by Zachary Elkins, Tom Ginsburg, and James Melton. New York: Cambridge University Press, 2009. 270pp. Hardback. £50.00/$85.00. ISBN: 9780521515504. Paperback. £17.99/$28.99. ISBN: 9780521731324. eBook format. $23.00. ISBN: 9780511636530.
Reviewed by Beau Breslin, Department of Government, Skidmore College. Email: bbreslin [at] skidmore.edu.
A decade ago, political scientists from around the world were stunned by an email that questioned the dominance of certain methodological approaches within their discipline. Sent anonymously by “Mr. Perestrioka,” the “manifesto” was actually a series of questions meant to challenge the relevance of the discipline’s flagship journal – the AMERICAN POLITICAL SCIENCE REVIEW – and the leaders who governed the parent organization, the American Political Science Association. Mr. Perestroika’s critique was broad and stinging, but he (or she) reserved his most powerful assault for the discipline’s lack of methodological pluralism. Referring repeatedly to the value of qualitative studies, the author wondered whether political scientists were making a “mistake by ignoring diverse knowledges and methodologies present in the study of politics” when placing such a premium on quantitative analysis. “Where is political history, International history, political sociology, interpretive methodology, constructivists, area studies, critical theory and last but not the least – post modernism?” he asked. Why is it that most of the journal articles found in APSR are “incomprehensible,” he wondered? In the end, Mr. Perestroika called for sweeping reform, the “dismantling of the Orwellian system that we have in place in APSA” and the emergence of a “true Perestroika in the discipline.”
Perhaps falling short of sweeping reform, it is nonetheless true that the famous email did eventually lead to significant changes in the discipline. Among the most important changes is a renewed appreciation that methodological pluralism contributes to our understanding of political phenomena. We can view the political world through multiple methodological lenses and come away with a more nuanced, and more interesting, image. We should study the institutions of politics, as well as the behavior of political actors, from multiple perspectives.
In THE ENDURANCE OF NATIONAL CONSTITUTIONS, Mr. Perestroika’s central message in support of methodological pluralism has reached the realm of constitutional thought. Long dominated by the fascinating theoretical work of individuals like Charles McIlwain, Walter Murphy, Stephen Elkin, Jon Elster, Sotirios Barber, Sanford Levinson, John Finn, and many others, the study of constitutions (and, here, I am not talking about the study of constitutional interpretation or judicial politics) has always welcomed the qualitative analyst. Rarely, though, has it embraced the [*84] quantitative scholar. Zachary Elkins, Tom Ginsburg, and James Melton, however, take an interesting theoretical question – why do some national constitutions endure while others do not? – and attempt to locate a mostly empirical answer. The book is most certainly a work of constitutional theory, and yet it is imbued with rich and persuasive quantitative analysis. While not flawless, it is one of the most interesting constitutional studies produced in the last few years.
The book is “the first from the Comparative Constitutions Project, a long-term research initiative with the goal of understanding the origins, characteristics, and consequences of written constitutions for most independent states” (p.xi). The authors have collected the constitutions of almost every national regime since the late eighteenth century. It is an impressive collection, to be sure, and it will serve constitutional scholars well over the next decade or more.
From these data, Elkins, Ginsburg, and Melton concentrate on a single component – a temporal component – of constitutional history and practice. “Why,” they ask, “do some constitutions endure, whereas others do not?” (p.2). In Chapter 1, the Introduction, we are told that there are two competing theories as to why some constitutions succeed and others fail. Most scholars assume that the failure of constitutional texts derives largely from environmental factors – the regime’s economy tanks and thus the text is thrown out, or the political situation begins to unravel and a new constitution is constructed to give some stability to the region. In other words, the authors suggest, constitutional endurance is largely tied in the political science literature to the particular political, social, economic, and geographic environment of the regime. Elkins, Ginsburg, and Melton, are not so sure. They believe that the design features of a constitution – what the text actually includes and how the text was originally drafted – have as much or more to do with the endurance of a constitutional instrument as do environmental factors. “Design choices matter,” they insist (p.10).
The body of the short volume consists of eight chapters and a short Conclusion. The first half of the book is largely theoretical, while the second half includes the quantitative test of the authors’ hypothesis and several chapters devoted to comparative case studies of constitutional endurance. Chapter 2 examines a series of questions related to the longevity of constitutions. One of the interesting conclusions the authors uncover, and one that they announce early in the book, is that Thomas Jefferson’s famous estimate that the life-cycle of a constitution should last roughly nineteen years is startlingly accurate. It is indeed true that over the past two centuries the average life span of the constitutional form is nineteen years. As such, the authors choose an interesting frame for the second chapter: the debate between Jefferson and Madison on the value of constitutional renewal. This familiar frame helps us to see more clearly the importance of understanding the rate of constitutional mortality around the world and through modern history.
In addition to framing the central questions in a familiar theoretical and historical context, the authors also [*85] present a distinctly comparative lens. Throughout the entire work, and especially in the case studies at the end, the authors regularly refer to various constitutional illustrations. This, too, is helpful, especially for the student of the American constitutional text, for the authors mostly contrast the characteristics of all constitutional documents to the American example. In Chapter 3, the authors ask some of the fundamental questions about constitutions: what are they? What do they typically say? What functions do they perform? At this point, the authors wade into one of the more interesting debates in constitutional theory: what counts as part of the “constitution.” Elkins, Ginsburg, and Melton recognize the influence of the more comprehensive view – the small “c” constitution that is more accurately referred to as the constitutional order – though they admit that for the purposes of their study they are particularly attracted to the large “C” constitutional text. Next, the authors turn to more subtle, though no less fundamental, questions: how should we distinguish constitutional replacements from constitutional amendments? How do we characterize constitutional change from regime change? All of these explorations are necessary for the later discussion of what factors most likely will contribute to constitutional longevity.
Chapter 4, “What Makes Constitutions Endure,” is a pivotal chapter. It is here that the authors sketch the preconditions for constitutional endurance. They argue that “flexibility” (the extent to which constitutions are adaptable through the amendment and modernization process), “inclusion” (the extent to which constituencies were invited and voices were heard at the drafting stage and the extent to which parties embrace the constitution during its run), and “specificity” (the extent to which the design of a constitution is detailed), are the principal measuring sticks in predicting constitutional mortality. In their words, “three design choices help facilitate constitutional endurance. Flexibility, inclusion, and specificity result from the constitution-making process itself, but are also features of ongoing practice. All three mutually reinforce each other to produce a vigorous constitutional politics in which groups have a stake in the survival of the constitution” (p.89). Accordingly, they hypothesize: “constitutions are more likely to endure when they are flexible, detailed, and able to induce interest groups to invest in their processes” (p.89).
Chapter 5, “Identifying Risks to Constitutional Life,” is in many respects an extension of the previous chapter. The goal of this portion of the manuscript is to identify the risk factors – both in terms of the actual design features of the text and the possible environmental pressures – that might doom a constitutional document. The authors, that is, will introduce those design qualities and environmental factors that logic tells us may lead to constitutional collapse. They are particularly attuned to such design characteristics as the detail or scope of the actual text, the inclusion of voices that support the central tenets of the document, the ease with which the constitution might be amended, the protection of constitutional review, and the relationship between executive and legislative power. As for environmental factors, the authors focus primarily on [*86] regime change, transitions in leadership, constitutional difficulties in neighboring states, historical legacies, and economic crises.
Chapter 6 tests the hypothesis that constitutions will endure when their designs are “flexible and detailed,” and they are “able to induce groups to invest in their processes” (p.89). The authors make clear that they are testing hypotheses related to design, not to environment (though they do not ignore environmental factors altogether). Using statistical modeling and a dependent variable described as the mortality rate, these scholars conclude that environmental factors play a role in the longevity of constitutional examples, but that design features play an even greater role in the life or death of a regime’s fundamental law. The degree of inclusivity, for instance, impacts longevity: “constitutions that are subject to public ratification,” the authors conclude, “are eight percent more likely to survive than those that are not” (p.139). Similarly, the more detailed the constitution is, the more it stands a chance of survival. The same is true with regard to the ease of amendment: the easier it is to amend, the better chance it has to endure. Oddly, though, the models also suggest that the existence of mechanisms for constitutional review (typically in the judicial system of the regime) has a deleterious effect on constitutional endurance. The general conclusion we are left with – that constitutional drafters can maximize the possibility that their document will survive if they are careful about what goes into it – does not do service to the subtle lessons about constitution-making and normative political theory that this book reveals.
The final two substantive chapters try to give some context to the findings. These comparative case studies are really thumbnail sketches of roughly similar constitutional situations, all aimed at testing the particulars of the authors’ general theory. India and Pakistan are compared in Chapter 7, as is the United States and France, and China and Taiwan. In Chapter 8, the authors compare Haiti and the Dominican Republic against Thailand, as well as Mexico against Japan. The authors make some general conclusions using the case studies, but the insights presented by this methodological approach are far less impressive than the ones that came out of the quantitative analysis. There just is not a lot there in these two- or three-page sketches. The case studies are the weakest part of the monograph.
One of the book’s virtues may also be its signature vice. Indeed, the scope of the project is most impressive: the authors reviewed literally hundreds of constitutions in preparation for this study. And yet not all constitutions are exactly comparable, and the authors largely fail to acknowledge that. The theoretical work of Walter Murphy is illustrative here. Murphy argued that constitutions should be placed along a continuum between those that are more or less authoritative and those he called shams, which are mostly ignored by political leaders, not worth the parchment they are written on. The difference between an authoritative constitution (like in the United States) and a sham (like that which governed the former Soviet Union) is significant and could account for differences in mortality rates. Should political leaders in polities constituted by sham [*87] documents scrap those constitutional texts in favor of different ones? Does it make sense for the tyrant to draft a new Constitution when the one he has does not really control his ambitions and impulses anyway? Thus to place all constitutions in the same data set and treat them all more or less equally does not account for these rather important variations.
The same is true if we apply Nathan Brown’s crucial work on nonconstitutionalism to THE ENDURANCE OF NATIONAL CONSTITUTIONS. In CONSTITUTIONS IN A NONCONSTITUTIONAL WORLD, Brown examines the constitutions of most Middle Eastern regimes and concludes that they are fundamentally different than the ones we take for granted in Europe and the Americas. He argues that these texts are nonconstitutionalist in that their principal function is to enhance the power of the state rather than limit or control that power. These fundamental laws, Brown insists, are not shams, they are authoritative in every sense of the word; and yet they differ in arguably the most critical way from the constitutionalist instruments of the West whose primary purpose is to constrain the authority of political leaders and their institutions. I can just imagine Brown, like Murphy, gently pointing out to the authors of ENDURANCE that these subtle distinctions matter.
THE ENDURANCE OF NATIONAL CONSTITUTIONS is nonetheless an important book. The authors ask the right questions about the temporal issues that hover over all constitutional polities. No other volume examines as closely the risks associated with constitutional longevity and the design characteristics that make a nation’s fundamental law survive. As such, students of constitutionalism, constitutional theory, and comparative politics will learn much from reading this work. What is more, the authors accomplish their task in a way that adds legitimate methodological variety to the extant literature on constitutional thought. They engage scholars in the importance of constitutional texts by embracing a statistical and quantitative language that so many political scientists prefer. Indeed, they cross methodological boundaries that have, to this point at least, been difficult to traverse. Somewhere out there Mr. Perestroika is smiling.
Brown, Nathan J. 2001. CONSTITUTIONS IN A NONCONSTITUTIONAL WORLD: ARAB BASIC LAWS AND THE PROSPECTS FOR ACCOUNTABLE GOVERNMENT, Albany, NY: SUNY Press.
Murphy, Walter F. 1993. “Constitutions, Constitutionalism, and Democracy,” in CONSTITUTIONALISM AND DEMOCRACY: TRANSITIONS IN THE CONTEMPORARY WORLD, ed. Douglas Greenberg, Stanley N. Katz, Melanie Beth Oliviero, and Steven C. Wheatley, Oxford: Oxford University Press.
Copyright 2010 by the author, Beau Breslin.