Constitutions and Democracy

Constitutions

In October 2020 Chileans made the monumental decision to rewrite their constitution. Many view this as a democratizing event despite the fact that Chile democratized in 1990 with the negotiated transition from the military dictatorship of Augusto Pinochet. Nevertheless, the transition to democracy was widely considered as incomplete at the time, because the Pinochet regime wrote its constitution. Moreover, it used the opportunity to shape the nature of Chilean democracy to favor conservative political parties and policies. The most undemocratic aspects have slowly been removed by amendment, but the imprint of the Pinochet regime remains. 

Nobody knows whether the Chilean constitutional convention will be a success. It’s easy to imagine any democracy designed under a democracy as superior to one formed under authoritarianism. But this fails to recognize how difficult democracy truly is. It’s not simple to construct a new constitution even under the best circumstances. Tom Ginsburg and Aziz Huq found “of the 964 constitutions promulgated during the last two centuries, only 406 remained in force for more than a decade.” 

Donald Horowitz’s latest book examines how newly formed democracies approach the creation of their constitutions. He examines both failures and successes with an emphasis on the most challenging scenarios where there are clear ethnic divisions and rivalries. His latest book is called Constitutional Processes and Democratic Commitment. Unlike many works on constitutions, it does not focus so much on the constitution itself. Rather it focuses on the political process of its formation. In doing so Horowitz implies the process of constitutional design says more about the political commitments to democracy than the constitution it has produced. 

Point of Origin

I like to believe democracy does not begin with an event like an election or the passage of a formal law. It begins as an idea. Political actors embrace the idea of democracy before its meaning is set into stone through statutes or a constitution. During this period, the political community enters into a gray zone between an authoritarian past and a democratic constitution. People may have widely different expectations about democracy as well. Some might expect it to reflect majoritarian inclinations, while others likely anticipate a more liberalized political environment with opportunities for traditionally marginalized groups to participate. 

Horowitz reminds us that the period before a new constitution, when a democracy is most vulnerable, establishes important norms, values, and principles. The Tunisian Islamic political party Ennahda is a perfect example of how actors have the capacity to transform during this period. But the process itself is not democratizing. It offers an opportunity for others to undermine the prospects for democracy through intolerance, extremism, and poor leadership. Sri Lanka is one of many examples where parties have pursued constitutional reform under the guise of democracy, but turned out to care more about personal opportunism. 

Democracy is hard. There is no switch that magically makes a political community democratic. Rather it is often learned over time through behaviors and conscious choices. The formation of a new constitution serves as a litmus test for elite behavior where they make clear their commitments through their actions rather than speeches. Still, the process of democratization does not end with the creation of a written constitution. Recent events in Tunisia remind us democracy remains fragile in many places long after a constitution is set into motion.

The Recipe

Donald Horowitz finds successful constitutions require three essential ingredients: inclusion, deliberation, and consensus. These are not independent of one another. Like a recipe, they are interrelated. Horowitz also emphasizes the importance of elections for a constitutional assembly. But in many ways an election is merely a mechanism to ensure an inclusive assembly. The key is not the legitimation of the process from elections, but the inclusion of any constituencies important to democratic governance. Ethnically divided societies in particular must find ways to open the process to historically marginalized communities. Elections ensure the inclusion of diverse groups, but also elites whom these constituencies trust.

An inclusive assembly makes the next ingredient, deliberation, truly meaningful. An homogenous assembly representing a single party or demographic will fail to raise important concerns relevant to substantial parts of the people. An inclusive assembly, on the other hand, brings different perspectives and viewpoints together. But inclusion has little relevance unless the assembly actually deliberates. Deliberation involves argument and persuasion and focuses less on the mobilization of interests. Instead, the participants methodically work through issues together to come to an understanding and agreement. 

Finally, after long deliberation the assembly may come to a consensus as they learn to work together. You’ll find Horowitz encourages consensus rather than compromise. He draws a clear distinction between the two. Horowitz emphasizes “many people compromise only reluctantly,” but more importantly he believes negotiated outcomes remain fragile and often break down. In contrast, agreements by consensus last because they involve actual persuasion and agreement. Moreover, consensus is not simply an outcome, but elicits a strategy that encourages deliberation, because it requires working through impasses. 

Final Thoughts on Constitutions

The most surprising finding in Donald Horowitz’s new book is his pessimism about citizen participation in the constitution making process. The creation of democratic constitutions for Horowitz remains a domain for political elites. He emphasizes the inclusion of groups rather than the participation of ordinary citizens. It’s easy to imagine how the two priorities involve tradeoffs. The participation of ordinary citizens often favors majority groups simply because they have more citizens. But it’s disappointing the process remains so elite driven.

Nonetheless, Donald Horowitz offers a nuanced view of the formation of constitutions. Moreover, his insights build upon one another into a coherent understanding of the process built on both theory and practice. Unlike many works these days focused on the breakdown of democracy, his book offers a new perspective during a period of exuberant levels of optimism. Indeed, Horowitz says, “Constitutions are documents crafted for the future.” But the future involves more than a constitution. It involves the norms and principles its leaders make clear during its formation. The conduct of leaders during the process act as a harbinger for the prospects of democratic governance moving forward as they discover that like so many things in this world, the road traveled is also the destination. 

Listen to Donald Horowitz discuss his ideas on the Democracy Paradox. It’s available Tuesday, September 28th, 2021. Subscribe today on your favorite podcast app.

Further Reading

Larry Diamond, Francis Fukuyama, Donald L. Horowitz, and Marc F. Plattner (2014) “Reconsidering the Transition Paradigm,” Journal of Democracy

John Dryzek (2000) Deliberative Democracy and Beyond: Liberals, Critics, and Contestations

Francis Fukuyama (1995) Trust: The Social Virtues and the Creation of Prosperity

Tom Ginsburg and Aziz Huq (2014), “What Can Constitutions Do?: The Afghan Case,” Journal of Democracy

Jürgen Habermas (1996) The Inclusion of the Other: Studies in Political Theory

Donald Horowitz (2014) “Ethnic Power-Sharing and Democracy,” Journal of Democracy

Donald Horowitz (2021) Constitutional Processes and Democratic Commitment

David Landau and Rosalind Dixon (2015) “Constraining Constitutional Change,” Wake Forest Law Review

Guillermo O’Donnell and Philippe C. Schmitter (1986) Transitions from Authoritarian Rule Tentative Conclusions about Uncertain Democracies

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