Constitutional myths debunked as experts ask: do constitutions matter?

02 July 2012

Do constitutions matter? This was the stark question posed by the Foundation for Law, Justice and Society on 29 June at a workshop that confronted widespread scepticism surrounding the effectiveness of constitutional promises in many developing, and even well-established states.

Constitutional experts presented empirical analyses of constitutional practice around the world, drawing in large part on data compiled by the Comparative Constitutions Project, to identify the consequences of particular constitutional choices and determine exactly what factors make constitutions work.

The discussion was opened by Justin Blount'€™s assessment of popular representation in the constitution-drafting process, which explored the huge upsurge in constitution-making in the last thirty years, in which time approximately one-quarter of the world's constitutions have been adopted. This has led, arguably, to an undue emphasis on the process of constitution-making, at the expense of due concern for constitutional outcomes.

By assessing forms of participation such as ratification through referenda or representation on constitutional committees, he sought to test commonly held assumptions of constitutional designers that popular inclusion increases the legitimacy and effectiveness of constitutions in practice. He found that, counter-intuitively, popular participation often results in a constitution that invests greater power in legislatures and fewer rights for the populace.

James Melton followed with an empirical study of which factors affect the enforcement of constitutions, both in democratic and authoritarian regimes. He argued that, as expected, judicial independence is critical in upholding the rights enshrined in constitutions, but that, perhaps more surprisingly, authoritarian regimes can, in times of tranquility, prove more likely to abide by constitutional settlements than democracies. Of particular interest for constitutional designers was his finding that freedom of association is the single most significant right, which, once successfully entrenched, can lead to the adoption of many other civil and political rights.

Julio Rios took up the question of judicial independence to test a different aspect of constitutional jurisprudence -€“ the effect of constitutional courts on the unstable democracies left as a legacy of military justice and authoritarianism in Latin America. He identified three criteria for determining the independence of judges to challenge and limit the scope of military jurisdiction, namely, the appointment mechanism, the judicial tenure relative to those who appoint them, and the degree of insulation from removal.

His analysis of these variables, alongside the constitutional design and relative power of constitutional courts in Mexico and Colombia, showed the difficulty of courts in challenging the scope of military jurisdiction, which only Colombia had so far managed to partially overcome.

The role of the military came under further scrutiny in the following session, in which Jerg Gutmann assessed the constitutional rules that may reduce the likelihood of military coups -€“ in essence, to ascertain (paraphrasing Adam Przeworski) why people with guns ever obey people without them. Whilst economic conditions and regime type proved to be reliable predictors of coup attempts, the analysis found little or no evidence that constitutional design can help mitigate against such acts of armed political upheaval.

The workshop was brought to a close by Joakim Nergelius, who drew on his experience drafting amendments to the Swedish Constitution of 2011 to make a plea for constitutional modernization on a wide scale, citing the current debate over reform of the House of Lords in the UK.