Recent years have seen the publication of many high-quality works in both political science and law on the process of constitution making, which was once a very understudied field. Nonetheless, key questions remain unanswered, and we still know far too little about the impact of constitution-making processes on important outcomes. Perhaps most troublingly, this creates an enormous gap between the recommendations that advisers and NGOs offer as gospel on the ground and the state of social science findings.
Alexander Hudson’s new book, The Veil of Participation: Citizens and Political Parties in Constitution-Making Processes, tackles one of the most important—and difficult—gaps: the impact of popular participation during constitution making. The call for extensive popular participation is probably the most ubiquitous recommendation of transnational policy makers, and it has even been described as perhaps the only international law norm bearing on constitution-making processes. But the meaning of participation is ambiguous. Participation comes in many different forms, some likely much deeper than others. Popular referenda at the beginning and end of the constitution-making process, education campaigns, and various methods (both in-person and virtual) to solicit input have all been described as participatory (see Abrak Saati, The Participation Myth: Outcomes of Participatory Constitution Building Processes on Democracy, 2015).
Moreover, the state of the social science on this question is murky. Whereas some work finds evidence that more popular participation increases levels of democracy (see, e.g., Todd A. Eisenstadt, A. Carl Levan, and Tofigh Maboudi, Constituents before Assembly: Participation, Deliberation, and Representation in the Crafting of New Constitutions, 2017), other work casts doubt on such a conclusion and instead pinpoints pluralistic agreements between competing elites as the key for democratic outcomes (see, e.g., Gabriel A. Negretto and Mariano Sánchez-Talanquer, “Constitutional Origins and Liberal Democracy: A Global Analysis, 1900–2015,” American Political Science Review, 115[2], 2021). Against this backdrop, The Veil of Participation takes a novel approach. It asks not whether popular participation makes a difference in outcomes, but when it might matter.
The answer the book gives is that success depends on the strength of the parties involved in constitution making. Strong parties create few openings for public participation to influence the constitution; they will instead draw on their own platforms and internal discussions to shape the constitutional product. Weak parties offer more opportunities because representatives will approach the process with fewer preconceived ideas.
The evidence includes detailed, chapter-length case studies of three relatively recent processes: South Africa’s 1996 constitution, written largely by the dominant African National Congress (ANC); Brazil’s constitution in 1988, which was drafted by a conglomeration of relatively weak, patronage-based parties; and Iceland’s failed 2012–13 replacement process, which unusually was drafted by an assembly that essentially excluded the existing parties altogether. All three processes included robust and creative efforts to solicit popular input. Yet the Icelandic experience, by far, is the one where popular participation appears to have most shaped the final product, influencing an assembly of relative political outsiders. Even there, fewer than 10% of the suggestions collected via novel use of tools like Facebook ended up in the final text.
Hudson also carries out a quantitative analysis of all constitution-making processes between 1974 and 2014. Because it is nearly impossible to gather direct, large-N data on the impact of popular proposals on the final text, the book uses as a reasonable (if debatable) proxy the number of novel rights included in the constitutional text. The theory is that, because popular participation seems to mainly aim at adding rights provisions, successful participation should show up as an increase in the number of uncommon constitutional rights that are not part of the generic core almost inevitably found in texts. The model finds strong significance for an interaction term between levels of popular participation and the strength of parties. Where parties are one standard deviation stronger than the mean, moving from the lowest to the highest level of participation adds only one-half of a novel constitutional right. Where parties are one standard deviation weaker than the mean, making the same move in terms of increasing participation would be expected to add four (from two to six) additional novel constitutional rights.
The careful, multimethod approach taken by Hudson provides convincing support for the core argument and sheds light on the limited conditions under which popular participation will influence the constitutional text. Moreover, the findings sharpen an important trade-off: those conditions that are most conducive to effective popular engagement may also be those where the constitution-making process may be less successful in achieving other important ends. Take Iceland, where popular input played a relatively major role in shaping the constitutional text precisely because the assembly effectively excluded representatives of the parties. In the end, this design contributed to the failure of the process to produce a new constitution: the excluded political elites blocked its promulgation.
There is thus a complex trade-off between the inter-elite bargaining that might be necessary to stabilize a new constitution and popular participation. Absent more clarity about the contours of this trade-off, the ubiquitous policy recommendation in favor of a highly participatory process seems problematic. At minimum, other dimensions of constitution-making processes almost certainly matter more. More strongly, pushing for high levels of participation could in some contexts undermine those dimensions.
The most important limitation of the analysis in The Veil of Participation is explicitly noted by the author: it measures the impact of participation in only one way, by looking at how popular input shapes text. There are good reasons in terms of tractability for such a focus. And the findings provide a dose of much-needed realism. But the book’s focus may undersell the value of participation by highlighting only one route through which it may make a difference.
There are, as Hudson acknowledges, other possible routes. Popular involvement may influence elite bargaining in different ways, both positive and negative; for example, forcing parties to stick to deals or preventing hard bargaining from occurring in the first place (see Jon Elster, “Forces and Mechanisms in the Constitution-Making Process,” Duke Law Journal, 45[2], 1995). Moreover, a highly participatory process may increase the legitimacy of the final constitution, even if it does not exercise direct influence over the text, by increasing popular buy-in. This may in turn increase constitutional durability and political stability.
Hudson argues that the legitimizing impact of popular participation may rest on a kind of sham. As he puts it, there is a “worry that gains in the perception of the sociological legitimacy of a constitution are based on false statements on the part of constitution makers and inaccurate judgments on the part of the public” (p. 181). This framing is provocative, albeit perhaps overstated: sham-like participation processes certainly exist, during constitution making and elsewhere, but they should not be assumed just because they do not directly influence the final product. Take South Africa, which in Hudson’s analysis represents a paradigm case of widespread, invited popular involvement whose impact is very difficult to trace in the final constitutional text. Almost all the text emerged, instead, from bargaining between the ANC and its rivals. But the robust process of popular involvement still seems like a significant net-plus: it increased education and engagement with the text, and the ANC itself had substantial legitimacy as the driving force in post-apartheid South Africa.
Scholars and students of constitution making, as well as other forms of popular participation in politics, will benefit greatly from Hudson’s excellent book, both in the answers it gives and the new questions it asks.
