Constitutional Reform: Where to Start

There is an increasing level of concern about the erosion of democratic standards in the world.

There is less agreement about what is causing this erosion of democratic standards. Some observers blame economics and, in particular, the growth of income and wealth inequalities. Others suggest that we need to rethink the constitutional frameworks under which democracies work. 

Getting constitutional discussion going is difficult. The subject appears remote and abstract. Most constitutions deliberately discourage change and make amendment difficult. Power holders under existing arrangements react defensively. In addition, there is no generally agreed starting point. 

​This blog looks at different alternative starting points for constitutional discussion.

 The pragmatic

There are many signs that democracies around the world are in trouble – from lack of trust in political leaders, to the erosion of the center ground in party politics, and to the decline of ‘civility’ and moderation in political debate.

What seems at first sight to be the most sensible approach to constitutional reform is to start with what we have got, identify the specific weaknesses and to go from there. It is about identifying ‘where’s the mischief’.

For example, in the US there are concerns about selection procedures in party primaries for elected office, about the drawing of boundaries for electoral districts, about the role of the electoral college, the basis of representation in the Senate and procedures for appointments to the Supreme Court. 

Each could be taken up individually. Reforms could be discussed on their own particular merits. Changes could be made where warranted.

The shortcomings of pragmatism

What stands against this apparently pragmatic course is that particular changes raise very much wider issues. For example, in the US it would be difficult to discuss representation in the Senate without discussing the role of second chambers more generally. It would be difficult to discuss the appointments process to the Supreme Court without discussing the role and scope of judicial review. It would be difficult to take up electoral reform without discussing the role of popular initiatives in relation to representative and party politics.

Because the US constitution deliberately made the constitution itself difficult to change, and change has occurred through interpretation, there now seems to have developed in the US a back-log of accumulated obsolescence. Ad hoc changes won’t answer.

What is true for the US is also true for many other countries. While the constitutions of most democracies are much more recent than in the US they all suffer from a generalized obsolescence.

They do not reflect: 

• the social diversity of modern societies, 
• the way markets in the internet age provide more immediate and direct responses to what people want,
• the changes in the way we communicate with each other,
• the importance of different generational perspectives, 
• the growth in the importance of the compartmentalization of functions and the hiving off of specialized expert bodies, 
• the diffusion of power within and beyond the traditional state, 
• how to think about what is private and what is public in the internet age. 

It is a long litany of basic social, market and political change. There is therefore across the democratic world a need to stand back, take a deep breath and return to the basics. But again, where do we start?

The intuitive

Perhaps the most popular approach among theorists is the intuitive. The theorist adopts an Olympian stance, or a position of ‘Archimedean’ agnosticism, and intuits that what people really want. Intuitively we assume that people want security in their lives and the minimum possibility of having their own choices over-ruled by those in authority. Since people want material security for themselves, they cannot deny it for others. 

Constitutional reform becomes a matter of renewing the social and political contract. The drawback is that constitutions end up promising something to everybody. Power is presented as benign.

The normative

A different Olympian starting point is to set out what people should want from a constitution and the basic rules of political association. For example, from a normative perspective they should want a political arena where reason prevails. They should also have a healthy fear that power does indeed corrupt and thus they should limit the powers that are granted in politics.

Of course, the weakness in this account is that the kinds of reasoning espoused by academics, lawyers and theorists is not the kind of everyday reasoning that people engage in. We take short cuts. We listen to the views of those we associate with in our community including those virtual communities we engage with.

Somehow constitutions have to avoid theorising people as they should be rather than as they are. This leads us towards looking more closely at how people actually behave and what motivates them. 

Motivation

A behavioural starting point starts from accepting that people are motivated by more than one thing. It is probably reasonable to assume that people come together in political association in part because they want a degree of security and protection from what could happen if bad times were to arrive. However, motivation is not just confined to a desire for material security but is also about togetherness and about social purpose. 

Behaviour is also sensitive to context. Thus, it is probably also reasonable to assume that people are very aware of the diversity of the modern-day social setting in which we live. We come from different backgrounds, go to different watering holes and support different football teams. If despite these and more fundamental differences we still want to come together in a voluntary association, it seems reasonable to assume that the rules for political association will have to provide ways in which all people think that they are being treated fairly despite their differences. 

The constitution will also have to provide processes and institutions that can help achieve the purpose of steering through our differences.

The drawing board

It is these motivational and behavioural elements that can provide us with a more productive starting point than simply intuiting what people might want and making assumptions about what they should want. 

It means recognising that the capability to provide security in the sense of problem solving often involves specialised institutions that lie outside politics; that in order to achieve togetherness, we may need new institutions to reflect fairness between generations; and that we may need more immediately responsive institutions. We may also need new oversight arrangements since we can’t assume that developments will be self-correcting. 

Practicalities?

​Going back to the drawing board will be unwelcome to those who enjoy positions of power and influence under present arrangements. The actual practice of constitution building tells us that those with power will attempt to hijack the process. Nevertheless, the difficulties now being experienced in modern democracies cannot all be ascribed to economic causes. We need to think once again about whether we have got the framework right for the modern conditions for democratic government.