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Constitutional Origins and Liberal Democracy A Global Analysis 19002015
Constitutional Origins and Liberal Democracy A Global Analysis 19002015
Constitutional Origins and Liberal Democracy A Global Analysis 19002015
doi:10.1017/S0003055420001069 © The Author(s), 2021. Published by Cambridge University Press on behalf of the American Political
Science Association.
A
strong tradition in democratic theory claims that only constitutions made with direct popular
involvement can establish or deepen democracy. Against this view, we argue that new constitu-
tions are likely to enhance liberal democracy when they emerge through a plural agreement
among political elites with distinct bases of social support. Power dispersion during constitution writing
induces the adoption of institutions that protect opposition forces from the arbitrary use of executive power
without unduly impairing majority rule. However, since incumbents may renege on the bargain, the
democratizing effect of politically plural constitutional agreements is likely to be larger in the short term,
when the identity of negotiating political forces and the balance of power between them tend to remain
stable. We find support for these arguments using an original global dataset on the origins of constitutions
between 1900 and 2015 and a difference-in-differences design.
N
tradition in democratic theory that sees the sovereign
ew constitutions were adopted in 93 of the people as holding ultimate constituent power. It also
141 transitions to democracy that took place underlies our current understanding of democratic
in the world between 1900 and 2010. During legitimacy.
this period, 21 democracies of at least five years’ stand- In contrast to this view, we argue that new consti-
ing also replaced their constitutions. Today, amidst tutions are likely to enhance liberal democracy when
widespread citizen dissatisfaction with representative they emerge through a plural agreement among pol-
institutions, remaking constitutions is seen in several itical elites with distinct bases of social support. Power
countries as a potential answer to address democratic dispersion during constitution writing induces cooper-
crises. At these critical moments, popular movements ation between contending political groups and favors
that contributed to the fall of autocracies or questioned the adoption of institutions that protect opposition
the quality of existing democracies often claim that the forces from the arbitrary use of executive power with-
establishment or deepening of democracy requires pol- out impeding governments backed by electoral major-
itical elites to be marginalized while the direct partici- ities from making collective decisions. Yet incumbents
pation of the people in the making of a new constitution may renege on the original bargain if opponents
is expanded. The idea that participatory constitution lose social support and institutional influence during
the implementation stage. For this reason, the salutary
effect of politically inclusive constitutional agree-
ments on liberal democracy is likely to be larger
during the early years of the new constitution, when
the identity of negotiating political forces and the
Gabriel L. Negretto , Associate Professor, Instituto de Ciencia
balance of power between them tend to remain stable.
https://doi.org/10.1017/S0003055420001069 Published online by Cambridge University Press
522
Constitutional Origins and Liberal Democracy: A Global Analysis, 1900–2015
CONSTITUTIONAL ORIGINS AND LIBERAL the late eighteenth century, claims that only the people
DEMOCRACY are the legitimate holders of constituent power, so
regular government institutions and ordinary represen-
Although most definitions of democracy emphasize the tatives should be sidelined during the making of a new
crucial importance of electoral competition, fair elec- constitution. As Thomas Paine summarized it, “a con-
tions and the possibility of alternation in power are stitution is not the act of a government but of a people
unlikely to hold over time if incumbents can easily constituting a government” ([1791] 1995, 468).2
manipulate or transgress institutional constraints over In the early versions of the constituent power theory,
the executive (see Bermeo 2016; Ginsburg and Huq the popular origins of constitutions often referred to
2018). Constitutions that establish clear limits on state a founding principle that could be satisfied by repre-
power thus play a central role in the maintenance and sentative channels, such as the election of a constituent
deepening of democracy. It is not apparent, however, assembly. However, contemporary advocates of this
how democracy-enhancing constitutional provisions tradition take the idea of popular authorship to its
emerge and what factors make their effective imple- natural conclusion and claim the need for actual and
mentation possible. direct citizen participation in processes of deliberation
We argue that constitutions drafted and approved and voting for a constitutional (re)founding to qualify
through plural agreements among political elites rep- as legitimate and improve democratic practices. As
resenting distinct social camps create institutional safe- Kalyvas argues, the democratic nature of a constitution
guards that shield opposition forces and citizens from depends on how inclusive and effective the direct par-
arbitrary government action without unduly impairing ticipation of the people is during the exceptional
majority rule. These constitutions thus alleviate a core moment of constitution making (2005, 238). Negoti-
credible commitment problem of democracy—namely, ation or deliberation among representative elites is not
that incumbents will not abuse their power to gain an necessarily excluded from this analysis but plays a less
unfair advantage over rivals once in office. Incumbents, important role than does the direct engagement of
however, may ultimately renege on the original agree- citizens in creating the constitution to which they will
ment if the political and social opposition is too weak to be subject (Fishkin 2011; Tierney 2012).
monitor the government and block or punish constitu- Most works in this literature are predominantly nor-
tional transgressions. We therefore propose that the mative. Yet in spite—or perhaps because—of this nor-
enforcement of constitutional bargains depends on the mative goal, the idea of participatory constitution
usually short-lived balance of social and institutional making as a vehicle for deepening democracy is
support among the political organizations that were extremely influential not only among democratic the-
involved in the constitution-writing process. orists but also in actual political practice. Popular social
Our analysis builds on classic works on democratiza- movements that contribute to democratic transitions or
tion that traced the emergence of a liberal-democratic democratic reforms frequently demand that citizens be
order back to an agreement among political elites that directly engaged in constitution making (Wheatley and
succeeds in creating basic institutions that reduce the Mendez 2013). At times of political crisis, populist
stakes of electoral competition (Przeworski 1991; forces also claim that rewriting the constitution through
Rustow 1970; Weingast 1997). We also draw on previous direct participatory channels allows the people to get
works that have expressed skepticism about the democ- rid of corrupt political elites and regain their collective
ratizing consequences that popular participation in con- power (Urbinati 2019). Public participation in consti-
stitution making may have by itself or that raised tution making is also promoted by several international
concerns about its potential manipulation by self-dealing agencies in order to strengthen the legitimacy of new
elites (Horowitz 2013; Partlett 2012). We contribute to constitutional orders (Brandt et al. 2011). For this
the existing literature, however, by specifying the mech-
https://doi.org/10.1017/S0003055420001069 Published online by Cambridge University Press
2
On constituent power theory, see Colon-Rios (2012), Kalyvas
1
For an exception, see Arato (2016). (2005), and Loughlin (2004).
523
Gabriel L. Negretto and Mariano Sánchez-Talanquer
Direct citizen participation in the formulation, dis- constitutional agreements. It is also likely that popular
cussion, or promulgation of a new constitution does not involvement in constitution-drafting processes is cru-
generate consensus about the rules and rights that cial to provide social support for a constitutional bar-
should be included in it. “The people” is not an organic gain when the linkage between citizens and political
compact with a univocal or predefined will. As Wein- representatives has been eroded. Yet the inability of
gast has argued (1997), the most natural equilibrium in participatory theory to identify and empirically dem-
a society is a nondemocratic one in which citizens are onstrate the mechanism connecting direct citizen
unable to coordinate on punishing constitutional trans- involvement in constitution making with ex post levels
gressions by the state because they are divided along of democratization makes it unpersuasive. It also
ethnic, religious, ideological, or socioeconomic lines. underspecifies how citizens and elites interact during
These cleavages are not likely to disappear just because and after constitution making to produce improve-
citizens engage in the process of constitutional change. ments in democracy. The analysis of this interaction is
Moreover, even if they were to agree on what rights crucial and should start by acknowledging that while
should be universally protected, citizens do not nor- elite–mass linkages may exist at every stage in the
mally have the ability to mobilize spontaneously process, the drafting of constitutions is a predominantly
against an incumbent government that transgresses elite affair. Party and social movement leaders are
the constitution. Aside from some episodic outbursts usually the ones who decide how constitutions should
of protest, the capacity of the masses for sustained and be drafted, including, of course, whether and how
effective mobilization is usually dependent on the lead- citizens participate in the process (Saati 2015). They
ership or organizational resources provided by political also decide the specific content the constitution
and social elites that oppose incumbents (Albertus and will have.
Menaldo 2018). By contrast to participatory theories, classic dem-
In a recent statistical analysis of modalities of consti- ocratization studies have implicitly or explicitly
tution writing and democracy, Eisenstadt, LeVan, and emphasized the prominent role that political elites
Maboudi (2015, 596; 2017) provide support for the play in constitution-making processes during the foun-
hypothesis that participatory constitution making, by dational moments of democratic regimes. This litera-
empowering citizens to monitor elites, makes demo- ture has argued that a procedural compromise among
cratic improvements after enactment more likely than the leaders of contending political groups is crucial for
when constitutions emerge from elite bargains. They a democratic opening (O’Donnell and Schmitter 1986;
interpret their findings as a demonstration of the “sys- Rustow 1970). Such a compromise creates a set of
tematic benefits of direct citizen involvement” during rules of mutual security that make it unlikely that
constitutional change (2017, 51–53). This interpretation the competitive political process would result in out-
is questionable, however, because Eisenstadt, LeVan, comes highly adverse to the interests of any of
and Maboudi code the convening stage (the most the main political and social groups (Dahl 1971;
important process variable in their analysis) as Przeworski 1988). The operation of such rules is also
“popular” when there is “systematic civil society input at the core of a self-enforcing democracy in which
or strong transparency or specially elected drafters electoral winners do not abuse their power in office
freely and fairly elected” (2017, 30). This conflates and losers accept their defeat (Higley and Burton
cases in which citizens had a voice through indirect 2006; Weingast 1997).
representative channels with those in which citizens Although highly suggestive, the possible link
were directly involved in deciding the content of the between elite constitutional compromises and democ-
constitution through mechanisms of public consult- ratization is underdeveloped in theoretical terms. In the
ation.3 Yet there is a difference of kind, not just of first place, it is necessary to specify the nature of the
https://doi.org/10.1017/S0003055420001069 Published online by Cambridge University Press
degree between representative and direct forms of negotiated constraints that may actually promote lib-
citizen involvement, because elected drafters are usu- eral democracy. The most common formulation in the
ally party members or leaders with privileged influence theory of founding constitutional pacts is that in order
on the final content of the constitution.4 to further democracy, an elite bargain should create
As we will argue, citizens play an important role in checks and balances and counter-majoritarian institu-
the electoral and social arenas for the enforcement of tions that mitigate the increasing returns to power, thus
facilitating the acceptance of democracy by those who
lose in competitive elections (see Alberts, Warshaw,
3 and Weingast 2012; Przeworski 1991, 36). Yet compli-
Eisenstadt and Maboudi (2019) have recently reconsidered their
previous analysis. They now distinguish between individual partici-
ance among losers may be induced by extreme forms of
pation and group inclusion as two different dimensions of “popular” majority-constraining institutions, such as veto powers
constitution making and show that the latter is potentially more in hands of unelected authorities or electoral rules that
important for democratization than the former. However, they main- overrepresent privileged minorities, which may not
tain a measure of participation that includes both the election of the strengthen a liberal-democratic order (see Jung and
constitution-making body (which is a representative mechanism) and Shapiro 1995). Moreover, these are exactly the kind
the ratification referendum (which is a mechanism of participation).
4
“Citizen” assemblies, where all or most members are randomly
of institutions that would emerge, not from politically
selected citizens or representatives elected on a nonpartisan basis, are inclusive constitutional agreements but from constitu-
still rare and mostly used to decide on specific reforms. See Negretto tions imposed by outgoing authoritarian elites to pro-
(2017). tect the interests of socially and economically powerful
524
Constitutional Origins and Liberal Democracy: A Global Analysis, 1900–2015
minorities with little chance to win competitive elec- toward a democratic plural coexistence but on their
tions (Albertus and Menaldo 2018, 63–64). momentary inability to impose their preferred institu-
We argue that constitutions emerging out of plural tions and policies on others. Change from a preexisting
bargains between contending political forces produce pattern of polarized conflicts to stable cooperative
an institutional arrangement that strikes a balance relations would occur only if political actors across
between restrictions on the use of state power and contending camps commit to following the actual
majority rule. When no political group has unilateral norms of democratic behavior. This commitment may
power to adopt the new constitution and at least some depend on economic factors, such as declining inequal-
of the negotiating parties expect to alternate in govern- ity (Boix 2003, 9–10), or critical events, such as a costly
ment under competitive conditions, representatives in and protracted elite conflict (Higley and Burton 2006,
the constitution-making body are likely to agree on 22), that precede constitution making.
institutions that constrain executive authority but make What seems clear is that in the absence of a rather
it possible for democratically elected governments to exceptional and largely unobservable transformation
actually govern. The parties to the agreement settle on of normative preferences, political actors will likely
this balanced arrangement so as to ensure that their attempt to renegotiate the terms of a constitutional
basic rights will be protected when they are in the agreement or renege on it ex post if they find the
opposition but they will be able to pursue their agenda opportunity to do so. This suggests that the actual
when they hold the levers of power. In other words, a enforcement of a constitutional agreement requires
plurality of constitutional reformers standing on oppos- that the plurality of actors that had representation
ite political sides is likely to emphasize horizontal and influence at the constitution-making stage survive
(legislative as well as judicial) constraints on incumbent and maintain their relative power after enactment.7
executives, while taking a more moderate view on This is usually granted in the short term because the
restrictions to the power of electoral and institutional identities of the negotiating political forces and the
majorities.5 balance of power between them tend to remain stable
By contrast, constitutions adopted by a single polit- during the early years of life of a new constitution. The
ical group are unlikely to enhance liberal democracy. If vast majority of constitutions in the world have been
this group expects to be a permanent minority or is drafted by assemblies that continue as ordinary legis-
uncertain about its ability to compete in democratic latures after the new constitutional text is in force,
elections, as is usually the case with outgoing authori- which means that the original bargaining groups tend
tarian elites, it will tend to establish veto powers that to keep the same representation and institutional
entrench the interests of privileged minorities and pre- power at least until the next round of ordinary elections
vent majority governments from governing effectively. (Elster 2013; Negretto 2017).
If, instead, the political force with unilateral control In the medium and long term, however, the balance
over constitution making enjoys the support of a strong of power is more likely to change. Whereas some of the
electoral majority, as is usually the case with a domin- political organizations that participated in the original
ant democratic party, it will tend to establish weak constitutional compromise may suffer a sharp decline
constraints on executive authority and lock in competi- in electoral and social support or even disappear over
tive advantages at the expense of the interests of the time, others may turn dominant and reverse their prior
political opposition. In the first situation, democracy is commitments. New political groups opposed to the
captured by minority interests; in the second, it is existing constitution may also gain an influential pos-
hijacked by a political organization that seeks to turn ition. Because of this possibility, constitutional bargains
its current majority into a permanent one. will be effectively implemented only if those who lose in
A second problem with theories that attribute the electoral competition retain the capacity to block gov-
https://doi.org/10.1017/S0003055420001069 Published online by Cambridge University Press
rise or deepening of liberal democracy to an elite ernment actions that violate the constitution, to organ-
constitutional pact is how the agreement is enforced ize mass actions against legal transgressions, or both.8
over time. Seminal works on democratization have Constitutional enforcement has power-distributional
tended to see foundational constitutional compromises bases.
among warring political elites as critical junctures that The most important implication of this analysis is that
place a country firmly on the path to liberal democracy whereas political elites have a predominant role in
(see Dahl 1971, 36; Rustow 1970, 356).6 Most constitu- deciding how constitutions are changed, they ultimately
tional pacts, however, tend to be opportunistic; they are depend on the preferences and actions of citizens for
based not on a real change of actors’ preferences the enforcement of the constitutional bargain. In
5 7
This type of arrangement is close to what Graham, Miller, and Note that improving and sustaining liberal democracy after consti-
Strøm call “constraining” power-sharing institutions (2017, 4), tutional agreements depends on solving commitment and monitoring
defined as those that protect election losers from abuse by those in problems not unlike the ones that pervade the relationship between
power, without providing all groups an equal share in decision dictators and their allies in authoritarian regimes (Boix and Svolik
making or dispersing power geographically. 2013) or the maintenance of peace agreements after civil wars
6
The most famous of these constitutional agreements, and one that (Roessler and Ohls 2018).
8
to a large extent inspired this path-dependent perspective, was the See Alberts, Warshaw, and Weingast (2012) for the importance of a
1688 settlement between the Whigs and the Tories to curtail the balance of power between pro-authoritarian and pro-democratic
powers of the English Crown. See also North and Weingast (1989). groups for a successful transition to democracy (70, 85).
525
Gabriel L. Negretto and Mariano Sánchez-Talanquer
particular, they depend on whether citizens are willing the country acknowledged it as such.9 To determine
to vote against incumbents or able to engage in massive whether a constitution was adopted or implemented in
acts of social protest when the government breaches democratic years, we relied on the minimal, electoral
constitutional provisions. The strength of a democratic definition and coding of democracy by Boix, Miller, and
political opposition hinges on the electoral support of Rosato (2013).
voters, which in turn translates into institutional influ- Following these criteria, we gathered information on
ence. In addition, the success of elites that oppose the origins of all new constitutions in the world adopted
authoritarian regimes or the arbitrary use of power in in democratic years between 1900 and 2015 and those
an electoral democracy is usually backed by pro- created in an authoritarian year but retained and imple-
democratic social movements or groups with the cap- mented during democratic years for the largest part of
acity to mobilize (Bermeo and Yashar 2016; Tarrow their lives.10 The first type includes cases such as the
1995). 1999 Swiss constitution and the 2010 Kenyan constitu-
To summarize, citizens need representative elites to tion; the second, cases such as the 1979 Peruvian con-
bargain for them and produce a constitutional agree- stitution and the 1982 Turkish constitution. Only
ment that while not impeding majority rule, imposes constitutions born and implemented exclusively or
limits on the arbitrary use of executive power. At the mostly during authoritarian years, such as Russia’s
same time, political elites need the support of citizens 1936 or Brazil’s 1967 constitutions, were excluded from
both in their role as voters and as members of civil the database. The total number of observations is
society organizations to maintain a plural equilibrium 135, of which we were able to code 132. Table 1 lists
once the constitution has been adopted. The positive these cases.
effect of constitution making on liberal democracy, we We consider that a constitution had a politically
argue, is thus the product of successful interelite bar- plural origin when (1) two or more distinct and inde-
gaining and a stable and balanced distribution of pendent political parties or groups achieved represen-
institutional and societal power. Without the former, tation in the constitution-making body, either through
the constitutional framework for liberal democracy elections, appointment, or mixed selection methods
does not emerge; without the latter, it cannot be and (2) the collaboration between at least two of these
sustained. parties or groups was necessary to decide on the con-
Based on this discussion, we propose that a constitu- stitution’s content and enact it, according to the deci-
tional replacement is most likely to improve liberal sion rule governing the constitution-making body.
democracy when as a result of power dispersion in While we acknowledge that political inclusion in the
the constitution-making body, the new constitution is drafting of constitutions is a matter of degree, we
adopted by means of a cooperative agreement among believe that the key distinction lies in whether a single
representatives of contending political forces. How- force or a plurality of political forces was required to
ever, since most constitutional bargains are opportun- approve the constitution. It is under this condition that
istic, we should expect the democratizing effects of the type of balanced institutional arrangement that we
plural constitutional agreements to be stronger during posit improves liberal democracy is likely to emerge.
the first years after the establishment of a new consti- Procedural rules that regulate the way in which mem-
tution, when the identity of and the balance of power bers of the constitution-making body are selected and
among the actors that created it tend to remain stable. make decisions have an influence on whether a consti-
tution is approved by a plurality of political forces. As we
show in the online appendix (Table A2), a plural
CONSTITUTION MAKING AND DEMOCRACY approval is more likely when the constitution-making
AROUND THE WORLD, 1900–2015 body is elected, a proportional or mixed electoral for-
https://doi.org/10.1017/S0003055420001069 Published online by Cambridge University Press
526
Constitutional Origins and Liberal Democracy: A Global Analysis, 1900–2015
11 12
Our concept and operationalization of plural approval is thus sig- While it is difficult to determine the relative effect of these mech-
nificantly different from what Eisenstadt and Maboudi (2019) call anisms on the final outcome, we have not coded as instances of
“group inclusion,” which refers to the sheer number of groups (both participation obviously inconsequential channels of citizen involve-
social and political) included in a constitution-making process, without ment, such as the mere invitation to record opinions without a clear
consideration for their relative influence according to the decision rule. link to the drafting process itself.
527
Gabriel L. Negretto and Mariano Sánchez-Talanquer
observed. In fact, the correlation between these two By construction, the V-Dem liberal democracy
ways of involving citizens in constitution making is index reflects the effectiveness of vertical as well as
weak and not statistically significant. This suggests horizontal constraints on rulers. Because our theory is
that, in practice, electoral and non-electoral mechan- mostly concerned with the latter type of protections,
isms of citizen participation are often seen as different we run additional tests that focus on variables that
and not necessarily complementary forms of popular specifically measure the effectiveness of institutional
participatory politics. constraints on the executive. Two of these variables
As already argued, there is a key conceptual differ- are the legislative and judicial constraints indexes,
ence between inclusive representation and decision also from V-Dem. The former captures the extent to
making at the political-elite level and participation at which the legislature is capable of questioning, inves-
the citizen level. This difference also holds on empirical tigating, and exercising oversight over the executive.
grounds. There is no significant association in our The latter measures the extent to which the executive
database between the existence of a politically plural respects the constitution and complies with the rulings
constitution-making body and the implementation of of an independent judiciary. For robustness, we also
different forms of direct citizen involvement, either employ the Polity IV executive constraints index
jointly or separately. Constitutions such as those of (Marshall, Gurr, and Jaggers 2019), which ranges
Sweden (1974), Finland (2000), Bulgaria (1991), and from 1 to 7.14
the Czech Republic (1993) were drafted by plural Our analysis is centered on the de facto implemen-
constituent assemblies, but the process did not include tation of liberal institutions in a democratic regime
any instance of direct citizen involvement. On the other because their formal adoption is not a good indicator
hand, there are several cases, such as Chile 1980, of their actual level of enforcement. However,
Turkey 1982, Ecuador 2008, France 1958, Hungary our argument implies that certain types of formal
2011, Ireland 1937, Sri Lanka 1972, Trinidad and institutions emerge from the plural approval of con-
Tobago 1976, and Venezuela 1999, where there was stitutions—namely, institutional constraints on the
centralized control by the executive or a single political executive and moderate restrictions on majority rule.
party over the constitution-making body, yet some To verify that the evidence is consistent with this
form of citizen consultation or voting was used during intermediate part of our broader argument, we used
the writing or approval of the new constitution.13 data from the Comparative Constitutions Project
(CCP) on the de jure power of legislatures and execu-
tives (Elkins, Ginsburg, and Melton 2017). In the
online appendix, we show that the plural approval of
ESTIMATING THE EFFECTS OF constitutions is indeed robustly associated with the
CONSTITUTIONAL ORIGINS ON LIBERAL choice of stronger legislatures and institutionally con-
DEMOCRACY strained executives (Table A9). Using V-Dem data,
Our core argument has been that new constitutions are we also show that plurally approved constitutions do
most likely to enhance liberal democracy when they not tend to excessively obstruct democratic legislative
emerge from a plural political agreement and that the majorities. In particular, they are not more likely to
expected positive effects will be concentrated in the introduce bicameralism, and when they do, second
early years after enactment. We now test some key chambers are weaker than first chambers and include
implications of our theoretical framework. a higher percentage of directly elected members
(Table A10).
528
Constitutional Origins and Liberal Democracy: A Global Analysis, 1900–2015
that an ordinal coding of the number of distinct political constitution-making body formally inaugurates the
forces that approved the constitution does not explain process, we prefer to err on the side of caution and
additional variation in our main outcome variable. delimit processes with their official start date. Descrip-
Direct popular participation through non-electoral tive statistics for all variables in our panel are available
mechanisms is captured using a dummy variable (citi- in the online appendix (Table A3).
zen consultation) that takes the value of 1 if ordinary The basic estimation equation is given by
citizens were involved in the formulation, discussion, or
submission of reform proposals at any stage in the liberal democracyit ¼ λi þ δt þ γ1 plural approvali
process. The voting alternative is measured through a
þγ2 periodt þ γ3 plural approvali periodt
dummy variable (citizen voting) coded as 1 if citizens (1)
participated in popular referendums either at the þβXit þ εit ,
beginning or at the end of the process. The online
appendix shows that our results remain unaltered if where liberal democracyit is the liberal democracy
we instead use more disaggregated count measures of index in a country with constitution-making process i
the number of times each type of citizen participation in year t; λi is a fixed effect for each separate process,
mechanism was used (Table A6). which accounts for all time-invariant characteristics
that could confound the relationship of interest (e.g.,
the country where the replacement occurs, the under-
Empirical Strategy lying level of ethnic and cultural diversity, etcetera);
The main challenge in evaluating whether different δt is a fixed effect for each year in the constitution-
modalities of constitution making—such as the exist- making process (10 at both pre- and post-treatment);
ence of plural approval or direct citizen involvement— plural approvali is a binary variable equal to one if
deepen liberal democracy is that relevant unobserved diverse political forces approved the constitution;
factors may drive cases into processes of a certain kind periodt is an indicator variable for the postconstitution
(selection), while certain variables that are jointly asso- era (starting with the year following its adoption); Xit
ciated with the constitution-making type and patterns contains the time-varying control variables included
of liberal democracy after enactment may confound the in some specifications; and εit is the error term.
relationship. To deal with this inferential challenge, we Some specifications also add a full set of decade dum-
adopt a difference-in-differences (DiD) design, with mies to account for world-historical conditions during
constitution-level and year-in-the-process fixed effects. constitution-making episodes.
We examine changes in the liberal democracy index The DiD estimate is given by γ3 , which reflects the
within a 20-year window around constitution-making differential increase in liberal democracy in cases where
episodes (10 years before and 10 after the process), a plurality of political forces were involved in the
which allows us to credibly isolate the differential influ- approval of a new constitution, relative to those where
ence of certain features of constitutional origins while a single political force dominated the process. Our
accounting for the trajectory of democracy before- theoretical argument predicts that γ3 should be positive
hand.15 Specifically, we test whether liberal democracy and significant, with effects concentrated during the
improved more substantially in plural (treatment early years after the enactment of the new constitution
group) versus non-plural (control group) processes when we decompose the average treatment effect in the
from the pre- to the postconstitution period, as well as observed postenactment period. We estimate the equa-
for the effect of incorporating mechanisms of direct tion above via OLS and cluster the standard errors at
citizen participation. the constitution-making process level (i.e., the level of
We used information from the Comparative our identifying variation) to adjust for serial correlation
(Bertrand, Duflo, and Mullainathan 2004).
https://doi.org/10.1017/S0003055420001069 Published online by Cambridge University Press
529
Gabriel L. Negretto and Mariano Sánchez-Talanquer
popular participation mechanisms during constitution politically inclusive constitutional conference, a mili-
making strengthen liberal democracy. tary junta imposed the latter. As a result, although in
In the online appendix, we show (Table A4) the basic both cases liberal democracy improved after enact-
unadjusted DiD estimate and the average levels of ment, the positive change was significantly higher in
liberal democracy at pre- and post-treatment across Benin than in Niger. Both Colombia’s 1991 and Ecua-
plural and non-plural processes. We also provide a dor’s 2008 constitutions were drafted and implemented
figure (A1), constructed from the model in column under democratic conditions, but whereas the former
1 of Table 3 in the next section, showing that levels of was approved by a multiparty agreement, the latter was
liberal democracy in plural cases differ markedly from unilaterally adopted by the executive’s party. As a
those in non-plural cases after constitution making, but consequence, and in line with our expectations, the
not before. liberal dimension of democracy improved in Colombia
but deteriorated in Ecuador compared with their
respective starting points.
Regarding the effect of popular participation, our
RESULTS findings suggest that direct citizen involvement during
The results for several model specifications using the constitution writing has no independent democratizing
liberal democracy index as the dependent variable are effects and should certainly not be pursued at the
presented in Table 3. Because our database contains expense of representative pluralism, as is typical of
information on constitutions implemented in demo- plebiscitary processes such as the making of Venezue-
cratic years but drafted under both democratic and la’s 1999 constitution. They do not contradict, however,
authoritarian conditions, we replicate the analysis of the positive effects that public participation might have
the full sample in a subsample of constitutions enacted when such participation is held following political elite
exclusively when free and fair elections were held. The negotiations, as was the case in South Africa between
core finding across different political environments is 1993 and 1996 and Tunisia between 2011 and 2014 (see
that plural constitution-making processes are systemat- Saati 2017). Direct and active citizen participation may
ically associated with larger improvements in liberal also have a positive influence on democratization as a
democracy after enactment, relative to constitutional complement of politically plural constitutional agree-
replacements in which a single political force dominated ments in contexts where public trust in representatives
the process. This is the only feature of constitutional is low or declining and these mechanisms are adopted
origins that consistently explains postpromulgation in response to demands from below.
differential improvements in the liberal democracy Columns 1 and 4 in Table 3 report the baseline
index.18 models with our main variable of interest for the sample
By contrast, the two forms of direct popular partici- including all constitutions and that including only
pation have no discernible effect on the trajectory of those adopted in a democratic year, respectively.
liberal democracy postenactment, on average. In none Models 2 and 5 show results for a specification adding
of our specifications are the interactions between these the direct citizen participation variables, constitution
variables and the postconstitution indicator significant, fixed effects, and dummy variables for each year in
and in fact, contrary to the expectations of participatory the 20-year time window. Models 3 and 6 add controls
constitution-making theories, the coefficient estimates to address potential confounding or selection effects,
are generally negative. Also at odds with the arguments as well as variables that assess the plausibility of
of several advocates of deliberative participation, we our argument about the sustainability of plural consti-
find no evidence that non-electoral channels of citizen tutional agreements. Before detailing these fully speci-
engagement in constitution writing are better for dem- fied models, notice that the DiD estimate is substantive
https://doi.org/10.1017/S0003055420001069 Published online by Cambridge University Press
ocracy than are plebiscitarian mechanisms such as across columns, adding between 0.07 and 0.17 extra
referenda.19 points to the liberal democracy index during the decade
The fact that only the plural approval of constitutions after the introduction of the constitution. For reference,
produces a differential improvement in liberal democ- 0.1 is approximately the difference in the index
racy after enactment implies that we cannot simply read between current Tunisia and the USA or between Peru
future political developments from initial political con- and Spain.
ditions. Benin’s 1990 and Niger’s 2010 constitutions We added several controls to check that our esti-
were enacted in an authoritarian year and during a mates of the influence of plural approval on liberal
transition to democracy, but while the former was democracy postenactment are not driven by other
approved by a constituent legislature appointed by a time-varying factors. One obvious control is the age
of the democracy. Another is the international and
historical context in which the constitutional replace-
18
As is standard in DiD settings with two-way fixed effects, the ment took place, which may affect both the prospects
coefficient on the treatment variable “plural approval” (as well as for liberal democracy and the standards followed dur-
on the participation variables) is automatically dropped because it is ing constitution making.20 We account for this factor by
perfectly collinear with the constitution fixed effects. For estimates of
the differences between plural and non-plural cases and across time
without fixed effects see Table A4 in the online appendix.
19 20
See Fishkin (2011) and Eisenstadt, LeVan, and Maboudi (2015; Certain historical eras were more propitious for the consolidation
2017). of liberal regimes than others. Changing historical trends have also
530
Constitutional Origins and Liberal Democracy: A Global Analysis, 1900–2015
Plural approval after constitution 0.168*** 0.169*** 0.071** 0.152** 0.151** 0.091**
(0.040) (0.040) (0.024) (0.054) (0.054) (0.029)
Note: Robust standard errors clustered at the constitution-making process level in parentheses; +p < 0.10, *p < 0.05, **p < 0.01;
***p < 0.001.
adding an indicator variable for each decade from 1900 certain decades are significantly correlated with plural
to 2015. We also test for the possibility that our results approval, suggesting they might have an independent
are driven by changes in country population size or differential effect that can be controlled for by includ-
wealth. A balance table reporting the associations ing them in the model.
between these covariates, as observed in the pretreat- Models 3 and 6 also examine whether there is
ment period, and the type of constitution-making pro- support for our argument that plural constitutional
cess (presence or absence of plural approval) appears agreements have a greater positive effect on liberal
in the online appendix (Table A5). Only wealth and democracy, provided that the distribution of power
resources among the political actors that negotiated
the constitution remains relatively stable, and there-
affected some modalities of constitution making, such as citizen fore opposition forces retain the capacity to mobilize
engagement in the process (Ginsburg, Elkins, and Blount 2009). should those in power renege on the agreed rules. In
531
Gabriel L. Negretto and Mariano Sánchez-Talanquer
these specifications, Xit in Equation 1 includes a time- Consistent with our argument about the social roots
varying measure of the underlying distribution of of enforceable constitutional agreements, the results
partisan power in the polity before and after constitu- show a strong positive association between the strength
tion making. This measure comes from Vanhanen of civil society organizations and the liberal democracy
(2016) and is calculated by subtracting from 100 the index. Approval of the constitution by a plurality of
percentage of votes won by the most-voted party in the political forces, however, remains robustly associated
most recent parliamentary election or by the winning with deeper improvements in liberal democracy in the
candidate in presidential elections. As such, it is a decade after enactment. Liberal democracy is thus
good proxy for the balance of forces between contend- unlikely to flourish in political and social environments
ing political camps. where electoral competition is heavily skewed and civil
The results are consistent with the notion that society organizations are weak. Yet even after consid-
the maintenance of a relative balance between ering changes in these relevant factors, our results
government and opposition forces facilitates the indicate that a politically plural agreement for adopting
enforcement of a politically inclusive constitutional a new constitution enhances liberal democracy.
agreement. The plural competition coefficient is posi- Finally, we examine another observable implication
tive and precisely estimated, suggesting that incum- of our argument that constitutional rules adopted by
bents are more likely to abide by the rules and honor agreement between contending groups are more likely
citizens’ rights if electoral support remains stably to be effectively implemented when the balance of
dispersed among the relevant political forces. Instead, power remains stable and the different political camps
when one group grows dominant or the political arena retain the capacity to mobilize against transgressions.
remains highly volatile, the constitutional pact is more The DiD coefficients in Table 3 report the estimated
likely to break down or to be weakly and unevenly average yearly effect of plural approval in the 10 years
enforced. More specifically, these effects hold in add- following the adoption of a new constitution. To more
itional tests where we interact the plural competition precisely analyze the duration and intensity of effects
variable with our after-constitution indicator (see over time, we ran alternative specifications, performing
Table A7, Figure A2, and Figure A3 in the online pairwise comparisons for all postconstitution years.
appendix), suggesting that plural competition has a This allowed us to estimate a DiD effect of plural
larger effect on liberal democracy after the constitu- approval for every single posttreatment year.
tion is enacted, in line with our argument that it plays a When we decompose the effects per year we observe
key role in the enforcement of constitutional agree- that, consistent with our argument, the extra improve-
ments. ments in liberal democracy that result from plural
Reassuringly, the interaction between plural approval of the new constitution are most visible during
approval during constitution making and the poste- the first years following the enactment of the new
nactment indicator remains positive and significant constitution. Specifically, the extra positive effect
after including the measure of plural competition. This becomes indistinguishable from 0 after the fourth year
alleviates the potential concern that a constitutional at the 99% confidence level and after the seventh year
compromise and the observed improvements in liberal at the 95% level. We illustrate these temporal effects in
democracy postenactment may be jointly determined Figure 1, which is based on the fully specified model in
by the underlying distribution of partisan power. column 3 of Table 3.21 Each point in the graph repre-
While the results support that the latter is indeed sents the estimate for the extra improvement in liberal
important for a new constitution to be enforced, they democracy attributable to adoption of the constitution
also indicate that the political origins of constitutions by more than a single political force (i.e., the difference
have an effect of their own. in the differences).
https://doi.org/10.1017/S0003055420001069 Published online by Cambridge University Press
Models 3 and 6 add another important variable for We replicated the fully specified models in columns
assessing the role of citizens in the enforceability of 3 and 6 of Table 3 using the V-Dem legislative and
constitutional agreements—namely, the strength of judicial constraints indexes and the Polity IV executive
civil society organizations (CSOs). Our theory implies constraints score as outcome variables.22 The results
that citizens contribute to sustaining interelite pacts appear in Table 4. As expected, the DiD estimates
after promulgation not only through their support for show that a plural constitution-making process is posi-
different political forces but also by organizing to moni- tively and significantly associated with more effective
tor potential constitutional transgressions. It is also constraints on executive power. Direct popular partici-
possible that the relative strength of CSOs such as labor pation at the constitution-making stage, whether
unions, social movements, interest groups, professional through voting or nonvoting processes, has no system-
associations, and other nongovernmental organizations atic association with how effective institutional con-
is the key factor explaining both cooperation during straints on the power of the executive become, except
constitution making and the trajectory of the liberal for the negative effect of referenda on judicial con-
dimension of democracy. We therefore include the straints.
“core civil society index” from V-Dem, which is coded
yearly from 0 to 1 and captures the number of CSOs,
the level of participation of citizens in them, and the 21
For the effects per year in the subsample of constitutions enacted in
extent of government control or repression of these democratic years, see Figure A4 in the online appendix.
22
organizations. Baseline models are available in Table A8 in the online appendix.
532
Constitutional Origins and Liberal Democracy: A Global Analysis, 1900–2015
Note: DiD Estimates with 99% and 95% confidence intervals (Model 3, Table 3)
Additional Robustness and Falsification Tests the analysis window is reduced from 20 to 10 years.
Years -10 to -6 and years -5 to -1 in the actual process
We conducted complementary robustness and falsifi- are artificially taken, respectively, as the five years
cation tests to assess the validity of our empirical before and after the constitution. When we run this
approach. First, we evaluate the presence of preexisting hard test, we obtain a very small, albeit statistically
trends by introducing leading terms in our baseline significant coefficient for the interaction term of the
specification (no controls). To do so, we grouped the placebo postconstitution indicator with our plural
20-year window around each constitution-making approval variable (bγ3 ¼ 0:036, SE ¼ 0:014Þ. However,
event by quinquennia. This results in four quinquen- this is not a major challenge to our theoretical con-
nium indicators (two before and two after treatment), clusions, for two main reasons.
which we interact with our plural approval variable. The first is that some indication of different behavior
Significant interactions with the pretreatment indica- between plural and non-plural cases immediately
tors would imply that cases of constitution making before the official start of the constitution-making
through a plural constitution-making body were process is to be expected under our own theoretical
already trending differently before the constituent framework. It is reasonable to observe a small trend
moment (thus violating parallel trends). divergence in liberal democracy levels shortly before
The results support the validity of our identification treatment because constitution-making bodies are
assumption.23 The interaction coefficients in the pre- elected or appointed through certain procedures that
https://doi.org/10.1017/S0003055420001069 Published online by Cambridge University Press
period are small and statistically indistinguishable are usually decided or adopted more or less coopera-
from each other at the 5% level, suggesting that liberal tively before the formal start date of the process. For
democracy trends together in plural and non-plural instance, although the constituent legislature that
cases before constitutional replacement.24 By con- approved the Polish 1997 constitution was elected in
trast, the interaction coefficients become positive, 1993, the essential features of the process were defined
large, and significant after the adoption of the consti- between 1989 and 1992. Such dynamics cannot be
tution, consistent with our theoretical argument. captured at a clearly identifiable point across cases,
Second, we conduct a placebo test by dropping all which is why we coded the constitution-making process
the posttreatment years (after the adoption of a new as beginning when the drafting and approval body was
constitution) and using the five years before the pro- officially elected or appointed. Consistent with these
cess starts as a placebo posttreatment period—that is, expectations, when we decompose the placebo analysis
by year, we find that our plural approval variable starts
23
predicting higher levels of liberal democracy only two
See Figure A5 in the online appendix. years before the beginning of the constitution-making
24
The estimate on the interaction between the first quinquennium
process (years +4 and +5 in the placebo test).25 This is
(years -10 to -6) and the plural indicator, however, is negative,
although small, and significant at the 10% level, suggesting the
possibility of some slight pre-trending shortly before the beginning
25
of constitution-making processes. We discuss this below. See Figure A6 in the online appendix.
533
Gabriel L. Negretto and Mariano Sánchez-Talanquer
Note: Robust standard errors clustered at the constitution-making process level in parentheses; +p < 0.10, *p < 0.05, **p < 0.01;
***p < 0.001.
https://doi.org/10.1017/S0003055420001069 Published online by Cambridge University Press
precisely the period when, if the cooperation among likely to result in significant improvements in liberal
political elites in constitution making indeed matters, it democracy when representatives of opposing political
should start producing initial differences between camps have to negotiate and jointly approve the new
cases, an effect that we cannot capture in our coding. text. This effect should be stronger during the early
The second reason why our conclusions remain years of life of the constitution, when the balance of
strong is that leading effects are also very small relative power among contending political forces tends to
to the posttreatment effect estimates. The estimate for remain stable, thus enabling the political and social
the effect of plural constitution-making bodies on lib- opposition to monitor and mobilize against potential
eral democracy is almost five times larger than the constitutional transgressions by incumbents. Analyzing
coefficient in the placebo test (0.17 versus 0.036), indi- the effects of direct citizen participation and cooper-
cating a sharp jump in liberal democracy after enact- ation among political representatives during the mak-
ment in cases of plural approval. ing of all constitutions adopted or in force during
democratic years between 1900 and 2015, this paper
has shown statistical evidence consistent with these
CONCLUSIONS theoretical arguments about the rise and stability of a
liberal-democratic political order.
We have proposed, inspired by seminal works on dem- Although we do not find discernible democratizing
ocratization, that constitutional replacements are more effects of participatory constitution making, the
534
Constitutional Origins and Liberal Democracy: A Global Analysis, 1900–2015
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