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Thinking about Constitutionalism at the Start of the Twenty-First Century

Author(s): Donald S. Lutz
Source: Publius, Vol. 30, No. 4, Essays in Memory of Daniel J. Elazar (Autumn, 2000), pp. 115-
135
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 Thinking About Constitutionalism at the
Start of the Twenty-FirstCentury
Donald S. Lutz
Universityof Houston

At the beginning of a new century,constitutionaldemocracyseemsascendantalmostto thepoint of

a universal inevitability. Whatfollows is in part a cautionarytale and in part an assessmentof where
we now stand in one of history'smost hopeful long-termtrends. An examination of the diffusion of
constitutionaldemocracy,and ofgeneraltrendsin cross-nationalconstitutionaldevelopments since World
WarII, leads to a considerationof themannerand extentto whichmodernconstitutionalismembodiesa
recapitulation of human cultural and political evolution. The culture-power-justicenexus that
characterizesmodernconstitutionalismwasfirst dissectedbyMontesquieu,and an examination of his
approachto constitutionalismprovidesa useful windowinto whywe developedthepolitical technologyof
constitutionaldemocracyand why thefuture of this technologyis not aforegoneconclusion.

ThomasJefferson is famous for his notion that every generation should

engage in "revolution" to preserve the blessings of liberty. The notion of
"revolution" in use then, contrary to ours today, did not connote a violent
break with the past but a thoughtful evolution away from the present. The
early American state constitutions spoke of a "frequent recurrence to fun-
damental principles" as the bulwark of freedom and constitutional govern-
ment. The framers of the United States Constitution included an
amendment process at the end, not as an afterthought, but as the embodi-
ment of this frequent recurrence to fundamentals, this permanent
[r] evolution.
"Recurrence" does not mean "the reestablishment of' or "adherence to
original intention." The recent debate over the intentions of the American
founders has been far from sterile, but that discussion is not what is meant
here. Rather, "recurrence to fundamental principles" involves the action
of going back mentally and in discourse to recapture the principles that
inform and animate the constitutional system, reconsider these principles
in the light of altered circumstances and commitments, and reaffirm in
contemporary language and symbols what still speaks the truth, or to alter
and formally ratify modifications or additions to these principles.
The United States stands in need of such a recurrence in part, ironically,
because the American political system seems to have triumphed in the face
of a half century struggle with its political antithesis-the non-democratic,
anti-constitutional Soviet Union. However, the long struggle with commu-
nism has warped America's constitutional democracy in ways that have yet
to be analyzed, and left the country with a political vocabulary that is too
often descriptively inaccurate and theoretically misleading. In short, the
? Publius: TheJournal of Federalism 30:4 (Fall 2000)
115
116 Publius/Fall 2000

very ability to engage in the kind of discourse needed for a recurrence to

fundamental principles is impeded by the imprecision of terms brought by
success. In part, this results from inattention, but it also results from the
assumption that because Americans knew what they did not like about their
Cold War adversary, they had a clear idea of what they were defending.
However, soviet communism is so far removed from constitutional democ-
racy that what stands in opposition is everything from non-communist
authoritarianism to the virtual anarchy of radical laissez-fairegovernment.
The demise of communism has brought with it not only the need to
reassess American constitutional democracy, but also a resurgence of con-
stitutional democracy elsewhere that can be studied for use in America's
own conversation. In the widespread recurrence to fundamental principles
throughout eastern and central Europe, as well as in other parts of the
world (especially Latin America) where the end of the Cold War allows
such recurrence to proceed relatively free of external meddling in internal
affairs, we are witnessing the kind of revolution envisioned by Jefferson.
For example, discourse elsewhere on the nature and importance of civil
society has led to a renewed discussion in the United States about the de-
cline of civil society and the manner and extent to which Americans should
alter civic education.
Books and articles concerning constitutionalism and constitutional de-
sign have proliferated, and the generation of new comparative schemes for
categorizing political systems is a growth industry.1 There is also a resur-
gence in the literature declaring the demise of the nation-state. The over-
all picture that emerges is a twenty-first century with more and more
democratic nation-states linked by world markets in capital, goods, and la-
bor that make democratic nation-states less and less relevant. One thesis to
be implicitly argued is that the contrary is true. The continued growth of
world markets hinges precisely on more effective local control by constitu-
tional democracies. Put another way, recent economic difficulties in Asia
underscore the importance of the rule of law and transparent political and
economic processes in addition to institutions of popular sovereignty, as
opposed to political corruption, arbitrary or authoritarian government, or

'The literature is so large that only a few can mentioned to exemplify its diversity. Daniel J. Elazar,
Covenantand Constitutionalism(New Brunswick, NJ: Transaction Publishers, 1998); Bernard Grofman and
Donald Wittman, eds., The FederalistPapers and the New Institutionalism (New York: Agathon Press, 1989);
Jan-Erik Lane, Constitutionsand Political Theory(New York: Manchester University Press, 1996); Arendt
Lijphart and Carlos H. Waisman, eds., Institutional Design in New Democracies:Eastern Europe and Latin
America (Boulder, CO: Westview, 1996); Dennis C. Mueller, ConstitutionalDemocracy(New York: Oxford
University Press, 1996); Carlos Santiago Nino, The Constitutionof DeliberativeDemocracy(New Haven: Yale
University Press, 1996); Martin H. Redish, The Constitutionas Political Structure(New York: Oxford Univer-
sity Press, 1995); Matthew Soberg Shugart and John M. Carey, Presidentsand Assemblies:ConstitutionalDe-
sign and ElectoralDynamics (New York: Cambridge University Press, 1992); R. Kent Weaver and Bert A.
Rockman, eds., Do Institutions Matter?(Washington, DC: The Brookings Institution, 1993); and Giovanni
Sartori, ComparativeConstitutionalEngineering(London: MacMillan, 1994).
Thinking about Constitutionalism 117

centralized elite decision-making. Rule of law and popular sovereignty vir-

tually define constitutional democracy. In the long run, international mar-
kets and the continued health and spread of constitutional democracy are
intertwined. Even technological innovations associated with computer net-
works depend upon, as well as enhance the spread of, constitutional de-
mocracy.
One way of indicating the importance of peaceful local control might be
to reproduce an e-mail message I received at some point since 1985. In
order to dramatize how unrealistic it is to see world markets and technol-
ogy as replacing the need for constitutional democracy, I will not indicate
where the message originated.

Apologize for slow response-electricityoff and on every day. Cannot at-

tend your conference because it is difficultto travel,and I must staywith
the familyin case more seriousviolence spreads. There is shooting in the
streets at night, and people have been disappearing. Constructionand
repairshave stopped, money seems to have fled, and deliveryof food is a
problem. There is almost nothing moving in or out of the city.

This person and his family are now safe in another country. Was he
keying the message from Somalia, Eritrea, Indonesia, Uganda, Panama,
southern Mexico, Sri Lanka, Bosnia, Zaire, Haiti, Cambodia, Sierra Leone,
Peru, Afghanistan, Burma, Colombia, Chile, Brazil, Moldavia, Venezuela,
Algeria, Armenia, Azerbaijan, Ethiopia, Argentina, Nigeria, Iraq, Arme-
nia, Kuwait,Tadjikistan,Yemen, Sudan, Morocco, Algeria, Albania, Bulgaria,
Nigeria, Angola, Serbia, Nicaragua, Zaire, Congo, Rwanda, Chechen,
Kosovo, Lebanon, or Kashmir? It could have been from any of these places,
but it was in fact from another. That there are still so many possible places
left that fit the description in the e-mail message, even after the lengthy list,
is a measure of the extent to which the assumptions of both (1) an auto-
matic, effective sovereign operating everywhere and (2) a benign interna-
tional organizations/multi-national corporation/free trade/internet/
unrestricted flow of goods, capital, and people "world order" replacing the
system of nation states are more than wildly premature.
The breakdown of order-the absence of an effective local power-make
trade, financial markets, and even the internet non-functional. Nation-
states, or the local equivalent, remain the fundamental requirement for
these world markets and networks to function. Indeed, the need for local
order has been behind the proliferation of nation-states and the framing of
constitutions in order to create at least the semblance of what passes for
local sovereignty. At the same time, the presence and operation of these
international networks create pressures both for effective local sovereignty
and, in the long run, for the spread of constitutional democracy. The
short-lived "Asian model," although at first very successful economically,
118 Publius/Fall 2000

illustrated the power of these pressures as the countries supposedly em-

bodying this new model found themselves vulnerable to rapid economic
shifts in the relative absence of true constitutional democracy.
THE DIFFUSION OF CONSTITUTIONAL DEMOCRACY
Consider the following graph (Figure 1). Over the past two centuries, we
have moved from a situation where almost no country had a written consti-
tution to one where almost every country has one. A gradual, fitful process
from 1800 to 1900 increasingly accelerates after 1900 until it finally slows
down as there are fewer and fewer countries remaining without a written
constitution. Comparison with the historical curve for constitutional de-
mocracies is instructive. The disjunction between the two curves indicates
how much more difficult it is to develop a constitutional democracy than it
is to adopt a written constitution.2 Still, it is remarkable how the lower
curve tracks the upper one with a lag of one century or less. It is quite
possible that once a country writes down a set of rules, even though the
rules are merely window dressing, these rules over time create among the
people an expectation of reasonable compliance that amounts to a self-
fulfilling prophecy. In day-to-dayoperations, the leaders of non-democratic
countries often use most of their written constitution as a convenient means
for coordinating behavior and minimizing inefficiencies. Over time, it can
be quite natural for a people to ask why 90 percent of a constitution is
followed and not the other 10 percent. Perhaps there is a connection be-
tween continued economic development and constitutional democracy, or
increasing trade between nations is the driving force behind the worldwide

Figure 1
Approximate Number of Countries with (A) Written Constitution
(B) Requirements Met to be a Constitutional Democracy

Number of
Countries
200
180
160
140
120
100
80
60
40
20
0O
1800 1820 1840 1860 1880 1900 1920 1940 1960 1980 2000
Year

2One might want to compare this curve with one developed by Robert A. Dahl in his On Democracy
(New Haven: Yale University Press, 1998), p. 8.
Thinking about Constitutionalism 119

recurrence to fundamental principles. Although this is all speculation rest-

ing on unsystematic anecdotal evidence, the similarity between the two
curves is suggestive, and demonstrates the potential for continued diffu-
sion of constitutional democracy.
What are the prospects for such diffusion? For our purposes, in order
for a nation to be considered a functioning constitutional democracy, it
must have achieved the following performance criteria.3
1. A constitution that is followed rather than ignored;
2. A constitution is based on and supportive of the rule of law;
3. Free elections involving essentially all of the adult population;
4. Two or more competitive parties; and
5. At least one peaceful transfer of power between competitive
parties, or between significantly different party coalitions,
through the free electoral process, or else confidence that an
electoral outcome that would replace the currently dominant
party or party coalition would be accepted peacefully.
Group B countries (see Table 1) have not yet fulfilled these criteria to
everyone's satisfaction, but are still viewed by many as constitutional de-
mocracies. Events during the past decade in Estonia, Korea, Latvia,
Lithuania, Mexico, the Philippines, South Africa, Taiwan, and Uruguay have
been especially reassuring in this regard. Within the next decade, at least
seven nations in Group B are likely to move into Group A, and Group B will
add six or seven countries not now on the list. There is also a good possibil-
ity that three or four countries now in Group B will cease to be considered
functioning constitutional democracies by anyone. Group C countries are
generally considered constitutional democracies, but because of their small
size, they are usually ignored by scholars in comparative politics.4
Altogether, there were at least 62 constitutional democracies with more
than 2.2 billion people functioning in 2000, although one could argue that
the actual number is about seventy. The countries in Group C are usually

3The "performance criteria" used here might be compared to other criteria for defining an opera-
tional democracy. See, for example, Dahl, On Democracy,pp. 84-86; Larry Diamond, DevelopingDemocracy:
TowardConsolidation (Baltimore: The Johns Hopkins University Press, 1999), pp. 7-13; and Samuel P.
Huntington, The Third Wave:Democratizationin the Late TwentiethCentury (Norman: University of Okla-
homa Press, 1991), pp. 5-13. Huntington's criteria are closest to those used here, and his approach is
typical of the electoral perspective most used by political scientists. Dahl and Diamond provide useful
critiques of such an approach.
4Counting democracies is an exercise heavily conditioned by the criteria used. Dahl counts 56 in his
On Democracy(p. 198) as of 1998, which is not much different from the 62 counted here. Most lists of
democratic countries use looser criteria, which usually produce a count exceeding 100. Some count as
few as 39. The list produced here, then, is toward the conservative end of such counts, especially since
the number 62 includes the many "microdemocracies" often ignored. The relatively conservative count
results from incorporating some of Dahl's and Diamond's critiques into Huntington's electoral criteria in
the criteria used here.
120 Publius/Fall 2000

Table 1
Functioning Constitutional Democracies in 2000

Group A: Current Major Constitutional Democracies-32 countries

Argentina Costa Rica India Papua New Guinea
Australia Czech Republic Ireland Portugal
Austria Denmark Israel Poland
Belgium Finland Italy Spain
Brazil France Japan Sweden
Canada Germany Netherlands Switzerland
Chile Greece New Zealand United Kingdom
Colombia Hungary Norway United States

Group B: New or Renewed Constitutional Democracies-generally viewed as at or near the

performance criteria-21 countries
Benin Korea (South) Romania
Bolivia Latvia Slovenia
Botswana Lithuania South Africa
Dominican Republic Mexico Taiwan
El Salvador Nicaragua Turkey
Estonia Panama Uruguay
Jamaica Philippines Venezuela

Group C: Current Small Constitutional Democracies-with a population of less than 1.5

million people-30 countries
Antigua and Barbuda Iceland St. Kitts & Nevis
Bahamas Kiribati St. Lucia
Barbados Liechtenstein St. Vincent
Belize Luxembourg San Marino
Cape Verde Malta Sao Tome & Principe
Cyprus (Greek) Marshall Solomon Islands
Dominica Mauritius Trinidad & Tobago
Fiji Micronesia Tuvalu
Grenada Nauru Vanuatu
Guyana Palau Western Samoa

not included in comparative studies because they are considered too small
and likely to skew empirical studies in ways that are not helpful. However,
size is not an unimportant variable for constitutionalism where the first
rule is to match the constitution to the people and their circumstances.
This rule requires that we include the smaller democracies in order to look
for tendencies related to size of territory and/or population. It is also help-
ful to reconsider the countries in Group A in this regard. Countries with
roughly five to ten million people-such as Austria, Belgium, Costa Rica, the
Czech Republic, Denmark, Finland, Greece, Hungary, Ireland, Israel, Nor-
way, Portugal, Sweden, and Switzerland-probably have more in common
with the democracies in Group C than with many of the others in Group A.
Nor will it do to ignore the other extreme in size. Countries more than
500,000 square miles in extent and/or with more than 75 million people
have a strong tendency toward federal or quasi-federal structures. For this
reason, it may be no more helpful to consider France a model for the gov-
ernment of a united Europe than to consider Iceland a good model for
Thinking about Constitutionalism 121

France, or the United States for Venezuela. Put another way, is it immate-
rial for Germany that it is smaller in geographical size than Paraguay; or for
Mexico, that it is larger in extent than France, Germany, Italy, Great Brit-
ain, and Spain combined; or that the European country with the largest
territory (France) would be the eleventh largest country in the Americas
(less than half the size of Bolivia); or that Portugal, Switzerland, the Neth-
erlands, Belgium, and Austria are not only all smaller in geographical size
than Guatemala, Honduras, and Nicaragua, but also smaller than Cuba?
Perhaps none of this matters, and because of modern communications and
technology, the problems of governance for Russia, Indonesia, and India
in fact do not materially differ from those of Sweden, Italy, Costa Rica, or
Ireland-at least not for anything related to size. Perhaps this is the case,
but it is unlikely.5 Invariably, matters of size are subsumed under "diver-
sity" of some sort, which implies, improbably, we can assume that a given
set of institutions is appropriate for a Brazil of 20 million or 200 million
people as long as relative diversity remains constant. The problem here is
that it seems highly probable, given the evidence to be gleaned from hu-
man history that for a population to increase significantly, it requires the
introduction of increasing diversity of all sorts, although there are a few
continuing exceptions such asJapan. However, certain constitutional forms
seem tailored for dealing with sensational increases in diversity without sig-
nificant institutional change (e.g., federal systems).
In our recurrence to fundamentals, we will not assume that any variables
or aspects of life are immaterial, although initial study may lead us to con-
clude a greater importance for some than for others, and not always the
ones we now too easily take for granted. The growing number of constitu-
tional democracies, and the diverse mixture of variables they contain, fi-
nally allows us to study constitutional democracy the way Aristotle studied
constitutionalism in general. The stage we have recently reached in the
history of constitutional democracy not only allows us to study the phe-
nomenon, it also requires that we do so. The nation-state is not going away.
Every new development cited by those who see a more highly intercon-
nected future world requires the successful functioning of something that
resembles the nation-state, and seems to favor the form of nation-state we
term a constitutional democracy. The development of supra-national orga-
nizations still rests on "local"control by nation-states, whether it be NAFTA
or the South American Mercosur. Even the European Union rests on ei-
ther the continuance of its member states or the creation of one very large
nation-state.

'See, for example, the discussion in Arendt Lijphart, PatternsofDemocracy(New Haven: Yale Universiity
Press, 1999), pp. 154-157, where Lijphart rehearses a few of the consequences of population size, includ-
ing effects on legislative size and the number of political parties.
122 Publius/Fall 2000

GENERAL CONSTITUTIONAL DEVELOPMENTS

SINCE WORLD WAR II

Principles of constitutional design are not divorced from the actual behav-
ior of constitutional democracies. A general overview of some trends dur-
ing the past half century, and a look at some of the lessons they hold, provides
an efficient entree to the discussion of principles.
First, there has been an episodic but definite growth in the number of
constitutional democracies from 19 in 1947 to at least 60 and probably 70
in 2000. Figure 1 creates the impression of a smooth and accelerating in-
crease in numbers, but historically, this growth has been characterized by
periods of rapid increase followed by long plateaus or declines. The de-
mise of the Soviet Union has produced the most recent upward surge, just
as decolonization did in an earlier era. The probability for now is an in-
crease over the next decade to about 80 countries that meet the test of
constitutional democracy, and then a plateau or perhaps minor decline in
the numbers. In general, the curve of constitutional democracies has fol-
lowed the curve for the number of countries with written constitutions,
with about a one-century lag, which has recently declined to a half-century
lag.
Constitutionalism is a difficult if rewarding form of government, and we
should not expect significant future diffusion of the form to be rapid or
inevitable. Figure 1 does imply, however, that if a non-democracy has a
written constitution, there are long-term pressures to democratize the sys-
tem. A written constitution is a bit like a self-fulfilling prophecy. Still, one
lesson to be learned from experience over the past half century is that even
though constitutional democracy is quite secure as we move into the twenty-
first century, its spread is neither easy nor certain. The curve of its diffu-
sion looks strong and hopeful, but it has taken more than two centuries of
gains and losses to get where we are now.
Second, there has been significant diffusion or transference during the
past half century of both specific institutions and constitutional principles.6
For example, the German electoral system has been widely copied, often
with variation;indeed, the German constitutional system has become a major
model for use elsewhere. There has also been diffusion of socioeconomic
rights across Europe and into other parts of the world. Along with the
spread of rights consciousness, there has been diffusion of federalism and
the separation of powers as operative constitutional principles. Such diffu-

6At one time, the matter of diffusion, whether related to ideas, institutions, or policies, was widely
discussed, especially among the U.S. states. Cross-nationally, the systematic study of the diffusion of
established institutions or of innovation is notable for its absence. An examination of 47 books on cross-
national constitutionalism and/or democracy reveals not a single instance of the matter being discussed
even though the phenomenon is widely and clearly observed.
Thinking about Constitutionalism 123

sion does not result from simple copying, but rather from the adoption of
techniques and principles that effectively address problems and needs found
throughout the world. Diffusion of institutions and principles is primafacie
evidence that constitutional design makes a difference, and that there are
connections between institutional design and general political outcomes,
but in the end, the connection is pragmatic and practical, not ideological.
Third, nearly all new democracies constituted or reconstituted during
the 1970s, 1980s, and 1990s have had elected presidents with varying de-
grees of political authority.7 Among newer democracies, true
parliamentarism remains largely phenomenon of the former British em-
a
pire. During the twentieth century, no existing "presidential" system
changed to a parliamentary system, whereas a number moved in the oppo-
site direction.8 This is evidence not of the inferiority of the parliamentary
form, but rather of the need for more separation of powers than is pro-
vided for by a true parliamentary system. In the United Kingdom, the rule
of law has been sustained primarily through a political culture that pre-
vented the potential abuses of power inherent in the highly centralized
and essentially unlimited power structure of the parliamentary form. The
high failure rate of parliamentary government, especially in Africa, results
from the absence of the unique and particularistic British political culture.
So-called "presidential" systems have, at the same time, tended to incorpo-
rate institutions of a more parliamentary nature so that the distinction be-
tween the parliamentary and non-parliamentary form has become blurred
to the point where the distinction is often difficult to make. This implies
the need for new categories and/or fresh analytic approaches to compara-
tive constitutional study. It also suggests a need to be cautious of research
that makes such a distinction as if it were not problematic. One conclusion
to be drawn is that constitutional design is not so much the science of find-
ing an optimal form as it is the art of mixing the old with the new, which
results in an array of possibilities, each blending into the other. Institu-
tional mixes will vary as the mixes of population and circumstances vary,
and matching the underlying reality must take precedence over the de-
fense of any given constitutional form as optimal.
Fourth, a useful way to describe post-World War II institutional trends is
as a general move toward a greater degree in the separation of powers.9
Many of the elected presidents have minimal powers, but their presence
has been matched by reducing the ability of parliaments to appoint offi-

7Matthew Soberg Shugart and John M. Carey, Presidentsand Assemblies:ConstitutionalDesign and Elec-
toralDynamics (New York: Cambridge University Press, 1992), p. 2.
8Shugart and Carey, Presidentsand Assemblies,p. 3.
9Donald S. Lutz, "Popular Sovereignty, Separation of Powers, and Principles of Constitutional De-
sign" (unpublished manuscript), ch. 4.
124 Publius/Fall 2000

cials and/or to revise the constitution without the intervention of some

other body. Often the regulation of the electoral system is taken out of
parliament's hands as well. An important part of the increase in the separa-
tion of powers has been a general emergence of more independent su-
preme or constitutional courts to supplement the trend toward stronger
and/or more divided executive powers. This has been supplemented by
the strengthening of upper or second branches of the legislature (i.e., a
strengthening of bicameralism). In sum, those who have lived under con-
stitutional democracy have, by their decisions for change, underscored the
need to be realistic about the dangers of power and about the role of con-
stitutionalism in channeling and controlling power.
Fifth, there has been a tendency for constitutional democracies to move
awayfrom the majoritarian model of decision-making toward a consensual
model. The purer a parliamentary system is, the closer it approximates the
majoritarian model. Consensual politics puts a premium on deliberative
processes with multiple entry points, plus multiple decision points that slow
the process down enough to produce legislation that takes into account
the needs and wishes of more than a simple majority of the population.
This trend underlies the previous one, and is related to the next two. Con-
stitutions need to be viewed more as instruments for achieving general fair-
ness andjustice than as instruments for efficiently pursuing specific public
policies.
Sixth, there has been a slow but persistent move away from unitary gov-
ernment toward systems that are federal, confederal, or consociational.?1
The European Union is a major example. Unitary systems work best with
highly homogeneous populations, and less well as the populations are more
heterogeneous. Not only are newer constitutional democracies less homo-
geneous than older ones, many older ones are coming to recognize aspects
of heterogeneity that were submerged or ignored in the past. The trend
away from unitary government is another example of the lesson that the
fundamental goal is to match the constitution to the people.
Seventh, underlying the previous three trends has been a significant
trend toward the recognition and inclusion of ethnic, religious, ideo-
logical, regional, racial, and indigenous minorities. The mix of institu-
tions used has varied according to the nature of the cleavages. Federalism
is most useful for territorially based cleavages. Indigenous and racial
cleavages have often been addressed by increasingly more activist and/
or powerful national courts. Bicameralism has been used for regional,
ethnic, and/or religious cleavages. The more cleavages there are, the

'?See DanielJ. Elazar, ExploringFederalism(Tuscaloosa: University of Alabama Press, 1987), especially

chapters 6 and 7.
Thinking about Constitutionalism 125

more complicated the range of institutions brought to bear. The lesson

is that constitutions are supposed to aid the moving of conflict from the
streets and battlefields to arenas of compromise and persuasion, and
not to produce peace per se.
Eighth, there has been a general and significant move in constitutional
democracies toward a "rights consciousness." Rights consciousness has in-
volved two more or less equal sub-trends-one toward group rights and one
toward individual rights. In many countries, as in Canada, both sub-trends
have been intertwined. Longer and more complex bills of rights, more
active national courts, and political mobilization through normal politics
have all become more prominent. It is reasonable to conclude, at least
provisionally, that constitutions produce long-term pressures for identify-
ing remaining injustices and codifying mutually acceptable solutions for
these injustices.
Ninth, in country after country, social and politicaljustice, often defined
in terms of the growing rights consciousness, have been addressed by su-
preme or constitutional courts. In country after country, the net effect of
judicial intervention in this regard has been marginal. Instead, social and
political justice have been best served most consistently through political
mobilization regardless of the content of bills of rights, or even if there is a
bill of rights. Bills of rights and rights consciousness have served more
often than not as the catalyst and justification for political mobilization,
and court activity has tended to legitimate rather than effectuate the de-
mands underlying such mobilization. The openness and effectiveness of
political institutions for participation thus loom larger than legal institu-
tions when it comes to addressing the consequences of heterogeneity. There
are several possible lessons here. Constitutions, including bills of rights,
are in the end only pieces of paper absent popular acceptance and sup-
port. These pieces of paper do, however, help to instigate and frame popu-
lar political activity. In the end, constitutions rest on popular approval and
popular activity. They are not self-enforcing through logical or legal exer-
cises.
Tenth, a key participatory institution is the electoral process. It is of
considerable interest, then, that historically once a constitutional democ-
racy has initiated an electoral system, that system is rarely changed in any
significant way. This implies that no electoral system (e.g., single-member
districts versus multi-member districts) has an inherent advantage over an-
other per se. Rather, constitutional framers seem to have been uniformly
proficient in successful constitutional democracies at developing electoral
systems appropriate to, and accepted by, the relevant population. Again,
the lesson seems to be that matching the institutions to the people is more
important than achieving some optimal institutional design.
126 Publius/Fall 2000

Eleventh, over the history of modern constitutionalism, the failure rates

of parliamentary and presidential systems have been very similar." The
situation is even more ambiguous than this statement indicates, because,
while commentators frequently are willing to classify a political system as
one or the other, most political systems are hybrids of these two polar types,
so it is difficult to assign blame for failure on specific institutional arrange-
ments. Rather, failure generally has resulted either from socio-political
factors that made any constitutional arrangement problematic or from a
mismatch between institutions and the people they were supposed to serve.
One common mistake is to create a presidential system where the execu-
tive is the commander-in-chief of the army that overthrew the old regime.
Another is to create a majoritarian parliamentary system for a highly frag-
mented population. Modern political science has reaffirmed Aristotle's
dictum that the constitution must be matched to the people, and a people
unready for constitutional democracy will not support any form of it. Yet,
Aristotle also showed us how to abstract general principles from the com-
parative study of constitutions. His dictum, as well as his abstracted prin-
ciples, warn us about the limits we face when advising those writing new
constitutions. A people will establish a constitutional democracy when they
are ready, and the form it takes should have indigenous roots. Ideas and
institutions may be borrowed or adapted, but constitutional democracy rests
on popular consent for what is familar and understood and not on some
ideal design. Even in those rare instances where a successful constitution
was imposed from the outside, as with post-World War II Japan, there usu-
ally has been prior constitutional experience that could be drawn on, basic
social and cultural patterns have been left relatively undisturbed, and the
document has been appropriated over time through gradual but complete
amendment, whether formally or through defacto usage, by the people liv-
ing under it. Aside from repeating the lessons drawn earlier, one could
add that experience under constitutional democracy shows constitutional-
ism to be a process rather than a model-a never-ending process that works
out, through experience, the changing hopes and needs of the people liv-
ing under the constitution.
Twelfth, experience since World War II has highlighted a persistent, re-
curring problem with the nature of citizenship in constitutional democra-
cies. Does a common citizenship require a common identity beyond that
of citizen? In the old nation-state perspective, where both "nation" and
"state"were reified and linked, the answer tended to be "yes." However,
this links personal identity with the state Those who refuse to reify the
nation or the state think otherwise and say "no." Citizenship and patrio-
tism do not require nationalism or a strong common identity.

"Shugart and Carey, Presidentsand Assemblies,pp. 38-43.

Thinking about Constitutionalism 127

However, citizenship and patriotism do require the passing on of some-

thing from generation to generation, and what this "something" is stands
at the center of most current constitutional controversies. To what extent
does one need to pass on the values of a national culture, and to what
extent must one pass on the values of a constitutional culture? In prin-
ciple, a constitutional culture can encompass several nationalities, or a con-
stitutional culture can be identified with a particular national culture.
Alternatively, a constitutional culture can be based on the gradual extinc-
tion of all national cultures as some argue happens in the United States. Is
it possible to have constitutionalism with no cultural component beyond a
constitutional culture, or does this amount to a politics of non-identity?
Concern over the presence of multiple identities in the same political sys-
tem is not a new phenomenon, but the identification of the political system
with a singular nation is a relatively recent invention grounded in Hegelian
statism. It is time to at least think about the the nature and extent to which
nationality and political nationhood may be decoupled.
Finally, it is now respectable to constitutionalize both socioeconomic and
group rights, but to what extent is each helpful for the long-term health of
constitutional democracies? The former implies that all citizens should be
treated the same, and not in a minimal legalistic sense. The latter implies
that citizens should not be treated the same but differently depending on
group or ethnic membership. The theoretical and practical disjunction
between the two is too often glossed over. In addition, constitutionalizing
socioeconomic and group rights tends to emphasize the role of the state in
guaranteeing rights, whereas rights were invented to protect citizens from
the state. Aside from the possibility that such an emphasis undercuts the
actual function of rights, it tends to undercut the ability and motivation of
citizens to pursue political outcomes beyond or different from what a con-
stitutionally oriented court might support. Such a tendency short-circuits
the role of citizenship per se, and seems to view constitutionalism as a set of
objectively predetermined outcomes rather than as a process of citizens
involved in the working out of mutual hopes and needs through the use of
commonly accepted decision-making rules and processes.
THE THREE GENERAL ELEMENTS OF
CONS'TIJTUIONALISM
All of the trends, problems, and considerations point toward the need for a
recurrence to original principes-to a deeper and clearer understanding of
what constitutionalism means and implies. For example, it is not helpful to
confuse constitutionalism with legalism, although the former leads to the
latter. Perhaps the place to begin is with the connection between constitu-
tionalism and pre-political cultural mores. Although constitutionalism nec-
essarily includes the notion of culture, it also transcends culture. "Culture"
128 Publius/Fall 2000

has been variously used to refer to what others might term "ideology,"
"shared interests, preferences, or perspectives," "a common set of values,"
ethnicity," "shared mental states," and so on. The term is here used in a
more formal, anthropological sense to refer to a shared set of symbols, used
to organize joint behavior for the solving of common problems, that is passed
from generation to generation. Cultures are used to create and sustain
societies, and are historically pre-political because they were used long be-
fore the creation of formalized political systems of any type. Constitution-
alism, currently the most complex form of socio-political organization,
recapitulates the history of human social organization and thus both as-
sumes and uses culture. This recapitulation results in constitutions con-
taining a cultural element, a power element, and ajustice element.
The cultural element reflects residual human experience in a pre-politi-
cal condition. Humans (Homo Sapiens) have for most of their existence
evolved culturally rather than biologically. This has given humans a com-
petitive advantage over other species, and has led to their accelerating domi-
nance over the rest of nature. Until finally brought under domination by
political societies, these culturally organized societies continued until the
nineteenth century on all continents as what are now termed "aboriginal
peoples." What we now term "culture" is thus so ingrained in the human
psyche that it cannot be extirpated from human consciousness without our
becoming something other than, or less than, human. It is inevitable, then,
that constitutions embody, contain, or at least leave significant room for
cultural mores and values that are still the fundamental grounding for hu-
man social organization.
The cultural element in constitutions has several components, or is ex-
pressed in a variety of ways. Constitutions, as Aristotle famously told us,
define a way of life in general terms by laying out and using as organizing
principles the values, major organizational assumptions, and definition of
justice around which a people is organized and/or toward which they as-
pire. The cultural element is generally found in long preambles, opening
declarations, and more recently in bills of rights. The definition of citizen-
ship and/or characterization of who belongs to the people or nation that is
frequently found in constitutions is also a fundamental expression of the
cultural element. The Mexican Constitution of 1917 is one example. In it,
the definition of a Mexican is set out at great length along with detailed
provisions on the duties of fathers, parents, and so on-a kind of primer on
socio-cultural mores. One can understand this concern if we remember
that after the 1917 revolution that produced Mexico's current constitution,
there was a concerted effort to define the dominant mestizoculture as the
basis of nationality in place of the colonially imposed Spanish culture. We
also find a high level of explicit cultural content in constitutions adopted
by more traditional societies that are recent recruits to constitutional de-
Thinking about Constitutionalism 129

mocracy-such as Kiribati, Western Samoa, and Papua New Guinea. As a

general proposition, one might posit that the stronger the aboriginal pres-
ence in a country, the more apparent the cultural content of the constitu-
tion will be.
The power element in a constitution is found in institutions for deci-
sion-making. In a coherent constitution, these institutions for organizing
power are rooted in and reflect the culture or cultures of a politically orga-
nized people, and simultaneously accomplish several things. They identify
the ultimate power (sometimes called the sovereign) which is alwaysfinally
determinative. They distribute power in a way that leads to effective deci-
sion-making over the range of all possible issues. They also provide a frame-
work for continuing political struggle. Significantly, the political struggle
often involves competition between cultures that are linked together un-
der a common constitution, whether it be Anglo-Saxon and aboriginal in
the case of Canada and Australia, or "ethnic" in the broad sense as in the
Anglophone/Francophone division in Canada. In essence, the power ele-
ment structures conflict so that it can be managed politically rather than
through violence in the streets.
The justice element is the key ingredient for constitutionalism because
most political systems in human history, even though by definition they
represented organized power, did not have constitutions until very recently.
Constitutionalism as a political technology attempts to marry power with
justice. It attempts to do so in a variety of ways. A written constitution,
available for reading by any citizen as well as by every political actor, creates
a known and "predictable" process of decision-making that serves to limit
the use of power to settled, agreed-upon procedures. The separation of
powers that constitutions often contain limits power by vesting the power
to reach collective decisions in multiple hands to prevent arbitrary deci-
sions that would tend to run counter to the prevailing sense of justice ac-
cepted by the people and embodied in the constitution.
Power is also limited through specific prohibitions on decision outcomes
reached by those in power. These prohibitions are often encoded in bills of
rights, but not always. Sometimes they are scattered through the constitution
proper, such as the prohibition on ex postfacto laws in the U.S. Constitution.
Given that bills of rights often mix prohibitions with long-term aspirationsthat
reflect cultural mores, bills of rights create interesting and potentially trouble-
some opportunities. If a supreme or constitutional court has the ability to
enforce rights, it also has the abiltyto interpret these rights. Because rights are
to a significant degree artifacts of the underlying cultural element, this puts
the court in the position of potentially defining or redefining the culture un-
derlying the constitution. This is not perverse persebecause the realityof con-
stitutionalism is that political power trumps culture. A problem arises if and
when a court is the body to exercise that trump.
130 Publius/Fall 2000

Much of formal, legal constitutional law around the world involves

courts in the struggle between competing cultures, subcultures, or the
interpretation of a unified culture with multiple ideological construc-
tions. Thus, judicial decisions can be deeply controversial in a way that
impedes or prevents the implementation or enforcement of judicial
decisions. This is a major reason why, as noted earlier, supreme and
constitutional courts have not really been the major source of political
change since 1945. Court members are almost certainly too embedded
in the dominant culture to easily see their way to new and innovative
decisions; when they do, there are too many ways for their will to be
thwarted through other political means. A national court often enunci-
ates a legal principle that is at odds with dominant cultural mores through
the use of dissenting opinions or speculative internal reasoning, while
at the same time reaching an overall decision that does not act on that
new legal principle but instead affirms the dominant culture. The
contra-cultural reasoning that accompanies the culturally expected de-
cision is a way of floating trial balloons in order to encourage the broader
political process to rethink the matter.
In conclusion, these three elements-culture, power, andjustice-cohabit
a constitution in its various parts and institutions. Any constitution worthy
of the name includes all three. On one hand, a good constitution provides
a coherent package for all three. On the other hand, the three elements
are inherently "at war" with each other. The cultural element is specific
and particularistic, whereas the justice element works from the premise of
universal applicability. That is, the rule of law inherent in constitutional
processes requires that all citizens be affected alike and to the same degree,
while the cultural component rests on distinctions and expectations that
are not universal in their implications. The so-called majority/minority
problem is one aspect of this disjunction. The power element is restrained
by the universalistic rule-of-law element. At the same time, power is in-
clined to respond to popular and particularistic demands from various parts
of the population because future power rests on the distribution of govern-
mental goods and services in a non-universal manner. We see this disjunc-
tion in, for example, the debate over affirmative action in the United States.
The culture-power-justice nexus embodied in a constitution has been most
famously examined by Montesquieu. His term "spirit of the laws" is an
analytically useful approach to the overall problem, and we turn next to
outlining his core contributions to comparative constitutional analysis.
FUNDAMENTAL PRINCIPLES AND THE SPIRIT OF THE LAWS
There is a pedigree for constitutional analysis that, while involving many
political philosophers, runs most directly from Aristotle through
Montesquieu to The Federalist. Recent books have tended to work explic-
Thinking about Constitutionalism 131

itly from James Madison and Alexander Hamilton, but it is worth briefly
summarizing Montesquieu here if for no other reason than his approach is
most directly supported by constitutional design over the past half century.
Montesquieu termed the reconciliation of freedom and coercion as the
most fundamental problem of political philosophy. He worked from a con-
viction that organized political systems are created because they provide
not only protection a la Thomas Hobbes, but also because they lead to
long-term economic benefits not possible in pre-political societies. In this
regard, he has some kinship withJohn Locke, but Montesquieu's analysis is
broader than Locke's. For one thing, Montesquieu defined the benefits of
civil society to explicitly include justice as well as the possibility of trade and
commerce. Locke never mentionsjustice. For another, Montesquieu rec-
ognized that the sovereign power created by humans frequently deprives
citizens of the benefits for which it is created. As a result, his analysis fo-
cuses more clearly and deeply on the means to limit coercive power, which
is another way of saying that Montesquieu was profoundly constitutional in
his approach whereas Locke was only incidentally so.
To a significant degree, Montequieu is an intellectual heir of Aristotle's,
but most political philosophers who wrote during the two millenia between
them had lost Aristotle's realism and empiricism. In his recovery of Aristotle,
Montesquieu ends up looking very much like a relativist, but this is not the
case. Montesquieu believed that there was no universally applicable solu-
tion to the freedom/coercion problem. Instead, there are types of solu-
tions such that the reconciliation of might with right must be achieved
differently in different cultures and political settings. Any given solution,
to be successful, depends on a number of factors. Among others, he iden-
tifies geography, climate, the size and nature of the population, the nature
of the economy, and the traditions in place-including religion and the ex-
isting political culture. Because we can systematically analyze the effects of
each, the solution in a given country to the freedom/coercion problem is
thus neither arbitrary nor accidental.
To say that there is a non-arbitrary, non-accidental solution is not to say
that there is an ideal one. Under the best of circumstances, the solution
can only approximate optimality, and to seek either optimality or perfec-
tion is to invite inevitable disaster. There is no optimal solution across po-
litical systems, or in any particular one, in large part because any successful
solution cannot be permanent. It is subject to change by correction or
corruption. In Montesquieu's view, change is inevitable, and political insti-
tutions invariably lag behind social and economic change. As a result, both
the content and application of constitutional principles are subordinate to
facts, and facts are collected in order to generate and condition the appli-
cation of general principles. The principles that emerge are interconnected
both logically and empirically. Logically, they illuminate the kinds of struc-
132 Publius/Fall 2000

tures that are needed. Empirically, they help us to understand the inner
logic of the specific set of structures adopted by a people. As a result, we
are able to analyze the institutional logic of a political system using prin-
ciples that transcend particular nations; at the same time, we can analyze
the particularistic solution and its underlying, constitutive principles that
integrate the society-which Montesquieu terms the "spiritof the laws." This
"spirit"is a composite of what we earlier termed the culture-power-justice
nexus, and provides the energy for the political system the way a main-
spring or a battery does for a watch. Overall, then, Montesquieu is not the
heir of John Locke, but of Jean Bodin and Niccolo Machiavelli. He is a
realist and an empiricist.
The analysis of comparative constitutionalism pursued here uses
Montesquieu's approach not because of its elegance, or the veracity of
the principles he advanced, but because the history of constitutionalism
down to the present ratifies the utility and power of that approach. Al-
though his analysis of the effects of climate strike us today as primitive
and wrong-headed, he was correct in his general thesis that political
power is organized in order to emancipate humans from the blind forces
of nature, and that the political freedom which ought to result from
humanity's increasing power over nature is threatened by the very in-
struments of power through which humans organize to control nature.
This thesis led him to a powerful anti-Hobbesian conclusion. Because
humans in the state of nature are weak, they are not dangerous to each
other. The creation of civil society, however, makes humans collectively
strong, and this newly gained strength produces conflict within and be-
tween political systems. In short, the creation of civil society marks the
beginning of a possible state of war, and Montesquieu's solution to this
possible state of war is a constitutionalism characterized by popular sov-
ereignty and the separation of powers.
Again, while some of his analysis seems time-bound, Montesquieu held
that constitutional democracy, which he usually termed a republic, is usu-
ally found in the form of a commercial society. Empirically, he saw consti-
tutionalism as enhancing what we now term "economic development" better
than any other political form, and the more economically developed a coun-
try is, the stronger the pressures generated within the population for demo-
cratic government. Here he ran into another problem. Economic
development leads to the acquisition of vast riches, which in turn leads to
greater and greater degrees of inequality. However, republican govern-
ment (constitutional democracy in our terms) rests on republican virtue
and equality. Hence, we see the basis for his emphasis on a separation of
powers structured so as to address the effects of inequality, and hopefully to
redress it to some extent, while at the same time protecting the property of
rich and non-rich alike.
Thinking about Constitutionalism 133

Montesquieu did not believe that the constitutional form was the solu-
tion to the abuse of power. Rather, successful constitutionalism rested ulti-
mately on a political and social substructure that supported
constitutionalism, which he termed the "spirit of the laws." Without this
underlying political culture, the formal institutions of constitutionalism are
moribund. Alexis de Tocqueville, in his Democracyin America,spoke simi-
larly of the "habits of the heart" that undergird and make constitutional
democracy possible. These "habits of the heart," this "spirit,"derives to a
significant degree from the way we organize and live our day-to-day lives-
hence the importance of economics for Montesquieu. Because constitu-
tional democracy cannot be defined merely in formal institutional terms,
Montequieu resisted treating the separation of powers as a dogma. Instead,
he looked upon it as an instrument that allowed the population to organize
a counter-power to power. Unless a people and its circumstances are such
as to allow the creation of constitutionalism, it will not occur. By the same
token, if the people do not organize themselves to preserve constitutional
government in ways allowed by the separation of powers, constitutionalism
will not last.
CONCLUSION
Constitutional government is not a natural form of political organization,
but a human artifact that is selected for use because of its beneficial ten-
dencies. We choose to use this human-made tool, this technology, not for
itself but for its relative advantage over other political technologies in the
pursuit of fundamental human hopes. In a sense, one can view constitu-
tionalism as resting on natural inclinations, but constitutionalism flows from
the human psyche in an attempt to channel and improve human nature. A
constitution rests on deeply shared human hopes, but not on behavior that,
even when considered "natural,"is in any sense inevitable. Three hopes in
particular justify, animate, and define constitutionalism-the universal hu-
man hopes, one might say inclinations, for self-preservation, unfettered
sociability, and beneficial innovation. These three animating hopes of con-
stitutionalism are sometimes encoded as life, liberty, and the pursuit of
happiness, but rather than being a separable value, liberty is a concept which
encodes the triple goal of self-preservation, unfettered sociability, and ben-
eficial innovation.
Constitutional purposes are multiple, and liberty thus has several layers,
which results in several related institutional implications, among which are
rule of law, republicanism, and limited government. Rule of law, often
associated with equal treatment, was actually developed to minimize arbi-
trariness, particularly arbitrariness that threatened one's life and livelihood.
Republicanism, the belief that one should not be subject to laws to which
one has not consented directly or indirectly, rests upon the free interaction
134 Publius/Fall 2000

of citizens in pursuit of the common good, which both assumes and en-
hances unfettered sociability. The common good, however, is not unlim-
ited. Rather, republican government in pursuit of the common good has
limits, and those limits are defined by human activity that results in benefi-
cial innovation. "Beneficial innovation" is defined as any human invention
that enhances or maximizes the probability of humans preserving them-
selves, developing morally and psychologically, and achieving relative ma-
terial ease-without interfering with the inclination or ability to innovate
further. Beneficial human innovations take many forms including, but not
limited to, such things as medical advances, effective international peace
institutions, better teaching methods, more efficient production methods
as well as more efficient ways of moving capital to underwrite such meth-
ods, faster and less expensive means of communication, advances in archi-
tecture and housing development that make human interaction easier in
more pleasant settings, technological advances that can be used to free up
more time for people to choose activities involving self-expression and/or
personally rewarding joint activities, creative expression in more highly
developed art forms, and alterations in the workplace that enhance safety
as well as the productive use of the entire personality.
"Beneficial innovation" is not to be confused with a notion of progress
where more is always better, nor is it to be confused with innovation per se.
What is beneficial can only be determined by a freely interacting citizenry
reflecting on the nature of their own personal and human needs and hopes.
Finally, although a free citizenry can determine whether an innovation is
beneficial by adopting or not adopting it, "voting" for or against innova-
tion-whether individually or collectively-must not censure, impede, or dis-
courage future innovation if the system is to remain constitutional and serve
the ends for which constitutionalism was invented.
If a constitution is to enhance the self-preservation of all citizens (other-
wise why would they submit themselves to it?), if it is to enhance the com-
mon good, which again implies consideration of all citizens, and if it is to
protect the actions of beneficially innovative citizens whom we cannot iden-
tify beforehand, and who thus could come from any part of the population,
then we must include all as citizens. That is, the constitution's rule of law,
consent-grounded republican institutions, and power limitations must ex-
tend to all citizens, and the extension to all citizens is called popular sover-
eignty. Popular sovereignty thus rests at the base of constitutionalism; that
is why any analysis of constitutionalism and constitutional design must be-
gin with an analysis of popular sovereignty-what it means, how it can be
established and sustained institutionally, and its implications for constitu-
tional design.
One fundamental implication is that if the people are sovereign, and
not parliament or some reified state, the popular sovereign can easily dole
Thinking about Constitutionalism 135

out power to multiple agents. Both federalism and separation of powers

thereby become easy to understand and implement. In the absence of at
least defactopopular sovereignty, let alone explicit dejureapplication of the
concept, long-term constitutionalism becomes problematic. Montesquieu
understood this, as did the American founders, and as do most of those
writing popular sovereignty explicitly into most new constitutions adopted
by constitutional democracies during the past half century.