It is becoming abundantly clear—if it was not already—that for all their normative appeal in the popular imagination and in much academic writing, constitutions are most often born out of an impulse to preserve and reproduce power. This is the basic thrust of Javier Corrales’s strong recent contribution to the literature on the political origins of constitutional arrangements. In Fixing Democracy, Corrales uses a combination of qualitative and quantitative methods to explore the politics behind changes to formal presidential powers in the constitutions of Latin America.
The qualitative work consists of three illuminating case studies—Venezuela, Bolivia, and Ecuador—looking at three prominent new constitutions produced by left-leaning governments. The more quantitative sections examine the region since the 1980s. These include analyses of, on the one hand, the appearance of particular provisions, such as term limits or the choice between plurality and runoff rules for selecting the president, and, on the other, a more comprehensive analysis using a Presidential Powers Index that is an updated version of Matthew Shugart and John Carey’s classic index (see Presidents and Assemblies, 1992). Corrales presents a solid argument with strong evidence to back it up, and the book complements other work on the political origins of constitutional design, although, as we will see, it also diverges from these other analyses—including my own work with Abby Blass—in certain important respects.
Although constitutional debates are often wrapped in ideological trappings, Corrales says, power relations trump ideology, at least when it comes to designing the institutional arrangements that determine presidential powers. Specifically, he divides the actors in the stylized constitutional design moment into the Incumbent (the sitting president and his or her supporters) and the Opposition (“all the elected officials, mostly in Congress and subnational governments, who are not part of the Incumbent’s party or governing coalition”; p.3). When the balance of power at the bargaining table favors the Incumbent, the resulting change is likely to increase the president’s powers; when the balance tilts against the president, the Incumbent will first try to block the change from happening, but if he or she fails to stop the process, the change is likely to result in a weakened presidency. As intuitive as this argument appears, it runs counter to many accounts that attribute the features of constitutions to a tendency to follow global trends in constitutional design, or to the penchant of the Left (as opposed to the purportedly more restrained Right) to empower strong populist presidents, or to the individual preferences of certain political actors.
Corrales’s argument fits well with a more general trend to emphasize what Ran Hirschl calls “The Strategic Foundations of Constitutions” (in Denis Galligan and Mila Versteeg, eds., Social and Political Foundations of Constitutions, 2013). For example, Gabriel Negretto’s (2013) Making Constitutions, on the politics of constitutional design, similarly emphasizes the strategic interests of the actors who participate in the constitutional design moment in determining the level of power that constitutional reformers will grant the president vis-à-vis the legislature. My own (2018) book with Blass, The DNA of Constitutional Justice in Latin America, also argues that constitutions are meant to reflect the balance of power of the constitutional moment and extend it into the future, as does Michael Albertus and Victor Menaldo’s (2018) Authoritarianism and the Elite Origins of Democracy.
Despite the general congruence in all this work, interesting differences among the various contributions open up some questions for future research. For example, in our book, Blass and I stress the role of ideology in determining the substance of the issues that designers wish to constitutionalize (conditional on a strategic motive to constitutionalize anything at all). Similarly, Negretto suggests that at critical times, designers can transcend raw self-interest.
There is one other, perhaps more important, theoretical difference between Corrales and most of the strategic, realist, constitutional design literature, however. All the works mentioned here seek to demonstrate that the logic of constitutional design, in contrast to other forms of institutional design, is future oriented, with a relatively long time horizon. That is, designers are writing a constitution against an uncertain future based on their more or less confident predictions of who will hold power down the road. The point of constitutions, in this view, is to extend preferences beyond the immediate political, social, and economic context. Corrales, in contrast, argues that actors seek to maximize the power of the office they hold at the time. At page 55, for example, he says that “even forward-looking Incumbents and Opposition parties still prefer to enhance the powers of the office that they control at the time of negotiations.”
This solves the oft-heard objection that politicians are shortsighted and have limited capacity to predict the future, but this presentist claim, at times, seems to conflict with the historical record. Even by the author’s own account, for instance, Cristina Fernández de Kirchner abandons her project to strengthen the presidency when it becomes less certain that she would be the beneficiary of that project, given her dwindling electoral prospects (p. 212; see also, p.48: “[T]hese cases of aborted constituent assemblies reveal that presidents facing or anticipating declining power vis-à-vis the Opposition will avoid constitutional rewrite”). While this is an important theoretical difference, it is attenuated as a practical matter by the fact that much of the time, political actors base their expectations of the future on their experiences today. The question is what designers would do when it appears that things are about to change—how good politicians are at reading the writing on the wall. I am persuaded by my own reading of constitutional debates that the designers in the cases Blass and I have examined were writing for a future more remote than what Corrales suggests. Is the design of executive power more short-term oriented than the design of constitutional justice systems? In any event, it seems to me that we have more work to do in order to disentangle the mix of presentist and future-regarding calculations that underpin constitutional design.
Fixing Democracy would also benefit from being more directly in conversation with Negretto’s earlier (2013) contribution on the origins of presidential powers. It turns out, for example, that in both accounts, strategic calculations motivate design and ruling parties play an important role in constraining their own incumbent executives. But in Corrales’s book, the incumbent’s party does not clearly appear as a separate actor until Chapter 8 (the quantitative chapter on term limits), rather than in the opening chapters or in the potentially more nuanced qualitative chapters. This finding brings Corrales closer to Negretto’s argument, while his finding that crises do not affect the resulting changes seems to contradict Negretto. Confronting this very proximate book head-on, identifying differences and similarities, would have allowed us to see more clearly where the accounts diverge, and whether and where the differences are substantive or due to different emphases or methods.
Although the principal dependent variable in the book is the modification of the level of presidential power, the author also explores when constitutional change is more or less likely and the consequences of different changes on ensuing politics. As to the former, if the desire to preserve or enhance power is a far more important motivator than normative commitments to a certain model of executive power, then changes meant to distribute power away from the president face a fairly significant hurdle. The executive typically has a strong voice in whether constitutional change will take place and will block constitutional amendment processes that seem likely to tilt against it. This is not quite a fully developed argument about when constitutional change will take place, but it is hard to disagree with Corrales’s argument that constitutional change to weaken the presidency should be less likely than change to strengthen it.
This observation reveals a striking puzzle in the findings: Out of 11 cases of change since 1980, we somehow end up with seven cases in which there is either a negligible change or a reduction in presidential powers, and only four (three, really, because one is never adopted) with an increase (see Table 1.1, p. 11). At a theoretical level, at least, the deck seems thoroughly stacked against this outcome. Are incumbents really that bad at reading the writing on the wall? Corrales correctly shows how political circumstances sometimes push executives into accepting constitutional change processes even in adverse conditions, and how sometimes the selection process for constitutional designers produces an unexpectedly adverse outcome for the sitting president. But the results seem more systematic than could be explained by a series of ad hoc events. Could there be something about the nature of constitution making that makes the process repeatedly end up being more inclusive and pluralistic than the initiators expect? If so, there is some reason to be more hopeful about constitutionalism than a purely strategic realist account—which argues for a vicious cycle that simply reinforces power over time—would allow.
This hopeful conclusion is all the more important given Corrales’s findings on the likely effects of a move to significantly strengthen executive powers. When an incumbent seizes the opportunity to strengthen his or her hand through constitutional change, the opposition is likely to feel threatened, and to deny full constitutional legitimacy to the changes. Significant increases in executive power lead to worsening democratic scores (pp. 71–75). This prompts the author to end the book with a cautionary note against the purer forms of majoritarianism and unchecked executive power. Blass and I come to a very similar conclusion in examining the construction of mechanisms that can, under the right conditions and with the right design, moderate pure majoritarianism. On this point, then, we all agree: Constitutions represent a crucial political settlement, and some generosity to the weak at the founding moment is at the same time unlikely and crucial to the normative appeal of that settlement. The challenge for constitutional theorists is finding ways to square that generosity with a commitment to democracy and effective government, and with the fact that strategic calculations seem to dominate the playing field. Fixing Democracy is another important contribution in charting that path.
