[Editor’s Note: In this installment of I•CONnect’s Book Review Series, David Landau reviews Donald L. Horowitz’s Constitutional Processes and Democratic Commitment (Yale University Press, 2021).]
—David Landau, Florida State University College of Law
Twenty-seven years ago, Jon Elster noted that there were few thorough, high-quality studies of the process of constitution making around the world. Fortunately, this academic weakness has been rectified. Yet in the now crowded literature on the topic, Donald Horowitz’s recent book Constitutional Processes and Democratic Commitment stands out. Drawing off of Horowitz’s vast experience studying democratic constitutions, particularly in divided societies, the book is the clearest and most thoroughly-argued exposition of an emerging scholarly position, one which runs counter to the conventional wisdom in the policymaking community in that it privileges inclusion and consensus among elite groups over popular participation. The book is also valuable for its realism and wise eschewing of simple or one-size-fits-all solutions, its careful exposition of cases understudied in the existing literature, and the new questions it raises and aspects of process that it explores. Like many of Horowitz’s other works, it will prove to be an agenda-setter.
Inclusion, Consensus, and Participation
A major virtue of the book is in stating, with admirable clarity, the ends that a good constitution-making process should satisfy. Horowitz argues that processes should aim for two main virtues: inclusion of major social and political groups, and relative consensus among those groups on major issues. Horowitz is much more skeptical about the value of popular participation, the main recommendation of a strain of scholarly work and a dominant recommendation among many international organizations and advisors. He agrees that the public should be kept informed, and that some forms of participation can help provide popular legitimacy, but he argues that participation is not a panacea and that it has some pitfalls, including manipulation by authoritarian actors or by leaders in the service of more divisive agendas.
Horowitz’s vision of constitution making is lucidly presented and well supported by the case studies in the book. These case studies themselves are very valuable. They are drawn generally from deeply divided societies, many of which are not well-known in the general literature. The major case studies include Indonesia, Tunisia, and India (as relative successes), and Sri Lanka, Nepal, Kenya, Fiji, and Iraq (as more problematic cases or outright failures). Horowitz devotes an entire chapter (Chapter 8) to Sri Lanka’s unsuccessful attempt at constitution making between 2015 and 2018, showing in fascinating detail how the search for consensus broke down after a promising start.
Horowitz’s argument is also concordant with an emerging vision in recent quantitative and qualitative scholarship, as he points out. Recent empirical work by Gabriel Negretto and Mariano Sánchez-Talanquer demonstrates that inclusion of one than one political and social group in constitutional drafting is associated with more democratic outcomes, while greater popular participation has no relationship. And other work, such as by Abraak Saati and Alex Hudson, has also cast doubt on the value of popular participation. Horowitz’s book draw out and gives more precise meaning to these concepts, and places them in a broader theoretical frame.
He emphasizes that the key is not merely inclusion – having all major groups at the table – but also consensus – having buy-in from major groups about key design decisions. Consensus he usefully distinguishes from compromise, or splitting the difference between discordant positions. The latter is sometimes a necessity and can be useful, but Horowitz argues that it often does not provide the benefits of genuine consensus forged by deliberation.
The focus on consensus as a key to success is important, and I wonder if it is in some significant tension with the prevailing theory about constitution making, constituent power. Constituent power itself is a vague concept, one that has sparked incredible scholarly disagreement and has been operationalized differently across contexts, times, and regions. But it often has (1) a majoritarian tinge and (2) a focus on the impossibility of constraint on constitution making bodies, both at odds with the goals articulated by Horowitz. Constituent power has been rethought by many prominent scholars, for example in Andrew Arato’s model of “post-sovereign constitution making”; more recently it has been frontally attacked by Sergio Verdugo, who calls for its abandonment. Clarifying and debating a constitutional theory, especially one as abstract as constituent power, can seem like a pointlessly obscure enterprise, but it may be one of the biggest ways in which academics can influence how participants in constitution making, implementation, and interpretation conceptualize their roles.
From Goals to Design
One trick, of course, is making these recommendations about the goals of a process into recommendations about the design of the process itself. This is very difficult. First, the design of constitution-making is at least in large part endogenous to the existing shape of politics and history, rather than an exogenous instrument. Still, Horowitz argues that there is usually at least some room for (constrained) choice. Second, Horowitz notes that negotiations may rather rarely approach the veil of ignorance often held up as an ideal for reaching agreement, especially late in the process. Third, process designs can and often do produce surprising results, ones which frustrate the intent of the designers. Witness Chile, where as I recently argued, the intent of the design and two-thirds voting rule for the Constitutional Convention was to give all major political forces a veto, but the right’s very poor showing in the elections to the Convention stymied that intent.
Given these pitfalls, the book wisely avoids making simplistic process recommendations and instead develops a careful, context-dependent approach, emphasizing that there is “no single path to the same general destination” (p. 243-44). Successful approaches can be found across different kinds of design: for example, both constitution making by specialized assembly and constitution making by ordinary legislature. There are also many underappreciated variants on the theme, as the book draws out, such as proposal or review by expert commission, before or after deliberation by a popularly elected body. There is also no single formula for electoral rules, since different approaches will obviously work differently in different national contexts. Understandably, not every aspect of process receives significant attention. For example, the book does not engage as deeply the debate about the feasibility and wisdom of using existing constitutional orders or laws to constrain constitution making, perhaps again because Horowitz believes that the choice is heavily context dependent.
Where clear recommendations emerge, they often tend to do so aversively, by seeing what has not worked across a number of situations. There are also many ways, alas, in which constitution-making processes can go wrong. Horowitz notes that rigid deadlines and inadequate time undermined some processes. He also criticizes exit referendums to approve constitutional drafts, stating that they may provide some public legitimacy but can also be extremely divisive and will not make up for earlier failures of inclusion and consensus. Again, the ugly referendum campaign in Chile is a new piece of evidence suggesting the wisdom of this point. Perhaps, as Kim Lane Scheppele suggests, this is one of the most important, and least problematic, roles that external advisors can play – helping to avoid dubious aspects of process design, if we can reach relative consensus on what those are.
(How) Does Constitution-Making Process Matter?
At a broad level, Constitutional Processes and Democratic Commitment is committed to the claim that the design of the constitution-making process really matters and matters deeply, albeit often in complex, context-dependent ways. Horowitz notes that some countries with fairly favorable starting conditions for constitution making (Nepal, Sri Lanka) had challenging outcomes; others with tough starting conditions (e.g. Indonesia) had good results. Yet one is left unsettled. That constitution making is often a “critical juncture” for democratic and other outcomes seems clear beyond reasonable doubt. The search for which elements of process design produce the elusive goals emphasized by Horowitz – inclusion and particularly consensus – will go on, spurred in no small part by this important book.
Suggested citation: David Landau, Book Review: Donald L. Horowitz’s Constitutional Processes and Democratic Commitment, Int’l J. Const. L. Blog, Jul. 30, 2022, at: http://www.iconnectblog.com/2022/07/book-review-donald-l-horowitzs-constitutional-processes-and-democratic-commitment/