Some skepticism about normative constitutional advice.

• Author: Tushnet, Mark V.

It has been frequently remarked, that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force. (1)

--The Federalist No. 1

The spate of constitutional advice giving over the past decade or two seems to have taken only part of Alexander Hamilton's observation to heart. Advice givers appear to believe that they can help others establish good government by reflection and choice. They appear to ignore Hamilton's suggestion that the ability to establish good government in that manner was reserved to the people of the United States. True, the U.S. experience came early in the constitution-writing enterprise, and accumulated wisdom is--one might think--more widely available today than it was in 1787. And yet one might reflect as well on the fact that Hamilton's characterization of the proposed U.S. Constitution was inaccurate even when it was offered: The Constitution's drafters embedded a large number of essentially unprincipled compromises in the document they forwarded to the people for ratification, occasionally but not always dressing them up in the garments of "reflection and choice" as a tactic aimed at inducing support for the proposal.

My aim in this short Essay is to revive Hamilton's qualification, shorn of course of its ethnocentricity. I suggest that what primarily determines the content of constitutions are the intensely local political considerations "on the ground" when the constitution is drafted, (2) and therefore that normative recommendations about what "should" be included in a constitution or constitution-making process are largely pointless. (3) Scholars can accumulate information about constitutions and their drafting and try to draw inferences about what will work. Yet, predicating normative advice on such studies is hazardous at best. (4) The number of observations--examples used to generate broader propositions--in the studies are inevitably small. (5) Perhaps they can support conclusions that are statistically significant, but, as serious scholars understand, statistical significance is not the same as social significance.

In addition, normative advice will often have something like what Adrian Vermeule calls a "self-defeating" character. (6) Effective advice must be compatible with the political incentives that the advice receivers have. Yet those same incentives operate to induce the advice receivers to search for solutions to their political problems; for example, for institutional designs on which they and their opponents can agree. One has to wonder whether external advisors or expert participants can bring to the attention of politically significant figures information that was not already available to them, (7) or that, if previously unavailable, will be fed into the local political context as the basis for rational deliberation rather than strategic maneuvering. (8) I proceed anecdotally, with a series of informal examples designed as provocations, although each is based on evidence. (9)

1. AN INTRODUCTORY EXAMPLE AND SOME COMMENTS ON WHY ADVICE IS SOUGHT AND GIVEN

   A useful starting point is the argument made by Cass Sunstein in the early 1990s, with reference to the ongoing processes of constitutional drafting and development in Central and Eastern Europe. (10) Sunstein argued that the new constitutions in those nations should not include protections for social and economic rights. (11) Sunstein began with the assumption that new democracies had to enforce the first- and second-generation rights included in their constitutions through the courts, and he worried that citizens would not be able to distinguish between those rights and the third-generation social and economic rights. (12) It followed, Sunstein believed, that constitutional courts would have to enforce constitutionally protected social and economic rights. (13)

   Sunstein's argument continued with the point that constitutional courts would either take those protections seriously or they would not, and whichever course the nation followed posed a danger to the successful transition to a market-oriented democracy. (14) If constitutional courts took the protections seriously, there would be two adverse consequences. First, enforcement of social and economic rights--for example, rights to a decent wage or to decent housing--would interfere with the transition to a market economy, in which some would inevitably find themselves with unattractive jobs and bad housing, because of the interaction among their human-capital endowments, their choices, and the market demand for labor. (15) Second, such enforcement would interfere with the development of a sense of democratic efficacy within a populace that had, for several generations, been denied the power to affect economic outcomes through political action. Enforcing social and economic rights would shift power from the people's representatives to the courts. (16)

   Suppose, though, that constitutional courts did not take social and economic rights seriously. Again, there might be two adverse consequences. Within the court system as a whole, judges might observe that the constitutionally guaranteed social and economic rights had no substantial legal effects, and might conclude that, as a matter of law, the constitutionally guaranteed first- and second-generation rights should have exactly the same legal status--that is, should also have no substantial legal effect. (17) And within the populace the nonenforcement of textually guaranteed social and economic rights would perpetuate the cynical view, built up over prior generations, that constitutions were merely paper, having nothing to do with the lives people actually led. (18)

   Constitution drafters in Central and Eastern Europe did not take Sunstein's advice. Guarantees of social and economic rights were included in essentially all the constitutions adopted in the 1990s. (19) With what effects? None whatever--or at least no systematic effects. Some nations in Central and Eastern Europe made the dual transition to markets and democracy relatively easily, others with more difficulty, and on a few the jury is still out. The one thing we know, though, is that the inclusion of social and economic rights in a nation's constitution had none of the systematic effects that Sunstein predicted.

   What can we conclude from this example? I offer one normative and one positive observation. Sunstein was mistaken in part because of a failure of imagination. Writing in the early 1990s, he assumed that constitutional courts would have to engage in what I have called strong-form judicial review, in which judicial orders with respect to social and economic rights are strongly prescriptive and detailed. (20) Constitutional designers and implementers, including constitutional courts, developed alternative forms of judicial review and implemented them in the context of social and economic rights. (21) It turned out that constitutional courts could take social and economic rights seriously without inevitably interfering with either the transition to a market economy or the development of a sense of political efficacy among the citizenry. The more general point here is that normative advice is inevitably predicated on how constitutional designs have worked, and it may turn out that constitutional designers and implementers are more ingenious than one might have thought.

   The positive point is that Sunstein's advice was basically irrelevant to his seemingly intended audience. Any constitution adopted in the 1990s would have guarantees of social and economic rights no matter what a normative advice giver said. Throughout Europe--and including Central and Eastern Europe--social democratic ideas had penetrated deeply into constitutional consciousness. Social democratic, Christian democratic, and Communist parties had made the language of social and economic rights common currency in the political arena. Proposing to omit guarantees of social and economic rights would have been understood as proposing to return to the late nineteenth century, not as proposing to join the twentieth. International instruments, which were generally characterized as part of the new law of human rights, protected social and economic rights. (22) Perhaps only someone from the United States, with its weak social democratic tradition, (23) could think that new constitutions could actually omit protections for social and economic rights. The precise contours of politics varied from nation to nation, of course, but everywhere the political context was such that new constitutions would include such protections.

   Taking this anecdote as a starting point, I now speculate about why advice of this sort is sought and given. We should think about both supply and demand. The supply side is, I think, rather uninteresting. Participating in constitution-drafting projects is intrinsically interesting to scholars of constitutional law, and opportunities to do so arise infrequently. And there is always the psychic charge that comes with the possibility of being regarded as a James Madison for our times. The institutions that finance scholars' advice giving may do so for purely academic reasons, to gain credibility within the scholars' own nations, or--more interestingly--to gain influence in the nation receiving the advice. This last interest may be in influencing the shape of the new constitution or in gaining some credit for assisting in creating the constitution, to be cashed in later.

   On the demand side, we should distinguish between external demand, that is, demand from non-domestic participants that the domestic constitution makers consult external experts, and internal demand. I include within the category...