Donald L. Horowitz - Constitutional Processes and Democratic Commitment

The Castle Lectures in Ethics, Politics, and Economics

CONSTITUTIONAL PROCESSES AND DEMOCRATIC COMMITMENT

DONALD L. HOROWITZ

Yale UNIVERSITY PRESS

New Haven & London

Published with assistance from the Mary Cady Tew Memorial Fund.

Copyright 2021 by Donald L. Horowitz.

All rights reserved.

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Library of Congress Control Number: 2020951772

ISBN 978-0-300-25436-5 (hardcover : alk. paper)

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Parts of this book were given as the Castle Lectures in Yales Program in Ethics, Politics, and Economics, delivered by Donald L. Horowitz in 2016.

The Castle Lectures were endowed by Mr. John K. Castle. They honor his ancestor the Reverend James Pierpont, one of Yales original founders. Given by established public figures, Castle Lectures are intended to promote reflection on the moral foundations of society and government and to enhance understanding of ethical issues facing individuals in our complex modern society.

For Justin, Stephanie, and Jadyn

Contents

Preface

This book emerged out of a longstanding work in progress on constitutional processes and design for severely divided societies. As I wrestled over the years with what I initially thought were aspects of a single subject, I eventually came to believe that constitutional processes and institutional designs for severely divided societies were best treated separately. With respect to the former, the result is this study, which attempts to learn something about the goals that constitutional processes might serve and the experience that observers and participants have had with multiple constitutional processes.

Many students of constitutional design have argued that societies riven by ethnic or religious conflict need some special institutions to help mitigate their problems. Yet the constitutional processes by which such societies might adopt appropriate institutions are a neglected subject. There is, however, a literature on constitutional processes in general. True enough, deep disagreement in constitutional processes for severely divided societies will most likely fall along lines of the most prominent cleavages in the society and may have more negative and long-lasting effects than disagreements manifested in processes for societies not so divided. For this reason, constitutional processes for severely divided societies may also require somewhat more attention to criteria for securing agreement and to certain other features of the process than other societies might require.

Nevertheless, constitutional processes for any society aspiring to democracy, stability, and peaceful accommodation of contention have much in common. The conditions surrounding the inception of the process, the procedural choices available, the standards by which those choices might be evaluated, and the sources of process failure have a common vocabulary in which they are described and analyzed. In short, constitutional processes form a compact subject, separable from institutional design. Most, but not all, of the evidence adduced in this book is drawn from severely divided societies, and along the way I highlight some special process considerations that must apply to societies I shall define as severely divided. Even so, this is also a book about constitutional processes in general, processes intended to lead to democratic outcomes that have some staying power.

That staying power cannot be assumed. Much of the book concerns the problem of spanning the chasm between what is agreed and written down in constitution making and the reneging behavior that not infrequently follows. Some part of this gapbut by no means all of itis likely to be related to the processes by which commitments are made, in particular who is involved and how the processes are conducted.

The plural Processes in the title of the book is deliberate. Considering the number of bodies that can be formed to take part in the making of constitutions, the qualifications of their members, the ways in which they can be convened, chosen, and organized, the tasks that can be assigned to each, the sequences in which they might do their work, and the methods by which their work product might be approved or disapproved, it is clear that no two processes can be or ought to be identical. That makes the evaluation of various process alternatives unusually difficult and contingent, for the evaluation of one feature of a process can easily be affected by a change in the total configuration of features. Underlying all such evaluations, as I hope to make clear, is a concern that certain critically important objectives be recognized and realized. These I shall make explicit as we go along, but this is not a cookbook for designing processes: it emphasizes certain criteria but contains no specific recipes. It merely advances a perspective on and a critique of constitutional processes, based upon certain objectives and methods for their probable attainment.

Portions of this book were presented in the Castle Lectures on Ethics, Politics, and Economics at Yale University in the fall of 2016. I am pleased to record my gratitude to the benefactor of the series, John K. Castle, and to Nicholas Sambanis, who, as director of the Yale Program on Ethics, Politics, and Economics, was kind enough to invite me to deliver the lectures. During my stay in New Haven, I benefited from the hospitality afforded me by faculty and students and by Kellianne Farnham and Beth Iams Wellman, who managed the logistics seamlessly.

A project spanning a number of years, as this one does, would be impossible without support from foundations and research centers. For supporting the larger project from which this book is drawn, I am grateful to the Harry Frank Guggenheim Foundation, the Carnegie Scholars Program of the Carnegie Corporation, the United States Institute of Peace, the Woodrow Wilson International Center for Scholars, and the National Endowment for Democracy. I also benefited from released time afforded by the Bost Research Professorship at Duke Law School. Each of these grantors provided me with the opportunity at earlier stages to conduct pieces of the necessary research and writing.

I would also like to thank institutions that invited me in recent years to work on parts of this project while in residence in Germany, Malaysia, and Singapore: the American Academy in Berlin, where I held the Siemens Prize Fellowship; the Academic Icon Program at the University of Malaya; the Political Science Department at the National University of Singapore; the College of Humanities, Arts, and Social Sciences at Nanyang Technological University (NTU); and the Centre for Asian Legal Studies (CALS) at the Faculty of Law of the National University of Singapore (NUS). At these institutions, I was warmly welcomed by, at UM, Khadijah Md. Khalid, Emile K. K. Yeo, Danny Wong, and the late and sorely missed Lee Poh Ping; at NUS Political Science, Terry Nardin and Jamie Davidson; at NTU, Joseph Chin Yong Liow; at NUS Law, Dan Puchniak, Kevin Y. L. Tan, Andrew Harding, Jaclyn L. C. Neo, and Dian A. H. Shah; and, at all, an array of stimulating colleagues and helpful staff.