritative, lowerorder rules shall be made, thus "validating" them juridicially (generically: Hart's secondary
rules, Kelsen's grundnorm).
c. By what criteria do we judge or evaluate success or failure in constitutional design?
I would emphasize two: (1) the constitution's durability, measured in terms of the
number of peaceful alternations in power of different political parties, following elections;
(2) the constitution's capacity to draw the major actors in the polity into a discursive politics
about the nature and meaning of the constitutional law.
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