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Astrid Lorenz
ABSTRACT
This article deals with the (possible) explanation of constitutional development
by the rigidity of the constitution itself, for example the difficulty of the amend-
ment process. Four concepts of measuring rigidity are tested theoretically and
their respective outcomes concerning the frequency of constitutional reforms
are explained. The strikingly different results show how important it is to
discuss and to test operationalizations of abstract terms.
KEY WORDS . constitutional amendments . constitutional rigidity .
constitutional politics . index construction
Donald Lutz starts his analysis with the premise that institutionalists have
not pursued the empirical verification of their predicted consequences with
much vigor. After having studied 82 constitutions, he states that the rate
of amendment correlates highly with the degree of its difficulty. Nevertheless,
‘beyond a certain point, making the amendment process more difficult is an
‘‘inefficient’’ way to keep the amendment rate in a moderate range’ (Lutz,
1994: 365). Instead, Lutz explains the variance of the amendment rates by
the interaction of the length and the rigidity of the documents. He underlines
the inter-relationship of these variables with other constitutional institutions,
e.g. the operation of the legislature or the court. Ultimately he recommends
avoiding the extremes of either legislative dominance or referendum strate-
gies and instead combining either the legislative complexity or the interven-
ing election strategy with a relatively short document. Lutz concludes that,
first, institutions matter and, second, that they operate more or less indepen-
dently of cultural, economic or other structures or actors.
According to Arend Lijphart, constitutional rigidity is just one of a
complex set of variables which he uses to test the character and performance
of different patterns of democracy (consensus and majoritarian model).
Combined with the strength of judicial review, rigidity is seen as the central
explanatory constitutional variable. In Lijphart’s opinion, they both belong
to what the author calls the ‘federal–unitary dimension’ (Lijphart, 1999: 216).
Lijphart sees constitutional rigidity and judicial review as antimajoritarian
instruments while non-rigid constitutions without judicial review, to him,
permit unrestricted majority rule. As he has hypothesized before, the results
of his study show that rigid constitutions tend to have more judicial review
protection than more flexible ones, although the correlation coefficient is
only 0.39 (Lijphart, 1999: 229). Lijphart states that rigid constitutions are
linked with the other two variables of the federal–unitary dimension:
bicameralism and independent central banks.
Dag Anckar and Lauri Karvonen do not treat the amendment methods as
an independent variable but want to explain why countries prefer different
basic types of constitutional rigidity. Like Lutz and Lijphart, Anckar and
Karvonen reduce the great variety of amendment provisions to some basic
types and try out a set of explanatory factors, e.g. the age, the length and
Methodological Differences
Donald S. Lutz
Lutz defines 68 empirically found actions that could be used in combination
to initiate and approve constitutional amendments and that ‘together cover
the combinations or virtually every amendment process in the world’ (Lutz,
1994: 361). Some basic scores of his index of constitutional rigidity are taken
from an empirical study of the US states’ constitutions, which in the period
between 1776–1991 are assumed to have had a similar context of variables
and, therefore, guarantee a quasi-experimental situation. First, Lutz studies
the actual success rate of different kinds of necessary majority votes or other
provisions. Then he divides the success rate of reform proposals initiated by a
simple (bicameral) legislative majority by the success rate of proposals
initiated by a two-thirds majority, a three-quarters majority, etc. Thus, the
index scores for different possible ‘actions’ are generated. Afterwards, the
Arend Lijphart
Lijphart’s concept reduces the array of amendment provisions to a four-
point scale of rigidity. The classes are defined as approval by an ordinary
majority as the easiest way (1.0); by more than ordinary but less than two-
thirds majority or ordinary majority plus referendum (2.0); by two-thirds
majorities or equivalent (3.0); and by more than a two-thirds majority or a
two-thirds majority combined with other requirements, such as approval
by state legislatures (4.0). In every case, Lijphart considers the least restrain-
ing legal method of amendment. This simplifies the measurement and is
empirically justified because most reforms seem to be realized by the easiest
possible way. This is even conceded by George Tsebelis (2000), who, in his
own approach, refers to the maximal barrier for decisions, e.g. who could
veto.
However, this rule competes with another one: when different provisions
apply to different parts of the constitution, the provision pertaining to amend-
ments of the most basic articles should be counted. One must admit that
many constitutions contain specific, more rigorous procedures for amending
such core sections. Whether this counting rule gives an adequate picture or
not depends on the aim of the analysis. When we seek to measure the rigidity
of the basic principles of a political system, this approach can be right. But
what about, for instance, in Germany, where the meaning of some clauses
is completely unchangeable? In his own measurement, Lijphart does not
take this eternity rule into consideration when he assigns the Grundgesetz
a rigidity of 3.5. Indeed, the decision to do so gives a more adequate picture
of German basic law.
If we want to reflect realistically on the development of entire constitu-
tions, then Lijphart’s second measurement rule can distort the picture,
because many, if not most, recent constitutional reforms have not, in fact,
changed the basic principles of the constitutions (Lorenz, 2004). That is
why it is problematic to correlate, for instance, the frequency of amendments
with the Lijphart scale. An impressive example is Canada which has a very
rigid constitution, assigned by Lijphart the maximum of 4.0 points. How-
ever, none of the seven constitutional amendments in the period between
1993–2002 had to pass this high barrier. So it may be misleading to explain
the number of reforms by the maximum rigidity. This, of course, is not a
critique of Lijphart who had other aims in his analysis.
Doubts have provoked the author to classify plurality systems with a
supermajoritarian amendment rule in the category below the one to which
they technically belong because the supermajority device is much less con-
straining there than in proportional representation systems. I tested all ten
states with plurality electoral systems which have been fully established
democracies from 1993 through 2002 (according to Freedom House).
During this entire period, there has been a party holding more than 50 per-
cent of the mandates in only five of these cases. No party has reached a
majority of parliamentary mandates in Papua New Guinea, Australia (1998
until now), France (until 2002), Mauritius (1991–95) and Mongolia (1996–
2000). Obviously, the correlation between the voting system and actual
majorities is overestimated. Heterogeneous societies, social disaggregation
and declining party commitment, i.e. trends which are characteristic of
most contemporary democracies, counteract supermajorities. So if we want
to consider the real allocation of political power in an index of constitutional
rigidity, then it is more precise to measure it empirically. That, of course,
would endanger the elegant simplicity of the concept and the validity of
small a category when we have only three to begin with. Furthermore, the
combination ‘no legislative approval’ plus ‘no referendum’ is unrealistic in
democracies (which is mentioned by the authors themselves). Finally, the
category of qualified majority seems to be too broad. Therefore, the very
uneven distribution of the 85 empirical cases is not surprising. While 76.5 per-
cent of the cases are concentrated in only two categories (5 and 6), two
categories have no cases and two other categories have only one or two
cases. The authors themselves state that their results (no impact by the ten dif-
ferent independent variables on the choice of amendment types) are already
methodologically grounded because of this uneven distribution of cases.
Moreover, the term ‘inclusion of the people’ (Anckar and Karvonen, 2002:
Table 1) for one of the two dimensions is not very precise. In Canada, for
instance, an ordinary majority of the Province’s parliaments must approve
a constitutional amendment, which represents at least 50 percent of the
entire population. Anckar and Karvonen handle this like a vote in a referen-
dum. One may argue that the provincial level is an additional voting arena
that should be considered for measuring constitutional rigidity but the
label ‘inclusion of the people’ is problematic.
The authors have noted many of these critical points and reacted by
regrouping and renaming the categories and forming broader classes so
that each comprises a larger number of cases. Thus, the new model becomes
simpler: the first dimension distinguishes between cases in which legislative
decision amends the constitution and cases that require additional approval
by a referendum or state ratification. The second categorization refers to the
kind of majority vote but is now divided into ‘flexible amendment’ (including
ordinary majority), qualified decisions and more rigid procedures. This
redesign of the model is much more convincing but still not without problems
if we seek a universal model for measuring rigidity.
Anckar and Karvonen, for instance, differentiate between parliaments and
referendums but not between different houses within parliaments. If differen-
tiation is the aim, then why stop with plebiscites? It seems obvious that it is
more difficult to reach two majorities than one, especially when the members
of the houses are elected in different ways. This causes varying interests and
role perceptions of mandate holders and the chance for a diverging relative
strength of parties in both houses. Thus, the passage of a law by the
German federal chamber, the Bundesrat, presents a rather strong barrier
because the opposition party often dominates.
Probably, Anckar and Karvonen ignore this fact because, to them, the
rigidity is the dependent variable. In bicameral systems, the provision that
an amendment must be passed by both houses is really less important than
the decision to require an additional referendum, while, in unicameral sys-
tems, it is completely irrelevant. How many houses must pass an amendment
seems to be more a function of the formal structure of the political system
Astrid Lorenz
The presented concepts of constitutional rigidity vary in many respects (see
Table 1). My own approach combines some ideas that have been discussed
and positively assessed earlier. It integrates the type of majority rule with
the number of voting arenas or actors. For measuring the constitutional
rigidity, I add up scores for the necessary majority in each of the necessary
arenas with different voters, e.g. in the parliament, in each chamber of a
bicameral legislative or in a referendum. ‘In each arena with different
voters’ implies that a legislature has to be assigned a score twice if it has
been newly elected between the votes and once when two or more votes take
place in one legislative term. In contrast to the last two concepts, I strictly
assess the easiest procedure for amendment. For scoring the majority rule in
each voting arena, I use the Lijphart scale from 1.0 to 4.0, modified in one
respect: I treat a three-fifth majority like two-thirds majorities (3.0 points)
and assign four points to majorities greater than three-fifths. This affects,
for instance, Benin where a four-fifths majority is needed for approval.
Combining Lijphart’s majority scale with the systematic consideration of
different voting arenas implies that non-parliamentary organs or actors
must be considered when they explicitly have to consent to an amendment.
A constitutional court, a government or the president are assigned 1.0
(for a simple majority vote). I do not consider whether a required assent is,
de facto, ritualized or really difficult to achieve, because in the case of
doubt or a crisis every player will strive to use all of her formal veto potential.
According to Lijphart’s scale of majorities, an approval by referendum may
be counted as two points (ordinary majority) or more, when a larger than
The first test compares how the constitutional rigidity of the same set of
countries is valued by the different indices. How does one choose these
countries? According to my own approach already mentioned, I chose only
those cases which have been fully established, peaceful democracies between
1993–2003. As already stated, this guarantees that the institutional variable
is really respected by the national actors. All 39 countries chosen are covered
by at least two samples. Other data provided by the authors are ignored,
e.g. concerning Andorra, Belau, Brazil, Cyprus, Guyana, Kenya, Kiribati,
Malaysia or Micronesia. Table 1 contains some basic data concerning the
distribution of cases.
As Table 1 reveals, the indices of Anckar and Karvonen (first version) and
Lorenz result in the broadest ranges, probably because the absolute numbers
of the scores and classes are higher than those assigned by Lutz and Lijphart.
The addition of scores for necessary actions, a method used by Lutz and
Lorenz, seems to lead to a larger standard deviation than closed scales
because of the creativity of the design of constitutional amendment pro-
cedures. Thus, the addition of scores provides a more realistic picture of
diversity by considering demanding requirements beyond majority pro-
visions but at the same time it may cause other problems, e.g. an uneven
distribution of cases or more statistically deviant cases.
Table A2 shows the absolute values of constitutional rigidity, the respec-
tive rank, and the average and rank based on the standardized indices for
all 39 countries. The rankings are, of course, less precise but do facilitate a
22
Arend Lijphart 0.53 1.00
0.01
21 26
Dag Anckar & 0.33 0.46 1.00
Lauri Karvonen 0.14 0.02
22 26 39
Astrid Lorenz 0.60 0.61 0.37 1.00
0.00 0.00 0.02
22 26 39 39
Average of 0.77 0.82 0.70 0.83 1.00
standardized values 0.00 0.00 0.00 0.00
22 26 39 39 39
Imputed factor 0.78 0.83 0.61 0.88 0.99 1.00
0.00 0.00 0.00 0.00 0.00
22 26 39 39 39 39
quick overview. They show that some cases are assessed very differently:
Australia takes rank 6.5 according to Anckar and Karvonen but rank 36
according the standardized indices. Denmark receives rank 6.5 according
Lijphart in contrast to Anckar and Karvonen (33.5) and Lorenz (34).
Sweden takes rank 2 according to Anckar and Karvonen but rank 17.5
according to Lorenz.
Since majority votes are assessed in relatively similar hierarchies by all
authors, the greatest variations concern those cases whose constitutional
amendments require other actions, e.g. a referendum, elections between the
votes, the consent of federal units or further provisions. This is also reflected
by the results of the second test. Table 2 shows varying correlations in pairs
between the four indices. The highest correlation coefficient exists between
the indices of Lorenz and Lijphart (0.61) and Lutz and Lorenz (0.60). It is
interesting to note that the simplest, abstract index of Lijphart and the
subtly differentiated, partly empirically based index of Lutz correlate rela-
tively strongly with 0.53. The values assigned by Anckar and Karvonen
show the weakest relationship to the other indices, including the average of
standardized values and the imputed factor.
of his deviating choice of cases, Lutz provides data for only 22 of the 39 fully
established democracies that are covered by my sample.
Table A3 contains the very different rates. It is interesting that they do not
show a strong relationship. The coefficient of the paired correlation between
the amendment rates is 0.35. In 14 of the 22 cases, the rates concerning 1993
through 2002 are lower and, in one case, it is the same (Japan). The amend-
ment rates seem to have increased only in Chile, Costa Rica, Finland,
France, Ireland, Italy and Switzerland. The data suggest that constitutional
modifications are rarer today. According to scholars who observed a trend of
convergence of normal legislation and constitutional policy (Colomer, 2001:
238f.; Riker, 1980), this could be surprising. Their thesis, if true, may be valid
only for contemporary democracies in the last decades. But again, the data
have to be treated with care.
My spot check of the Lutzian data produced a rather negative result. I was
only able to verify the rates for Germany, France and Ireland, and found
them incorrect. I calculated 0.24 instead of 0.55 for Ireland (www.taoiseach.
gov.ie/); 0.88 instead of 2.91 for Germany (www.verfassungen.de/de/
gg-index.htm); 0.13 instead of 0.19 for France (www.verfassungen.de/f/
fverf58-1htm), considering in every case the time periods used by Lutz.
This phenomenon may probably be explained by the difficulty of finding sys-
tematical information about constitutional reforms. Another cause for rate
differences could be a diverging understanding of amendments or of what
the constitution is. In New Zealand, for instance, four documents are
commonly regarded to have constitutional status. Nevertheless, the Imperial
Laws’ Application Act 1988 allows it to assign this status to even more
laws. That could be one reason explaining why the amendment rates for
New Zealand differ so much with 13.4 by Lutz and 0.1 by my calculation
for the period 1992–2003. Since the results of analysis depend much on the
data used, this should be kept in mind.
Following the present data, the weakest relationship between constitu-
tional rigidity and Lutz’ amendment rates is produced by Lijphart’s index,
with a correlation coefficient of 0.37 and the strongest by the index of
Lutz himself (0.75, see Table 3). This is interesting since, as reported, the
indices of rigidity of these authors (applied to the analyzed countries) corre-
late relatively strongly.
The much weaker relationship between rigidity and amendment rates
is particularly eye-catching in the period 1993–2002 when the indices of
Lijphart (0.05), Lutz (0.2) and Lorenz (0.15) are used. Again, the
Lijphart index produces the weakest correlation and indicates no (linear)
relationship between difficulty of amendment and the reform rate. According
to these results, the rigidity of constitutional documents does not explain the
amendment behavior of democratic states very well. This is sharply con-
trasted by the index of Anckar and Karvonen which results in a correlation
Table 3. Correlations in Pairs between the Amendment Rate and the Constitutional
Rigidity Indices
coefficient of 0.51, more than twice the size of the others, and which is the
only one producing quite similar results for both diverging rates.
Anckar and Karvonen’s index significantly increases the correlation co-
efficients produced by the average of standardized indices and the imputed
factor. Irrespective of how the index is finally assessed, this refers to the
fact that using any kind of average instead of the basic data may not
always be the best way to reduce errors. At least, it does not release
anyone from the duty of calculating the general suitability of each basic
index.
Another step tested Lutz’s hypothesis that the rigidity and the length of
constitutions explain the amendment rate. For calculating the results con-
cerning the Lutzian amendment rate, the number of words of the constitu-
tions listed by him is used (Lutz, 1994). They refer to the already amended
documents in the end of the time periods. Concerning the amendment rate
1993–2002, the number of lines was used, based on equally formatted consti-
tutions in their English version valid in 1993.4 One may expect that the rela-
tionship between words and lines is very high, so this difference will not
undermine the comparability of the results. In fact, my test of 23 cases pro-
duced a correlation coefficient of 0.83. In order to improve the preconditions
4. One exception concerns Italy for which I could not find an official consolidated version
which was valid at the beginning of the time period tested. The number of lines mentioned
refers to the version of 2003. Since there took place five simple and two significant constitutional
amendments before, this is a potential source of errors. However, the number of cases is expected
to outweigh its possible influence.
2
Table 4. Adjusted Determination Coefficient Radj in the Regression of Length and
Rigidity to the Amendment Rate
for regression (and as done by Lutz), the values of the rigidity were pre-
viously transformed linearly, dividing one by the rigidity.
Table 4 shows that the explanatory power of the model is high concerning
the amendment rates of Lutz but that constitutional rigidity and the length of
the constitutions do not explain the amendment rates 1993–2002. Regarding
Lutz’s rate, all rigidity indices result in high relationships. The highest are
produced by the most complex index of Lutz (0.95) and by the simplest
index of Lijphart (0.82). Quite the opposite effect may be observed concern-
ing the contemporary amendment rate. Here, only Anckar and Karvonen’s
index produces a better result (0.19). However, the 95 percent explanation
of rate variation presented by Lutz in 1994 is far from being achieved.
If applied to only those 22 fully established democracies which were covered
by Lutz’s sample, the imputed factor results in a similar adjusted determina-
2
tion coefficient Radj of 0.00. This means that the function of regression
would be unable to predict or explain the amendment rate if the same regres-
sion was estimated on the basis of a new sample with the same number of
cases.
Why do these difference exist? Perhaps the growing influence of other inde-
pendent variables, e.g. of political constellations, undermines the universal
validity of Lutz’s model of explanation. But methodological differences
may also affect the outcomes. So the amendment rates have been calculated
on the basis of different time periods in the first and identical periods in the
second case. Moreover, the length of the constitutions has been measured in
different ways. Lutz’s method of explaining the amendment rate by the
length of the product of this amendment rate, i.e. the already amended docu-
ment at the end of the time periods, confuses the causalities. In contrast to my
preliminary test of the relationship between words and lines of the same
documents, an assessment of the 21 cases covered by both samples resulted
in a surprisingly low correlation coefficient of only 0.19 between the words
of Lutz and the lines of my time period, so perhaps even the text basis was
Conclusion
Four indices of constitutional rigidity have been discussed in this article and
assessed along with two common statistical alternatives to reduce errors and
to estimate missing values (average of standardized values, imputed factor).
Although the different operationalizations and mechanisms for measuring
lead to different and partly contradictory results, it is evident that they tap
the same important dimension that clearly emerged in and was confirmed
by a factor analysis.
Lutz’s index tends to explain only those amendment data which he pre-
sented, i.e. his index is probably linked too much to the evidence of the US
federal states and the allocation of scores for other actions is too dependent
on his own estimation to guarantee universal explanatory power. Only the
index of Dag Anckar and Lauri Karvonen tends to confirm the hypothesis
about an inverse correlation between the difficulty and the contemporary
amendment rates. But neither does it reach the high correlation suggested
by Lutz (1994) nor is it free of doubts concerning its universal applicability,
bearing in mind that they treat the rigidity as the dependent variable. Accord-
ingly, in tests it tended to deviate from the index average and its explanatory
outcomes.
Table A1 gives a summary of the information presented in the article. Table A2 not only shows how the different indices
assess the constitutional rigidity in 39 consolidated democracies, but also lists the medium of the standardized indices such
as the imputed factor scores and the respective ranks and Table A3 presents the constitutional amendment rates in 22
democracies calculated by Lutz (1994) and the amendment rates for the period 1993–2002 calculated by the author.
Donald S. Lutz Arend Lijphart Dag Anckar & Lauri Astrid Lorenz
Karvonen
What has to be explained Amendment rate of Performance of consensus Preferences of countries for Frequency, significance of
constitutions and majoritarian amendment provisions constitutional reforms
democracies
Index of rigidity Certain kinds of majority; Kind of majority vote; Kind of majority vote; Kind of majority vote; voting
Considered factors success rate; times of electoral system (partially); voting arenas (legislature, arenas and actors (not
voting; unicameral/ approval by referendum people) limited; times of voting
bi-cameral legislature; (partially); approval by implied)
initiative actors; special states’ legislatures
body or regular legislature; (partially)
need of elections between
two votes
LORENZ: HOW TO MEASURE CONSTITUTIONAL RIGIDITY
Mechanism of measuring Addition of scores Classification Classification Addition of scores
Number of measured 32 42 85 39
cases
Basis of choice ‘True constitutional Democracies Free democracies Free, peaceful democracies
systems’ with population >1mio.
Downloaded from http://jtp.sagepub.com at CAPES on August 11, 2009
357
358
Table A2. Constitutional Rigidity Indices Concerning 39 Consolidated Democracies
Downloaded from http://jtp.sagepub.com at CAPES on August 11, 2009
State Constitution Donald Lutz Arend Lijphart Dag Anckar, Astrid Lorenz Average of standar- Imputed factor
established in Lauri Karvonen dized indices
Value Rank Value Rank Value Rank Value Rank Value Rank Value Rank
a
Predicted on the basis of a best-subset regression.
359
360 JOURNAL OF THEORETICAL POLITICS 17(3)
Note: Every constitutional amendment is counted 1. In 2000, new constitutions came into
force in Switzerland and in Finland. I calculated the amendment rates of their old
constitutions in order to guarantee the comparability of the rates. Like Lutz, I divided the
number of amendments relating to the document of interest by the number of years in which
they were in force, i.e. 7 years for Switzerland and Finland and 10 years for all other cases.
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