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The Gap from Parchment to Practice:

the Ambivalent Effects of New Constitutions on Democracy

Todd A. Eisenstadt (eisensta@american.edu)

American University, School of Public Affairs

Washington, D.C.

Carl LeVan (levan@american.edu)

American University, School of International Service

Washington, D.C.

Prepared for a Workshop at American University, Washington, DC

May 28-29, 2013

Abstract: The Third Wave of democratization brought regime transitions to scores of nations

since 1974, but empirical measures in recent years have shown unmistakable reversions to

authoritarianism by some countries. The 132 new constitutions promulgated in 118 countries

during that time played contradictory roles in these two opposing trends: while the level of

democracy increased in 62 countries following the adoption of a new constitution, it actually

decreased or stayed the same in 70 others. This finding contradicts normative theories about the

positive relationship between constitutions and democracy. Our project on constitutional change

attributes this disjuncture to post-promulgation participation, rather than participatory

constitution-making processes or intrinsic institutional characteristics.

Our main objective is to identify conditions under which constitution-making in

democratizing nations contributes to declines in democracy. Does the type and timing of

constitution-making matter? Upon demonstrating the empirical anomaly that many new

constitutions, even when created through participatory processes, do not contribute to

democratization, we outline a research design to test impacts of new constitutions on other sets

of outcomes, including law-bound rights such as human rights and the rule of law; resource

distribution including public service delivery; and political culture, incorporating citizen

satisfaction with governments. We expect participatory constitutional foundings to yield

important shifts in political culture but few demonstrable improvements in political rights. We

also expect that some disaggregations of democracy, such as law-bound rights, will have positive

relationships with implementation of new constitutions, while the relationship with economic

performance and other indicators may be less clear.

LeVan gratefully received a Dean’s Summer Research Award from the School of International

Service at American University to carry out a pilot study in Uganda. Eisenstadt thanks the Dean

of Academic Affairs for research funding to support a trip to Bolivia. The authors thank Ryan

Briggs, Ghazal P. Nadi, and Jennifer Yelle for research assistance.

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1. INTRODUCTION

Since the Third Wave of democratization began in 1974, constitutions have played contradictory

roles in struggles to expand political freedom. Among 118 countries that promulgated 132 new

constitutions, the level of democracy increased in 62 countries but it actually decreased or stayed

the same in 70 others. This finding contradicts normative theories about the positive relationship

between constitutions and democracy, but it is consistent with unmistakable reversions to

authoritarianism in recent years. Between 2005 and 2010 for example, 57 countries with modest

levels of civil liberties and political rights experienced declines in freedom, while only 38

showed improvement (Dizard et al. 2010). Despite recent research on these middle range

“hybrid” regimes in the democratization literature, and the vast work on comparative

constitutionalism, little is known about this surprising empirical disjuncture between new

constitutions and the level of democracy.

Under what conditions does constitution-making in democratizing nations contribute to

declines in democracy? Theoretical insights from the democratization literature, along with

numerous qualitative studies, suggest that participatory constitution-making should matter, and

institutionalist traditions offer evidence that well-designed institutions can restrain rulers and

empower citizens. We claim that post-promulgation participation, rather than the type of

constitution-making processes or intrinsic institutional characteristics, is a significant factor in

explaining the mixed effects of new constitutions on political freedom in democratizing

countries. Existing studies of constitutionalism have taken substantive and legalistic approaches

or process-oriented political approaches, but none has combined the two. Using variables to

reflect social and political cleavages as well as those reflecting constitutional process, this project

seeks to understand why the level of democracy increased in only half of the countries that

adopted new constitutions since 1991. In broad terms, we seek to build on social and legal

studies in order to understand how interest groups or branches of government such as the

executive “capture” constitutions, leaving countries with a parchment constitution that promotes

democratic rights and institutions but is subverted by ruling elites.

This paper outlines the multi-method research strategy in our larger study, incorporating

quantitative indicators of democracy, the content of constitutions, and ethnographies of political

processes used to establish them. First, we identify recent innovations, key insights, and gaps

from relevant literatures. Constitutionalism research, for example, has focused on comparing

different processes of constitution writing, explaining constitutional endurance, and analyzing

constitutional content (Ginsburg 2012). Recent democratization research has devoted significant

attention to the persistence of “hybrid” or “semi-authoritarian” regimes, which possess nominal

characteristics of democracy but significantly restrain political freedom (Schedler 2006; Levitsky

and Way 2010). We also note how legalistic studies of constitutionalism could benefit from

comparative institutional analysis, not only by specifying what constitutes constitutional change

but by linking constitutions to a range of potential outcomes other than the level of democracy.

Second, we describe our data and research design for exploring this puzzle in our broader

project. This includes a discussion of the logic driving case selection for qualitative analyses

based on field research. Third, upon demonstrating the empirical anomaly that many new

constitutions do not positively impact levels of democracy, we outline hypotheses that form the

basis for empirical testing. Noting again the sound theoretical reasoning from the literature that

participatory constitution-making processes should have lasting positive effects on the level of

democracy, we offer preliminary evidence from pilot studies and other research suggesting that

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this has often not been the case. We also list hypotheses to test the impact of new constitutions

on outcomes other than political freedom, such as (1) law-bound rights including human rights

and the rule of law; (2) resource distribution, including public service delivery and corruption;

and (3) political culture, incorporating citizen satisfaction with governments. We expect that

democracy-enhancing constitutions, rather than those with ambivalent – or negative - effects on

political freedom, may improve performance outputs in these areas. Comparative research in

these three areas will contribute to a better understanding of observable gaps between parchment

constitutions and their implementation across a broad range of cases.

The conclusion explains how this research also promises to offer an important corrective

to the democratization literature. Because transitions often entail constitution-making, new

constitutions were intuitively associated with improved levels of individual rights and

democratic representation. While this conventional wisdom mostly held for early “Third Wave”

democratizers in Eastern and Southern Europe, East Asia and the Southern Cone of Latin

America, the pattern does not hold for a more recent generation of constitutions representative of

post-transition cases in our dataset. Nor does it hold for countries examined by the literature on

hybrid regimes and authoritarian reversion (Levitsky and Way 2010), where authoritarians count

constitution-making among their repertoire of tactics to remain in power (Brown 2002). We

expect that the outcomes of our work will confirm our sense that the promulgation of new

constitutions can have many causes and that most of these are politically driven. This will

ultimately enable the specification of several ideal types of constitution-promoting interests,

including democratic reformers, authoritarian backsliders seeking to extend their terms in office,

and “from above” imposers of new constitutions with reserve domain powers for groups like

militaries and executives.

2. LITERATURE REVIEW

Recent research on constitutionalism has focused on comparing different processes of

constitution writing, explaining constitutional endurance, and analyzing constitutional content.

Recent democratization research has devoted significant attention to the persistence of “hybrid”

or “semi-authoritarian” regimes, in which conventional authoritarianism coexists with a veneer

of political freedom. Bridging these literatures introduces a valuable dialogue between legal

scholarship and political science, clarifies urgent questions concerning the stalled state of

democratization studies, and contributes to the formulation of new hypotheses concerning the

consequences of constitutional change.

The significant project by Elkins, Ginsberg, and Melton focuses on the question

constitutional survival. They conclude that inclusive drafting increases the likelihood of

constitutional endurance, and that it is also associated with constitutional rights and democratic

institutions such as universal suffrage, the secret ballot, and a guaranteed role for the public input

into amending the constitution in the future (Ginsburg 2012, 54-7). More inclusive processes

enable the integration of new social forces conducive to constitutional survival because they “can

promote a unifying identity and invite participants to invest in the bargain” (Elkins et al. 2009,

211). These are important findings regarding endurance and content, but they leave unanswered

important questions about the impact of processes on levels of democracy and the de facto

protection of rights – as opposed to the de jure protections mentioned in the constitution.

Widner also analyzes the impact of participatory constitution-making, but her analysis

similarly lacks a direct test of participation on level of democracy. Her “Constitution Writing

and Conflict Resolution” data set covers 195 constitutions between 1975 and 2002 (Widner

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2004).1 Her results show that public consultation does not correlate with improved political

rights protection (Widner 2008). This finding conflicts with an influential analysis of twelve

countries by the International Institute for Democracy and Electoral Assistance (Samuels 2006),

as well as anecdotal evidence from a large project by coordinated by the U.S. Institute of Peace

on constitutional change in transitional states (Miller and Aucoin 2010). However neither the

IDEA nor the USIP study, which covers 18 countries on four continents, systematically

examines democratization or political rights as a dependent variable.

Carey’s cross-national study constitutes one of the few direct statistical tests of

constitution-making on democracy. He finds that a more inclusive constitution-drafting process

does increase the level of democracy over the subsequent three years, as measured using Polity

IV data on democracy and executive constraints. However he also notes it is a bivariate analysis

based on limited number of cases and bound by data constraints, including the use of

proportional representation as a proxy for the inclusiveness of institutional actors. In the end,

these limitations deterred him from testing his hypothesis using standard statistical models that

would provide a stronger basis for inference and making broader generalizations (Carey 2009).

To our knowledge, no large-scale study tackles the relationship between constitution-making

processes and democratization through a mixed methods analysis using qualitative techniques

and robust cross-national quantitative analysis.

The dearth of empirical studies on this relationship is surprising because numerous

theories of democratization expect participatory politics to have important benefits. Lindberg et

al. (2009) argue that elections improve levels of democracy over time as the civic ritual of voting

is repeated: going to the ballot box places expectations on politicians and educates citizens on a

practical level and, therefore, becomes a means over time of developing democratic political

culture. Hyden argues that constitution-making is even more important than elections as an agent

of cultural change: it leaves a deeper imprint on the polity as it is more empowering than

elections. Founding documents allow citizens to consciously and collectively consider what

democracy is all about, giving them a say at critical historical junctures. Reflecting on the

1990s, he predicted that broad-based and participatory processes would give African countries

“better prospects of succeeding with their regime transition than countries where such an

exercise has not been carried out” (Hyden 2001, 216). Another recent study argues that

participatory constitution-writing helps nations avoid violent conflict and build democracy,

concluding “it is this participatory inclusiveness that fosters legitimacy among a state’s populace

and, ultimately, constructs democracy” (Wing 2008, 2). Though they do not test for it, Elkins et

al. similarly observe that, “sometimes, we suspect, the process of re-writing higher law can be

therapeutic and empowering for citizens and leaders” (Elkins et al. 2009, 209). These studies

anticipate clear benefits of participatory constitution-making for democracy, but they are also

important because they suggest that such processes should more broadly induce changes in

political culture. Though the World Values Survey, Latinobarometer, and Afrobarometer all

provide extensive data on political attitudes, and studies of political trust remain popular in the

social sciences (Swedlow 2011), we know little about the impact of constitution-making on

democratic political culture.

A separate but related question concerns whether constitutional change itself – the act of

implementing new collectively binding rules on political society – positively impacts

democratization regardless of differences in the constitution-making process. Constitutional

change and democratization were so closely intertwined in the 1990s it is easy to conflate two

1 Efforts to further evaluate this data by Donald Horowitz, John Carey, and others are under way.

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distinct phenomena. In fact constitutional replacement occurred within a year of regime

transitions in only 19 percent of transitions to democracy and in 27 percent of transitions to

authoritarianism (Elkins et al. 2009, 59). For example, transitions occurred in countries such as

Algeria, Panama, and Mexico without significant constitutional change. Widner (2008) finds

that the level of violence usually drops after a country adopts a new constitution, regardless of its

content, and changing the constitution improves political rights, notwithstanding levels of ethno-

linguistic fractionalization. Carey (2009) also establishes a connection between constitutional

change and democracy, albeit with a limited number of cases. Overall though, after two decades

of democratization and extensive constitution-making, studying the broad effects of

constitutional change on democracy remains a surprisingly open field of research.

We take a view of constitutionalism grounded in civil society, invoking the

democratization literature about the importance of popular pressure in regime transitions (Bunce

and Wolchik 2011; Bratton and Van de Walle 1997) in order to appreciate constitution-making

as social re-contracting during rare “sovereign” moments. By arguing that civil society precedes

the state, Locke and Tocqueville took the social contract to necessarily precede the constituting

of government. Law comes from somewhere, and its cosmopolitan, comparative, and civil

society sources today are an important part of analyzing the effects of constitutional change. The

youthful revolts in Egypt and Tunisia in 2011 provide recent good examples of constitutional

change in which social re-contracting occurs alongside “political” re-contracting. This view

differs from some comparative constitutionalists who distance themselves from social contract

theory by taking the law as a necessary prior for political pluralism (Hatchard et al. 2004; Levitt

2012). This can lead to a rather orthodox institutionalist perspective that leaves constitutional

text to “speak for itself,” blaming weak compliance on stochastic factors such as quality of

leadership, and significantly understating the possibilities for stable – but illegitimate –

institutions.

A classic representation of the social context of constitutional change is the debate

between Madison and Jefferson over whether the “living generation” is bound by the rules of its

predecessors. For them, the issue was literal: should the ideas of the American Revolution

necessarily survive the death of those who articulated and codified them into a new constitution?

As in classical Greece, a conservative streak permeated 18th century thinking about democracy,

and too much change at the hands of popular passions was deemed dangerous. Scholars like

Holmes side with Jefferson and those who defend the right of the living generation to re-write

the rules (Holmes 1988). For us, Holmes’ position is important because it claims that

constitutions can serve as an agents of change (or democratization), a transformative political

process that entails expressions of consent.

Constitutionalists from the developing world often defend popular sovereignty as a basis

for change (Mutunga 2001). An influential African scholar for example reminds us that “a

constitution is not an act of government but of people constituting government,” meaning that

the constitution is a “living instrument” flowing from the consent of the governed. Preambles in

constitutions from Togo to Uganda invoke this spirit of Thomas Paine, but the citizens who form

civil society give such text meaning and force (Walubiri 2001). Significantly, this perspective on

constitutionalism acknowledges that constitutions might impede democracy. Elkins et al. for

example allow for the normative likelihood that some constitutions should die; old constitutions

should not be treated with “undue reverence” by equating age with quality (Elkins et al. 2009,

208). Recent research on comparative authoritarianism has increasingly drawn analytical

attention to formal institutional frameworks that stabilize illiberal regimes (Gandhi 2008; Lust-

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Okar 2009). Simply put, neither age nor stability should be equated with popular consent or

institutional quality.

There are good reasons to expect that when a constitution is changed, and how it is

changed, should theoretically impact democratization and the level of democracy. Even more

importantly, the existing research about the relationship between constitutional change and

democratization offers conflicting findings based on limited empirical testing or qualitative

studies. This leaves us with a weak basis for broader generalizing about one of the most

important political trends of the last several decades. For these reasons, our research aims to first

clarify the conditions under with constitution-making in democratizing nations deepens

democracy and when such processes undermine political rights. Next, we plan to test the impact

of new constitutions on different baskets of outcomes including law-bound effects on human

rights and the rule of law, effects on resource distribution, public service delivery, and

corruption, and impacts on political culture, including citizen satisfaction with their

governments. And finally, we aim to better understand gaps between implementation of

parchment constitutions and the degree of implementation of these laws across a range of cases

in developing democracies.

3. RESEARCH DESIGN AND DATA

Despite a robust democratization literature and opportunities for systematic large-N tests thanks

to new data, we know remarkably little about the effects of constitution-making on democracy

and a range of other outcomes. This project extends earlier scholarship by empirically testing the

impact of new constitutions, and the different types of processes for crafting them, on the level of

democracy. We analytically combine this aggregated information with case studies in order to

understand the micro-level impacts of regime reconstitution. These combined efforts will bridge

related literatures in legal studies and political science in order to provide a holistic portrait of

constitutionalism’s consequences for politics, economics, and society. By drawing on research

from Latin American (Eaton 2012; Bejarano 2011; Cameron and Hershberg 2010) and African

cases (Hyden and Venter 2001; Hatchard et al. 2004; Oloka-Onyango 2001), the project will

identify patterns that enable meaningful generalizations about the impact of constitutional

change.

Our larger study, “From Parchment to Practice: Explaining when Constitutions Fail to

Improve Democracy,” has four broad objectives: First, to carry out a comprehensive empirical

study directly comparing the influence of formal constitutional institutions with that of political,

economic, and social variables. Thus, in addition to testing for the impact on democracy, we will

also test how constitutions affect different baskets of outcomes including law-bound effects on

human rights and the rule of law, effects on resource distribution, public service delivery, and

corruption, and impacts on political culture, including citizen satisfaction with their

governments. Second, even though legal scholars have long appreciated distinctions between de

facto and de jure law and “informal” institutions have been a core debate in the neo-institutional

literature, political studies of constitutions have neglected the role that interest groups or units of

government often play in undermining constitutionalism. This analysis will advance the overall

state of knowledge about possible gaps between implementation of parchment constitutions and

the degree of implementation of these laws across a range of cases in developing democracies.

Third, democratization research links participatory processes to improved democratic outcomes

and increased levels of political freedom. However as we have noted, findings from the few and

limited comparative constitutionalism studies differ, with some associating constitutional

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reforms with increased rights and others reporting a decline in democratic freedoms. For the

regimes that underwent de-liberalization, the project strives to engage the emerging literature on

comparative authoritarianism. Finally, because constitutional design has been such a significant

focus of democracy promotion over the last two decades, our manuscript will carry implications

for applied knowledge: have external efforts to facilitate rulemaking mattered? Or would efforts

be better directed towards civil society, the private sector, or direct development assistance?

Constitutional and Democracy Database

To study these broad questions, we are constructing a “Constitutionalism and Democracy

Database” (CDD) covering 190 countries between 1974 and 2011. During this period 118

countries implemented a new constitution, 14 countries implemented more than one,2 and

approximately 72 countries did not implement a new constitution at all. Of the total 132

constitutions, Freedom House political rights improved in 62 instances, but declined in 22 and

remained the same (neither improved nor declined) in 48. In terms of temporality, we start the

data set in 1974 in order to include the entire Third Wave (38 years in our data set), as it

encompasses the transitions in the era of modern rights and constitutionalism, and because most

needed data is available for this period (but not earlier). We do not include nations of fewer than

500,000 people. The CDD builds on three extant data sets by Elkins et al. on the survival and

legal scope of constitutions from the beginning of the 20th

Century, by Widner on the political

processes yielding new constitutions and constitutional reforms since the 1970s, and by Hartlyn,

which evaluates the evolving autonomy of Latin American governments from chief executives

since the 19th

Century.

All three of these studies have grappled with a task of how to decide, for operational

purposes, what constitutes a new constitution. Phenomena such as the shift to single party rule in

Zambia, the president’s successful modification of the constitution to allow himself another term

in Cameroon, or the autogolpe in Peru, all present practical challenges about how to define

change. One approach is to focus on the content of constitutional changes. These types of

reforms have broad impacts on political space and the structure of competition, even if they do

not entail wholesale rewriting of the constitution. For her dataset, Widner codes these cases as

“regime-changing amendments,” due to the significant impact the changes had on civil and

political liberties, ethnic or regional autonomy, or property rights. A separate historical

examination of Latin American countries presents another approach. Cheibub et al. (2011)

consider whether reforms tilted the executive-legislative balance of power towards presidents.

For them, the key issue in operationalization is whether constitutional change took place outside

of the procedure specified in the existing constitution. This builds on Elkins et al.’s operational

definition which specifies that constitutional change that adheres to existing amending

procedures is coded as an amendment. On these terms, they find that constitutions perish on

average every nineteen years, arguing that a sufficiently flexible amending process can save a

constitution. They then combine this with extensive content analysis, reporting that replacements

match their predecessors in 81 percent of the topics (Elkins et al. 2009, 55-9).3

Meanwhile, political economy scholars theorize constitutional change as the period when

equilibrium breaks down for exogenous and endogenous reasons (Alston et al. 1996; Cooter

2000). Voigt for example defines constitutional change “as the consequence of some

disequilibrium,” and proposes endogenizing constitutions to clarify causal factors linked to status

2 Insufficient information was available on another three cases, and at least three countries implemented new

constitutions fewer than three years ago. 3 The Widner dataset also includes data on content though little analysis with it has been published.

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quo changes (Voigt 2011, 327). Modeling constitutions as equilibrium outcomes introduces a

status quo bias because non-change is the norm; tests are likely to be formulated as stimulus

associated with change. Incrementalism may be the most common disruption to such

equilibrium. Historical institutionalists point out that incrementalism is more common than

outright rule “displacement” through revolution. New rules might be “layered” on top of old

ones, or rules might acquire new meaning as political environments change (Mahoney and

Thelen 2010). This avoids biasing status quo stability but frequent incrementalism creates other

challenges for operationalization, requiring assessment of the impact of multiple amendments or

small scale reforms on the overall constitutional climate.

To limit such problems and reduce any subjectivity in classification, the CDD applies a

narrow definition of change that only counts constitutions that result from explicit

promulgations. We identify these discrete constitutional moments using information from

constitutional texts, information from the above datasets, and from the current edition of

Countries of the World and their Leaders Yearbook (Ellicott 2011). This criteria is meant to

minimize the risks of biasing stability through definitions of change based on disequilibrium

discussed earlier, while distinguishing between incremental (or overlapping) institutional change

and the more significant historical junctures that cumulatively result.

Equally important for our causal story is the formulation of a clear conceptual framework

for measuring participation in constitution-making. Elkins et al. break this process into stages of

writing, deliberation, and approval. They measure the inclusiveness of the writing stage using

two proxies: a variable for whether constitutions were drafted during foreign occupations, and

another on whether a country was democratizing at the time. This latter criterion would generate

autocorrelation problems when testing whether the constitution-making process improved levels

of democracy, as our study does. They then reduce the deliberation stage to whether an elected

body publicly debated the draft, and whether a public referendum approved the document

(Elkins et al. 2009, 97-9). Widner (2004) measures levels of participation and representation in

constitution drafting by coding five process characteristics: the type of deliberative body, the

method of selecting delegates to that body, the method of choosing delegates who draft initial

texts, the level of public consultation, and the existence of a public referendum. Each of these

five variables is coded in relation to participation and representativeness. Carey (2009) takes

perhaps the most straightforward approach, operationalizing the inclusiveness of “constitutional

moments” using one variable counting veto players and another indicating whether citizens voted

on the constitution via referendum. Because existing data on veto players exclude significant

portions of the developing world though,4 this approach would eliminate too many countries

from our sample.

Our strategy begins by conceptually distinguishing between participation and inclusion.

Inclusion is a slippery concept in the literature, in part because the term implies a bias against

models of democracy that trade some degree representation in exchange for accountability

through alternation of power. We thus understand inclusion in terms of a range of distinct

interests necessary to legitimate the exercise of aggregate political authority (LeVan 2011). To

this end, we seek to add variables from existing datasets that measure societal cleavages among

constituent groups. To measure participation, we start from the conceptual the categories used in

the Widner and Elkins et al. data sets, collapse them, and update them using information from

online sources (William S. Hein & Company ; Ellicott 2011). We are working to create a

4 See Konig, Tsebelis, and Debus (2010).

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participation variable that measures the level of participatory constitution-making, coded

according to the following criteria:

STAGE OF PROCESS

Drafting Deliberation Ratification

Decreed strong executive OR

exec appointed committee OR

party as central committee

strong executive OR

exec appointed

committee OR party as

central committee

No referendum or

decree by elected

body

Mixed

modalities

strong elite influence AND

(existing legislature OR

specially elected body)

strong elite influence

AND (existing

legislature OR

specially elected body)

strong elite influence

AND no referendum

AND ratification by

elected body

Polyarchic systematic civil input OR

transparency

Public debate OR

transparent debate

Referendum

As of early May 2013, we have coded 101 cases at the drafting stage (with 37 missing values),

95 at the deliberation stage (with 43 missing values), and 106 at the ratification stage (with 32

missing values. The distribution on our process variable is displayed in Figure 1.

Figure 1: Process Variable

0

20

40

60

80

100

120

Drafting (N=101) Deliberation (N=95) Ratification (N=106)

Polyarchic

Mixed modalities

Decree

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Paired Case Studies

A qualitative component of our analysis considers the effects of constitutions in four pairs of

countries, and builds some preliminary field research. This research aims to advance broad

understanding of the gaps between the promulgation of parchment constitutions and the degree

of implementation. A goal is to illustrate statistical patterns and to identify some of the informal

constraints on formal constitutional processes. For example, constitutions crafted through

elected assemblies and participatory public hearings elevate citizens’ expectations for

government performance and accountability, often leading to disappointments later when such

high standards are not met. We expect this to be manifest in attitudinal reactions to governments

and other indicators. Policy makers often mistake the level of openness during drafting and

deliberation for political leverage, leading to elite frustration once the debate shifts from

constitution-making to policy making. In contrast to the hopes generated by democratizing

regime transitions in the early 1990s, constitution-making in post-transition cases legitimizes

incumbent regimes, permitting reforms at the margins with minimal political inclusiveness while

protecting elite preferences.

We found evidence of such counter-intuitive effects of participatory politics in two pilot

studies carried out in summer 2012. For example during Bolivia’s constitutional debates,

government officials made threats against constituent assembly participants, and violence was

used against several people outside the deliberation chamber. While some studies praise Bolivia

as a promising innovative model of participatory democracy, the constitution-making process

offers a more mixed record. Negotiations within a broadly inclusive constituent assembly broke

down, leaving the extant Congress with the ultimate responsibility for the 2009 constitution.

Furthermore, the constitution offers a range of innovative new institutions, such as indigenous

communal autonomy, but there are no actual cases of groups adopting these institutions. In other

words, constitutional implementation is limited, even in substantive areas that constitute popular

victories for civil society.

The second pilot study took place in Uganda, a country with a famously participatory

model of constitution-making through a detailed process that was expanded to incorporate an

elected constituent assembly several years into the process. Influential early studies expressed

hope that participation would facilitate democratization, giving citizens a stake in the process and

educating them about their role in governance (Hyden 2001). The reality has turned out less

rosy, with citizens’ views often ignored by elites and participation cultivating cynicism in

government – rather than promoting institutional trust along the lines anticipated by social

capitalists (Moehler 2008; Tripp 2010). We found that citizens were encouraged to articulate

views about the 1995 constitution but their views on the major controversial issues such as

federalism, land reform, and the party system were marginalized. The ruling coalition agreed to

prolong the drafting and deliberation process to extend its tenure, and gave minority views an

institutionalized venue for expression. As a result, constitution-making entailed both public

participation and elite control. Legal activists, members of the 1995 constitutional commission

and a commission to amend the constitution in 2005, all argued that mechanisms for citizen

participation planned for post-promulgation were never put in place – and this has undermined

implementation of the constitution.

Several existing studies note the importance public participation in future amending of

the constitution as an important measure of the constitution’s inherent democratic qualities

(Miller and Aucoin 2010). So in this regard our research will add to the discussion about failed

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implementation by linking it to post-promulgation institutions that perhaps betray the promises

of participation generated during constitution-making. This presents difficult questions for the

political culture literature, since such changes in behavior post-promulgation suggest that

participatory habits are often lost quickly, even without conscientious government efforts to de-

mobilize citizens.

Our four pairs of future case studies will examine eight nations, including two with

improved democracy indicators since promulgation of new constitutions (South Africa 1996 and

Colombia 1991), two with precipitous declines in such indicators after new constitutions

(Thailand 2007 and Venezuela 1999), two which neither improved nor declined (Bolivia 2009

and Kenya 2010), and two where democratization transpired without a new constitution

(Botswana and Mexico). Our categories of selection are illustrated in the table below.

Case Category Cases

Democracy Improved after Constitution Colombia, South Africa, Nigeria

Democracy Declined after Constitution Thailand, Venezuela, the Gambia

Democracy the Same after Constitution Bolivia, Kenya, Uganda

Democratization without New Constitution Botswana, Mexico

4. EMPIRICAL TESTS

As noted, the puzzle that motivates our study begins with the empirical observation that over one

half of the 65 democratic or democratizing nations that adopted new constitutions since 1974

experienced no “democracy bump” at all after adopting a new constitution. Specifically, this

includes countries classified as “free” or “partly free” according to Freedom House. We test for

the impact of new constitutions on the level of democracy by averaging Freedom House political

rights scores during the three years prior to the constitution’s implementation and comparing this

average to the three year average after the constitution’s promulgation. We use only nations that

already have achieved a “medium” level of democracy to diminish the number of democratic

transition constitutions, such as those Eastern Europe and Latin America during the 1980s. More

importantly, focusing on already-democratizing countries allows us to distinguish between the

consequences of constitutions and the broader effects of democratic transitions. By definition,

political rights and civil liberties improve during transitions to democracy (otherwise they would

not be coded as transitions). Limiting the sample in our first set of tests to already-democratizing

countries therefore helps isolate the effects of constitutional change.

Our first aim is to identify the conditions under which the promulgation of new

constitutions in already-democratizing nations does not necessarily foster democratic deepening,

but in fact may produce a decline in nations’ levels of democracy. The overarching hypothesis,

which we believe will be disconfirmed, is Hypothesis One:

H1 – The crafting and promulgation of a new constitution improves a nation’s subsequent

level of democracy.

Graph I illustrates the empirical puzzle motivating our project. It shows that Freedom House

political rights measures improved in 27 of the 65 already free or partly free reconstituted cases,

stayed constant in another 21, and actually declined in 17 such cases. This finding challenges the

12

common expectation that new constitutions improve levels of democracy. To further specify the

broader political effects of constitutions, our analysis will draw on Mexico and a handful of other

case where democratic transitions occurred without new constitutions. The flurry of constitution

writing in Latin America in the 1980s and in Africa in the early 1990s stimulated a renewed

interest in institutional analysis – comparative studies testing the effects of different institutional

arrangements (Reynolds 2011). However this focus on the incentive structures reflected in the

content of these new constitutions overlooked some of the more fundamental questions about the

democratizing effects of constitutions, which are now coming to light in the twilight of the Third

Wave through reversions to illiberal politics.

The next step is to test causes of democratic improvement or decline, using a range of

explanations and the modality of the new constitution’s origins. This will incorporate a range of

modes of citizen participation captured by our participation variable. We seek to understand if

the procedure of constitution text drafting impacts level of democracy/democratization. We will

test degree of citizen participation on constitution crafting and assess whether degree and mode

of participation impacts whether democracy levels (measured as political rights) improve. We

expect that Hypothesis Two will be confirmed, that:

13

H2 – The degree of citizen involvement throughout the constitution-making process will

have a statistically significant effect on the level of political rights.

Our pilot studies in Bolivia and Uganda revealed some important benefits of participation in the

selection of constituent assemblies and in deliberations. However these cases, and others, also

suggest that citizen participation and the institutional balance of power following promulgation

have a more significant impact on constitutional compliance and political rights. This hypothesis

is a broader test for whether the ratification process has democratizing effects. On the one hand,

this tests intuitions from the democratization literature and numerous qualitative studies that new

constitutions prevent backsliding into authoritarianism when nations come together in a plural

national dialogue where all major social groups are included and given the tools to present

thoughtful positions. If this hypothesis holds, it will further our understanding the mechanisms

through which greater participation improves democracy. On the other hand, should

participatory constitution-making have no significant correlation with post-promulgation

political rights, this would confirm some of the skepticism about the inherent long term benefits

of such processes, as suggested by our pilot studies. It would also contribute to the comparative

authoritarianism literature by establishing general patterns about how participatory processes –

even those enabling public input into fundamental ruling-making – are compromised and can

therefore serve as a basis to legitimize illiberal politics.

Testing for the Broader Effects of Democracy-Improving Constitutions

After establishing whether representativeness in negotiating the constitution prompted greater

levels of democracy, we will assess whether the democracy-improving constitutions among our

118-country data set impacted outputs relating to performance, including: 1) rule-bound

outcomes such as human rights, rule of law, and equality; 2) services including resource

distribution, public service delivery, and corruption, and 3) political culture including overall

citizen satisfaction with government. Running separate analyses for each of these dependent

variables, and also constructing truth tables (Ragin 1987) and other small N causal and

descriptive analysis, we will gather data from sources such as the World Development

Indicators, the World Values Survey, the Quality of Government project, and others to test

among our 132 cases of constitutional promulgation. Beyond just testing whether democracy-

improving constitutions among the universe of new constitutions improve performance

indicators, we will also seek to use a broader sample of cases (including democratizing nations

which did not implement new constitutions). The operating hypotheses Three, Four, and Five

are:

H3 – The promulgation of democracy-improving constitutions, and the new social pacts

these represent, prompt improvements in citizen legal rights (measured as human,

individual rights, and rule of law).

H4 – The promulgation of democracy-improving constitutions contributes to

improvements in governance outputs (including resource distribution, public service

delivery, and corruption).

H5 – The promulgation of democracy-improving constitutions has a civic loyalty effect

on political culture, (including overall citizen satisfaction with government).

14

We have strong expectations that the democracy-improving constitutions among our set of new

constitutions will yield improvements in rule-bound outcomes (#3 above), and that participatory

processes are conducive to a democratic political culture (#5). But we also expect to show that

democratization theory has recommended participation on normative rather than empirical terms

by neglecting the importance of interest group capacities for enforcing compliance post-

promulgation and overlooking changing societal norms in non-participatory cases.

The impact on distribution and economic performance (#4) is much less certain.

However we believe this warrants examination given the political economy constitutions in

general to policy commitments conducive to long term growth (Weingast 1997). Moreover,

distributional failure is becoming a significant area of research on democratic performance,

given the persistence of economic inequality even in developed democracies, and

representational failures more broadly (Przeworski 2010; Taylor-Robinson 2010). Unlike the

large body of thoughtful literature on patronage (Kitschelt and Wilkinson 2007), this newer

research harkens back to the big questions posed by democratic theory about how economic

inequality persists even amidst advancements in political rights. rather than restraining rulers in

order to enhance efficiency and accountability.

The democratization literature has thoroughly explored how illiberal regimes – whether

Chile under Pinochet (Drake and McCubbins 1998) or Uganda under Museveni (Ndikumana and

Nannyonjo 2007) – may offer an alternative. However it has less successfully identified the

links between conventional institutional modes of interest aggregation (such as political parties)

and representative innovations such as Bolivia’s social movements. The result has been an

incomplete understanding of popular responses to failures of representation. Leaders and civil

societies in developing democracies are constructing a range of novel mechanisms for interest

articulation on the margins of democratic institutions. These innovations emerged due to the

shortcomings of democratic corporatism and pluralism alike, and through the representational

failures of substituted models such as ethnic multiculturalism. In both Latin America and Africa,

democratization has often perpetuated elite bargains which fragment the polity and do not reflect

the broader state of citizen preferences. A variety of democratic arrangements thus produce

surprising levels of maldistribution despite formalities of political equality and participatory

politics. As a result, we have an incomplete understanding of when participatory politics

facilitate distributional outcomes that do not correspond with even minimal democratic political

expectations or standards.

Significance of the Study

Our greatest contribution will be to offer a rigorous test of whether normative theory’s implicit

linkage between new constitutions and improved democracy is real, or just an oft-repeated

aspiration. Beyond this big question, this project links several other questions in the subfields of

democratic theory, constitutionalism/rule of law, and governance. First, policymakers and

scholars alike (Eaton 2012; Levitsky and Roberts 2011) have noted democracy’s backsliding

worldwide over the last several years, but without drawing generalized, explicit connections to

new constitutions which promulgate democracy-constraining measures under the guise of

codifying democratic principles. Second, the project would seem to side with skeptics of

institutional analysis who argue that constitutions have little innate value because they are at the

absolute disposition of their designers and their intentions (Hyden 2006). Yet we in fact expect

institutions, and the processes by which they are made, to have differential effects. Third, after

demonstrating the mixed effects of constitutions on levels of democracy, we seek to disaggregate

“democracy” into subordinate concepts. This will help ascertain how implementation of new

15

constitutions affects how citizens experience governance: through human rights and the rule of

law, economic distribution and service delivery, and behaviorally through attitudinal indicators

of satisfaction with governments and their key institutions.

Our findings should offer conclusions useful to scholars and analysts in explaining the

failure of constitutions in already democratic nations to improve levels of democracy using

statistical analysis of the CDD as well as carefully selected case study ethnographies of

constitution-founding moments. We argue that the degree of participation by citizens (either

directly or, as is much more likely, through designated representatives) is crucial in

understanding whether constitutional change improves levels of democracy. We expect more

participatory and broadly inclusive constitutional foundings to yield important shifts in political

culture, but few demonstrable improvements in terms of political rights. We expect that at least

some of our disaggregations of democracy, such as human rights and the rule of law, will have

positive relationships with implementation of new constitutions, while others, such as the

relationship between constitutions and economic performance (including distribution, public

service provision, and corruption) may be less clear.

5. CONCLUSION AND IMPLICATIONS The project lays the theoretical groundwork for analysis of constitution-making through the

academic literatures on democratization and institutionalism, relating key concepts and ideas to

new research from the field of comparative constitutionalism. One set of results will facilitate an

analysis of when constitutions promote democracy by limiting political authority and

establishing a social contract, and when they become authoritarian tools for consolidating power.

This is important not only for the large literature on democratization and institutional design, but

also for the study of comparative authoritarianism. A new generation of research breaks from

longstanding assumptions that illiberal regimes just happen to be in the early stages of

democratization, and instead argues for the possibility of authoritarian consolidation. Despite

this important shift in comparative politics, we still know little about the role constitutions play –

if any – in the rise of hybrid regimes and semi-authoritarian polities across the globe. This

project casts off the myth of constitutionalism necessarily improving democracy to understand

nuanced roles constitutions play, in deepening democracy, and in fostering authoritarianism.

A second set of results will likely challenge core assumptions about the nation-building

and civic education benefits of participatory constitution-making. A handful of single-country

studies, and our own feasibility studies, have exposed the vulnerability of such processes to elite

manipulation. These scenarios need to be examined both cross-sectionally and longitudinally,

which has only recently become a plausible research proposition, given the passage of time since

the fall of authoritarians with the Berlin Wall. If the citizen engagement that brought down

dictators has a mixed effect on the quality of constitutions and their enduring effects on political

culture and rule compliance, this could influence both donor priorities and the processes of

constitution-making deemed most effective.

Third, research now suggests that political institutions create the incentives for good

policy choices. This has been used to explain economic differences within the developing world

(Ndulu et al. 2008), as well as long-run historical divergence between the West and countries

that remain poor today (Acemoglu and Robinson 2012). While there may be some truth here,

contemporary constitution-making has differed in important ways from earlier eras, through

involvement of competing donors, assumptions about the virtues of participation, and beliefs that

human agency can prevail over adverse historical or geographical conditions. It is clear from the

16

empirical record that recent constitutions offer a mixed record in terms of political rights, and

this may be true of other areas of democratic performance. Normative democratic and legal

theories have been subjected to little empirical testing. This project will test effects of

constitutional promulgation on democracy and some of its most important substantive

components, allowing for more definitive generalizations about the role of law-making in

democratic governance. If constitutions do positively impact substantive components of

democracy, policymakers can use that information where institutional designers seek to forge

new democratic governments. Whatever the outcomes, new knowledge on the relationship

between constitutions and democracy will help scholars, analysts, and policymakers craft

institutions to cultivate democracy and promote good governance.

17

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