Prepared for the colloquium on “ Collective wisdom ” , Coll è ge de France May 2008

1. Prepared for the colloquium on “Collective wisdom”, Collège de France May 2008 THE OPTIMAL DESIGN OF A CONSTITUENT ASSEMBLY by Jon Elster

2. MAIN CASES: • AMERICAN STATE CONSTITUTIONS • THE FEDERAL CONVENTION (1787) • THE ASSEMBLEE CONSTITUANTE (1789-91) • NORWAY 1814 • PARIS 1848 • FRANKFURT 1848 • WEIMAR 1919 • INDIA 1046 • ITALY 1946 • CZECHOSLOVAKIA 1990 • BRAZIL 1988 • HUNGARY 1990 • COLOMBIA 1991 • CANADA 1993 • SOUTH AFRICA 1996 • VENEZUELA 1999

3. Whereas both [A, B] and [A’, B’] might be viable combinations, the committee compromise [(A+A’)/2, (B + B’)/2] might not be.

4. Section II:the basic framework of interest-reason-passion. Section III: the tasks of the constituent assembly Section IV: the size and duration of the assembly Section V : the location of the assembly Section VI: the election of delegates to the assembly , Section VII: secrecy versus publicity of the proceedings of the assembly Section VIII: the internal organization of the assembly Section IX: the embeddedness of the assembly in broader upstream and downstream processes Section X: Summary

5. WISDOM • IMPARTIAL MOTIVATIONS + RATIONAL BELIEFS • IMPARTIALITY: ACROSS PERSONS AND OVER TIME • IMPARTIAL MOTIVATIONS: MINIMIZE THE ROLE OF PERSONAL OR GROUP INTEREST AND OF PASSION • RATIONAL BELIEFS: ENSURE OPTIMAL INFORMATION-GATHERING AND OPTIMAL INFORMATION-PROCESSING

6. TYPES OF CONSTITUENT ASSEMBLIES • (MOST TO LEAST DESIRABLE) • constitutional conventions (US 1787) • mandated constituent legislatures (France 1789) • self-created legislating assemblies (India 1946) • self-created constituent legislatures (Hungary 1990)

7. ARGUMENT FOR MIXED ASSEMBLIES • Need for legislation+ problem of having 2 parallel assemblies • ARGUMENTS AGAINST MIXED ASSEMBLIES • A constituent legislature might write a legislature-centered constitution • Path-dependency (decisions by the assembly as legislature might affect its decisions as a constituent assembly) • Risk of logrolling of legislative and constituent decisions • Either governability (needed for an assembly that is to choose a government) or representativeness (needed for an assembly that is to write a constitution) will suffer

8. ARGUMENTS FOR LARGE ASSEMBLY • REDUCE LOGROLLIN AND BARGAINING • REDUCE STRATEGIC VOTING • ENHANCE DIVERSE REPRESENTATIONCONDORCET’S JURY THEOREM? • ARGUMENTS FOR SMALL ASSEMBLY • ENSURE SECECY • PREVENT CACOPHONY • PREVENT INFORMATIONAL FREE RIDING

9. The duration of the assembly: time limit desirable The location of the assembly: far from major urban agglomerations and concentrations of troops

10. ELECTIONS TO THE CONSTITUENT ASSEMBLY To ensure diversity, PR with low or no threshold: Not to represent the interest of minorities, but to represent their knowledge. Knowledge of what? (a) Of where the shoe pinches. (b) Of how to mend the shoe (Scott Page). Three sad examples: How the French Revolution (in its violent manifestations), the rise of Hitler and the break-up of Czechoslovakia may have been caused by the desire for a representative assembly

11. SECRECY VERSUS PUBLICITY IN FAVOR OF PUBLICITY: REDUCES THE SCOPE FOR PRIVATE-INTEREST BARGAINING MAY BE REQUIRED IF THE ASSEMBLY IS LARGE IN FAVOR OF SECRECY REDUCES THE ROLE OF PASSIONS (VANITY AND FEAR) IMPROVES THE QUALITY OF ARGUMENT IF LIMITED TO ISSUES ON WHICH INTEREST HAS NO PURCHASE

12. INTERNAL ORGANIZATION OF THE ASSEMBLY • UNICAMERAL OR BICAMERAL? BICAMERALISM MAY BE NEEDED TO MAKE THE ASSEMBLY RESPECT ITS INTERNAL RULES. • NO BOUND MANDATES • PUBLIC OR SECRET VOTING?IF THE DEBATES ARE PUBLIC, VOTING SHOULD BE SECRET, TO INSLUATE THE FRAMERS AGAINST PASSION. ADDITIONAL BENEFIT: WITH SECRET VOTING, LOGROLLING IS IMPOSSIBLE

13. Minimizing the role of interest. To exclude logrolling, bargaining and strategic voting, assuming these to be undesirable, the size of the assembly should not be too small. To exclude logrolling, one might also impose secret voting. To exclude logrolling between legislative and constituent issues, the assembly should only have the task of writing the constitution. Bound mandates should be excluded. The assembly should focus on issues of broad constitutional design, with regard to which individual or group interests are neutral. To prevent the more patient parties from gaining an unfair bargaining advantage, the assembly should work under a time limit. To exclude a self-enhancing “legislature-centric” bias, the assembly should not at the same time serve as an ordinary legislature.

14. Minimizing the role of passion. To exclude audience pressure that might bring delegates under the sway of emotion (vanity or fear), the assembly should debate in secret or, alternatively, vote in secret. An isolated location of the assembly may serve the same end. To present the assembly from giving in to impulses, a bicameral organization might or might not be needed.

15. Maximizing epistemic quality. (i) Optimal information gathering. Elections to the assembly should be organized to ensure diversity and representativeness. The idea – close to the eighteenth-century notion of “virtual representation” - is to have many epistemic perspectives and a variety of experiences represented, not to have each of them represented in proportion to its numerical importance in the electorate. (ii) Optimal information processing. To prevent free-riding on the information of others, the assembly should not be too large. The rules of debating should favor exchanges rather than prepared speeches. Speaking should be viewed as a function serving the needs of the assembly, not as an individual right.