Being There Is Half the Battle: Group Inclusion, Constitution-Writing, and Democracy

• Author: Todd A. Eisenstadt,Tofigh Maboudi
• Published date: 01 November 2019
• DOI: 10.1177/0010414019830739
• Date: 01 November 2019
• Subject Matter: Articles

830739CPSXXX10.1177/0010414019830739Comparative Political StudiesEisenstadt and Maboudi
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Comparative Political Studies
2019, Vol. 52(13-14) 2135 –2170
Being There Is Half the
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Constitution-Writing,
and Democracy
Todd A. Eisenstadt1 and Tofigh Maboudi2
Abstract
Using an original data set assessing the effect of the 195 new constitutions
worldwide over the past 40 years on levels of democracy, this article argues
that when popular participation and group inclusion are both considered,
inclusion is what matters. After showing that group inclusion generates
more improvements in levels of democracy than mere participation in our
data set of implemented constitutions, we address some of the prominent
cases of constitution-writing failure that occur when individual participation
is valued more highly than group inclusion. The article shows that even after
unprecedented waves of popular participation through social media feedback
(Egypt and Iceland) and focus groups and workshops (Chile), participation
alone cannot generate constitutions that improve levels of democracy, or,
sometimes, even the very promulgation of new constitutions. Indeed, using
these cases as illustrations, we show how participation without inclusion
is doomed to failure. We then show that high inclusion cases, even if they
involve low participation (such as Tunisia 2014 and Colombia 1991), do
generate democracy improvements.
Keywords
democratization and regime change, judicial process, law and courts, Latin
American politics, Middle East
1American University, Washington, DC, USA
2Loyola University Chicago, IL, USA
Corresponding Author:
Todd A. Eisenstadt, American University, 4400 Massachusetts Ave. NW, Washington,
DC 20016, USA.
Email: eisensta@american.edu

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Comparative Political Studies 52(13-14)
Recent scholarship on constitution-drafting has shown that broad participa-
tion, by individuals or groups, is critical, if new constitutions are to improve
nations’ levels of democracy (Eisenstadt, LeVan, & Maboudi, 2015).
However, the three most widespread systematic participatory processes
ever—in Iceland 2010, Egypt 2012, and Chile 2016—have all ended, at least
for the time being, in failures to negotiate a draft (Chile), ratify the constitu-
tion (Iceland), or even survive more than 6 months after promulgation
(Egypt). Thousands of people were consulted via social media in Egypt and
Iceland, and in an act of unprecedented civil society participation in Chile,
thousands of people were consulted in extensive focus groups, about norms
they sought to prioritize for inclusion in a new constitution. But none of these
efforts yielded a new, stable constitution. How might we explain this incon-
gruity? Academic literature elsewhere argues that participation yields new
constitutions that improve levels of democracy. These high-profile “failures”
in constitutional refounding seem to contradict the prior finding that exten-
sive participation, as in all three of these nations, yields new and more demo-
cratic constitutions.
Parting from this puzzle, this article argues, using a data set assessing the
effect of the 195 new constitutions worldwide over the past 40 years on levels
of democracy, that when popular participation and group inclusion are both
considered, inclusion is what matters. After showing that group inclusion
generates more improvements in levels of democracy than mere participation
in our data set of implemented constitutions, we address prominent cases of
constitution-writing failure. The three aforementioned cases of constitution-
writing failure are considered, as they involved extensive popular participa-
tion in the form of social media feedback (Egypt and Iceland) and focus
groups and workshops (Chile). Indeed, using these cases as illustrations we
show how participation without inclusion is doomed to failure.1 We then
show that although a country’s democracy can improve under any constitu-
tion-writing procedure, high inclusion cases, even if they involve low partici-
pation (such as Tunisia 2014 and Colombia 1991), are statistically more
likely to generate democracy improvements.
How is group inclusion even different from participation, and why do we
make so much of this distinction? We argue, in the article that follows, that in
all regimes—authoritarian or democratic—the fashioning of a new constitu-
tional order requires interest group advocates for societal positions, and that
in procedural terms, formal advocacy for ideas and issues may in fact be
more important than widespread support for those issues. Increasingly, stud-
ies highlight the importance of the procedures through which constitutions
are crafted as well as what the documents say. As argued by Brown (2008, p.
675), the highbrow politics of constitution-making, with its emphasis on

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righteous legal norms and formal institutions, should be complemented by
low politics considerations, to allow for human political considerations of “a
constitution that is merely the product of partisan horse trading, emotional
appeals, and short-sighted calculations . . . liable to be both unstable and
unjust.”
The cornerstone of our argument is that any participation must be fully
channeled to assemble a constitution that resonates with the participants.
Constitution-making is a political process and as such requires advocates
with credibility derived from powerful entrenched interests, the popular will,
or some combination of these. In that sense, we reiterate Horowitz’s (2013)
emphasis on the benefits of a representative, in-house process of constitu-
tional renovation, but take a step further to argue that the optimal process of
constitution-making for long-term democracy is where group inclusion
(where groups act as advocates of individual voices) channels individual-
level participation. In the sections that follow we use political theory litera-
ture on deliberation to summarize an interest group argument on the
importance of group inclusion in contrast to mere participation. Then, we
consider how these categories might manifest in ideal types. Finally, we con-
struct statistical models to directly test group inclusion against participation,
report our findings, and consider several cases with different degrees of par-
ticipation and inclusion and how they facilitated or hindered democracy
improvement.
“Deliberative Democracy”: Individual Participation
Versus Group Inclusion
A tension exists between popular participation in constitution-writing (or at
least ratification of constitutions) and elite crafters representing special inter-
ests. Although prior work validated participation of masses as well as elites,
we seek to cast a narrower shadow on this debate by finding justification in
extant literature for our claim that what matters more is not the number of
participants in the room, but that the widest possible range of interests are
included. To that end, in the section that follows, we compare the deliberation
literature from political theory, which speaks to individual participation, the
social movement literature on the strength of numbers in participation, and
the interest group literature, where what matters are the linkages between
participants and interest groups (how inclusive the crafters are of relevant
societal interests).
Little theoretical literature on Unites States or comparative politics exists
addressing the need for interest groups and parties in constitutional process. In
the U.S. case, the Federalist papers do address interests (“factions”), parting

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Comparative Political Studies 52(13-14)
from Madison’s Federalist 10 appeal for party elites to curb the passions of the
masses (the broadest definition of “participants”), but Madison is not really
arguing for an inclusionary range of interests, just for traditional ones, and he
is speaking to the conduct of politics more broadly than to constitution-draft-
ing (Dawson, 1863, p. 64). Dahl (2003) in his critique of the U.S. constitution
also addresses the elitism of the U.S. constitution, but as part of the debate of
Burkean representation and whether elites should represent the populace as
“deciders” with the criteria to discern and make the best judgments, or whether
they should simply “mirror” public opinion (Madison’s “passions”). Dahl also
addresses the institutions created by special interests (such as those defending
slavery) and how this elitism affected issues such as civil rights centuries
hence. But this is a unique and path-dependent analysis of interest groups in
the U.S. founding, and we need more generalizable and dynamic stories of
how they can produce more democratic outcomes, rather than less democratic
ones. Finding it closer to our objectives here, we find some discussion on the
political theory issue of constitutional deliberation which we can sort into
individual participation versus group interest representation. We analyze this
literature and use it as a departure point for consideration of cases in the next
section, to set up and operationalize our empirical question.
Participation through deliberation would no doubt be ideally served by a
world of Burkeans—highly trained and engaged individuals with full infor-
mation and...