ASSESSING CONSTITUTIONAL PERFORMANCE

Vol. 27 No. 5 (June 2017) pp. 83-85

ASSESSING CONSTITUTIONAL PERFORMANCE, edited by Tom Ginsburg and Aziz Z. Huq. New York: Cambridge University Press, 2016. 442pp. Paper $39.99. ISBN: 9781316608357.

Reviewed by John E. Finn, Professor of Government Emeritus, Department of Government, Wesleyan University. Email: jfinn@wesleyan.edu.

This edited collection on the concept of constitutional performance is an important, interesting, and occasionally frustrating book. It will likely be a standard reference in the field of comparative constitutional politics for many years.

As is often the case with edited collections, this one is a bit of a mix. Some readers will find some nuts more appetizing than others, as did I. All of the chapters are impressive, but I was especially struck by Aziz Huq’s chapter on Hippocratic constitutional design, Roberto Gargarella’s chapter on Alberdi, Sumit Bisarya’s chapter on transitional provisions, and Dixon and Landau’s chapter on the constitutional minimum core.

The collection’s biggest strength is its catholic, ecumenical character. As Ginsburg and Huq make clear in their Introduction, they make no effort to advance a single or comprehensive definition of constitutional success or failure, and likewise make no stab at a singular definition or metric of constitutional performance. Their decision not to do so is one of the strengths and weaknesses of the book. It is a strength chiefly because the lack of direction allows the contributors to advance a wide variety of definitions and approaches, often in conversation and disagreement with one another.

This diversity of definition is explicit in, if not the theme of the first part of the book, entitled, aptly, “Defining Constitutional Performance.” But it also resonates in part 2, which addresses some of the concrete and specific challenges that face constitutional regimes (such as managing the transition from military to civilian rule, or in ensuring a minimum core of democratic competition, among others), and in part 3, which consists of four case studies.

One of the central disagreements in the book, discussed at length in the opening chapter by Ginsburg and Huq and visited in nearly every other chapter, concerns whether the assessment of constitutional performance is internal or external in character, as framed by the “perspective of the person engaged in the evaluation” (p. 7). By internal, Ginsburg and Huq mean an assessment informed by “the terms of the community to be regulated by [the] instrument” (p. 7). By external, they mean “assessing constitutional performance against a benchmark derived independently of local circumstances and contingent preferences within the relevant polity” ((p. 8) (One variety of external assessment “proceeds from a normative account of desirable features or products of a constitutional order” (p. 8)).

As one example of the external perspective, Ginsburg and Huq propose a minimalist, four part definition of constitutional success: (1) creating public legitimacy; (2) channeling political conflict into stable political institutions; (3) limiting agency costs, and (4) creating public goods. These criteria, they propose, are general, though not universal, so they may be used to assess constitutional performance across and in many cases. Several chapters offer different accounts, including Martha Nussbaum’s discussion of Indian Constitution, Helene Landemore on Iceland an especially interesting chapter by Roberto Gargarella that develops an internal perspective built on the work on Juan Batista Alberdi.

As Huq concedes, both the external and internal perspectives are framed chiefly in terms of who conducts the assessment: “So defined, the internal/external distinction turns on who applies the standard, not what the standard is” (p. 39). This makes sense as far as it goes, but it does not go very far. Absent from such a perspective is an [*84] inquiry (and a recurrent question in both jurisprudence and normative constitutional theory) that must be back of any inquiry into constitutional success and failure, and equally of constitutional performance: what kind of thing is a Constitution? Most (but not all) of the chapters in this book answer that question by referencing purposes and occasionally matters of inclusion and exclusion (is the Constitution a text or texts only). What is missing is a larger inquiry into what kind of authority the Constitution commands. To be clear, the omission is explicit and intentional—it represents a decision about how to conceptualize the project of assessment. But it is a choice that has consequences.

As an example, consider Huq’s decision to define a constitution as “a legally authoritative written account of at least some of the institutions necessary for the operation of a state over a given geographic space for some extended period of time” (p. 42). The definition of constitutional failure/success that follows upon that definition is a logical correlate: “A constitution succeeds qua constitution so long as, and to the extent that, its design does not contain elements that are likely to conduce unintentionally to the breakdown or dissolution of effective state functioning that it aims to enable” (p. 42).

Huq’s account of constitutional maintenance, although explicitly normative in character, nevertheless is framed in a particular (legal) way. Implicit in this definition of constitution, first, and failure/success, second, is an account of what kind of thing the Constitution is and of what kind of authority it commands—and in both, the juridic, legal character of the project is conclusive. Largely excluded from an inquiry into constitutional maintenance is a close look at criteria that Murphy (2008), Barber (2015), Elkin (2006), Finn (2014), and others might describe as welfarist, attitudinal, or as a way of life—as much a political conception as a legal one.
This impedes an inquiry into other conceptions of what constitutional success and failure might mean and into to other kinds of assessment questions. A definition of constitutional maintenance framed, for example, as a commitment to preambular ends would mean, among things, that neither constitutional success nor constitutional failure can be measured by the durability of constitutional institutions or by the rigor of rights enforcement. It is a bit of surprise that a book as thoughtful and as careful as this one does not attend more fully to the rich literature on constitutional maintenance produced in other scholarly quarters.

Another open question concerns what it means when we say we are engaged in assessing constitutional performance. Do we mean to assess the performance (and is performance simply a matter of success or failure, however we define those terms?) of documents, of regimes, or of something else? Here again the inquiry eventually turns on our definition and understanding of the descriptors “constitution” and “constitutional.” No doubt some forms of political disorder can and should be traced to constitutions and to design decisions, but on reflection this turns out to be more difficult than first appears. As James Fleming (2009) has observed, all sorts of failures might be “attributable to the Constitution in the sense that they are made more likely by our constitutional design” (2009, p. 640).

I want to be clear that this collection is an important and valuable contribution to the literature on comparative constitutional theory. Every student of constitutional maintenance and performance will profit from several of the essays in it, and Ginsburg and Huq have done an admirable job of giving the essays a common theme while also cultivating disagreement on key terms and concepts. Simply put, this book is essential reading.

ENDNOTE:

1 Huq does attend to welfarist understandings of constitutional purpose and maintenance at some length, but his definition of welfarist “metrics” starts from a somewhat different understanding of what the term means in constitutional theory. [*85]

REFERENCES:

Barber, Sotirios A. 2014. CONSTITUTIONAL FAILURE. Lawrenceville: University Press of Kansas.

Elkin, Stephen L. 2006. RECONSTRUCTING THE COMMERCIAL REPUBLIC: CONSTITUTIONAL DESIGN AFTER MADISON. Chicago: University of Chicago Press.

Finn, John E. 2014. PEOPLING THE CONSTITUTION. Lawrenceville: University Press of Kansas.

Fleming, James E. 2009. “Towards a More Democratic Congress.” BOSTON UNIVERSITY LAW REVIEW. 89: 629 – 640.

Murphy, Walter F. 2008. CONSTITUTIONAL DEMOCRACY: CREATING AND MAINTAINING A JUST POLITICAL ORDER. Baltimore: Johns Hopkins University Press.

Tulis, Jeffrey K. and Stephen Macedo. 2010. THE LIMITS OF CONSTITUTIONAL DEMOCRACY. Princeton: Princeton University Press.

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© Copyright 2017 by author, John E. Finn.