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

Date01 March 2022
Published date01 March 2022
Subject MatterArticles
2022, Vol. 75(1) 103 –117
Political Research Quarterly
© 2020 University of Utah
Article reuse guidelines:
DOI: 10.1177/1065912920984246
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
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,
Majorities for Minorities: Participatory
Constitution Making and the Protection
of Minority Rights
Anna Fruhstorfer1 and Alexander Hudson2
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.
constitution-making, human rights, minority rights, direct democracy, public participation

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