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Some Rules of Constitutional Design*

Published online by Cambridge University Press:  18 June 2009

Peter C. Ordeshook
Peter C. Ordeshook
Affiliation:
Political Science, California Institute of Technology
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Extract

Events in both Eastern Europe and the former USSR illustrate the intimate connection between economic and political processes. Those events also remind us that political and economic institutions are human creations, and that when those institutions are poorly designed, political-economic failure is a direct consequence. It is axiomatic, then, that the transition to stable and prosperous societies in those former Communist states requires careful attention to the design and implementation of democratic institutions.

Type
Research Article
Information
Social Philosophy and Policy , Volume 10 , Issue 2 , Summer 1993 , pp. 198 - 232
Copyright
Copyright © Social Philosophy and Policy Foundation 1993

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References

1 Riker, William H., Liberalism against Populism (San Francisco: W. H. Freeman, 1982)Google Scholar; Dahl, Robert, A Preface to Democratic Theory (New Haven: Yale University Press, 1956).Google Scholar For another exception, see Horowitz, Donald, Democratic South Africa?: Constitutional Engineering in a Divided Society (Berkeley: University of California Press, 1991).Google Scholar

2 Riker, , Liberalism against Populism, p. 252.Google Scholar

3 Dahl, , Preface to Democratic Theory, pp. 134 and 143.Google Scholar

4 See especially Hardin, Russell, “Why a Constitution?” in The Federalist Papers and the New Institulionalism, ed. Grofman, Bernard and Wittman, Donald (New York: Agathon Press, 1989)Google Scholar, as well as Ordeshook, Peter C., “Constitutional Stability,” Constitutional Political Economy, vol. 4, no. 3 (1992).Google Scholar

5 Briefly, the Prisoner's Dilemma corresponds to a situation in which each of two persons must choose between two alternatives-to cooperate or not to cooperate. The payoffs (in terms of money, satisfaction, or any such measure) from their joint choices are as follows (where the first number in each cell corresponds to the payoff to the row chooser and the second number corresponds to the payoff to the column chooser):

Notice now that failing to cooperate is the dominant choice for both persons-a person prefers not to cooperate, regardless of what the other person chooses. But these actions yield the (1,1) outcome even though both persons would prefer to cooperate in order to achieve the outcome (10,10).

6 Taylor, Michael, Anarchy and Cooperation (New York: Wiley, 1976)Google Scholar, and Axelrod, Robert, The Evolution of Cooperation (New York: Basic Books, 1984).Google Scholar Briefly, a sequence of outcomes corresponds to a self-enforcing “agreement” if the pair of strategies that yield that sequence are in equilibrium-if neither player has an incentive to deviate unilaterally from his or her equilibrium strategy.

7 For example, although the strategy pairs (cooperate always, cooperate always) and (never cooperate, never cooperate) are in equilibrium-neither player has an incentive to shift to a different strategy if the other person does not shift-the pairs (cooperate always, never cooperate) and (never cooperate, cooperate always) are not equilibria.

8 Notice, moreover, that the precommitment strategies that Sunstein, for instance, sees as the essential character of constitutional agreements are equilibria and self-enforcing. See Sunstein, Cass M., “Constitutionalism, Prosperity, Democracy,” Constitutional Political Economy, vol. 2, no. 3 (1990), pp. 371–94.CrossRefGoogle Scholar

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11 See, for example, Foley, Michael, The Silence of Constitutions (New York: Routledge, Chapman, and Hall, 1990).Google Scholar

12 One way to attempt to resurrect the contractarian view is with the argument that contracts are self-enforcing owing to the desire on the part of the contracting parties to establish and maintain certain types of reputations. But this argument founders on the fact that constitutions, at least in their ideal conceptualization, are not documents written between specific individuals. Rather, they facilitate collective action within a society regardless of the identities of the members of that society. For additional discussion of the role of reputation building and maintenance in the enforcement of contracts, see Kreps, David M., “Corporate Culture and Economic Theory,” in Perspectives on Positive Political Theory, ed. Alt, James and Shepsle, Kenneth (New York: Cambridge University Press, 1990).Google Scholar For a discussion of constitutions from this perspective, see Gifford, Adam Jr., “A Constitutional Interpretation of the Firm,” Public Choice, vol. 68 (1991), pp. 91–106.CrossRefGoogle Scholar

13 Rossiyskaya Gazeta, 10 11, 1991.Google Scholar All subsequent references to the draft prepared by this commission pertain to this version, which, although subsequently revised, has not changed greatly.

14 Of course, this article could be interpreted as a jurisdiccional assignment that precludes autonomous republics and the like from passing laws that restrict mobility. Such an assignment would be wholly reasonable, but if that were the goal, then there are far more direct ways to make such assignments.

15 Contrast the American Constitution's 23-word prohibition that “Congress shall make no law … abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble …” with the draft Russian Federation constitution's 191-word (English translation, Articles 26, 31, and 74) treatment of these prohibitions.

16 Article 8, draft Russian Federation constitution.

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27 “Sufficiently tight” refers to a technical condition on the form of the distribution of preferences. For details, see Caplan, Andrew and Nalebuff, Barry, “On 64%-Majority Rule,” Econometrica, vol. 56, no. 4 (1988), pp. 787–814.CrossRefGoogle Scholar

28 See Riker, William H., “Implications from the Disequilibrium of Majority Rule for the Study of Institutions,” American Political Science Review, vol. 74, no. 2 (1980)CrossRefGoogle Scholar; Ordeshook, Peter C., “Political Disequilibrium and Scientific Inquiry: A Comment on William Riker's ‘Implications from the Disequilibrium of Majority Rule for the Study of Institutions’,” American Political Science Review, vol. 74, no. 2 (1980)CrossRefGoogle Scholar; and Coleman, Jules and Ferejohn, John, “Democracy and Social Choice,” Ethics, vol. 97, no. 1 (1986), pp. 6–25.CrossRefGoogle Scholar

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31 See, for example, Aranson, Peter H. and Ordeshook, Peter C., “Public Interest, Private Interest, and the Democratic Polity,” in The Democratic State, ed. Benjamin, Roger and Elkin, Stephen (Lawrence: University Press of Kansas, 1985).Google Scholar

32 Sunstein, Cass M., “Constitutionalism, Prosperity, Democracy,” Constitutional Political Economy, vol. 2, no. 3 (1991), p. 380.CrossRefGoogle Scholar

33 By “rational ignorance” I mean those situations in which a voter rationally chooses not to gather information about the candidates or their parties because the cost of doing so exceeds the incremental benefits associated with making more informed decisions.

34 Sunstein, , “Constitutionalism and Secession” (see n. 10 above), p. 642 and passim.Google Scholar

35 An important caveat to Rule 17 is that framers of constitutions ought to avoid attempting to specify rights that merely invite the state to expand its domain too easily and too greatly. Consider, for example, the following provisions of the draft Russian Federation constitution: Article 59: “The state protects the rights of the consumer and supports the activity of societies in defense of these rights and other forms of their protection”; and Article 60: “The state guarantees freedom of enterprise.”

36 Epstein, Richard A., “AH Quiet on the Eastern Front,” University of Oiicago Law Review, vol. 58, no. 2 (1991), p. 568.Google Scholar

37 For example, if each of n legislators is elected in a single-member district and if n − x > (n + 1)/2 votes are required to upset the status quo, then as few as (50 + ε)(n − x) < 50% of the voters can control the outcome. That is, if a simple majority in each of n − x constituencies prefers to change the status quo, then the status quo is defeated.

38 Hammond, Thomas and Miller, Gary, “The Core of the Constitution,” American Political Science Review, vol. 81 (1987), pp. 1155–74.CrossRefGoogle Scholar

39 We can speculate, then, that the Seventeenth Amendment (providing that senators should be elected by the people, rather than appointed by state governments) circumvents an important provision designed to raise the vote quota. Although some of the original intent of bicameralism remains owing to the staggered election terms of senators, senatorial and congressional election districts coincide too closely to lead us to believe that bicameralism today imposes a significant constraint on legislative action.

40 The Federalist Papers, ed. Wills, Garry (Toronto: Bantam, 1982), number 51, p. 262.Google Scholar

41 Niou, Emerson M. S. and Ordeshook, Peter C., “Stability in Anarchic International Systems,” American Political Science Review, vol. 84, no. 4 (1990), pp. 1207–34.CrossRefGoogle Scholar

42 Aranson, and Ordeshook, , “Public Interest, Private Interest, and the Democratic Polity” (see n. 31 above).Google Scholar

43 The term-limitation movement in the United States provides a useful example. Although voters appear to favor such limits in the abstract, they fail to implement them for their national representatives knowing that doing so would put their representation at a disadvantage with respect to all other states. For additional discussion of this dilemma in more general contexts, see Fiorina, Morris P. and Noll, Roger G., “Voters, Bureaucrats, and Legislators: A Rational Choice Perspective on the Growth of Bureaucracy,” Journal of Public Economics, vol. 9 (1978), pp. 239–54CrossRefGoogle Scholar; and Niou, Emerson M. S. and Ordeshook, Peter C., “Universalism In Congress,” American Journal of Political Science, vol. 29, no. 2 (1985), pp. 246–58.CrossRefGoogle Scholar

44 Riker, , Liberalism against Populism, p. 249 and passim.Google Scholar

45 For an example of collusion, consider this letter (November 16,1989) addressed {o the Speaker and Republican Party leader of the United States House of Representatives, signed by the leaders of both parties following passage of a legislative pay raise (Congressional Quarterly, 12 2, 1989, p. 3326).Google Scholar

Dear Mr. Speaker and Mr. Republican Leader:

The ethics reform package that was adopted in the U.S. House of Representatives today provides an opportunity for all federal elected officials to move away from a growing dependence on special interests.

As the leaders of our political committees we are well aware of the political dangers that Members of Congress might face if this issue were to be misused in the campaigns of 1990.

The four of us have agreed to issue instructions to our staffs that the vote on HR 3660 is not an appropriate point of criticism in the coming campaigns. Further we will publicly oppose the use of this issue in any campaign in the 1990 cycle.

This agreement demonstrates our commitment to helping provide a positive political and ethical environment in which qualified people can serve in government.

We applaud the House leadership for the work they have done in this difficult and important area and pledge our continuing support for their efforts.

Sincerely,

Ron Brown (Chair, Democratic National Committee)

Guy Vander Jagt (Chair, Nat. Republican Cong. Comm.)

Lee Atwater (Chair, Republican National Committee)

Beryl Anthony (Chair, Democratic Cong. Campaign Comm.)

46 Aranson, Peter H., “Federalism,” Cato Journal, vol. 10, no. 1 (1990), p. 20.Google Scholar

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48 That approach involves a parliament apportioned equally between Czechs and Slovaks, in which most legislative measures require majority approval in each half. For additional details, see Cutler, Lloyd and Schwartz, Herman, “Constitutional Reform in Czechoslovakia: E Duobus Unum?” University of Chicago Law Review, vol. 58, no. 2 (1991), pp. 511–53.CrossRefGoogle Scholar

49 For a discussion of this case and how it fits our discussion, see Horowitz, Donald L., Ethnic Groups in Conflict (Berkeley: University of California Press, 1985).Google Scholar

50 Riker, William H. and Lemco, Jonathan, “The Relation Between Structure and Stability in Federal Governments,” in The Development of American Federalism, ed. Riker, W. H. (Boston: Kluwer Academic Publishers, 1986).Google Scholar

51 Federalism is not the only device that politicians have at their disposal. Issues can also be “depoliticized” by directing them to specific bureaucratic jurisdictions (e.g., allowing a quasi-independent Federal Reserve to set the discount rate and the money supply) or by allowing the courts to adjudicate them. But federalism has the specific advantage that if parties collude to avoid an issue, then it is difficult for challengers to increase this issue's salience in each constituency taken one at a time.

52 Riker, William H., Federalism (Boston: Little Brown, 1964).Google Scholar

53 See, for example, Hibbing, John R. and Patterson, Samuel C., “A Democratic Legislature in the Making: The Historic Hungarian Elections of 1990,” Comparative Political Studies, vol. 24, no. 4 (1992), pp. 430–54.CrossRefGoogle Scholar

54 See especially Rae, Douglas, The Political Consequences of Electoral Laws (New Haven, Yale University Press, 1967 and 1971)Google Scholar; Taagepera, Rein and Soberg, Matthew, Seats and Votes (New Haven, Yale University Press, 1989)Google Scholar; Lijphart, Arendt, “The Political Consequences of Electoral Laws, 1945–85,” American Political Science Review, vol. 84, no. 2 (1990)CrossRefGoogle Scholar; and Ordeshook, Peter C. and Shvetsova, Olga, “Electoral Laws, Social Cleavage, and Political Party Formation,” working paper, California Institute of Technology, 1992.Google Scholar

55 Hermens, F. A., Democracy or Anarchy (Notre Dame, Indiana: The Review of Politics, 1941).Google Scholar

56 Indeed, for examples of situations in which increasing one's vote share actually decreases one's utility, see Schwartz, Thomas, “The Paradox of Representation,” working paper, Department of Political Science, UCLA, 1992.Google Scholar

57 Horowitz, Donald L., Democratic South Africa? (see n. 1 above), p. 171.Google Scholar

58 Ibid., pp. 175–77.

59 Michael Laver and Kenneth Shepsle, “Subgame Perfect Portfolio Allocations in Parliamentary Government Formation,” working paper, Harvard University, 1991. Briefly, “allocation” refers to the practice of giving parties in the governing coalition control of specific issues; “concession,” in contrast, requires negotiation on each issue. Allocation, then, can yield outcomes that are not Pareto efficient; concession cannot.