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The Selection of Delegates
If the constitution is a pact among all future citizens, then all future citizens should be represented at the constitutional convention. There are three main alternatives for accomplishing this end.
The Separate Election of Delegates
The most straightforward procedure for choosing delegates to a constitutional convention is through an election with the entire nation designated a single electoral district. Defining the entire nation as a single district is desirable under the assumption that people with particular interests or particular views about the proposed constitution might be found anywhere in the country. If this is not a good assumption, if people with particular interests are clustered together in separate geographic areas, then representation by geographic district is obviously more appropriate. In this case the polity being formed is more of a confederation, however, and is taken up in a later section below.
Given the special nature of a constitutional convention, desirable candidates might include individuals who have not been and/or may not become candidates for public office (e.g., noted scholars with expertise in law or political science, former jurists and elected officials, members of the press, television personalities, etc.). They may, therefore, not be members of a political party, or at least not closely associated with one. A method of electing delegates in which the citizens vote for individuals rather than for parties is thus most appropriate as, for example, the single-transferable-vote procedure. Indeed, the outcome of the convention becomes likely to be better if its delegates are not viewed as members of a particular party whose life before and after the convention is tied to the fortunes of that party. If the constitution is to advance the interests of all future citizens, then it must be written by people who are willing to encompass the interests of others along with their own. Representatives of particular interests who anticipate having to win the votes of these «constituents» in the future will be less inclined to compromise these interests and thus may jeopardize the success of the convention. More on this below.
A danger of a special election procedure, particularly in this age of television and mass-media dominance, is that the convention becomes filled with pop singers and athletes who, among other deficiencies, lack expertise on constitutional matters. If such were to occur, there would be nothing to stop the convention from consulting experts and even making them members of its various committees.1 More optimistically, one can hope that the electorate recognizes the importance of electing some delegates with knowledge of constitutional and political matters. Ex-presidents and ex-congressmen in the United States, and ex-prime ministers and ex-cabinet members in parliamentary systems would be plausible choices.2
The Constitutional Convention as a Jury
The most democratic method for choosing members of a constitutional convention would be by some random-selection procedure for which all citizens were eligible. Such a selection procedure would have two major advantages. First, as is the intent with a jury, it is the procedure most likely to produce impartial delegates, delegates who do not have to run for reelection, have not been selected to represent a particular set of interests, and whose interests are probably unknown to most of the electorate These delegates are the most likely to take into account the long-term interests of all future citizens and agree to a compromise. Although they are not selected because they represent particular interests, they would by the nature of the selection process be representative of all citizens. The random selection of representatives in fifteenth-century Florence appears to have made all citizens feel that they were a part of the government and (hi their interests were represented. It also appears to have led representatives to identify with the common interests of Florence (Schwartz, 1988, Chap. 7). Random selection of delegates to a constitutional convention could have the same effects, and thereby enhance the likelihood that citizens accept the constitution as theirs.
A convention composed of average citizens would lack expertise, of course, but this deficiency could be remedied, as with an elected set of delegates, by appointing experts as consultants or as additional members.
It is difficult to imagine a constitutional convention being formed by random selection following a revolution or the collapse of a dictatorial regime. Time is of the essence in such situations, and a convention that is more clearly representative and in possession of the necessary competence would be favored. If, on the other hand, the adopted constitution required periodic new constitutional conventions empowered to amend or replace the existing constitution, the delegates to these subsequent conventions could be randomly selected. The pressure of time would not be severe in this case, nor would the cost of failure. A convention might meet for a full year,3 with the existing constitution as a status quo. If a convention agreed to amendments or an entirely new constitution, these would be adopted; otherwise the existing constitution would continue in effect.
The Parliament as a Constitutional Convention
When an elected parliament exists, it, or a subset of it, becomes an obvious body to serve as a constitutional convention. Historically, most constitutional conventions have been constituted from an existing parliament. In some cases, as in Eastern Europe after the collapse of Communism, parliaments are chosen4 and charged with both running the country and writing its constitution at the same time. In others, an existing parliament may be asked (say, by the chief executive) or feel compelled to write a new constitution by the circumstances of the moment.
Having an existing parliament also serve as a constitutional convention has the great advantage of saving time. When a country is in the throes of anarchy, or faces the real threat of anarchy, both the short-term tax and expenditure decisions a polity makes, and the long-term choice of its rules, have to be made. If a body with a legitimate claim to represent all of the people exists, why not use it to handle both sets of questions? The parliament is also quite likely to contain some of the expertise needed to write the constitution.
There are severe dangers in a parliament also serving as a constitutional convention, however. First, having two important tasks to fulfill it may do one or both badly. To the extent that the nation faces a crisis following a revolution or regime collapse, short-term problems are likely to be severe and draw the bulk of the energies of the parliament with constitutional questions getting short shrift. Such has been the case in Eastern Europe following the regime changes of 1989.
Second, as elected representatives, and ones who hope to be elected again, members of parliament may be less willing to compromise by sacrificing the interests of their constituents.
For example, delegates from Delaware to the Philadelphia Constitutional Convention that drafted the U.S. Constitution had been instructed not to compromise on the issue of the proportional representation of cities (by area) in the legislature. This proved to be an effective stratagem to bring about the «Great Compromise» of each state having the same number of representatives (two) in the upper house of Congress. But had a greater consensus been required for approval of the Constitution, the Delaware delegation's intransigence could have stood in the way of obtaining the final objective (Berns, 1988, pp. 136-37). More generally, the voting patterns at the Philadelphia Convention reveal that delegates voted a combination of their own personal interests and those of their constituents (McGuire, 1988).
In addition, some delegates to the Assemblee Constituante to draft a new constitution for France in 1789 were also given specific instructions on how to vote on certain issues by the etats they represented. In the interests of compromise some French delegates reinterpreted their mission as that of representing the entire nation (Elster, 1991, p. 27). If delegates adhere rigidly to the interests of their constituents, the exercise is doomed to failure if these interests cannot be made to coincide.5
The third danger is that a member of parliament chooses to advance neither the interests of the whole nation nor of his constituents but only those of himself. In particular, panics and their members may opt for constitutional rules that favor their chances for reelection once the constitution is implemented. The largest party favors a two-party system, smaller parties a multiparty system. Large and medium-sized parties favor high minimum cutoffs on the fraction of the vote a party must win before it can claim seats; tiny parties want low cutoffs. Well-known and popular politicians favor allowing voters to vote for specific individuals, as with the single-transferable-vote procedure. Uncolor-ful or disliked leaders of major parties favor party-list procedures in which voters only choose among the parties. This motivation is the simplest to understand and appears closest to the truth based on the historical evidence.6
The 1974 Constitution of Sweden, although drafted by a commission, was a compromise between the until then dominant Social Democratic party and the leading opposition parties. Olaf Ruin (1988, pp. 320-21) argues that «the agreement. . .hammered out [did not] rest on any version of the right constitutional framework for an advanced welfare society of the Swedish type. Rather, the agreement was characterized by calculations from different quarters of what maximally favored and disfavored their own political party. The Swedish version of constitutional politics appeared as the interest politics of political parties par excellence.»
Members of the different parties in Italy that existed prior to Mussolini's takeover met after World War II and drafted a constitution designed to protect incumbent parties (e.g., by allowing them to reward their supporters with patronage of various sorts). It served the parties' interests well, particularly those of the Christian Democrats, who were in every government until 1994. How well it has served the Italian citizens is another matter (Spotts & Wieser, 1986, esp. pp. 4-8). Out of frustration with the performance of the Italian political system, several attempts at constitutional reform have been made. In one of these, the Bozzi Commission, appointed in November 1983, proposed reforms were defeated by a constellation of party interests that feared the parties would be weakened by the changes (Hine, 1988, pp. 218-23).7
Although the West German, post-World War II Constitution has probably served its citizens better than Italy's citizens have been served by theirs, the same kind of jockeying for postconstitutional advantage was visible at the convention in Bonn (MeAL 1963, pp. 90-103).
The Spanish Constitution of 1978 was drafted by a committee composed of representatives from both houses of the Spanish legislature, with all parties represented exceni the Basque National party. Although consensus was a primary objective from the start and one that was largely obtained (Leorente, 1988), the different panics did have an eye on their likely positions in the postconstitutional government. The two largest parties (the Union of the Democratic Center and the Spanish Socialist Workers party) favored and succeeded in getting a constructive motion of censure into the constitution over the vigorous opposition of the smaller parties (Bonime-Blanc, 1987, p. 77). Thy rule stipulates that the prime minister cannot be voted out of office unless a replacement is agreed upon. In favoring the rule, the two largest parties in Spain were increasing the likelihood that the governments, of which they expected to be a part, would not easily fall.
All of the constitutions that established democracy in the major Latin American countries have been written by standing parliaments or conventions dominated by the major political parties and/or political interests of the participants (Geddes, 1990). All reflect these interests. For example, proportional representation (PR) has generally been adopted at times of significant political transition, when larger parties fear significant future declines in their strength and small ones expect to benefit from such a shift.
Even more conspicuous illustrations of crass political self-interest occur when the parliament can choose the electoral rules. In France, the National Assembly has the authority to select the electoral rules. The French have routinely shifted from single- to multimember-district representation according to the expectations of the parties controlling a particular seating of parliament as to which formula will best serve their interest in the next election (Carstairs, 1980, pp. 176, 185; Knapp, 1987).
The absence of a written constitution gives the British Parliament the authority to choose electoral rules by default. The proposal to switch to PR has surfaced on several occasions during the last century in Great Britain. These proposals have inevitably met with a cool reception by the party that was or expected to be the largest in the next election (and thus the beneficiary of a disproportionate allocation of seats under the single-member-per-district representation formula). With opposition from the largest one or two parties in the British Parliament almost a certainty, proposals for PR are doomed to fail. As A. V. Dicey observed long ago, in Great Britain constitutional issues and party politics are intertwined.8
Even more blatant examples of raw self-interest are evidenced when dictators lend a hand to the process. When the relatively young Gamal Abdel Nasser took over as dictator of Egypt in 1956 he had the Constitution Writing Committee set the minimum age for the president at 35. When the somewhat older Mohammed Anwar al-Sadat became president in 1971, he had his Constitution Writing Committee raise the minimum age to 40, but had the committee drop the requirement that the president's grandparents be Egyptian, since his were not (Saleh, 1988, pp. 290-91). Having disbanded the elected Congress in April 1992, President Alberto Fujimori of Peru has pressed for constitutional changes that include repeal of the prohibition on a Peruvian president's being reelected. President Carlos Menem of Argentina has succeeded in obtaining the same constitutional change.9
As a final example of self-serving behavior in the constitutional sphere, one must recall how on two occasions (1959 and 1968) Ireland's largest party, the Fiana Fail, attempted to cement its numerical advantage by transforming Ireland from a multiparty PR system into a two-party system. The constitutional changes required voter approval in a national referendum, however, and Fiana Fail was foiled as the voters rejected the change to a two-party system both times (Butler & Ranney, 1978, pp. 201-7).10
Conclusions
For politicians, as for Vince Lombardi's football teams, «winning is the only thing.» A politician who strives after victory can also produce desirable outcomes for the citizenry. In a two-party system, each party tries to put forward a platform that is preferred by a majority of voters to the opposing party's platform. In a multiparty system a party must take positions that a given voting bloc finds superior to those of all other parties. The necessity to run for reelection constrains individual candidates and their parties to take positions that appeal to at least some groups of voters.
But the incentives of a person elected to parliament are quite different, if he finds himself in a constitutional convention. The constitutional convention is a one-time occurrence. The views of those who elected a representative to parliament regarding provisions in the constitution may not be homogeneous, and in any event are probably unknown to the member of parliament. Indeed, they may be unknown to the citizens themselves, since constitutional conventions are such rare events. Thus, an elected member of parliament, whose long-term political career is, he hopes, in parliament, may ignore the interests of both those who elected him and the citizenry at large when making his constitutional choices, at least as these choices pertain to parliamentary elections and the chief executive. Thus, a career politician attending a constitutional convention for one time may choose simply to advance his future political prospects.
This likelihood is enhanced when one considers the decision calculus of the voter. She has voted for someone (or some party) now in the parliament. The person(s) she voted for are now part of a constitutional convention that votes to establish a system of representation that the citizen believes is not in her best long-term interests. The next parliamentary elections are held under the new set of rules. Does the voter vote against the person (party) she formerly supported, because of their actions in the constitutional convention, or does she treat those actions as sunk costs and vote for the person or party that will best represent her interests in the next parliament? The latter is clearly the rational thing to do, and if she does it and if her representative knows she will do it, he has complete discretion to write the constitutional rules to maximize his long-term prospects in the parliament. And that is what the record indicates he has done.
These considerations suggest that it is better to elect a separate group of people to the constitutional convention than to have the constitutional convention formed by those elected to serve in the parliament.11 The rational voter realizes that a different set of issues is to be decided at a constitutional convention, and thus that a different type of person should be chosen to participate. Given the one-shot nature of the convention, the voter knows that, once elected, her representative will be free to vote as he pleases at the convention. The citizen wants, therefore, to elect individuals noted for their integrity as well as their honesty and judgment-qualities not always found in those who choose politics for a career. Beyond this, the voter can only trust and hope that the magnitude of the task that the convention takes on induces its members to discharge their duties responsibly.
Voting Rules
How Many?
If the constitution is a contract among all the people, then the voting rule used to approve the final document should be the unanimity rule. Even if one backs off from requiring full unanimity on grounds of practicality, the contractarian logic requires that the constitution should be approved with a substantial fraction of the votes cast. Wick-sell's (1896, p. 92) five-sixths majority comes to mind; three-fourths and two-thirds are obvious alternatives. To drop much below two-thirds, however, is to abandon the logic of consensus in favor of that of majority rule.
Contractarians emphasize consensus because it fosters compliance.12 If A agrees to the constitutional compromise, then A agrees to honor the rights of B as defined in (he constitution, just as B in agreeing promises to honor those of A. In expressing agreement, both A and B commit to cooperate in the many social prisoners' dilemmas that the constitution and the government it creates attempt to resolve. To the extent that individuals espouse a contractarian morality, they are obliged to honor their contractual commitments, to keep their promises. Overt agreement to the constitution enhances compliance with its provisions,13 enhancing both its effectiveness and its durability.
Consensus on the constitution can be reached for three compatible reasons. First, agreement avoids the necessary costs of nonagreement. The higher these costs, the more willing individuals will be to compromise. If true anarchy threatens, then all forms of constitutional government must promise benefits, and agreement on one form must be possible. Even self-interested individuals with divergent views will compromise on a particular constitutional contract rather than haggle endlessly.
The second reason to believe that consensus can be reached stems from the long-term nature of constitutional choice and the uncertainty over the future this brings. The group that today favors imprisoning members of a particular minority for long periods without trial may tomorrow find itself a minority facing imprisonment under similar terms. Today's minority party may become tomorrow's majority. Realizing this, individuals and groups, even if they think only of their own self-interest narrowly defined, may agree to provisions that protect and advance the interests of all individuals and groups out of a genuine uncertainty over what the future will bring.14
Finally, individuals may impose upon themselves uncertainty over future positions of the type that Rawls (1971) and, more recently, Gauthier (1986) have discussed. Participants at a constitutional convention do not anticipate that they or their descendants will be slaves, but believe when considering the constitutional status of slavery that one ought to imagine that one could be a slave. If individuals imagine that they might occupy all future positions in the polity, the likelihood of obtaining a consensus on the articles of the constitution would be greatly enhanced.
This Rawlsian view of uncertainty's role stands furthest from the rational-self-interest motivation of individuals that is presumed to govern their behavior in this book. Although flashes of impartiality were present in some arguments of the delegates who drafted the U.S. Constitution in Philadelphia, many did not appear to approach the issue of slavery in a Rawlsian frame of mind.
On the other hand, the willingness of whites in the North to support a war against the South in 1861 cannot be explained without taking into account the moral beliefs of many northern citizens at the time of the American Civil War. Some people on at least some occasions act as their moral beliefs dictate. If morality is ever a factor in how people make political choices, it is most likely to be one at a constitutional convention where the basic political rights of individuals are defined and the institutions that will determine their future welfare are crafted. The potentially important role that uncertainty plays in inducing individuals to agree on a constitution is further reason not to have the elected members of the parliament draft a polity's new constitution. Both natural uncertainty over future position, and the willingness to accept Rawlsian-type arguments for impartiality, are less likely for those whose political life hangs on the outcome of the next parliamentary election.
Whose Votes Count?
If the constitution is a contract among the citizens, then logically the citizens must cast the final vote for the constitution. If the constitution is a contract among all citizens, then all must approve the constitution before it can take effect. Although the logic of the argument is straightforward, to require a substantial majority of both the constitutional convention and the electorate to ratify a constitution is to risk having no constitution at all.
For the reasons given in the previous subsection, agreement among a substantial fraction of the participants in the convention is not improbable. But these participants have heard the arguments on all sides of each issue; they will have confronted the areas in which compromise is necessary and made the best compromise they could; their willingness to compromise has been watered by endless hours of debate. When the final vote is taken, each delegate voting yea believes that this wording is the best one could have gotten. The citizenry, on the other hand, is not likely to have followed each segment of the proceedings, not contemplated each possible proposal and counterproposal, is not equally as exhausted as the actual participants. Many citizens may reject a wording of the constitution that they would have accepted had they participated fully in the constitution-drafting process.
The situation is not unlike that of a jury. The rationale behind having trials by jury is that randomly selected citizens somehow carry with them the interests of all other citizens in seeing justice brought about, just as the rationale of selecting a constitutional convention should be that its members choose a constitution that advances the interests of all citizens. The belief is that the members of the jury, after hearing all the evidence, and perhaps engaging in much debate, reach the decision that is in the community's best interests. In the United States, this must be a unanimous decision. The system would collapse if the jury's decision were treated as a recommendation to the public, who then had to endorse it unanimously for it to take effect. Without hearing all of the evidence and without engaging in the subsequent debate, the general public is unlikely to reach the same decision unanimously. This same logic applies to the constitutional process.
Thus, one option for ratification of the constitution is to establish a procedure for selecting delegates to the convention that ensures the impartial representation of all views regarding the constitution, and require that the members of the convention ratify it by a substantial majority for it to take effect. If all citizens believe that their interests have been fairly represented in the constitutional assembly, then its vote in favor of the constitution by a substantial majority should convince citizens that this is the best constitution that could be agreed to. The U.S. Constitution has endured so long, in part because each generation thinks of it as its constitution, as if it is party to the contract This identification stems in turn not, I believe, from the fact that the original Constitution was ratified by a handful of voters in nine states, but because the men who wrote it were among the best America has ever produced. The U.S. Constitution endures because most Americans doubt that they, or anyone else, could produce a better one.
The situation is quite different if the citizenry does not respect or trust the judgment of the constitutional convention. Suppose that a parliament has been selected after the collapse of a dictatorial regime and that it decides to write a new constitution. Perhaps because many in the parliament are likely to be most concerned with their own political careers, or perhaps because the parliament contains members of the former deposed government, the citizens are skeptical as to whether this assembly will draft a constitution that will serve them best in the long run. In this situation, the requirement that the constitution be ratified by a substantial majority in a national referendum will help protect citizens from the opportunistic actions of the parliament.
We thus see that there are two quite different ways of thinking about (he constitution-drafting process, each of which is consistent with the view that the constitution is a contract among all citizens. In the one, delegates are selected to the constitutional convention by a process in which all citizens' interests are fairly represented. We suggested either a special election of delegates using a proportional representation technique or a random-jury-like selection process. A substantial majority of this convention is required to place the constitution into effect. The members of the convention are induced to agree because they know there will be no constitution or no new constitution until they do. The citizens accept the constitution approved by the convention as theirs because of the way the convention was constituted and the size of the consensus it reached.
In the other alternative, a more expedient method of obtaining a constitutional convention is chosen: an existing parliament or committee thereof, a commission appointed by the parliament, by the president, by the retiring dictator. Regardless of how this convention is formed, if the document it produces can go into effect only if it is ratified by a substantial majority of the population, then the convention has to take into account the preferences of the citizens. Should the constitution include provisions that are clearly motivated to advance the narrow interests of the members of the convention, the citizens will turn it down, just as Irish voters twice rejected Fiana Fail's efforts to change the Irish Constitution to its own advantage.
Which alternative is best for a given country depends on the characteristics of that country. How pressing is the need to have a constitution? How large is the pool of potential candidates for a parliament and a separate constitutional convention? How wise and engaged are the citizens? The quality of the final product under each alternative depends ultimately on the answer to this last question. Under the first alternative, the citizens must either choose representatives with the judgment and knowledge to draft a good constitution, or be capable of acquiring these traits themselves. Under the second option, the citizens must have sufficient knowledge and judgment to reject any proposed constitution that is inferior and accept one that is not. If authority in a constitutional democracy rests ultimately on the citizens joined by the constitutional contract, then the quality of a constitutional democracy's institutions rests on the capabilities of its citizens to forge them.
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