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The processes, principles and goals of c onstitutional design

The processes, principles and goals of c onstitutional design. Class #2 - Gov 1109 . Class Structure. Why are constitutions important? Processes of constitutional design Inclusive or elite-driven (Ginsburg, Samuels) Principles of constitutional design

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The processes, principles and goals of c onstitutional design

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  1. The processes, principles and goals of constitutional design Class #2 - Gov 1109

  2. Class Structure • Why are constitutions important? • Processes of constitutional design • Inclusive or elite-driven (Ginsburg, Samuels) • Principles of constitutional design • Power-concentrating or power-sharing? (Lijphart) • Nine choices • Contrasting case-studies • Majoritarian democracy: Case study of the UK May 2005 and 2010 elections • Consensus democracy: Case study of the Swiss 2003 election • Discussion • What would be the arguments for adopting either type of constitutions in Iraq, Afghanistan, Sudan, and Nepal?

  3. Questions • In designing new constitutions for Afghanistan, Iraq, Sudan and Nepal, what are the pros and cons of each type of democracy? • What would be the major consequences of these institutional choices for stability and effectiveness?

  4. Required readings • PROCESSES: • Tom Ginsburg, Zachary Elkins, and Justin Blount. 2009. ’Does the Process of Constitution-Making Matter?’ Annual Review of Law and Social Science 5: 201-223  • PRINCIPLES: • ArendLijphart. 2004. ‘Constitutional design for divided societies.’ Journal of Democracy 15(2): 96-109 • CASE STUDIES: • Kirsti Samuels. 2007 Constitution building processes and democratization: A discussion of twelve case studies. International IDEA

  5. Additional useful resources • Comparative Constitutions Project • http://netfiles.uiuc.edu/zelkins/constitutions • International Constitutional Law Documents • http://www.uni-wuerzburg.de/law/index.html • International IDEA • www.IDEA.int

  6. 1. Why are constitutions important?

  7. I: Why are constitutions important? • Constitutions structure patterns of legitimate authority within nation-states e.g. • Electoral rules determine the number of parties in parliament and in government • Executive-legislative relations influence capacity for effective governance • Federalism determines vertical power-sharing • Constitutions embody symbolic national goals and aspirations • Negotiated constitutional settlements integral to peace-building and reconciliation process • In Bosnia, Cambodia, South Africa, Afghanistan, Northern Ireland, Iraq, Nepal, Sudan • Potential for practical policy reforms e.g. • Electoral reforms in Italy, Japan, New Zealand, Venezuela • Constitutional change in Bolivia, UK, Turkey

  8. What are constitutions? • The body of highest-order legal rules and principles that specify how other laws are to be produced, applied, enforced and interpreted • What counts? • A single Constitutional document • Supplementary charters of human rights • Or a series of basic laws and unwritten conventions • Major contrasts can exist between de jure Constitutions and de facto constitutions

  9. Constitutional Change • “In any given year…some 4 or 5 constitutions will be replaced, 10-15 will be amended, and another 20 or so proposals for revision will be under consideration.” • Worldwide, the average lifespan of a constitution is 17 years • Ginsberg, Elkins and Blount 2009 p202

  10. Lifespan Duration of Constitutions Source: Comparative Constitutions Project

  11. Types of Constitutional Change • State building • Post-conflict peace settlements • E.g. Afghanistan constitution • State reform • Transition from autocracy • Eg Choice of electoral system in post-Communist states • Common in established democracies • Revision or amendment of existing arrangements within a limited set of parameters/options • eg UK green paper “The Governance of Britain” (2007)

  12. Who decides? Participation

  13. Does inclusion matter? • Used to be elites; trend is growing use of public participation in constitution making (Ginsburg et al Fig 1 p207) • Processes involving a referendum produce constitutions that are more likely to have virtually every category of right..more likely to ensure universal suffrage, secret ballot, use of referenda. • More inclusive processes may produce more democratic outcomes • Source: Ginsburg, Elkins and Blount (2009) p218

  14. 2. Principles of constitutional design

  15. II: Principles of constitutional design • ArendLijphart • The Politics of Accommodation (1968) • Democracy in Plural Society (1979) • Democracies (1984) • Electoral systems and party systems (1994) • Institutional design in new democracies (1996) • Patterns of Democracy (1999) • “Constitutional design for divided societies” (2004) • Thinking about Democracy (2008)

  16. Choices for divided societies • Legislative electoral system • Proportional representation eg party list • Mixed eg mixed member proportional • Majoritarian – eg Single member plurality • Pros and cons? • Within PR • Open or closed lists • Size of multimember districts • Degree of proportionality • Pros and cons?

  17. Choices 3. Parliamentary or presidential government? • Parliamentary executives have collegial executive • Avoid zero-sum majoritarian elections • Avoid executive-legislative stalemate • Avoid rigidity • Pros and cons?

  18. Choices 4. Power-sharing executive • Collegial cabinets • Mandates specific group representation • Eg Belgium • Party ministers on proportional basis for those with 5%+ seats • E.g. South Africa

  19. Choices 5. Cabinet stability • No-confidence vote • Fixed term parliaments • Constructive vote of no-confidence 6. Head of state • Ceremonial role eg monarchy • If selected • Limited powers • Appointed by multiple actors

  20. Choices 7. Federalism and decentralization • Second federal chamber over-represents less populous units • Federal boundaries? • Size of federal states? 8. Non-territorial autonomy • Eg minority rights over education 9. Power-sharing in appointed positions • Civil service, judiciary, police

  21. Types of democratic constitutions

  22. Consociational democracy • Lijphart (1968) The Politics of Accommodation • Netherlands exemplified ‘pillorized’ divided society • Yet there was stable democracy and elite consensus • Why? Constitutional arrangements • Executive power-sharing/grand coalition • Minority veto in government • Proportional representation of all major groups in elected/appointed office • Cultural autonomy for groups • Model for other divided (plural) societies? • E.g.Belgium, Switzerland, Lebanon, Cyprus

  23. Majoritarian democracy Goals… government accountability and transparency of decision-making single-party executives, effective opposition parties, vigorous parliamentary debate, and decisive elections. Yet dangers of elective dictatorship, permanent majorities, lack of checks and balances. Consociational democracy Goals… consensual decision-making, bargaining and compromise multiple parliamentary parties, each with a stake in coalition government, and dispersed decision-making processes. Yet dangers of ineffective governance, extreme multiparty fragmentation, lack of accountability. Normative values

  24. Consensus democracy matters • For the inclusion of minority parties • For the protection of minority interests • For women’s representation • For public policy, economic outcomes, and welfare states

  25. The logical sequence of consociational theory PR electoral systems or reserved seats Election of ethnic minority parties Peaceful democratic consolidation Greater support within minority communities Plural societies Federalism & decentralization Election of ethnic minority parties Does the logic make sense? Criticisms?

  26. Potential criticisms? • For constructivists, ethnic divisions have meanings shaped by political structures and elites. Power-sharing regimes can thereby freeze/reinforce ethnic cleavages (Donald Horowitz) • Eg Bosnia-Herzegovina • By contrast, majoritarian elections force vote-pooling across groups and bridging appeals (Ben Reilly) • Not the only outcome: some peace settlements are negotiated, others result from outright victory • Majoritarian solutions may be more effective in restoring fragile states. Sequencing process in peace settlements? (Mansfield and Snyder)

  27. III: Majoritarian institutions Case study: UK May 2005 and 2010 general elections

  28. Institutions: UK 1945-1997 • Unwritten constitution – Magna Carta etc. • One-party cabinet government since 1945 • Collective responsibility, primus inter pares • Two-party parliamentary competition • Labour and Conservative in govnt and opposition • Programmatic & disciplined parties • Mass-branch party organizations, few independents, few backbench rebellions, manifesto program • Parliamentary sovereignty (no Supreme Court) • Unitary state (local government administration) • Bicameral parliament but Commons predominant • Plurality FPTP elections – exaggerates votes: seats for winner

  29. UK Ballot paper

  30. June 2005 % of Votes % of seats Ratio Number of seats Labour 35.2 54.9 1.56 355 Conservative 32.3 30.4 0.94 197 Lib Dem 22.0 9.5 0.43 62 SNP 1.5 0.9 0.60 6 PC 0.6 0.5 0.83 3 Other 8.4 3.4 0.40 23 Labour Maj. 2.9 24.5 66 Total 100 100 659 2005 UK election result Source: Pippa Norris & Chris Wlezien Ed. Britain Votes 2005 (OUP 2005)

  31. 2010 UK election result

  32. UK House of Commons 1900-2010

  33. ‘Winner’s bonus’ UK Note: The votes-seats ratio is calculated as the percentage of UK seats divided into the percentage of UK votes for the governing party. A ratio of 1.0 would indicate no electoral bias for the government. Source: Pippa Norris & Chris Wlezien Ed. Britain Votes 2005 (OUP 2005)

  34. UK % Vote 1900-2010 Source: Pippa Norris ‘Elections & public Opinion’ The Blair Effect II: The Labour Government 2001-2005 Edited by Anthony Seldon and Denis Kavanagh Cambridge University Press Updated

  35. UK % Seats 1900-2010 Source: Pippa Norris ‘Elections & public Opinion’ The Blair Effect II: The Labour Government 2001-2005 Edited by Anthony Seldon and Denis Kavanagh Cambridge University Press Updated

  36. Why exaggerative bias for winner? 1. Malapportionment • Unequal size of electorates in each seat • Decline of urban pop/Labour constituency • Delayed effect of boundary changes 2. Differential turnout • Lowest in safe Labourseats

  37. Geography also matters:UK 2005 Election Seats Source: Pippa Norris Britain Votes 2005 (OUP 2005)

  38. Simulated seats GB 2010

  39. Moderate party competition Source: Comparative Manifesto Project/ Judith Bara EPOP 2005

  40. Breakdown of classic ideal type since 1997 • Federalism: • Devolution for Scotland and Wales • Northern Ireland assembly • Elected Mayor/Assembly for London • Electoral reform: • Party list PR for Europe • AMS for Scotland/Wales • STV for Scottish local elections • May 2011 referendum on AV for Commons • House of Lords reform • Written Bill of Rights- Euro. Convention • Use of referendums

  41. Advantages and disadvantages?

  42. IV: Consensus democracy Switzerland

  43. Swiss democracy • Pop 7.4m • Plural cleavages • Religion (46% Catholic, 40% Protestant) • Language • (65%German, 10% Italian, 18% French), • Region/canton • Class ($32,800 per capita PPP 2003) • Social divisions, yet elite consensus? • Stable power-sharing coalition but lack of accountability?

  44. Swiss democracy • Since 1848, Switzerland has been a confederation, currently with 26 cantons and 2873 communes. • The Government (Federal Council) has 7 members elected by parliament for 4 years • From 1959-2003, ‘magic formula’ 2 seats each for the FDP, CVP, and SPS, and 1 seat for the SVP. • October 2003, 2 seats given to SVP, 1 CVP • Annual president rotates as primus inter pares

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