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Paradoxes of Constitutional Processes

Donald L. Horowitz—

Suppose you were advising a constitutional assembly chosen to produce a new constitution for a troubled country. Most constitutions are created because some trouble has occurred: the fall of an authoritarian regime, a civil war, mass discontent with the performance of a government. There is a good bit of such trouble in the world, so much, in fact, that in the 30 years from 1989 to 2019, 189 new, interim, or reinstated constitutions were adopted by 100 national governments. As these figures suggest, many countries do not get it right the first time and have to do it again. 

From all this experience, you might guess that by now there was some basic agreement on how to conduct the exercise that produces a new constitution. There is an array of non-governmental organizations that provide help in this task when needed. You might think that those who recommend constitutional processes would have produced some rather sophisticated prescriptions for creating procedures that would stand a good chance of putting in place apt institutions.  

For this job, they could have drawn on the work of a number of very distinguished scholars. Yet in the light of this rich vein of scholarship, you would be surprised to discover what the practical literature on constitution making emphasizes. For the most part, that literature, abundantly generated by practitioners, does not synthesize a process most likely to produce agreement among a heterogeneous group of politicians trying to advance their interests in a body performing the most solemn of sovereign tasks. With few exceptions, it does not speak to the relations of the actual constitutional drafters to those who must adopt or reject their drafts, or to the selection of delegates, or to the organization of the constitutional assembly into committees, or to the plethora of other practical concerns members of such assemblies might have. Nor is any wisdom dispensed about how delegates should conduct their deliberations, even though it is unlikely that those delegates have ever made a constitution before or thought deeply about how to do so. 

The most common theme in that practical literature relates not to the assembly at all, but rather to the role of the public outside the assembly. The public, according to the prevailing view, is to “own” the process, even where the public has elected representatives democratically to conduct  that process. And so constitution makers are urged to engage in intense and extended involvement with the public, educating it and receiving its feedback by traveling the country, even before the process begins.

It will not surprise anyone who ponders this for a moment that members of the public are counting on elected delegates to do the job of representing them. When asked what they think should be in the constitution, members of the public generally confess their lack of expertise about these matters and are willing to leave decisions to those they have elected for that purpose. Furthermore, when there is extensive public participation, it sometimes provides an excellent opportunity for extremist demagogues to bring out crowds to pressure and threaten delegates to constitutional assemblies. And yet constitution makers are told, above all, to engage extensively with the public, often to the time-consuming detriment of their deliberations and occasionally to the point of upending their project of constitutional creation.

This is the background with which I embarked upon my research and writing of Constitutional Processes and Democratic Commitment. I was especially interested in standards for deliberation that would be most conducive to democratic outcomes. The book also deals with problems of drafting, tradeoffs encountered in the process, pitfalls that can cause a process to fail, and several other commonly encountered difficulties—all of these analyzed in the light of the actually experience of multiple processes described in their actual country settings, from Iraq to Kenya to Indonesia.

Donald L. Horowitz is the James B. Duke Professor of Law and Political Science Emeritus at Duke University. Among his previous books are Constitutional Change and Democracy in Indonesia and Ethnic Groups in Conflict.

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