http://orcid.org/0000-0002-1193-2706
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ABSTRACT
Does the art of crafting and amending a constitution lead to an internal consistency among constitutional provisions, and if so, what effect does that have on countries’ democratic performance? Drawing from theoretical claims on the separation of power and electoral legitimacy, this article develops a concept that identifies the institutional characteristics of consistency and inconsistency in the constitutional design with the example of the presidency. Empirically, this concept is focused on aligning or counterbalancing the mode of presidential election and the de jure power of the president. Based on a comparative perspective of republican parliamentary and semi-presidential systems, the article focuses on the empirical trends of consistent and inconsistent design and addresses their effect on democratic development. The findings show a balance between consistent and inconsistent design in terms of quantity. The influence on democratization varies considerably across different measures but I find significant support for a positive effect of inconsistency on liberal democracy, freedom, horizontal accountability and the rule of law.
Acknowledgement
I would like to thank Christina Bambrick, Steffen Beigang, Diana Burlacu, Zachary Elkins, Michael Hein, Maria Haimerl, Ran Hirschl, Gary Jacobsohn, Felix Petersen, Silvia von Steinsdorff, Konstantin Vössing as well as as the two anonymous reviewers and the editors for useful feedback.
Disclosure statement
No potential conflict of interest was reported by the author.
ORCID
Anna Fruhstorfer http://orcid.org/0000-0002-1193-2706
Notes
1. Elkins, Ginsburg and Melton, The Endurance of National Constitutions, 211.
2. Tushnet, “The Possibilities of Comparative Constitutional Law,” 1287.
3. Horowitz, “Constitutional Design: An Oxymoron?,” 257.
4. Tushnet, “The Possibilities of Comparative Constitutional Law,” 1287.
5. The definition of semi-presidentialism that is now standard in political science research is applied here and includes all countries with a constitution according to which “there is both a directly-elected fixed-term president and a prime minister and cabinet collectively responsible to the legislature.” Elgie and McMenamin, “Explaining the Onset of Cohabitation Under Semi-Presidentialism,” 618. Furthermore, parliamentary systems are defined here as assembly-confidence systems, in which the origin and survival of the executive depend on the parliamentary majority. Steffani, “Strukturtypen präsidentieller und parlamentarischer Regierungssysteme.” In addition, purely parliamentary systems in the republican form have an indirectly-elected head of state, for example, elected by the parliamentary assembly.
6. Elkins, Ginsburg and Melton, The Endurance of National Constitutions, 211.
7. See for a similar assessment ibid.
8. Elster, “Forces and Mechanisms in the Constitution Making Process”; Smith and Remington, The Politics of Institutional Choice: The Formation of the Russian State Duma.
9. Binmore, Rational Decisions.
10. Tushnet, “The Possibilities of Comparative Constitutional Law,” 1287.
11. Horowitz, “Constitutional Design: Proposals Versus Processes,” 16.
12. Tushnet, “The Possibilities of Comparative Constitutional Law,” 1287.
13. Horowitz, “Constitutional Design: An Oxymoron?,” 257.
14. Horowitz, “Constitutional Design: Proposals Versus Processes,” 16.
15. Cited according to Morris, French Politics Today, 28.
16. Dixon, “Constitutional Amendment Rules,” 96.
17. The term “amendment” has also a legally substantive definition (that does not apply here), namely that for an amendment the action has to “materially” change the constitutional design, see Murphy, “An Ordering of Constitutional Values.”
18. Horowitz, “Constitutional Design: Proposals Versus Processes,” 16.
19. Tushnet, “The Possibilities of Comparative Constitutional Law,” 1287.
20. Hirschl, “The Design Sciences and Constitutional Success,” 1349.
21. Riker, “The Lessons of 1787,” 9–10.
22. Jacobsohn, Constitutional Identity, 16.
23. Ibid., 345.
24. Lerner, “Constitution-Writing in Deeply Divided Societies: The Incrementalist Approach.”
25. Ibid., 74.
26. Cheibub, Presidentialism, Parliamentarism, and Democracy.
27. Elgie and Schleiter, “Variation in the Durability of Semi-Presidential Democracies”; Sedelius and Linde, “Unravelling Semi-Presidentialism.”
28. Cheibub, Elkins and Ginsburg, “Beyond Presidentialism and Parliamentarism.”
29. Cheibub, Martin and Rasch, “Government Selection and Executive Powers: Constitutional Design in Parliamentary Democracies”; Elgie, “The Semi-Presidential One Blog.”
30. Elkins, Ginsburg and Melton, The Endurance of National Constitutions.
31. Shugart and Carey, Presidents and Assemblies. Constitutional Design and Electoral Dynamics.
32. STATA do-file for replication of the analyses presented in this article is available from the author upon request. Replication data is available at www.fruhstorfer.me/data.
33. Edgell, “A Crowing Hen.”
34. Coppedge et al., “V-Dem Dataset V7.1.”
35. The World Bank, Worldwide Governance Indicators.
36. Coppedge et al., “V-Dem Dataset V7.1.”
37. Przeworski, Democracy and the Market; Norris, “Driving Democracy”; Cheibub et al., “What Makes Democracies Endure?.”
38. The World Bank, World Development Indicators.
39. Gallagher, “Election Indices Dataset.”
40. Kollman et al., “Constituency-Level Elections Archive.”
41. Alesina et al., “Fractionalization.”
42. Norris, “Driving Democracy”; Jensen and Skaaning, “Modernization, Ethnic Fractionalization, and Democracy”; Fish and Kroenig, “Diversity, Conflict and Democracy: Some Evidence from Eurasia and East Europe”; Liu, “Democracy and Minority Language Recognition: Tyranny of the Majority and the Conditional Effects of Group Size.”
43. Sedelius and Linde, “Unravelling Semi-Presidentialism”; Elgie and Schleiter, “Variation in the Durability of Semi-Presidential Democracies”; Elgie and Moestrup, “The Impact of Semi-Presidentialism on the Performance of Democracy in Central and Eastern Europe.”
44. Elster, “Transition, Constitution-Making and Separation in Czechoslovakia,” 121.
45. Kopecký, “The Czech Republic: From the Burden of the Old Federal Constitution to the Constitutional Horse Trading Among Political Parties,” 333.
46. Ibid., 319.
47. Chamber of Deputies, “Stenographic Protocol,”
48. This amendment was declared unconstitutional by the Constitutional Court of Moldova in March 2016 based on substantive and procedural arguments. With regard to the substantive argument, the decision of the court referred to the missing harmony in the constitutional amendment with the constitution.
49. Herb, “No Representation Without Taxation? Rents, Development, and Democracy.”
50. Tushnet, “The Possibilities of Comparative Constitutional Law,” 1287.
51. Lerner, “Constitution-Writing in Deeply Divided Societies: The Incrementalist Approach.”
52. Sedelius and Linde, “Unravelling Semi-Presidentialism.”
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Anna Fruhstorfer
Anna Fruhstorfer is a postdoctoral researcher at the University of Göttingen and at Humboldt University Berlin. Her main research focuses on constitutions, constitutional politics as well as executive-legislative relations especially in Eastern Europe and the Post-soviet area.