Abstract
Theories of participatory and deliberative democracy contend that participatory and inclusive constitution-making processes are more likely to generate democratic outcomes than the traditional, elite-led approaches. The empirical evidence, however, has remained inconclusive and the propositions mostly normative. Using an original data from 195 constitutions promulgated in 118 countries since 1974, this study examines the impact of participatory and inclusive processes on the democratic content of constitutions. Building on the recently developed conjectures in the literature, this study introduces two original measures for individual-level public participation and aggregate-level group inclusion in constitution-making processes. The statistical analysis provides compelling empirical evidence that increased public participation is associated with an increased number of democratic provisions in constitutions, indicating that broad participatory processes can improve the democratic content of constitutions. Group inclusion, however, is not a significant predictor of the content of constitutions. The findings offer empirical support for participatory and deliberative theories of democracy and their prediction on democratic outcomes of participatory processes.
Similar content being viewed by others
Notes
For Verba, Schlozman and Brady (1995), participatory distortion is the difference between those that participate (for example, voters in an election) and the total population of those who could participate (for example, eligible voters).
The first stage of constitution-making is origination in which constitution drafters are elected or appointed. The second stage, deliberation, includes deliberation and the actual writing of the constitution. The last stage, ratification, covers the mechanism of approving the constitution draft (Eisenstadt et al. 2017b).
Major groups here include all relevant political parties, blocs, and movements, interest groups, civil society organizations, as well as ethnic, religious, or linguistic groups. A process is considered inclusive if all of these groups are present and non-inclusive if major groups are systematically excluded.
Portugal (1976) has a score of 2 (on a 0–6 scale) in the participation measure of this study and is coded as “mixed.” However, its score of inclusion is 6 (on a 0–6 scale) and it is coded as “inclusive.”
To measure levels of participation and inclusion, two coders coded all 195 constitution-making processes and a third coder coded only the cases where the first two coders differed (9% of the cases). Coders consulted several sources including William S. Hein & Company (2012), Widner (2004), Institute for Democracy and Electoral Assistance’s Constitutionnet.org, Comparative Constitutions Project, Economist Intelligence Unit country reports, and the CIA World Fact Book. A few cases, such as Afghanistan or Somalia, required additional research from peer reviewed area studies journals.
The additive approach to categorizing participation and inclusion variables suggests that this study treats each stage as equally important. Although a previous study (Eisenstadt et al. 2015) suggests that participation in the origination stage is more important for democracy, this article assumes that democratic constitutions require public participation and the inclusion of different societal groups in all three stages of constitution-making.
Table 9 in the Appendix shows the descriptive statistics for participation and inclusion variables.
The CCP dataset sample includes all independent states from 1789 to 2013, but the current release covers only 52% of those country-years which is 105 (out of 195) observations in this article. Using the CCP codebook rules, two coders independently coded the content of the missing constitutions in my dataset and a third coder coded only the cases where the first two coders differed.
As many established democracies do not have guarantees of social welfare in their constitutions, this study does not use them as proxies of democracy.
Since the state of emergency variable is a negative measure of rights, I recoded it so that 1 indicates a constitution that does not allow for suspension or restriction of rights during states of emergency.
I also tested the impact of participation and inclusion in each stage of constitution-making to explore whether there is a stage at which participation/inclusion are most consequential. The results (Table 10 in the Appendix) show that while participation in the origination and ratification stages are statistically significant, inclusion is only marginally significant in the origination stage, indicating that origination is perhaps the most consequential stage for democratic constitutions.
Table 14 in the Appendix reports the results for the Democratic Content outcome, using OLS and Poisson regressions.
The measure for regime type variable is based on Cheibub, Gandhi, and Vreeland’s Democracy-dictatorship index (Cheibub et al. 2010).
References
Adams J. Thoughts on government. In: The Revolutionary Writings of John Adams. Selected and with a Foreword by C. Bradley Thompson. Indianapolis: Liberty Fund; 2000 (Original work published 1776).
Alesina A, Devleeschauwer A, Easterly W, Kurlat S, Wacziarg R. Fractionalization. J Econ Growth. 2003;8:155–94.
Arato A. Forms of constitution making and theories of democracy. Cardozo Law Rev. 1995;17:191–231.
Avritzer L. Democracy beyond aggregation: the participatory dimension of public deliberation. J Pub Delib. 2012;8(2):1–20.
Banks AS, Wilson KA. Cross-national time-series data archive. Jerusalem, Israel: D. International; 2014.
Bannon AL. Designing a constitution-drafting process: lessons from Kenya. Yale Law J. 2007;116(8):1824–72.
Barber B. Strong democracy. Berkeley: University of California Press; 1984.
Bessinger M. A new look at ethnicity and democratization. J Democr. 2008;19(3):85–97.
Brett R, Delgado A. The role of constitution-building process in democratization: case study of Afghanistan. Stockholm, Sweden: International IDEA; 2005.
Burke E. Reflections on the revolution in France. Oxford: Oxford University Press; 1999 (Original work published 1790).
Chambers S. Deliberative democratic theory. Annu Rev Polit Sci. 2003;6(1):307–26.
Chambers S. Democracy, popular sovereignty, and constitutional legitimacy. Constellations. 2004;11(2):153–73.
Cheibub JA, Gandhi J, Vreeland JR. Democracy and dictatorship revisited. Public Choice. 2010;143(1–2):67–101.
Cottrell J, Ghai Y. Constitution making and democratization in Kenya (2000–2005). Democratization. 2007;14(1):1–25.
Dahl R. Polyarchy: participation and opposition. New Haven, CT: Yale University Press; 1971.
Dahl R. Who governs? Democracy and power in an American city. 2nd ed. New Haven: Yale University Press; 2005.
Dryzek JS. Deliberative democracy and beyond: liberals, critics, contestations. Oxford: Oxford University Press; 2000.
Eisenstadt TA, LeVan AC, Maboudi T. When talk trumps text: the democratizing effects of deliberation during constitution-making, 1974-2011. Am Polit Sci Rev. 2015;109(3):592–612.
Eisenstadt TA, LeVan AC, Maboudi T. Constituents before assembly: participation, deliberation, and representation in the crafting of new constitutions. Cambridge: Cambridge University Press; 2017a.
Eisenstadt, TA, LeVan AC, Maboudi T. Constitutionalism and democracy dataset, version 1.0. Washington, DC: American University’s Digital Research Archive; 2017b. Last modified: June 1, 2017. Available at: https://doi.org/10.17606/M63W25.
Eisenstadt TA, Maboudi T. Being there is half the battle: group inclusion, constitution-writing and democracy. Compar Pol Stud. 2019;52(13–14):2135–70.
Elkins Z, Ginsburg T, Melton J. The endurance of national constitutions. Cambridge: Cambridge University Press; 2009.
Elkins Z, Ginsburg T, Melton J. The content of authoritarian constitutions. In: Ginsburg T, Simpser A, editors. Constitutions in Authoritarian Regimes. Cambridge: Cambridge University Press; 2013. p. 141–64.
Elkins Z, Ginsburg T, Melton J. Characteristics of national constitutions, version 2.0. Comparative Constitutions Project; 2014. Last modified: April 18, 2014. Available at: http://www.comparativeconstitutionsproject.org/index.htm.
Elster J. Constitution making in Eastern Europe: rebuilding the boat in the open sea. Pub Adm. 1993;71(1–2):169–217.
Elster J. Forces and mechanisms in the constitution-making process. Duke Law J. 1995;45:364–96.
Elster J. Arguing and bargaining in two constituent assemblies. Univ Pa J Constit Law. 2000;2(2):345–421.
Fishkin JA. When the people speak: deliberative democracy and public consultation. Oxford: Oxford University Press; 2009.
Franck TM, Thiruvengadam AK. Norms of international law relating to the constitution-making process. In: Miller L, editor. Framing the state in times of transition: case studies in constitution making. Washington, DC: United States Institute of Peace Press; 2010. p. 20–56.
Ghai Y. The role of constituent assemblies in constitution making. Stockholm, Sweden: International IDEA; 2012.
Gibson JL, Duch RM. Elitist theory and political tolerance in Western Europe. Polit Behav. 1991;13(3):191–212.
Hart V. Democratic constitution making. Washington, DC: United States Institute for Peace; 2003.
Hodzi O. One step forward, two steps back: constitution-making and voter education in Zimbabwe. Oxford Human Rights Hub; 2013. Available at http://ohrh.law.ox.ac.uk/one-step-forward-two-steps-back-constitution-making-and-voter-education-in-zimbabwe/.
Horowitz D. Ethnic groups in conflict. Berkeley: University of California Press; 1985.
Horowitz D. Conciliatory institutions and constitutional process in post-conflict states. William and Mary Law Rev. 2008;49(4):1213–48.
Horowitz D. Constitutional change and democracy in Indonesia. Cambridge: Cambridge University Press; 2013.
Horowitz D. Reconsidering the transition paradigm: discussion with Diamond, Larry, Francis Fukuyama, Donald Horowitz, and Marc Plattner. J Democr. 2014;25(1):86–100.
Landemore H. Democratic reason: politics, collective intelligence, and the rule of the many. Princeton, NJ: Princeton University Press; 2013.
Landemore H. Inclusive constitution making and religious rights: lessons from the Icelandic experiment. J Polit. 2017;79(3):762–79.
Lijphart A. Patterns of democracy: government forms and performance in thirty-six countries. Second ed. New Haven: Yale University Press; 2012.
Maboudi T, Nadi GP. Crowdsourcing the Egyptian constitution: social media, elites, and the populace. Polit Res Q. 2016;69(4):716–31.
Maboudi T. Reconstituting Tunisia: participation, deliberation, and the content of constitution. Polit Res Q. 2019; https://doi.org/10.1177/1065912919854802.
Madison J. Federalist No.10. In: Rossiter C, editor. The federalist papers. New York: New American Library; 1961. p. 77–84. (Original work published 1787).
Magalhães PC. Explaining the constitutionalization of social rights: Portuguese hypotheses and a cross-national test. In: Galligan DJ, Versteeg M, editors. Social and political foundations of constitutions. Cambridge: Cambridge University Press; 2015. p. 432–68.
Mansbridge J, Bohman J, Chambers S, Christiano T, Fung A, Parkinson J, et al. A systemic approach to deliberative democracy. In: Parkinson J, Mansbridge J, editors. Deliberative systems: deliberative democracy at the large scale. Cambridge: Cambridge University Press; 2012. p. 1–26.
March J, Olsen J. Democratic governance. New York: Free Press; 1994.
Marulanda I. The role of constitution-building processes in democratization: case study of Colombia. Stockholm: International IDEA; 2004.
Miller L, Aucoin L, editors. Framing the state in times of transition: case studies in constitution making. Washington, DC: United States Institute of Peace Press; 2010.
Pateman C. Participation and democratic theory. Cambridge: Cambridge University Press; 1970.
Pateman C. Participatory democracy revisited. Perspect Pol. 2012;10(1):7–19.
Pitkin HF. The concept of representation. Berkley and Los Angeles: University of California Press; 1967.
Plotke D. Representation is democracy. Constellations. 1997;4(1):19–34.
Roeder PG, Rothchild D, editors. Sustainable peace: power and democracy after civil wars. Ithaca, NY: Cornell University Press; 2005.
Samuels K. Constitution building processes and democratization: a discussion of twelve case studies. Stockholm: International IDEA; 2006.
Sarkin J. The drafting of South Africa's final constitution from a human-rights perspective. Am J Comp Law. 1999:67–87.
Smith G. Democratic innovations: designing institutions for citizen participation. Cambridge: Cambridge University Press; 2009.
Sunstein CR. Designing democracy: what constitutions do. Oxford: Oxford University Press; 2001.
Teorell. Determinants of democratization: explaining regime change in the world, 1972–2006. Cambridge: Cambridge University Press; 2010.
Tsebelis G. Veto players: how political institutions work. Princeton, NJ: Princeton University Press; 2002.
Verba S, Schlozman KL, Brady H. Voice and equality: civic voluntarism in American politics. Cambridge, MA: Harvard University Press; 1995.
Walker JL. A critique of the elitist theory of democracy. Am Polit Sci Rev. 1996;60(2):285–95.
Wampler B. Participation, representation, and social justice: using participatory governance to transform representative democracy. Polity. 2012;44(4):666–82.
Widner JA. Country report: Zambia 1991. In: Constitution writing and conflict resolution project. Princeton, NJ: Princeton University; 2004.
Widner JA. Constitution drafting in post-conflict states symposium. William and Mary Law Rev. 2008;49:1513–41.
Wing SD. Constructing democracy in transitioning societies of Africa: constitutionalism and deliberation in Mali. New York: Palgrave McMillan; 2008.
World Bank, editor. World development indicators, ed. Washington, D.C.: World Bank; 2013.
Acknowledgments
I wish to thank David Doherty, Todd Eisenstadt, Zachary Elkins, Donald Horowitz, Carl LeVan, Ghazal P. Nadi, Diane Singerman, Ryan T. Moore, and two anonymous reviewers for their helpful comments. This article benefited from feedback received at University of Illinois, Chicago’s Political Science Speaker Series (2018) and George Washington University’s Comparative Politics Workshop (2015). With special thanks to Muhammet Asil, Samantha Costas, and Paul Olander for their help with data collection.
Author information
Authors and Affiliations
Corresponding author
Additional information
Publisher’s Note
Springer Nature remains neutral with regard to jurisdictional claims in published maps and institutional affiliations.
Appendix. Coding rules, descriptive tables, and additional analysis
Appendix. Coding rules, descriptive tables, and additional analysis
Rights and permissions
About this article
Cite this article
Maboudi, T. Participation, Inclusion, and the Democratic Content of Constitutions. St Comp Int Dev 55, 48–76 (2020). https://doi.org/10.1007/s12116-019-09298-x
Published:
Issue Date:
DOI: https://doi.org/10.1007/s12116-019-09298-x