Majorities for Minorities: Participatory Constitution Making and the Protection of Minority Rights

• DOI: 10.1177/1065912920984246
• Date: 01 March 2022
• Published date: 01 March 2022
• Subject Matter: Articles

2022, Vol. 75(1) 103 –117

https://doi.org/10.1177/1065912920984246

Political Research Quarterly

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DOI: 10.1177/1065912920984246

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Introduction

Public participation in constitution-making processes

potentially raises one of the central problems for liberal

democracies: the difficulty of protecting the interests of

minorities through majoritarian political processes. Does

more public involvement in the constitution-making pro-

cess lead to more protection of minority rights in consti-

tutions, or do majorities protect their privileged status?

Although the process of constitutional design and its

effect on democratic performance, horizontal and vertical

accountability, and the management of conflicts, are part

of a well-established research agenda, we know very little

about the link between public participation and minority

protection in constitution making and constitutional

design. Scholars largely agree that the selective use of

participatory elements in the constitution-making process

is an important instrument of legitimation (Chambers

2004; Hart 2003, 2010; Tekin 2016). However, there is

still disagreement about the effect that public involve-

ment has on the outcome, both in terms of the text itself

and the larger political system (Ackerman 1998; Horowitz

2000; Saati 2017).

We can usefully divide the literature on the effects of

constitution-making processes (separately from the

effects of constitutions themselves) into works that

inquire into the relationship between the drafting process

and larger systemic outcomes (e.g. democracy), and

works that consider the way in which the drafting process

may or may not influence the content of the formal con-

stitution. In the second group, we find works that con-

sider both the overall quality of the constitutional text

(Elster 1995; Fruhstorfer 2019; Horowitz 2000; Voigt

2004), and works that consider the relationship between

individual provisions and the drafting process (Hudson

2018; Maboudi 2019; Maboudi and Nadi 2016).

The larger body of research in this area has a system

level focus. Authors who have contributed to this litera-

ture seek to understand the role direct democratic pro-

cesses have on a broader set of political outcomes, for

example, democratic development (Eisenstadt, LeVan,

and Maboudi 2017a), peace, or political legitimacy

(Wallis 2014). Here, scholars argue that more direct citi-

zen participation will lead to better democratic outcomes

(Eisenstadt, LeVan, and Maboudi 2015; Eisenstadt,

984246PRQXXX10.1177/1065912920984246Political Research QuarterlyFruhstorfer and Hudson

research-article2020

1University of Potsdam, Germany

2Max Planck Institute for the Study of Religious and Ethnic Diversity,

Göttingen, Germany

Corresponding Author:

Alexander Hudson, Max Planck Institute for the Study of Religious

and Ethnic Diversity, Hermann-Föge-Weg 11, 37073 Göttingen,

Germany.

Email: Hudson@mmg.mpg.de

Majorities for Minorities: Participatory

Constitution Making and the Protection

of Minority Rights

Anna Fruhstorfer1 and Alexander Hudson2

Abstract

Does the process of making a constitution affect the expansiveness of rights protections in the constitution? In

particular, is more participation in constitution-making processes better for minority rights protections? While

the process of constitution making and its impact on various outcomes have received significant attention, little is

known about the impact public participation or deliberation in this process has on the scope and content of minority

rights. Using a wide variety of data to empirically assess the relationship between constitution-making processes and

the protection of rights for minorities, we find a positive relationship between participatory drafting processes and

the inclusion of minority protections in constitutions under some conditions. The article’s findings have important

implications for understanding political representation and lend support to core arguments about the role of the

public in constitutional design.

Keywords

constitution-making, human rights, minority rights, direct democracy, public participation

Article