A CONSTITUTION, among other things, is a document that is unusually difficult to change. Constitutionalism hinges upon a distinction between the procedures governing ordinary legislation and the more onerous procedural hurdles that must be overcome in order to recast the ground rules of political life. To understand the amending power and its limits, therefore, is to understand the balance of rigidity and flexibility, of permanence and adaptability, that lies at the heart of constitutional government. To institutionalize a constitutional system, as post-Communist drafters from Tirana to Tallinn are now attempting to do, means, among other things, to establish clear rules for, and restraints upon, future constitutional change.
A seemingly simple, albeit important, practical question raised by all such attempts is what amending formula should be adopted by these particular countries during this particular phase of their dramatic economic, political, and social transformations. The amending power is not a legal technicality but may, in turn, color the political process as a whole. The answer that we propose and defend in this chapter can be stated succinctly: The procedure for constitutional modification best adapted to Eastern Europe today sets relatively lax conditions for amendment, keeps unamendable provisions to a minimal core of basic rights and institutions, and usually allows the process to be monopolized by parliament, without any obligatory recourse to popular referenda.
This arrangement, or so we will argue, should make possible necessary but legally channeled readjustments to swiftly changing circumstances without undermining the already weak legitimacy of democratically accountable assemblies. We urge this approach with some ambivalence. Under better conditions, a sharp split between constitutional law and ordinary law would be preferable.1 But the peculiar conditions of Eastern Europe do not make this a sensible solution.
Before turning to recent experiences with constitutional revision in Eastern Europe and defending our recommendation, we introduce a few analytical points. An amending formula, first of all, provides a way for framers to share some of their authority over the constitution with subsequent generations. Because of this relationship to the initial framing power, the amending power trenches upon core issues of democracy and sovereignty. Constitutional revision raises the question of the source of law or “popular sovereignty” in its most institutionally concrete form.2 If all political agency must be authorized by the constitution, whence comes the authority to remake the constitution? If the amending power is conceived as wholly subordinate to the constitution, it presents an obvious anomaly.
This anomaly is strikingly expressed in an abortive attempt by French constitutional theorists to classify the authority to revise the constitution. Following usage established by Abbé Sieyes in the late eighteenth century, French constitutionalists distinguish between the framing power—le pouvoir constituant—and the three established branches of government—les pouvoirs constitués. The amending power does not fit comfortably into either category. It inhabits a twilight zone between authorizing and authorized powers. To classify it, therefore, French constitutionalists resort to farfetched terms, such as le pouvoir constituant institué and le pouvoir constituant derivé.3 They might as well have confessed their embarrassment and called it le pouvoir constituant constitué. Strangely enough, there is something to this oxymoron. The amending power is simultaneously framing and framed, licensing and licensed, original and derived, superior and inferior to the constitution. This acrobatic both/and pattern alerts us to the undertheorized dilemma posed by the constitutionally regulated power to revise constitutional regulations of power.
Whence comes such a metapower, since it obviously cannot derive wholly from the constitution itself? The traditional democratic answer has been “the people.” It is almost as if the electorate, through its residual right to initiate and ratify constitutional amendments, retains some of its original authority to choose the nature of the political regime, to lay down the ground rules of subsequent decision making, and to establish the limits and legitimate aims of government action.4 As Bruce Ackerman and others have argued, democracy would be incomplete if the citizenry could act only through periodic elections and public discussions of concrete policy alternatives conducted through a free press.5 To this must be added the right to change or not to change fundamental value commitments and the rules of the game. Political legitimacy in liberal systems ultimately depends upon the option to bring about change, used or held in reserve.
The legitimacy of a liberal constitution has a similar foundation, paradoxically, in its own liability to revision. It is accepted, or deserves to be accepted, partly because it could be changed.6 Constitutional government, in its American variant at least, cannot dispense with the concept of supraconstitutional sovereignty or authority over the constitution. This is an especially good pattern to imitate, we suggest, when social turbulence makes it advisable to design liberal-democratic constitutions in a way that holds open a legal path to ongoing constitutional transformation. Indeed, the American idea should be taken much further—and in a way that reforms that idea fundamentally—under conditions in which uncertainty and factionalism make it risky to attempt a sharp distinction between constitutional politics and ordinary politics.
A theory of the amending power must probe the difficult relationship between constitutional limits on power and the limbo-inhabiting power to revise these limits. By so doing, it can help us answer some old and fundamental questions. What is the connection between democracy and liberalism, for instance, or between collective self-rule and limited government? Is there some sort of contradiction or deep tension here? Is the genuine democrat logically committed to being an antiliberal? Is the true liberal bound to be fearful of and hostile to democracy? Does constitutional rigidity thwart the popular will? The amending power draws attention to these questions in several stark ways. For instance, the procedural obstacles to easy constitutional amendment form the core of the countermajoritarian dilemma. Why should a majority, in a democratic country, be prevented from doing whatever it wants?
One answer might be that “democracy” cannot be reduced to majoritarian decision making. We might adopt a conception of democracy that contains certain preconditions that operate as constraints on majoritarian rule. The right to free speech, for example, is part of the basis for democracy. Constitutional protection of free speech is hardly inconsistent with democratic principles. The same may well be true of the right to vote, the right to religious liberty, and the right to private property. Many liberal rights are best understood as preconditions for a well-functioning democracy, and not as antidemocratic at all. We can see constitutions as precommitment strategies, designed to safeguard goals that would predictably be compromised by agents of the people, or by the people themselves. The alleged paradox of liberal democracy has been greatly overstated; democracy and liberalism are mutually reinforcing creeds.
But there are at least potential tensions between liberal and democratic goals. It is for this reason that a stringent amending formula, of the sort that many observers recommend for Eastern Europe, might seem to suggest a bias for liberalism against democracy. The very existence of an amending formula, on the other hand, might suggest a bias for democratic procedure over moral substance. The neutrality of democratic proceduralism should not be neglected here; supermajoritarianism, just like majority rule, implies that decisions are legitimated by their source, not by their content. The amending power, as it exists in some Western liberal-democratic constitutions, implies that the basic framework of political life can be wholly changed, as long as a proper procedural benediction is secured.
Amendability suggests, to put it crudely, that basic rights are ultimately at the mercy of interest-group politics, if some arbitrary electoral threshold is surpassed and amenders play by the book. Is this a correct way of understanding liberal democracy? Does Article V of the U.S. Constitution imply the triumph of procedure over substance, formal rules over moral norms? Are there no fundamental rights beyond the reach of politics? Are there no goods that are protected absolutely, rather than depending on a percentage of votes?
This question can be reformulated in practical terms. Does the political system of a specific country, say the United States or Germany, admit judicial review of procedurally correct constitutional amendments? The United States does not, on the ground that the constitution-remaking power is superior to the power of judicial review;7 but Germany does, on the ground that an amendment, even if passed in the formally correct manner, may be inconsistent with the core or fundamental features of the constitution. Germany entrenches certain rights in the sense that it places them beyond not only politics, but even the kind of revision represented by constitutional amendment.
The form taken by the amending power, in other words, sheds light on the variety of theories underlying different liberal democracies. It helps us identify the broad norms and basic commitments behind the constitutional fine print. It helps explain how various framers conceived the relationship between procedure and substance, for instance, or the distinction between the core and the periphery of the constitutional order. In the American case, the amending power builds upon a democratic conception of popular sovereignty, of the authorizing democratic will that stands above the constitution and is able to change it in toto. This idea fits well with the self-conscious American revision of the English understanding of sovereignty. The German Constitution, while gesturing in the direction of popular sovereignty, declares many provisions unamendable, allowing the unelected court effectively to block certain attempts by the elected branches to change the constitution.
One final point before turning directly to more narrowly regional concerns. Every functioning liberal democracy depends on a variety of techniques for introducing flexibility into the constitutional framework.8 The two usual methods are, first, amendment and, second, judicial interpretation in the light of evolving circumstances and social norms. There are intriguing interaction or mutual compensation effects of constitutional amendment and constitutional interpretation, and these can help us understand better the relationship between the judiciary and the political branches. Both parliaments and courts can actually benefit from a stringent amending procedure. If amendments are relatively difficult, the legislature has a ready alibi for failure to give in to the electorate, and the court, in turn, will gain in prestige because it can pose as the guardian of the ark of the covenant. (Consider, as testing cases, the American experiences over school prayer, school desegregation, poll taxes, abortion, and flag burning.) As circumstances change over time, flexible interpretation also diminishes the pressure for frequent amendment. Consider, for example, the American experience during the New Deal, in which flexible interpretive practices enabled the Constitution to be accommodated to new social needs and norms.9
The free availability of amendment may have a range of diverse effects on the courts. If it is easy to amend the Constitution, the stakes of constitutional decision are lowered, for an erroneous or unpopular judicial decision can be overridden.10 Moreover, the availability of the amendment option may embolden the court, since the judges will know that mistaken decisions can be corrected. For Eastern Europe, it is especially important to keep in mind the following point: Stringent amending formulas will allow parliaments faced with large social problems to deflect social disapprobation and to escape democratic accountability in difficult times.
How are these somewhat abstruse theoretical issues reflected in the constitutional politics now under way in Eastern Europe? When the Communist system collapsed in Albania, Bulgaria, Czechoslovakia, Estonia, Hungary, Latvia, Lithuania, Poland, Romania, Russia, and Ukraine, one of the first acts of the wobbly new regimes was a solemnly enacted constitutional amendment.11 Throughout the region, the unstitching of the hammer and sickle from uniforms and banners was accompanied by the deletion of the clause that appeared in every Soviet-era constitution stipulating the leading role of the Communist party. And this was only the beginning. The dénouement of the Polish Round Table talks in 1989, for instance, was the amendment of the 1952 Constitution to bring it into line with the compromises stuck between Solidarity and the party. Similar attempts to codify a swiftly changing balance of social forces occurred throughout the region. And it was not inappropriate that the greatest political transformation of this century was decorated by, or embodied in, constitutional amendments. Communist-era constitutions were repeatedly amended, of course.12 But to found a new regime through the strategic use of the amending power, which was never the purpose of earlier modifications, represents a wholly non-Bolshevik method for reacting to and promoting social change. The old order was not overthrown but simply negotiated and codified away.13 Such a beginning was meant by the actors involved to register or symbolize a commitment to a nonrevolutionary form of political change. The rule of law had begun. There was to be no more rumbling of tanks. Future transformations would come seriatim, could not be wholly planned in advance, and would be legal, public, and nonviolent.
However peaceful, these dramatic acts of constitutional revocation and revision were not meant to be modest. They had important symbolic and expressive functions; they also registered the ambition of would-be democratic peoples to take their destinies into their own hands, to master the unprecedented changes coursing over them, to make basic choices about where they want to go as separate peoples, now that the great colonizing power had collapsed. Given the massiveness and nearly total unexpectedness of the change in question, no observer would suggest that modifying constitutions will allow the inhabitants of the former Muscovite empire to seize political control of their own lives. But the story of the amending power in Eastern Europe is partly a story of the uphill battle of now unsupervised peoples to do just that. This is why the amending power is also a subject for comparative politics, not for constitutional theory alone.
Consider, as a first although admittedly untypical example, the Russian Federation. Ruslan Khasbulatov, before he was deposed by Boris Yeltsin from his position as Speaker of the Russian Supreme Soviet, had several constitutional lawyers on his staff whose job was to tell him when his legislative proposals conflicted with the constitution. When Khasbulatov learned of a possible conflict, he did not abandon his legislative proposal, of course, but with breathtaking nonchalance initiated the procedure whereby the constitution itself could be changed. Put succinctly, constitutional amendments have been used in contemporary Russia (by Yeltsin as well as by Khasbulatov) as just another technique for outmaneuvering one’s political enemies of the moment. Or, in Jon Elster’s words, the constitution is viewed as an instrument of action instead of a framework for action.14 The idea that constitutional revision represents some kind of “higher track of lawmaking,”15 different from and superior to the elbowing and intrigues of ordinary political life, is dramatically belied by recent Russian experience. And while Russia lies on one extreme of the spectrum, the subordination of constitutional revision to everyday political antics and aims is a trend observable everywhere in the region.16 It follows that the conception of constitutions as precommitment strategies—however helpful it may be for analyzing some constitutional processes and for conceiving of constitutionalism in general—is descriptively inaccurate for Eastern Europe.
Politicians and publics socialized to autocracy, it is sometimes said, cannot be expected to treat legal texts as in any way sacred. And it is undoubtedly true that the lack of a firm constitutional tradition helps contribute to the absence of a clear split between constitutional and nonconstitutional processes. Under communism, of course, the constitution did not furnish reliable brakes on the behavior of political actors. But the concept of a constitutional culture, purportedly missing from the region for historical reasons, not only promotes unnecessary pessimism. It is also deeply unclear. (Was there such a culture in Weimar Germany? Is there one in India today?) We think that a different approach, emphasizing present problems rather than the unfavorable legacies of the past, will be more helpful.
Why, in Eastern Europe today, does the “higher track” of constitutional politics collapse so easily into the “lower track” of ordinary politics? First of all, no myth of the framers has had a chance to arise. Indeed, many of the political actors of today were personally involved in striking the constitutional bargains of yesterday. Moreover, most of those bargains were negotiated in spectacular ignorance about the subsequent course of events. The powers of presidency in both Poland and Hungary, for instance, were designed with false assumptions about the eventual occupant of this office. Why should Lech Walesa respect limits that were created to hamstring General Wojciech Jaruzelski? Why should Arpad Goncz, a member of the liberal opposition, keep within his constitutionally assigned powers, since he knows that these restrictions were originally contrived by his own party to limit the options of Imre Pozsgay?
It is especially hard to respect deals that we ourselves originally struck for strategic reasons, to protect our hides or to outmaneuver opponents who have now completely disappeared from the scene. But these are the myopic bargains before which constitutional piety, as advocated by some legalistic observers, would demand that East European politicians now humbly kneel down. The personal involvement of current movers and shakers in earlier constitution-making processes, the remarkable speed at which the political landscape has been changing, and a limited capacity for foresight on all sides have just as much to do with the absence of sacralized constitutions in Eastern Europe as does the lack of an inherited constitutional culture. It is largely the current situation, not custom, that prevents politicians from seeing disregard for the constitutional text as a wholly inadmissible derogation of duty.
Legislative chambers in Eastern Europe, it should also be said, have everywhere been doubling as constituent assemblies. The time and attention they have been able to devote to constitutional considerations have therefore been quite limited. Even more important, the weak legitimacy and internal fragmentation of elected parliaments is a regional pattern. The “forum” parties, once united by opposition to the old regime, are splintering. What is missing is effective representation and powerful parties capable of attracting large national constituencies, at least as much as a penchant to worship the constitutional text. Parliaments whose popular legitimacy is weak and that are fragmented into dozens of “taxi parties” or “couch parties” involved in constantly shifting alliances (making it difficult to cobble together stable and internally coherent coalition governments) will naturally have a hard time creating a constitutional framework that earns general respect.
All of this is hardly surprising. Moreover, it has certain advantages. Social, economic, and political turbulence is going to continue in these countries for years, and even decades. So what is the optimal balance of constitutional rigidity and flexibility in such circumstances? Is it realistic to try to establish definitive arrangements under such fluid conditions? Might not rigid constitutions produce greater unpredictability than flexible ones? In these countries, political actors not only routinely miscalculate their future interests, but political groupings repeatedly undergo kaleidoscopic realignments, transfers of loyalty, and transformations of identity. They dissolve and reform, disappearing and reappearing in unpredictable ways. A parliamentary fraction may strike a sensible bargain today, but its bargaining partner may also vanish tomorrow. All striving for institutional permanence here is bound to fail. Where public pressure for change is likely to mount, easily accessible legal pathways to change (i.e., the chance to readjust to unexpected events and altered circumstances), must be built into the constitutional order itself. Some tolerance for some procedural irregularities in the process of constitutional revision, moreover, is to be expected, and should not necessarily be roundly condemned, especially because technical legalisms have little democratic legitimacy even in the eyes of democratic Western electorates.17
In general, no group of framers, given the universally acknowledged proneness of all actors to commit colossal blunders in turbulent circumstances, can plausibly monopolize authority over the constitutional framework, refusing to share this authority with subsequent generations, or even with the successor representative assembly. Amateurish drafting guarantees that numerous mistakes will become visible with benefit of hindsight. The personal domination of the drafting process by a tiny number of powerful deputies and their backroom constitutional experts means that some clauses will be smuggled into the constitution without anyone noticing, only to be discovered, to the consternation of some later on. A stringent amendment procedure, patented in the West, whereby constitutional provisions are cemented into the system, implies deference toward the decisions of the framers. Because such deference cannot be conjured magically out of the East European air, given who the framers are and the purposes they visibly pursue, a lax amending formula, one that will not saddle successors with the schemes and follies of predecessors, is unusually desirable.
Western observers have been tempted to condemn easy paths to constitutional modification in Eastern Europe, however, and to denounce more generally the “confusion” between constitutional politics and ordinary politics characteristic of every post-Communist society. This reaction is understandable. Good institutional arrangements should certainly be entrenched if they can offer firm protection to democratic liberty and even to the preconditions for economic prosperity. A large and distinctive advantage of a firm constitution is that it promotes a high degree of stability in a way that can be facilitative rather than constraining to political arrangements. Especially in the current circumstances in Eastern Europe, it may seem particularly important to produce a stable constitution now, and in that process to inaugurate the sharpest of splits between constitutional law and ordinary law. When circumstances are changing so rapidly, in a context threatening to market arrangments and democratic processes, it may appear indispensable to use constitutionalism in order to provide a firm backdrop for private and public arrangements. Above all, confusion may seem unacceptable. It may matter less what the rules are than that there are rules.
There is something to be said for this view, and we will try to describe arrangements that can accommodate some of the relevant concerns. But the view is far too simple. What looks like confusion from a high-altitude Western perspective may have its own rationale on the ground. Not only does social turbulence demand a good deal of flexibility and “ad hockery,” but the very creation of a constitutional culture in post-Communist societies depends upon a willingness to mix constitutional politics and ordinary politics. Perhaps the most fundamental part of any constitution is the elemental choice of regime type. Soviet-style constitutions did not explicitly forbid amendments that would transform the Communist system into a capitalist one. But we may safely infer that such a prohibition, the flip side of the elemental “choice” of socialism, was implicit and understood by all. To change a communist constitution into a liberal-democratic one required something more drastic than modification, revision, or amendment. It required the wholesale destruction of the old and the creation, from ground zero, of the new. It required a constitutional revolution, or new founding. Because the basic “choice of regime” is involved, as we already suggested, the legal transformations under way in Eastern Europe must be seen as constitutional revolutions rather than incremental constitutional revisions.18
More precisely, they are constitutional revolutions cloaked as constitutional revisions. Most striking, from this perspective, is the discordance of content and form. A wholesale constitutional replacement was presented to domestic publics and the world at large as an act of constitutional tinkering. One of the most revolutionary changes of modern times was symbolically de-revolutionized. A total rupture with the past, all aspects of society being reformed simultaneously, was packaged as a piecemeal reform. This was unrealistic, of course. As Vaclav Havel said, commenting upon the Czecho-Slovak partition, “States do not begin and end in a constitutional fashion.”19 But the aspiring liberal democracies of Eastern Europe have all pretended to begin and end in this way. The clause about the leading role of the party was revoked, presidencies created, constitutional courts put in place, bills of rights enacted, and so forth—all by sitting or newly elected legislatures. It probably had to happen in this manner, of course, since there was no pathway to change that seemed more promising than this. But the packaging of political revolution as mere constitutional revision, as a procedurally correct exercise of the amending power (used but never taken seriously before), provides an important clue to current conditions in the region.
In every Eastern European country, including Poland, the basic choice of regime fell out of the sky. The transition from communism to a rudimentary form of democratic capitalism may have been anticipated by scattered opposition elites; it may have been accompanied by mass euphoria; but it was not achieved by mass mobilization, and thus cannot, even now, be viewed realistically as an expression of the national will. What occurred in 1989 was not only a revolution; it was also an unexpected act of decolonization. The Soviet patron went home. A large part of the revolution was precisely this exodus of what seemed like an occupying military force. Western observers have received the downfall of communism as a vindication of democratic liberty, of religious and political freedom, and of a certain conception of appropriate economic arrangements. Undoubtedly much of this is true. But we cannot overstate the extent to which the developments of 1989 represented a repudiation of the mere fact of foreign domination from the Soviets—in some ways a repudiation that was independent of the particular form that the domination took.
Because the die was cast by Moscow, the new regimes established across the region are just as much the product of the actions (i.e., non-actions) of the Red Army as were the Communist regimes established in 1948. The constitutional about-face, the basic choice of a liberal-democratic regime, was not really prepared domestically, but instead thrust on the satellite states from abroad, by the unilaterally withdrawn threat of a Russian crackdown. Some latitude for fine-tuning was left to national forces. But this does not alter the overwhelming heteronomy of the “revolutions” of 1989—a point that bears directly (as we will soon see) on the selection of amendment procedures.
This heteronomy also helps explain the historical anomaly of revolution-by-constitutional-tinkering. Wholly new political arrangements have been institutionalized throughout the region on the basis of a string of constitutional amendments passed by weakly legitimate parliaments, assemblies that are, in turn, fragmented into a chaos of small parties. The disproportion between means and ends could not be more striking. How could such a massive change be introduced by such a feeble institution deploying such feeble measures? The answer lies in the power vacuum left in the wake of Moscow’s unexpected collapse. Power is relative, and the power of parliaments in Eastern Europe, however small, usually looms large in societies where all rival centers of power are (for the time being)20 even weaker. These parliaments, in any case, were suddenly charged with a monumental task for which they were monumentally ill prepared. Their members were and are inexperienced in governance and they do not enjoy high public prestige. Their relative power, as a result, may be difficult to sustain. The absence of a historically anchored constitutional tradition is only one problem among many. Even if agreements between mutually suspicious and opportunist deputies, prone to conspiracy thinking and vulnerable to blackmail, could be hammered out, there is no way these assemblies could simply impose (octroyer) a constitution upon a passive citizenry and expect it to last or be obeyed.
These various considerations converge on a single conclusion: Constitution making in Eastern Europe must be a long, drawn-out political act. Only in this way can a revolution delivered on a platter be transformed into a basic choice of regime made, or rather achieved, by the countries themselves. The fundamental choice of liberal democracy, one that fell out of the sky, must now be brought down to earth and worked out politically, by trial and error, by consultation and debate, if it is to gain the public support it needs. This can be achieved best by vesting the parliament with full authority to frame a new constitution and with a flexible capacity for constitutional amendment (we offer details below).
To be sure, this parliamentization of constitution making has many drawbacks: false starts, half steps and missteps, interim arrangements based on myopic bargains, legislative deadlocks, interest-group pressures, the short-term stalling of economic reform, technically botched or amateurish constitutional provisions, and so forth. But this “collapse” of constitutional politics into ordinary politics has two great advantages that outweigh all the obvious disadvantages. First, it provides an opportunity for the political nation to be introduced, over time, to the large questions of constitutional government (presidentialism versus parliamentarism, proportional representation versus single-member districts, unicameralism versus bicameralism, legislative supremacy versus judicial review, and so forth) while such issues are being seriously debated. And, second, it provides a chance for opposition elites, trained in clandestine nonacquiescence and witness bearing (and therefore inclined to irony and “principled stands”), to learn the arts of public coalition formation and governance. And it achieves this constitutional education for both officials and citizens without undermining, as easy recourse to popular referenda might do, the still feeble legitimacy of representative institutions. (Note also that a significant risk of referenda, under current conditions, is that very few people will vote.)
Parliamentary fumbling, or trial and error, in the constitutional arena appears more desirable than deplorable when viewed from this perspective. To expect that societies that are so disorganized socially could establish a “higher track” of constitution making outside the parliament, moreover, is as unrealistic as to expect that the representative assembly will stay its hand and bypass the fundamental controversies dividing society. Neither the mobilized masses nor a commission of experts could do the job in question. Furthermore, to hand over the constitution modifying process to a special convention, separate from parliament, and operating in the pure legal air above the political fray, may seem plausible to visiting law professors; but it would be quixotic in the conditions in Eastern Europe today. Because the most fundamental questions—such as, What sort of regime do we want?—have not been answered by the citizenry, and since no organized forum for national political debate is about to develop outside of the assembly, ordinary parliamentary politics is necessarily about constitutional questions. In today’s circumstances, constitutional choices are partisan choices and institutional arrangements are necessarily experimental. The rules of the game cannot be clearly distinguished from the content of the game. (This is all the more true since political scientists have little predictive knowledge to offer about the political consequences of competing constitutional arrangements.)
As a result, we should not expect constitution drafting and modification in Eastern Europe to be untainted by political interests. Indeed, it would be futile to attempt to separate the currently inseparable, assigning the “lower track” of ordinary politics to one assembly and the “higher track” of constitutional politics to another. There is no choice but to accept the drawbacks of a highly politicized, and that means parliamentarized, process. Such an arrangement guarantees that everyday politics is part of an ongoing constitutional crisis. But tolerance for crisis, without resort to mass violence, seems much greater in Eastern Europe than most observers have predicted. The politicization of constitution making in Eastern Europe, in any case, is not fundamentally the result of confusion or a cultural deficit or a failure to understand the Western distinction between politics and law, or the difference between the instruments of action and the framework of action. It is the result of a need for public legitimation, difficult to achieve, of a constitutional revolution that was delivered unexpectedly from abroad.
We now briefly describe amending procedures in existing Eastern European constitutions, actual or in draft.21 Our central contrast is between Bulgaria and Romania, on the one hand, and Poland and Hungary, on the other.
The Hungarian Parliament and the Polish Sejm enjoy a great deal of free authority to amend the constitution. Their power in this regard is both exclusive and unlimited by subject matter. The two assemblies are subject only to two procedural constraints, supermajorities of two-thirds and attendance requirements.
The Bulgarian and the Romanian assemblies are far more limited in their authority. First, the Bulgarian National Assembly and the Bulgarian Parliament both face subject-matter restrictions.22 The Romanian Parliament must also rely on a referendum. Its amending power is not exclusive, sufficient, or necessary. In this respect it is the weakest parliament in Eastern Europe. While the Bulgarian National Assembly is granted the power to amend the Constitution on its own, and while the National Assembly cannot be bypassed by other bodies, its amending procedure is extremely cumbersome. Thus the National Assembly faces attendance and supermajority requirements. In order for amendment to proceed, a proposal must garner a three-fourths vote from all the members of the Assembly—the most stringent supermajoritarian requirement in Eastern Europe. Moreover, at least one month must pass between initiation and the first vote for ratification. Finally, the Bulgarian formula requires three different ballots on the three different days.23 While the Romanian Parliament is the weakest amending power, the Bulgarian National Assembly is the most tightly bound.
We choose these four countries to make an analytical point. Constitutionalists tend to favor a system of deep entrenchment of constitutional provisions (i.e., a stringent amending formula) and recourse to popular referenda. This may be desirable in Western democracies, but it is inappropriate, we argue, in Eastern Europe. The amending formula should be relatively lax, and it should be virtually monopolized by parliament, with no recourse to referenda.
The countries chosen for comparison illustrate this point. Bulgaria’s constitution is legally more fully entrenched than any other in Eastern Europe, and Romania’s gives popular referenda the greatest role. By comparison, Poland and Hungary have established relatively lax conditions for constitutional amendment and have kept the amending power in the hands of the established powers. (The Hungarian Constitution begins with a “declaration of temporariness,” while Poland is operating at present under a document known as “the interim constitution.”) From a Western perspective, therefore, Bulgaria and Romania should be seen as having made greater strides toward establishing sacralized constitutionalism than Poland and Hungary. But this is not an adequate account. Stopgap constitutionalism—embodied in the Polish and Hungarian systems—is the most effective kind in Eastern Europe because, among other reasons, important choices can be tolerated more easily by losers if these choices are perceived as temporary and up for further consideration at a later date. The “deep entrenchment” of constitutional provisions, on the other hand, and the availability of referenda in southeastern Europe, result from the dominance of ex-Communists, eager to “lock in” their privileges, over the constitution-drafting process there. Given the atomization of these societies, “going to the people” is not especially democratic. The “plebiscitary legitimacy” gained via referenda can be easily manipulated by political elites. In Eastern Europe, in any case, the harder it is to amend a constitution and the greater role granted to popular referenda and extraparliamentary authorities, the less constitutionalism matters as a political force.
Why should the least liberal leadership in the region have been the first to create liberal constitutional frameworks? The reason seems to be that old-regime elites, fighting a rear-guard action, have both a greater opportunity and a greater incentive to implement new constitutions than do post-Communist elites. They have a greater opportunity because Communist-dominated parliaments (which double, as noted, as constituent assemblies) can be more easily disciplined than can parliaments in countries such as Hungary and Poland, where political life has become highly pluralistic and old-regime leaders have been largely driven from the scene. And they have a greater incentive because they have the most to gain by presenting themselves as the “fathers” of a liberal political order, and the most to lose if a new constitution permits confiscation of ill-gotten gains and the prosecution of officials for crimes committed under the old system.
So much for the contrast between two different general conceptions of the appropriate amending formula; we are now prepared to offer more details. Several constitutions prohibit the amendment of certain provisions altogether. At least three documents contain explicit and absolute restrictions on the scope of the amending power: the Constitution of Romania, the draft constitution of Ukraine, and the Constitution of the Czech Republic. Article 148(1) of the Romanian Constitution expressly prohibits any amendments that attempt to alter “the national, unitary and indivisible character of the Romanian State, the Republican form of government, territorial integrity, independence of the judiciary, [and] political pluralism.” The same approach appears in Article 257 of the draft constitution of Ukraine, which provides that “no amendments or additions to the Constitution may be introduced which are … aimed at altering the rule of the Constitution.” The Czech Constitution says, “An amendment to the essential requirements for a democratic legal state shall be inadmissible.”24 Other provisions placed beyond the reach of formal revision include those addressing “fundamental rights and freedoms”25 and those protecting “human rights.”26
The Bulgarian Constitution takes a different approach. Rather than prohibiting the revision of the protected provisions altogether, Bulgaria, as noted, offers an amending institution that is cumbersome and time-consuming: the amending convention. Among the new Eastern European constitutions, only the Bulgarian Constitution provides for an amending convention, called by the National Assembly upon a two-thirds vote of all its members.27 Moreover, the Constitution entrenches provisions that establish the form of state structure and government, preserve the inviolability of human rights, and define the territory of the republic.28
Many of the Eastern European documents ban amendments during states of war and states of emergency. The Romanian Constitution is representative of this type of restriction: “The Constitution shall not be revised during a state of siege or emergency or at wartime.” Similarly, the draft constitution of Lithuania prohibits amendment during “a state of emergency or martial law”29 and the Constitution of Estonia prevents revision “during a state of emergency or a state of war.”30 The Russian constitution is less restrictive by prohibiting amendment when the president is unable to perform his duties,31 while the Ukrainian draft constitution presents an ambiguous circumspection of the amending power by restricting formal revision “under conditions of an extraordinary crisis.”32
The Eastern European documents allow for different agents of change. Under the Albanian draft constitution, the Albanian People’s Assembly enjoys the greatest amending power in Eastern Europe. Article 78(2) mandates that the People’s Assembly “approves and amends the Constitution.” This is done “when the majority of the deputies present have voted for [the laws and other acts].” No other institution in Eastern Europe has the unilateral power to enact an amendment with an ordinary legislative plurality.33
Other institutions of constitutional revision in Eastern Europe have the power of amendment. Article 24(3) of the Hungarian Constitution says that “for the amendment of the Constitution … the affirmative votes of two-thirds of the Members of Parliament are required.” The Hungarian Parliament’s control is exclusive because no other institution has a claim to participate in the amending procedure. The Parliament’s amending power is sufficient for change because it may unilaterally revise the constitution of its own accord. Finally, its amending power is necessary to effectuate change because no amendment can be enacted without its approval. The Polish Sejm has similar power. Article 106 of the “Little Constitution” says, “The Constitution may be amended only by a law passed by the Sejm of the Republic of Poland by a majority of at least two-thirds of the votes requiring the presence of at least half the total number of Deputies.” The Constitution of the Czech Republic also falls into this category. Article 39(4) holds that “in order to adopt a constitutional act … three-fifths of all deputies and three-fifths of all senators present must give their approval.”
Some institutions are granted sufficient power to enact an amendment, and also maintain the authority to block all amendment proposals, yet do not hold exclusive power over the amending procedure. Consider the Assembly of the Republic of Macedonia. Pursuant to Articles 68, 130, and 131 of the Macedonian Constitution, the Assembly can both initiate and ratify an amendment. Like the Polish Sejm and the Hungarian Parliament, the Macedonian Assembly alone may ratify an amendment proposal;34 but unlike these institutions, the Macedonian Assembly must share access to certain steps of the amending procedure with other institutions. Article 130 provides that an amendment proposal may be initiated by the president, the government, by 30 representatives, or by the petition of 150,000 Macedonian citizens.
The next category of constitutions is that in which the assembly’s power to amend the constitution is sufficient, but neither exclusive nor necessary. The draft constitution of Ukraine offers the clearest example. Article 256 of the Ukrainian draft allows the National Assembly the power both to initiate and to ratify an amendment. But the same article provides for a method of amendment based on popular petition and referendum. “Amendments and additions to the Constitution may be introduced … by written petition containing the signatures of no less than two million electors.” Such an initiative “shall be approved by an all-Ukrainian referendum.”35
We can therefore identify four different systems for the allocation of amending powers among political institutions.36 First, some constitutions grant the assembly exclusive power over the amending process. Among this group are the Hungarian Parliament, the Polish Sejm, and the Czech Parliament. Second, some constitutions grant to the assembly both the necessary and the sufficient power to amend the constitution, but also grant other institutions the right of access to the amendment process. Third, the Romanian Constitution gives no institution the power to amend any part of the Constitution unilaterally. Finally, some constitutions give the assembly power to enact amendments, but do not make that power exclusive. In most instances, these constitutions allow direct popular participation, with the right of petition and referendum being granted to the citizenry. Ukraine, Slovakia, and Latvia are of this variety. In some of these cases, direct popular participation is at some point dependent upon the president or the assembly for approval. The Croatian and the Slovenian constitutions are examples; in still other cases, there are amending provinces. Within each province some institution has exclusive, necessary and sufficient power to effectuate change in that province. The Russian constitution, the Bulgarian Constitution, the Lithuanian Constitution, and the Estonian draft constitution are among these.
There are also different procedural requirements in the various constitutions and drafts. The Albanian draft constitution gives the People’s Assembly the power to determine its own amending procedure. No procedural hurdles hamper the Assembly’s power to revise the constitution beyond normal legislative procedures. Next to the Albanian, the Polish Constitution is the most flexible in Eastern Europe. The Polish Sejm has only two procedural requirements placed upon it. First, a constitutional revision requires a two-thirds plurality; second, at least half the members of the Sejm must vote to enact an amendment.37 The Hungarian Constitution is slightly more difficult to amend. Like the Polish, the Hungarian Constitution may be revised with a two-thirds plurality of Parliament. But in the Hungarian case, all the members of Parliament must cast a vote on an amendment proposal.38
Supermajority requirements and turnout requirements are common in Eastern Europe. Every constitution here surveyed, except the Albanian, requires some supermajority for constitutional revision.
Some constitutions place absolute time constraints on the amending procedure. Under the Bulgarian Constitution, an amendment proposal must sit for one month before the National Assembly can act on it. Article 163 of the Estonian Constitution requires the amendment proposal to be read three times. Between each reading one month must pass. Along similar lines, Lithuania, Latvia, and Bulgaria require the assembly to vote on the amendment proposal more than once. The Latvian Constitution also requires that three ballots be taken.
A final procedural hurdle is the plurality required to pass a referendum. In almost all countries that use the referendum, a regular majority is sufficient. The Lithuanian Constitution, however, requires that three-fourths of the electorate approve of an amendment proposal before it is passed (Article 156). Ukraine is the only country that uses an absolute figure—one million—as the plurality requirement.
From the previous section, it should be clear that the amending formula reflects two basic choices: (1) is the procedure difficult or easy? and (2) is the procedure dominated by the established powers, or is a popular referendum involved? We argue, against the grain of most contemporary constitutional theory, for a lax procedure dominated by the assembly.
We begin by noting a reasonable fear—that under our proposal, the amending power will be overused, thus endangering stability and perhaps democracy itself. In the circumstances of Eastern Europe, the fear seems unrealistic. First, in highly fragmented parliaments, even a simple majority for amendment will be difficult to muster. Second, most East European politicians seem to recognize that imperfect or unimproved constitutional provisions are not wholly dysfunctional. Textual ambiguity provides useful room for maneuver. It is unlikely that there will be ready resort to constitutional change even if such change is relatively easy to bring about as a matter of technical law.
Our basic argument runs into the teeth of the old cliché: A “balance must be struck” between rigidity and flexibility in constitutional entrenchment. The reasoning behind this proverbial balancing approach can be easily stated. On the one hand, if a constitution is too difficult to amend, if it is excessively rigid, it is liable to break. An overly rigid constitution, based on a stringent amending formula, invites extraconstitutional solutions (or free-floating interpretation, which poses dangers of its own). On the other hand, if a constitution is too easy to amend, it will invite the constitutionalization of political life, or the collapse of constitutional politics into ordinary politics. A lax amending procedure, especially when monopolized by the assembly, will encourage legislators to attempt to outmaneuver their opponents of the moment by changing the rules of the game while in midstream. It will also make basic rights vulnerable to political winds and eliminate the kinds of stability and facilitation that are provided by agreement on basic institutional arrangements.
We believe that, in this context, we should abandon this balanced approach. More specifically, we urge a general presumption in favor of flexible amending procedures dominated by the established powers, especially the legislature. Let constitutional politics collapse into ordinary politics—for this “collapse” is not only inevitable but, under current circumstances in Eastern Europe, desirable. Let the constitutional process drag on, for several years, one pro tempore arrangement replacing another. The needs of the transition from state socialism, after all, are not the same as the needs of an established or incipient liberal democracy building on existing understandings and traditions (like the young United States39 or, in quite a different way, postwar Germany). So why should the framework established for the former be bequeathed to those who will be grappling with the latter? Anyway, there is nothing particularly healthy about la rage de vouloir conclure.40 The postponement of permanence is not always foot dragging, but may also be the sage acknowledgment of an ongoing social earthquake, where foundation builders must trim their ambitions to create immortal works. The entrenchment gained by a stringent amending formula, moreover, will adversely affect the political process by raising the stakes of constitutional choice, increasing the perceived benefits of confrontation. Losers face the possibility of total frustration, which makes them less likely to accept compromise and more likely to risk deadlock. If no side sees a chance to entrench its partisan advantage permanently, by contrast, all parties may slowly develop a taste for concession making.
The assumption underlying this recommendation is the following. The central task of the states of Eastern Europe today is the creation of legitimate democratic authority. The fundamental challenge is less to restrict abusive authority—though this is also important—than to create accountable authority.41 The collapse of Sovietism left East European societies with virtually no institutions to build upon. (What role does the Solidarity trade union now play in constructing Polish democracy?) Institution building, therefore, must not be forgotten in the race to prevent future abuses of power. Any arrangement that obstructs the creation of democratic authority, or undermines it once it has been created, is to be shunned.
Some commentators have deplored the fact that the new constitutions and constitutional drafts embody bargains among parliamentary forces rather than high-minded legal principles. But this squeamishness about public bargaining is precisely one of the forces that must be overcome in order to consolidate the transition to constitutional democracy.
We do urge that Eastern European countries should experiment with different approaches for entrenching provisions. It would not make sense to offer a blueprint here, but our preferred approach is an innovation in constitutional practice: a three-tiered system of amendability.42 Under this approach, most of the Constitution would be easily amendable. But some provisions would not be amendable at all (as in the German Constitution), or could be changed only by a strong majority that has favored revision on two or more occasions. Still other provisions would be amendable with some difficulty, but without the severe obstacles facing the most entrenched provisions.
Under this approach, we suggest that two sets of rights should be most strongly entrenched. First, a specified list of individual rights should be made immune to revision. This list should include, first and foremost, rights that are indispensable to democratic legitimacy. We therefore suggest that freedom of speech, the right to vote, religious liberty, and freedom from discrimination on grounds of race, religion, ethnicity, and sex should be especially protected against politics, including constitutional politics. The category of entrenched rights should also include rights against abuse of the criminal justice system—including the basic right to fair hearing.
Second, we suggest that some of the broad outlines of the institutional arrangements might be safeguarded against too easy change. Thus, for example, the political process might be prevented from overcoming the judgment that there will be one president, or that there will be three separated powers within a system of checks and balances. So, too, the provisions that guarantee basic democratic arrangements—the right to free speech, democratic elections, the right to vote—should be made immune to constitutional revision.
By contrast, the social and economic rights that one finds spelled out in a number of actual and proposed Eastern European constitutions should be easily amendable, especially if they are considered fit for judicial enforcement and not simply aspirational goals. Consider, for example, the fact that the Hungarian Constitution protects not merely the right to equal pay for equal work, but also the right to an income conforming with the quantity and quality of work performed. What would it mean for the Hungarian Constitutional Court to take these provisions seriously? Similarly, the Slovak draft includes the right to a standard of living commensurate to each citizen’s potential and that of society as a whole, as well as the right to just pay. One also finds in some constitutions such rights as food, shelter, and even recreation complementing more traditional rights of private property, free speech, and the like. We think that these former guarantees should be amendable through ordinary legislative processes.
So much for the basic issue of entrenchment. Who should be allowed to bring about constitutional change? From what we have said thus far, it follows that most issues of constitutional revision should be decided by the parliament. Those who disagree, and wish for a more “populist” process, should answer the following question: What message is conveyed to the citizenry if popular referenda are given a central role in the amending process? Our answer is that such a provision implies that the voice of the people is not adequately expressed through the representative process. In other words, referenda implicitly erode the legitimacy of democratically elected assemblies by expressing the seemingly reasonable belief that the most important choices should not be left up to politicians. But this principle is less democratic than it first sounds. Since the parliaments in question have little enough legitimacy as it is, reliance on referenda may be the straw that breaks the camel’s back.
A parliament that did not deal directly with the major choices facing society, leaving them instead to special constitutional conventions and then to the courts, could not pretend to a position of leadership in the nation. In its first stages, at least, democracy should be parliament- and not court-centered, and it should avoid ready resort to popular referenda. Any system that preempts the right of parliament to make the most vital decisions will ultimately damage the prospects of both democracy and limited government.
Does the Czecho-Slovak “divorce,” engineered by politicians in Prague and Bratislava and supported by less than 40 percent of the electorate, provide an important counterexample to this thesis? Would a popular referendum, bypassing the federal and state parliaments, have been more democratic and led to a more satisfactory (as well as more legitimate) outcome? We doubt it. The reason is that liberal democracy must assign responsibility to officials to make decisions, and hold them accountable if the decisions turn out badly. Seen in this light, referenda seem as undemocratic as imperative mandates and immediate recall. Ultimately, the feasibility of the union would have depended upon the ability of the federal legislature to govern the country as a whole and to maintain authority over the two state assemblies. This is not a task that could have been fulfilled by an extraparliamentary appeal. If a government cannot govern, referenda will not help. Hence the failure to save the union registered a political incapacity that would probably have trivialized the federal government in a relatively short time.
There are additional problems with using referenda as the mode for constitutional change. In Eastern Europe, the political process is generally in poor repute; a referendum might well attract very few voters. This would be a disaster for political legitimacy. Moreover, popular opinion is unstable and highly subject to short-term swings based on manipulative politics.43 At least if it works even moderately well, representative processes can have an important and salutary filtering effect.
We summarize here all the arguments about the need to provide for constant readjustments and “updating” in the fluid circumstances of Eastern Europe. Certainty and predictability cannot be produced by constitutional rigidity. On the contrary, rigid constitutions invite extra-constitutional solutions that cannot, in principle, be foreseen. The more difficult it is to amend a constitution, moreover, the less plausible it becomes to infer “consent” from the failure to amend it. That is acceptable in certain conditions—like those of the contemporary United States—but it is a terrible fault in circumstances where the principal need is to create both public confidence in representative institutions and political accountability of elected officials.
Constitutional lawyers have played a much greater role than political scientists in the drafting processes in Eastern Europe. This may be unfortunate. Many of these constitutional lawyers seem to believe that judicial review, whereby the court casts itself in the role of “guardian of the constitution,” is the central institution of liberal democracy. In established democratic systems, this conceit is harmless enough. But it has some destructive consequences in Eastern Europe. If a constitutional court can successfully convince the citizenry of a new democracy that it alone defends the deepest interests of the people, then it will have helped erode further the feeble legitimacy of the representative assembly. This is harmful to the liberal cause the judges aim to help.
The parliaments of Eastern Europe are bound to be amateurish operations, torn by unseemly scandals and sectarian rifts, for some years to come. The problems they face are formidable and they have a very limited capacity to “deliver the goods” (for instance, capitalist wages combined with socialist benefits). Incompetent and parochial deputies have quickly gained the contempt of intellectuals, who have ceased worrying about a lapse back into communism and thus feel wholly free to express their discontent with the fledgling democracy. Moreover, the live broadcast of assembly sessions means that the public has become far more aware than it might otherwise have been of absenteeism, proxy voting, cronyism, clientalism, place hunting, and subgroup feuding. It is not surprising, then, that newspapers are full of brilliant political satire. This is a sign of normalization unless it begins to reflect a tilt toward antiparliamentarianism in general.
To this should be added the legacies of Sovietism. (So we are not wholly opposed to “cultural” considerations.) From a Marxist perspective, public bargaining about rival interests is immoral. As a result, the new parliaments of Eastern Europe must struggle to overcome a public perception that their modi operandi themselves are illegitimate. Curiously enough, there is an unholy alliance here between the culture of communism and the culture of human-rights lawyers, much involved in the constitution-making process. The latter, too, believe that there is no room for bargaining when the important things are at stake. Their success at getting their position accepted in Eastern Europe probably has something to do with the general bias against public bargaining characteristic of all post-Communist societies. The relatively high prestige of constitutional courts in the region (which advocates of a stringent amending formula unwisely hope to increase still further) may derive at least in part from the strange resemblance between this unelected body of people who make decisions in secret (without public bargaining) and the old Politburo (which also claimed to speak with the “higher voice” of the people).
Overconfidence in the judiciary and overemphasis on the bill of rights are especially problematic given the poor quality of the sitting judges and the embryonic condition of legal education. (We put to one side the case of Hungary, whose constitutional court has already established itself as one of the most authoritative in the world.) But a court-centered democracy is unlikely to last in any case. The greater power and prestige granted to the constitutional court, the more diminished may be the power and prestige of parliament, and the more difficult it may be to create legitimate and accountable authority through elections, especially in countries with a history of compulsory voting in fake elections. And if a military or presidential coup occurs, the only force capable of protecting the constitutional order will be the parliament. It will be unfortunate, in this event, if the constitutional drafters will have helped feed growing public disgust with politicians in general and the constitutional court will have contributed to a lowering of the assembly’s already-damaged prestige.
We do not contend that a constitutional court is a bad idea, or that it cannot accomplish considerable good. On the contrary, we believe that such a court can help bring about the transition to democracy and constitutionalism. We mean only to suggest that the court is merely a part of the picture, and a secondary part at that. The point bears on the topic of constitutional amendment. If the court will play a secondary role, it cannot be counted on to furnish the sorts of creative interpretation (found in, say, Germany and the United States) that serve to keep the founding document consistent with changing circumstances and values. And if constitutional interpretation cannot accomplish this function, it becomes all the more important to allow relatively easy resort to constitutional amendment.
Central authority, including the bureaucratic capacities (from bankruptcy courts to land-survey offices) presupposed by successful marketization, has to be created in the internally disorganized countries of Eastern Europe. On what basis will this authority be constructed? Using a loose Weberian typology, we may distinguish among various forms of legitimacy. Consent to political decisions can be attained by charismatic leadership, appeal to traditional religious values, a playing of the nationalist card, palpable success at economic reform, or by democratic elections. Democratic legitimacy, as we explained above, rests paradoxically on the possibility of change, on the foreseeable opportunity to “throw the rascals out.” This may seem to be a great deal under Western conditions. But its value in Eastern Europe ought not to be overestimated. Put differently, democratic legitimacy is inherently weak because it is purely procedural, based on majoritarianism or the counting of votes. It carries with it a host of substantive commitments; but it contains no substantive message that might appeal more directly and morally or emotionally to the concerns of the electorate, especially an inexperienced electorate looking for meaning and perhaps for a savior. Czech voters, for instance, seem to care less about Klaus’s democratic credentials (the origins of his authority) than about the success or failure of his economic reforms (the effects of his policies). This is a typical pattern; it even plays a role in the West.
The relative weakness of the democratic form of political legitimacy is also important in Eastern Europe because of the antipower ethos natural in countries emerging from totalitarian rule. Branislaw Geremek speaks for many when he says that the primary challenge today is “to hold the line against creeping overpoliticization.”44 This antipolitical syndrome—this antipathy to institutionalized forms of power, including democratic entities—is part and parcel of a general skepticism about the capacity of organized entities to bring about desirable change. It is exacerbated by the sudden importance given, in the throes of transformation, to the legal and economics professions. Some economists believe that a “free market” can be established in post-Communist societies simply by handing the keys to the factories over to private individuals while keeping the state at bay. Similarly, some constitutional lawyers believe that the central function of constitutionalism is to prevent tyranny, including especially the tyranny of the majority (i.e., oppression by democratically elected officials, accountable to a majority of the voters). As a result, they want to increase the power of constitutional courts and decrease the power of parliaments. As a general prescription, this is probably a strategic mistake, which will have the consequence of making a relapse into autocracy more rather than less likely.
A constitution is not simply a device for preventing tyranny. It has several other functions as well. For instance, constitutions do not only limit power and prevent tyranny; they also construct and guide power and prevent anarchy. More comprehensively, liberal constitutions are designed to help solve a whole range of political problems: tyranny, corruption, anarchy, immobilism, collective action problems, absence of deliberation, myopia, lack of accountability, instability, and the stupidity of politicians.45 Constitutions are multifunctional. It is a radical over-simplification to identify the constitutional function exclusively with the prevention of tyranny.
The identification is also excessively negative. The positive or facilitative dimensions of constitutionalism must also be taken into account, especially in countries shattered by a wholesale disintegration of state authority and involved in impromptu state building while trying to avoid scapegoating and campaigns for ethnic homogenization. A constitution can be an instrument of government. It can establish rules that help put democracy into effect. It can create an institutional framework that, if it functions properly, makes decision making more thoughtful and mistakes easier to learn from. It can prevent power wielders from invoking secrecy and shutting themselves off, as they naturally would do, from criticisms, counterarguments, and fresh ideas. At the same time, it can mobilize collective resources for solving collective problems.
This positive vision of constitutionalism is rare among constitutional specialists in Eastern Europe. Advocates of negative constitutionalism dominate the discussion and make it difficult to see the advantages for governmental effectiveness to be gained from constitutional channeling of sovereign power. This is unfortunate. If constitutions are designed with a primarily negative purpose, to prevent tyranny, they will probably lead to political deadlock, and thus invite tyranny. If the government cannot govern, if it cannot pass its reform program, for example, public pressure will mount to throw the hampering constitution off and govern extraconstitutionally. In short, the challenge of constitutional drafting in Eastern Europe is positive as well as negative. Theorists should therefore place greater emphasis than they have hitherto done on positive constitutionalism. The task is to create a limited government that is nevertheless fully capable of governing.
Constitutional lawyers and economists tend to share an unfriendly attitude toward state power. Many of them concur that the state is a dangerous force and, more specifically, that “civil society” in Eastern Europe will grow only if the government is crippled or limited to a bare minimum. They also introduce a sophisticated, Tocquevillean worry about the “tyranny of the majority” to the ongoing debate. But this literary touch is not necessarily helpful.
The fact is that political decision-making authority will eventually emerge in Eastern Europe. The questions are: on what basis and within which constraints? The danger is that nondemocratic forms of legitimacy will eclipse democratic ones. Charisma, nationalism, traditional Catholic or Orthodox Christianity, excessively efficacious marketization—all of these are, in principle, potentially nondemocratic sources of governmental legitimacy. Would-be rulers who control these sources of legitimacy can, if social strains mount sufficiently, outmaneuver rulers who simply win the most votes. Qualitative legitimacy will throw quantitative legitimacy into the shade. Hence, the basic problem in post-Communist societies is not to hamstring the autocratic state or to avoid the tyranny of the majority. On the contrary, the crucial task is to create government that is simultaneously accountable and effective. More specifically, the challenge is to create a parliamentary system that is capable of governing effectively and of integrating the more substantive or qualitative forms of legitimacy within itself (shutting down all rival claimants). If this does not occur, then the democratic principle itself will be discredited and authority will drift away from electorally accountable officials toward unaccountable ones.
This observation bears directly on the question of constitutional amendment. A stringent amending formula, we might say, registers what is under current circumstances an unwise attempt to codify a dual democratic legitimacy. The entrenched constitution is familiarly said to embody the higher voice of the people, a voice that can trump the elected legislature. In Eastern Europe, this would be a myth; it would amount in practice (at least in part) to the superiority of the unelected constitutional court over the parliament. Seen from the assembly’s viewpoint, it could promote collective irresponsibility. Deputies have readily available an alibi for failure: We cannot do this or that because such actions are forbidden by the constitution as interpreted by the courts. That is a questionable arrangement, given the current weakness of public confidence in state institutions, and not only for the reasons given above, but also because judges are notoriously less able to communicate with citizens than are politicians. The total superiority of a constitutional court over the parliament, in a situation where government as a whole is viewed as an establishment game having little relevance to the lives of most people, will simply exacerbate the problem of public alienation, making the creation and consolidation of democratic authority all the more difficult.
There is no clear evidence, incidentally, that constitutions based on low political bargains, rather than high legal principles, are particularly unstable. Such an “ignoble” source may be a great asset. To the extent that constitutions are publicly acknowledged as codified bargains, there will be less temptation to mythologize the constitutional framework and treat it unrealistically as the word of God (or “We the People”).46 The rational reason for a subsequent generation to respect the terms of the constitutional settlement, in any case, has less to do with the source than with the content of the constitution. If a constitution does not help current citizens to solve their problems and achieve their aims, it will and should have little appeal, no matter how great the supermajority that originally ratified it. The appropriateness of treating a constitution as “sacred” surely depends on what the constitution contains. (This simple point is ignored by those who complain about the “culturally backward” flippancy with which most East European politicians treat their constitutions.) Thus, respect for the constitution must be based on the public perception that the constitution is (still at least generally) good.
Moreover, it is possible to give a measure of stability to the system without relying on myths about the vox populi. All that a democratic electorate needs to know to resist every whimsical impulse to “improve” the constitution is (1) that all rules, including the alternatives proposed, have defects and deplorable side effects, and (2) the costs of change are likely to outweigh the benefits. If the rules of the game are functioning fairly well, this is all that needs to be said to prevent endless tampering with the constitutional framework. No appeal need be made to a “higher track of lawmaking,” implicit in the constitution, reserved to the “higher self” of the nation, and riding high above the lowly politics of ordinary lawmaking. Such an appeal also carries the risk of unjustified ancestor worship.
Finally, the complete subordination of ordinary politics to the constitution, treated as a sacred framework that cannot be changed and that governs in the last resort, is possible only under very specific historical conditions. Court-centered democracy worked wonderfully well in West Germany, a country that became a political dependency and was democratized on that basis alone. Many important choices were simply “off the agenda” for the politicians of the early Federal Republic. Because politics itself was strictly limited by postwar Germany’s international situation, it was possible to develop a strict political style that strictly subordinated the legislature to the constitutional court, and that virtually eliminates the idea of popular sovereignty or of a democratic power over the constitution. Attempts to transplant this arrangement from Germany to Eastern Europe, however tempting, are destined to fail. Such borrowing might function well if Poland or Hungary were semi-sovereign dependencies of the Western powers, as Germany was after 1945. But this is not going to occur. As a result, the German model, however popular among constitutional lawyers, should be treated with a great deal of caution.
The reasons are simple but fundamental. The elementary principles of liberalism, while powerful and politically successful, have certain inherent limitations. For instance, the principles of equality before the law and majority rule, while they depend on the preexistence of specific territorial borders, cannot justify any given territorial borders. Liberal principles cannot fully answer an absolutely fundamental question within a system of territorially organized states: Who belongs to the political community and is entitled to share in decision-making power or in the benefits distributed by the state? To the extent that the amending power assumes the existence of a sovereign people authorizing the constitutional settlement and capable of reshaping it, it too presupposes a pre-given answer to the question of membership. This means that liberal constitutionalism depends upon at least some basic decisions that it cannot justify. Put differently, liberalism constructs the palace of constitutional democracy from the second floor up.
Another lacuna in the justificatory arsenal of liberalism concerns property. Liberal principles can perfectly well justify a system of private ownership, on the grounds that it benefits all citizens, including nonowners. But liberalism cannot easily justify the particular assignment of first property rights. As a result, liberal property systems function best, and are perceived as most legitimate, when the origins of ownership are shrouded in obscurity. This was the case in every Western democracy. It is not the case in Eastern Europe today.
Indeed, one of the strongest arguments against any attempt to raise East European constitutions far above the political fray lies here. The basic issues with which contemporary politicians in Eastern Europe must grapple concern territorial boundaries, the question of political membership, the assignment of first property rights and the sudden redistribution of social wealth (including nomenklatura privatization), settling scores or closing the books on the past. These problems, faced by no Western democracy today, cannot be easily resolved by invoking liberal principles. And they cannot be addressed judicially, by a nonaccountable body of knowledgeable men and women. They will also not be imposed by a conquering army and accepted by a defeated and morally chastened people. They can be resolved only politically. Crucial decisions must be made with all the messiness of parliamentary bargaining and ad hoc compromise, carried out to some extent under the public eye. Only in this way can decisions be reached that have a chance to win durable public consent. It is futile and even illegitimate to attempt at the outset to entrench certain answers in a constitutional framework immunized against change. Attempts to depoliticize or juridify constitution making are unreasonable in societies where the future is so open and the choices so basic and so large.
1 See John Rawls, Political Liberalism (New York: Columbia University Press, 1993), for an account of why this might be so.
2 See especially the essays by Bruce Ackerman and Akhil Reed Amar in this volume.
3 Georges Burdeau, Francis Hamon, and Michel Troper, Droit Constitutionnel, 23rd ed. (Paris: Librairie Générale de Droit et de Jurisprudence, 1993), p. 356.
4 On sovereignty and constitutionalism in the American context, see Samuel Beer, To Make A Nation (Cambridge, Mass.: Harvard University Press, 1993).
5 See Bruce Ackerman, We the People (Cambridge, Mass.: Harvard University Press, 1991).
6 For Eastern Europe, as we will argue below, the crucial implication of this principle is that the more difficult it is to amend a constitution, the less plausible it becomes to infer “consent” from a failure to amend it.
7 Though see especially Walter Murphy’s contribution to this volume, which vigorously argues in favor of the opposite view, seemingly endorsed also, at least in part, by Mark Brandon and Akhil Reed Amar in their essays. John Vile makes the case against such review.
8 See Donald Lutz’s essay in this volume for a thorough canvass of such techniques.
9 Bruce Ackerman treats the New Deal as a structural amendment to the Constitution (see We the People); but we think it is more accurate to see the New Deal as a product of reasonable interpretive practices.
10 Within the United States, probably the best example of this phenomenon is the use of the initiative and referendum process of constitutional amendment.
11 It is interesting that in Germany, the Western democracy most convulsed by the collapse of communism, constitutional amendments (concerning the right of asylum and the role of the army) have also become the stuff of newspaper headlines and heated parliamentary debates.
12 The theory behind the amendment of Communist constitutions may have been this: “When events overtake the Constitution, the latter … is to be amended or replaced; the constitution is not to restrain social change.” W. E. Butler, Soviet Law (London: Butterworths, 1988), p. 144.
13 Andras Sajo, “States of Post-Communism,” East European Reporter (May–June 1992): 39.
14 Jon Elster, “Constitutionalism in Eastern Europe: An Introduction,” University of Chicago Law Review 58 (1991): 470.
15 See Ackerman, We the People, describing the American experience in this way.
16 We do not deny that high principle plays a role in constitutional politics in Eastern Europe. For example, the elaborate catalogue of protected rights—building on Western examples and international human rights documents—tends to undermine the view that strategy and partisanship can explain everything. See the discussion in Cass R. Sunstein, “Something Old, Something New,” East European Constitutional Review (1992): 18. With the new constitutions, as with new laws, there is a mixture of principled argument and strategic behavior. Our point is that, in general, there is no sharp split between constitution making and the ordinary processes of politics.
17 A good example is De Gaulle’s 1962 introduction of a presidential system into France by means of a procedurally unconstitutional referendum; the amendment was at first decried by constitutional lawyers, but their protests were useless since the decision was accepted by the public. For Eastern Europe, consider the last-minute rule change that allowed the Polish Sejm to pass a major constitutional amendment in August 1992. For background, see Louisa Vinton, “Poland’s ‘Little Constitution’ Clarifies Walesa’s Powers,” RL/RFE Reports 1, no. 35 (September 4, 1992): 19; and Wiktor Osiatynski, East European Constitutional Review 1, no. 3, p. 13. Walesa, it is true, signed this amendment only after the constitutional court ruled that the rule change was itself constitutional.
18 See chapter 2 of this volume, by Sanford Levinson, for a discussion of the difference between “amendment,” “revision,” and “revolution.”
19 “Havel—Constitutional Purism a Waste of Time for CSFR,” October 3, 1992, LEXIS, (Nexis), CTK National News Wire.
20 The parliaments of Eastern Europe can govern as long as no rival institutions emerge capable of aggregating still diffuse and uncoordinated discontent. If the Polish church, say, decided to tap into the resentments of the employees of the mammoth and uncompetitive state-owned enterprises, the problems of governance in the country would be markedly increased.
21 For help with this section, we are most grateful to Christian Lucky, whose excellent memorandum we have adapted for our purposes.
22 Romanian Constitution, Art. 148; Bulgarian Constitution, Art. 158.
23 Art. 155(1).
24 Art. 9(2).
25 Romanian Constitution, Art. 148(2). The official language of Romania is also protected from revision.
26 Ukrainian draft constitution, Art. 257. The Czech Constitution does not prohibit the amendment of provisions that protect human rights or fundamental freedoms.
27 Art. 160.
28 Constitution of the Republic of Bulgaria, chap. 9, Art. 158.
29 Art. 154.
30 Art. 161.
31 Russian constitution, Art. 92(3).
32 Art. 257.
33 The revisionary power of the People’s Assembly extends even further than this. According to Article 78(2), the People’s Assembly “decides on the conformity of the laws with the Constitution and interprets them.”
34 Art. 69 and 131.
35 Art. 256.
36 See also the detailed taxonomy developed by Donald Lutz in his contribution to this volume.
37 Art. 106.
38 Art. 24(3).
39 As the countries of the former East bloc struggle to establish constitutional democracies in difficult circumstances today, we should ask ourselves again how the United States managed to launch a stable liberal-republican regime at the end of the eighteenth century. The endurance of the Constitution written at Philadelphia in 1787 was not foreordained. The members of the Constituent Assembly in Paris in 1791, whose ideals were not radically discrepant from those of the American Founders, produced a respectable, if not perfect, liberal constitution that spattered to a swift and miserable end. Why did the Americans succeed and the French fail? There are many reasons, of course, stemming from the vastly different political, religious, economic, demographic, and military situations of the two countries. (While the French were saddled with Louis XVI, moreover, the United States was favored with George Washington.) But one additional reason deserves to be pointed out. Unlike their French contemporaries, the American Founders devised their Constitution after a period of frustration with the weakness of the central government. They aimed, therefore, not only to prevent tyranny, but also to create an energetic government with the capacity to govern, to rule effectively, and to “promote the general Welfare.” This devotion to governmental effectiveness, this passion for state building, was virtually absent at the Paris Constituent Assembly. Framed in response to the unpredictable arbitrariness of monarchical rule, the French Constitution of 1791 proved so constricting that, when the first crisis struck, authorities were driven to slough it off and govern extraconstitutionally. By contrast, the desire simultaneously to limit and reinforce the state resulted, in the American case, in a stable constitutional regime that was neither tyrannical nor weak.
40 Albert Hirschman, Journeys Toward Progress: Studies of Economic Policymaking in Latin America (New York: Norton, 1973), pp. 313–16.
41 Constitutional lawyers tend to be poor political advisers in today’s circumstances because constitutional law assumes the preexistence of the political authority that needs to be limited. Like many economists, most of them are professionally biased against constitutional techniques for state building or reinforcing the governing capacities of public authorities.
42 We are grateful to Andras Sajo for helpful discussion.
43 There is an extensive literature debating the relationship between democracy and the initiative and referendum found in many of the western states in the United States. See, e.g., Thomas E. Cronin, Direct Democracy: The Politics of Initiative, Referendum, and Recall (Cambridge, Mass.: Harvard University Press, 1989); Lynn A. Baker, “Direct Democracy and Discrimination: A Public Choice Perspective,” Chicago-Kent Law Review 67 (1992): 707; Julian N. Eule, “Judicial Review of Direct Democracy,” Yale Law Journal 99 (1990): 1503; Hans A. Linde, “When Initiative Lawmaking Is Not ‘Republican Government’: The Campaign Against Homosexuality,” Oregon Law Review 72 (1993): 19.
44 Branislaw Geremek, “Civil Society Then and Now,” Journal of Democracy 3, no. 2 (April 1992): 6; while puffing “civil society,” Geremek also admits that “a real danger is presented by the fall in interest in politics, by retreatism from public life” (p. 11).
45 As the last item shows, constitutionalism will always be as much an ideal standard or unattainable goal as a political reality.
46 This mythologizing is one source of the overlegitimation of constitutional courts. It may be that the great need in Eastern Europe, whatever may be the case elsewhere, is not so much for “constitutional faith” (see Sanford Levinson, Constitutional Faith [Princeton: Princeton University Press, 1988]) as for “parliamentary” or, even more to the point, “political” faith.