Constitutional Engineering

Stages

Constitution making occurs in discernible stages, some of which resemble an ordinary legislative process familiar to many drafters in consolidated democracies. A schematic design of these phases might include, in sequential order, the mobilization of interests (and counterinterests), drafting, consultation, deliberation, adoption, and ratification. These different stages interact with the possible actors who might fill the roles to create a matrix of options for designers. Afghanistan's constitution of 2004, for example, was drafted in relative secrecy by a commission with foreign advice and then sent to the president's office before deliberation and adoption at an inclusive constituent assembly, the Loya Jirga. In this model—which appears to be relatively common—each stage is potentially consequential, although it is likely that inertial forces and the power of agenda setting will apportion disproportionate influence to actors involved at earlier stages. Still, it is quite possible that early-stage actors will anticipate the preferences and needs of later stage actors, thus mitigating any sequence effects. Jon Elster has introduced the vivid distinction between upstream and downstream constraints in the process: Upstream constraints are imposed by the powers setting up the constitution-drafting body, whereas downstream constraints result from the anticipation of preferences of those involved in later stages. Ratification by public referendum, for example, is a downstream constraint that can hamstring leaders in an earlier stage who recognize that their document must ultimately obtain public approval.

Actors

Perhaps the most critical variable in constitution making has to do with which actors are included in the process. Actors involved in constitution making can include expert commissions, legislative bodies or committees, the executive, the judiciary, national conferences, elite roundtables, transitional legislatures, specially elected constituent assemblies, interest groups and nongovernmental organizations, foreign advisors, and the public itself. Public involvement has become the subject of particular attention in recent years and is urged by scholars, governments, and international organizations. But not all constitutions involve the public, and some are drafted by a handful of leaders behind closed doors.

Certainly, a central dimension on which constitution-making processes differ is the degree of public participation. Because the constitution is the highest level of lawmaking and provides the ultimate rule of recognition for lawmaking processes, it arguably requires the greatest possible level of legitimation in democratic theory. In an ideal world, one might desire universal consent over the rules of society, a standard that is obviously impractical. Higher levels of participation are presumed to function like supermajority rules, restricting the adoption of undesirable institutions and protecting prospective minorities in the democratic processes that are established. Participation thus legitimates and constrains, substituting inclusive processes for consent to make effective government possible.

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