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:

  1. Early American state constitutions (1780-1791).

  2. Post-1848 European revolutions.

  3. Post-World War I constitutions in new states like Poland and Czechoslovakia.

  4. Post-World War II constitutions in defeated states (Japan, Germany).

  5. Independence movements from colonial rule (1940s-1960s).

  6. Democratic transitions in Southern Europe (mid-1970s).

  7. 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.