Elster-ForcesMechanismsConstitutionMaking-1995
Page 1: Title and Publication Information
Title: Forces and Mechanisms in the Constitution-Making Process
Author: Jon Elster
Source: Duke Law Journal
Date: November 1995, Vol. 45, No. 2
Pages: 364-396
Publisher: Duke University School of Law
JSTOR URL: Duke Law Journal
Download Date: January 15, 2025
Page 2: Introduction to the Essay
The Essay explores how new constitutions are created and emphasizes the mechanics of constitution-making.
Literature Gap:
Existing literature tends to focus on specific constitution-making episodes or comparative constitutional law rather than offering a comprehensive analysis of the process itself.
No significant book or article has addressed constitution-making as its own distinct subject.
Influential Scholars:
Acknowledges historians and theorists like Stephen Holmes, Claus Offe, and others who have contributed to this field of study.
Page 3: Constitution-Making Dynamics
Gaps Identified:
There is a lack of normative discussions surrounding the design of the constitution-making process as distinct from the outcome of the constitution itself.
Key Concepts:
Focus on constraints, individual goals of constitution-makers, and aggregation of interests.
Types of Constitutions:
Constitutions can be written or unwritten, with discussions of de facto practices like constitutional conventions.
Page 4: Defining Constitutions
Characteristics of a Constitution:
Set of laws collectively deemed constitutional, often more fundamental than ordinary legislation.
Distinction based on stringent amendment procedures.
Examples of differing country practices (New Zealand vs. Israel) illustrate complexities in constitutional criteria.
Forms of Governments:
Some countries function without a single written constitution but through unwritten conventions.
Page 5: Defining Organic Laws
Organic laws in some countries may not regulate fundamental aspects of political life, despite their designation as "organic".
Constitution & Elections:
Examines how election laws intersect with constitutional provisions, particularly in historical contexts like the Fifth French Republic.
Page 6: Waves of Constitution-Making
Historical Waves Identified:
Modern constitution-making has followed distinct waves starting from the late 18th century.
Seven Waves:
Early American state constitutions (1780-1791).
Post-1848 European revolutions.
Post-World War I constitutions in new states like Poland and Czechoslovakia.
Post-World War II constitutions in defeated states (Japan, Germany).
Independence movements from colonial rule (1940s-1960s).
Democratic transitions in Southern Europe (mid-1970s).
East European countries post-1989.
Page 7: Motivating Factors
The introduction of constitutional change is often driven by a crisis or significant socio-political events.
Triggers for Constitution-Making:
Social/economic crises.
Revolutionary changes.
Regime collapse.
Defeat in war, and other significant state events.
Page 8: Characteristics of Constitution-Making
Close analysis of the contexts in which constitution-making occurs provides insights into mechanisms driving these processes.
Role of Institutional Contexts:
The link between crises, political pressures, and the resulting frameworks of new constitutions.
Page 9: Historical Contexts and Analysis
The emergence of constitutions is often a result of specific historical contexts and pressures, including fears of regime collapse or political instability.
Page 10: The Constitution-Making Process
Dynamics of the Process:
Examines constraints at various levels throughout the constitution-making process, distinguishing between constraints placed on assemblies and those related to ratification.
Page 11: Upstream and Downstream Constraints
Types of Constraints:
Upstream: Constraints imposed before assemblies deliberate.
Downstream: Constraints related to ratification, reflecting external institutional influences.
Page 12: Actors in Constitution-Making
Recognizes the involvement of various upstream actors influencing the constitutional drafting process, such as external powers or political figures.
Page 13: Interactions and Impacts on Decision Making
Constitution-makers often face pressures balancing between individual agency and external directives.
Page 14: Examining Motivations and Assumptions
Desires and Beliefs:
Motivation behind framers' decisions can reflect both personal and group interests.
Complex linkages between individual and collective goals affecting constitutional outcomes.
Page 15: Exploring Personal and Group Interests
Interest Types:
Personal interest often plays a lesser role compared to group interest, especially in federal contexts.
Illustration through various historical contexts (e.g., U.S. Federal Convention).
Page 16: Institutional Interests at Play
Institutional Interests:
Powers favored within assemblies may influence constitution structures, as seen in constitutions from Eastern Europe and elsewhere.
Page 17: Impact of Institutional Dynamics
Institutional preferences can lead to major power consolidations within parliament versus executive bodies.
Page 18: Emerging Patterns of Power Dynamics
Predictions about how assemblies might operate, including constructs based on pre-established procedural norms.
Page 19: Legislative Structures and Preferences
Majority vs. Proportional Representation:
Disparities in electoral mechanics influence representation and governance.
Page 20: Balancing Institutional Interests
Recognizing the delicate balance necessary during constitution-making to foster cooperative governance.
Page 21: Addressing Potential Pitfalls in Constitution-Making
Reflecting on passions that may sway decision-making and breed challenges in rational governance discussion.
Page 22: Mechanisms of Self-Limiting Behavior
Interplay of Passions and Reason:
When constituents act, tensions arise between intellectual considerations versus emotional responses.
Page 23: Rational Actions and The Role of Social Dynamics
Outcomes of Hidden Influence:
Recognizing how interests swap influence can lead to varied constitution-making outcomes.
Page 24: Preferences and Their Aggregation
Discusses how collective preferences evolve through both public or private discussions.
Page 25: Dynamics of Decision-Making and Critical Choices
Looks at how major decisions are made in the face of complex interest alignment.
Page 26: The Role of Threat-Based Bargaining
Constitutions often crafted within power dynamics created by external threats or pressure situations.
Page 27: Analysis of Historical Assembly Decisions
Draws on historical instances to illustrate how pressures shaped governing frameworks.
Page 28: The Role of External Dynamics and Influence
Consideration of how external powers can steer or constrain internal decision processes.
Page 29: Conclusion on the Process's Complexity
A synthesis of key dynamics and complexities in constitution-making informed by historical context and institutional constraints.
Page 30: Final Observations on Constitutional Dynamics
Concludes by emphasizing the dual challenges in constitution-making: external pressures and internal desires.
Page 31: Implications of Current Theory and Practice
Advocates for adjustments in future constitution-making to address identified inefficiencies and biases.
Page 32: Addressing Framework and Procedures
Suggests normative principles for effective assemblies, encouraging structure to reduce challenges from institutional pressures.