Does the Process of Constitution-Making Matter?

Abstract

Constitution-making is a ubiquitous but poorly understood phenomenon. There is much speculation but relatively little evidence about the impact of different design processes on constitutional outcomes. Much of the debate reduces to the question of who is involved in the process and when. We consider two central issues in this regard. The first is the problem of institutional self-dealing, or whether governmental organs that have something to gain from the constitutional outcome should be involved in the process. The second has to do with the merits of public involvement in the process. Both of these concerns have clear normative implications and both are amenable to straightforward social scientific analysis. This article surveys the relevant research on constitution-making, describes the conceptual issues involved in understanding constitution-making, reviews the various claims regarding variation in constitution-making processes, and presents a set of baseline empirical results from a new set of data on the content and process of constitution-making.