Hope

The basic hope that constitutions provide is the basis of Heiss’s book, ¿Por qué necesitamos una nueva constitución? Written in the context of Chile’s social explosion of 2019, Heiss’s extended essay embodies the hope that a constitutional moment provides. She explains how the previous constitution, handed down from the Pinochet regime that left power in 1990, was illegitimate as well as an obstacle to majoritarian (progressive) reforms. How, she provokes, is it reasonable to require a supermajority of 4/7 (as required to modify Constitutional Organic Laws) to modify issues of high public interest (42)? The essay, then, is a call to arms in support of a new foundational document. Her specific hopes are that the new constitution would tackle significant broad concerns, such as the government’s inability to respond to citizen demands, and more specific issues including the country’s economic inequality. Perhaps left for later analyses is whether a constitution is sufficient to address these problems and whether members serving on a constitutional convention will have the resolve and unity to devise such sweeping reforms.

Four books in this collection emphasize participatory democracy, and all embed the idea of hope in their analyses. First, in Building Participatory Institutions in Latin America, Mayka is interested in participatory institutions that can “transform state-society relations to make Latin American democracies more responsive to the needs of excluded groups” (15). She then argues that her goal is to understand when participatory institutions can be used to amplify the voices of marginalized groups and to advance pro-poor agendas” (23). McNulty (Democracy from Above? The Unfulfilled Promise of Nationally Mandated Participatory Reforms) agrees, as is evident in her first three chapters: “Making the Promise,” “Operationalizing the Promise,” and “The Promise Heard around the World.” Her message is that “under certain circumstances … nationally mandated participatory reforms can improve government effectiveness and responsiveness” (6). She then goes on to test three dimensions of improvement—public participation, government responsiveness and effectiveness, and corruption—using case studies on Guatemala, Bolivia, and Peru. In these case studies she considers several specific changes in terms of democracy and governance: expanded participation of the public in the political process, government responsiveness, and corruption. Like most of the other works under consideration here, McNulty’s analysis is based on the author’s detailed interviews, though her work also uses publicly available surveys (Latin American Public Opinion Project), data on from the Varieties of Democracy Project, and governance indicators from the World Bank to support her conclusions.

Hope is also the evident context for Democracy at Work: Pathways to Well-Being in Brazil, by Wampler, Sugiyama, and Touchton. Their discussion of the high “stakes” in Brazil, emphasizing social and economic inequality, shows that participatory institutions promote rights and access to resources. Their hope is borne out; with tests on fourteen years of data and 5,570 municipalities, they find that better (participatory) institutions, in combination with inclusive social policies and a higher capacity (inclusionary) state, yield improvements across multiple social indicators, such as of health (including infant mortality), poverty, women’s empowerment, and education.

The next book that suggests a hopeful view about reforms is Avritzer’s Two Faces of Institutional Innovation. His analysis emphasizes the successful innovations regarding participatory governance that have come from constitutional reform, noting how these systems have diffused throughout the world and have shown some great successes. Not all have been successful or enjoyed long lives, however, and a goal of the author is to explain which types of reforms empower rather than co-opt.

Avritzer distinguishes between political/democratic and administrative/judicial reforms as the “two faces” of innovation. A critical point of the book is that while reforms that have a primary intent of improving democratic innovation have had successes, those pointed toward administrative reforms, as in judicial restructuring, have been less successful. For the first category he includes new models of participatory budgeting, policy councils, citizenship councils, and monitoring committees. His detailed case studies, which include examples in several Latin American countries, show that these are sometimes highly effective (e.g., in Porto Alegre, Brazil and Rosario, Argentina) and improve participation and transparency, among other criteria. As an example, he explains how the Porto Alegre participatory budgeting council created and revised a budget and then monitored the city’s implementation. Some adoptees (e.g., Buenos Aires and São Paulo), however, have not been successful because they have failed to fully embrace the model and move from traditional approaches. Mexico’s Federal Electoral Institute is a mixed case, given that an independent control body had early success but was later disempowered. For Bolivia, Avritzer focuses on the Ley de Participación Popular, under which monitoring committees would oversee local funds. He attributes the success of participatory accountability to the creation of permanent oversight bodies, though he acknowledges the limits of these organizations and the attempts by political parties to rein in their influence.

Avritzer’s other broad category, administrative/judicial reform, is different in that it does not rely on citizen participation and is thus less likely to yield success. These reforms maintain a top-down structure; confirming or expanding the role of “professional corporations” in these revised structures is clearly different from empowering citizens. For this part of the book, Avritzer considers the Ministerio Público and Supreme Courts in Brazil and Colombia. He argues, in part, that the Colombian constitution was more successful and that the new constitutional court used judicial review to focus on the expansion of rights. He discusses the court’s decisions against Uribe to “reduce the illegalities and arbitrary acts in the implementation of state of emergency” (122). Similarly, the court rejected Uribe’s attempt for a second reelection.

Another way that the hope of constitutions enters into these discussions is evident in Marván’s detailed history of the Mexican constitution of 1917 (Cómo hicieron la Constitución de 1917), which explains the hopes of different factions to bring a new social peace to a war-torn country. Marván starts with a discussion of the revolutionary leader Venustiano Carrranza’s goals in convoking a constitutional convention in the midst of the violence of the civil war, in the hopes of “reestablishing the legal order” and pulling together a divided country (23). The surprising constitution embedded socially progressive demands that grew from the authoritarian period (the Porfiriato of 1868–1910) and the ensuing civil war (1910–1920). Marván notes that these hopes were not all in vain, as Carranza was able to enjoin warring generals to seek agreements rather than spill more blood (41). It also allowed Carranza to gain support by emphasizing who were (true) “revolutionaries and who [were] only ambitious” (47). Turning this into democratic theory, the case suggests that the Mexican constitution was a social contract that grew from a violent state of nature, with rivals deciding that the benefits of fighting for more individual freedoms were greater than those of abiding by a contract that implied representation and limited power. In the end, although Carranza became Mexico’s first president of the new republic, he was assassinated.

Institutional Fixes

A second theme of the books is the multiplicity of institutional reforms, mostly within constitutions, that would further the cause of democracy. The books address three main institutional variables: presidential powers (Marván and Corrales), constitutional courts (Brinks and Blass), and participatory governance (Avritzer; McNulty; Mayka; and Wampler, Sugiyama, and Touchton). Heiss’s book is a partial exception to the institutional focus, in that it is more an effort to promote progressive policy changes in Chile rather than a deep policy analysis. Still, she does promote one institutional variable in explaining the need to end super-majority provisions that limit progressive change. This is relevant for current and historical debates in the United States, where progressive majorities have been thwarted for generations by the Senate filibuster, and current minorities frustrate efforts for statehood for Washington, DC, voting rights, and health care reform. One of the fathers of democratic theory, Arend Lijphart, promoted supermajority provisions to protect ethnic minorities against the majoritarian groups who could argue that they were acting in the name of democracy.Footnote ³ In sum, if the goal is to preserve the status quo, then supermajority provisions are useful, but when relatively narrow majorities demand change, such provisions frustrate their efforts.

Both Corrales and Marván emphasize a basic institutional concern with democracy: the balance of power between the executive and legislature. They accept the concern about too much power being concentrated in the executive, which is an unsurprising result of processes dominated by a leader who hopes to pursue power. Marván tells an extended story of Carranza, who fought a civil war and also attempted to pacify the multiple contenders for the country’s leadership. His book includes a fascinating account of the debates during constitutional convention about the nature and powers of the presidency. Orators considered presidentialism versus parliamentarism, debated Woodrow Wilson’s treatise on presidentialism versus his views after having become president, whether the president should be subservient to the laws or vice versa, and details of the veto. While one side argued that strong presidents were necessary to avoid waffling between dictatorship and anarchy, others worried about giving the president too much power, and feared that strong presidents were a “source of political discord” (221). Carranza enters the stage a bit later, and though he accepts the important democratic role of the legislature, he absolutely rejects parliamentarism and emphasizes the importance of a strong executive, backed by a veto that could only be overturned by two-thirds of both houses of Congress (225–226).

In Fixing Democracy: Why Constitutional Change Often Fails to Enhance Democracy in Latin America, Corrales uses a detailed coding of thirty-five different presidential powers across eleven countries to quantify and compare the degree to which leaders who were able to install more supporters to the constitutional convention (generating “table asymmetry”) were then able to secure more prerogatives. While the author convincingly shows movement in the expected direction, the nuance and restraint of biased assemblies is also notable from the data. Corrales uses Venezuela’s 1999 constitution as the case in which the president, by virtue of “clever electoral strategizing” (120), won extreme control of the constituent assembly, with which it disbanded congress and other political institutions, before rebuilding them to his liking. This tilted assembly, as expected, skewed power toward the executive. For example, it afforded Hugo Chávez new powers to control the oil industry, and by eliminating the Senate the new constitution concentrated power over the military in the executive. At the same time, the all-powerful assembly did not empower the president as much as it might have. It did not, for example, increase Chávez’s veto or decree powers, which remained very weak by regional standards. Further, as is clear in Corrales’s detailed coding, the convention decreased the president’s power in some areas (including preventative detention, recall referendums, judicial review, and local elections). The case study chapter also notes that the constitution created a public prosecutor, a national comptroller, and a people’s defender, which were de facto but not de jure ways to control the president. These types of outcomes, plus some that did restrain the president, are attributable to what a Chávez spokesman said was the need to include “as much participatory democracy as is needed” (127). Corrales derides this rhetoric, however, saying that the rest of the constitution showed that the government had little need for representative democracy. Perhaps these provisions are simply democratic fig leaves, but given that Corrales (and the other books in this review) take institutions as having a significant influence on democratic processes, it is important to theorize about them. What leads short-term oriented politicians to refrain from taking full power? How much do democratic ideals limit the assembly members? Are international pressures a factor in these limits? Even these queries fail to address how members of a constitutional assembly choose which areas to protect against democratic erosion.

In The DNA of Constitutional Justice in Latin America, Brinks and Blass provide a nuanced discussion of the trade-offs during constitutional reforms with respect to the judicial system. On the left-hand side of their model are two dimensions of power that determine a court’s role: autonomy and authority. The authors then explain the choices along these two dimensions based on the composition of the group that writes the constitution, the Originating Coalition (OC). Their model is complex, because in addition to the OC, two other sometimes overlapping (or even equivalent) players—the Ruling Coalition (RC) and the Constitutional Governance Coalition (CGC)—also influence the constitutional choices. Each of these levels has political interests, which they pursue through the constitutional reforms process, according to their power. The authors argue that constitutional “courts should not be imagined as apolitical actors simply transferring and applying normative commitments from a historical OC to the current RC. Rather, designers should (implicitly or explicitly) understand constitutional justice systems (and their courts) as ongoing political spaces in their own right, subject to contestation and control” (56). This political process necessarily leads to different court designs. As an example, designers who expect to be in the opposition will design courts that reduce the role of the executive (57). In addition to issues of power, the authors add a further complication by considering ideological differences of the constitution writers. Conditional on the power of the CGC, they explain that the left is more concerned with inclusion and expansion of the state while the right’s main concern with respect to courts is to preserve property rights.

Hope and Institutions Meet Politics

While the rhetoric behind constitutional reform emphasizes hopeful change in an effort to improve representation and advance social goals, most of these books highlight the insufficiency of focusing on high-minded goals. A concise thesis would be that politics get in the way of achieving them. As these authors emphasize, constitutions are the result of political processes, with founding “fathers,” constitutional designers, or what Brinks and Blass call the Constitutional Governance Coalition pursuing short-term interests. Marván, for example, notes that leaders who met in 1913 to begin discussing a constitution decided that the matter of first urgency was to win a victory; thus to increase the level of unity the group submerged efforts to deal with social demands until after the victory (26). In explicitly examining the interplay or contrast between building a democratic constitution that would enshrine ideals of limited government and social rights on the one hand, and the political interests of ambitious leaders on the other, the book provides a clear and informative narrative of how political exigencies can undermine reforms.

The short-term and political goals of the reformers are central themes in the books by Avritzer, Corrales, Brinks and Blass, and Mayka. Avritzer, for example, argues that “the political system uses different strategies for blocking innovation” (10). In addition to co-option and other concerns, he notes how judicial innovations can strengthen the “lawyers in charge of specific state institutions, the public, ministry and the courts,” and thus “disputes within monopoly institutions will be carried out in the name of innovation or that challenges to the democratic order will be made in the name of innovation” (10–11).

McNulty is also a frustrated proponent of participatory reforms and provides a theoretical view of their success. She explains that citizens and civil society organizations (CSOs) have been more engaged, but “historically marginalized actors” have not yet joined the process. Overall, the promise of participatory reforms remains unfulfilled. To explain why the reforms have not yielded stronger improvements, McNulty uses her case studies of Guatemala, Bolivia, and Peru to examine the design of reforms as well as the implementation process. At the design level, “critical junctures” determine a general shape, and then subnational governments take over for implementation. At that level, the reforms can support democracy and governance, but that requires a conjunction of factors, including support from elected officials, pressure from civil society, and a party system that can battle against clientelism. In her summary about the Guatemalan case, she finds that the participatory development councils were active in 90 percent of municipalities (and 40 percent of communities), that CSO agents attend meetings, and that the system played a role in developing a national strategic development planning process (80). The quality and extent of participation, however, was limited. She ties the limits to the legacy of the country’s violent anti-participatory military rule, saying that “the military … resisted true participatory emancipation” and thus “citizens in many areas of Guatemala still distrust the councils” (81). The weak civil society is also a result of historical legacies, thus further hindering any potential for successful participatory councils. The Bolivia chapter shows (in part) the opposite result; with a supportive president and stronger civil society, participatory institutions were (partly) successful. These are frustrating findings for institutionalists, because the success of the reforms is dependent on preconditions. The goal of the reforms is precisely to overcome historical legacies and distrust, but McNulty argues that the councils cannot thrive without positive initial conditions. While she does show some positive results from the reforms, her overall finding implies that institutions have limited independent impact.

Wampler, Sugiyama, and Touchton reach a somewhat different conclusion.Footnote ⁴ In their empirical study, covering over 5,500 Brazilian municipalities, they show that new participatory institutions, plus social programs and state capacity, have independent and articulating positive impacts on critical measures of health and welfare. They support these conclusions with multivariate statistical tests, plus three case studies.

In addition to supporting the hopeful view of participatory democracy (and the other factors) by finding positive linkages, the book overcomes some cynicism in showing that countries can implement impactful reforms. Their work, however, is more limited in its explanation of the politics of reform. In a chapter titled “Building Pathways for Change,” they outline the evolution of the reform that started under the dictatorship (1964–1985) when civil society began lobbying for change. Later, opposition political parties appeared that represented citizens’ interests, and then the 1988 constitutional changes decentralized government responsibilities and created “participatory venues” (64). Finally, elections matter, as the four electoral successive victories of the Workers’ Party (PT) were necessary for the implementation of the reforms. While these national level changes were critical, they cannot explain the variance in the “three pathways to well-being” at the municipal level. The authors accept this limitation, explaining that they are more interested in explaining the effect of these “pathways” than their source.

The failure of reforms is the central concern of Corrales’s Fixing Democracy. “Fix,” Corrales notes, can mean to “improve,” but it also means to “corrupt,” as in an election or sporting match. Constitutional reforms may not be corrupt in the same way, but neither are they high-minded games of social contracting. The reforms result, instead, from tussles among powerful political actors seeking shortsighted advantages and resolution of current concerns. In his simple but powerful argument, stronger presidents beget stronger presidents because they use reform processes to reinvigorate their powers. A paradox he notes is that reforms to overthrow dictators sometimes give extra power to incoming executives (201). The contrary system also applies; if they are able to overcome presidential resistance, stronger oppositions can reduce presidential powers.

To substantiate his claims, Corrales includes a cross-national comparison plus several case-study chapters. For the comparative discussion, Corrales provides a unique and in-depth empirical evaluation of constitutions for multiple countries and time periods, greatly expanding from Shugart and Carey’s quarter-century-old design.Footnote ⁵ In that chapter Corrales codes thirty-five aspects of constitutions and compares pre- and post-reforms to show that presidents who were able to obtain more strength at the bargaining table (“table strength”) were most able to improve their powers, and vice versa.

A particular strength of Corrales’s book, as well as the others under review here, is their conscientious focus on institutional factors. At the same time, the books downplay informal institutions, which has attracted great attention, at least since the seminal volume edited by Helmke and Levitsky.Footnote ⁶ The institutional focus, as I have emphasized, is revelatory, showing clear impacts. In the case of Corrales, the institutions provide him a means to operationalize presidential strength or change therein. Still, as he notes that “table strength” is not clearly related to constitutional strength, there is an implicit suggestion that informal powers are also at play.

Focusing specifically on constitutional courts, Brinks and Blass agree that the outcome of constitutional reforms is a function of the power structure and who commands the constitutional convention. They add nuance, however, in defining the authority (scope) and autonomy of the constitutional designers as separate from the ruling coalition. While this separation is key to the reform process, these authors also attribute forethought to the designers who have continually (even in cases such as Venezuela) moved courts towards more authority and autonomy (see the interesting graph 2.4). Still, the outcomes are very much a function of the political process, with different groups pushing to ingrain different rights into the constitutions. Rightists, for example, are most concerned with property rights and prefer not to expand constitutional justice. The left, by contrast, is concerned with assuring social rights that a majority could not undermine.

Mayka is also worried about how politics will hinder the emergence of the institutions necessary for reform. In her cross-sectional and cross-national exploration of nationally mandated participatory councils, Mayka uses extensive interviews to explore what factors or context supports the success of these reforms. Specifically, she compares participatory councils that address health, social assistance, and planning in Brazil and Colombia. These types of institutions, she argues, emerge over long periods (21–22), and civil society plays an important role in driving institutional change. Success, however, requires that the beginning of the reform period generate “sweeping” change that “upend[s] entrenched interest dynamics” (6). For success, these reforms must focus on particular sectors rather than target broad reforms with vague democratic goals. While the foundational period is critical, the reform and eventual success is evolutionary. The Brazilian efforts in the health field were successful, in part, because the “strong institutional design” developed over time in ways that extended the participatory institutions’ formal authority (39) and their legitimacy. The key change came with the 1988 constitution and a succeeding health statute that changed health care from a privilege to a right. Through her interviews, Mayka explains that this led to changes in incentives, which in turn mobilized new sectors to support the participatory institutions.

In contrast with the positive experience in Brazil, Mayka argues that Colombian reforms largely failed because the institutional frameworks did not clearly define the role of the participatory institutions and left them with only consultative powers. The key to success, she says, is “creative destruction.” She continues that “sweeping sectoral reforms open up new opportunities for institutional change by displacing opponents and altering the legal framework” (51). There is some endogeneity here—it is necessary to overcome the opponents to initiate the reforms—but it is also clear from her case studies (at least in Brazil) that once started, the process builds on itself.

Conclusion

Traditional political science has been debating the implications of institutional frameworks for generations. This set of books renews our interest in reforms by underscoring the potential for improvements in abstract concepts like representation and democracy, and objective goals like poverty and health. It is not, however, normative-minded political scientists, nor philosopher kings and queens, who design the constitutions. Instead, as most of these books emphasize, constitutional change is the result of power politics, with politicians pursuing personal interests rather than the general welfare.

In addition to renewing interest in the impacts of institutions and laying bare the simple notion that constitutions result from political processes, the books update the older debates by emphasizing different aspects of institutional innovation. First, Corrales usefully updates measurements of presidents’ formal powers to allow new quantitative (and qualitative) testing. Next, four of the books detail a relatively recent innovation, participatory governance. Born in Brazil but with examples emerging throughout the region, this new institution has the potential to transform citizenship and state-society relations. Finally, Brinks and Blass emphasize constitutional courts, which we learn are complex institutions with critical roles for democracy.

The books are also interesting for the debates that they do not enter. As a first example, this set of books does not, at least explicitly, engage work on democratic backsliding or recurrent institutional problems such as dysfunctional political parties. Second, while the books do discuss the contingent (at best) nature of the reforms, they do not engage the influential work on informal institutions. Leaving these debates aside has allowed these authors to usefully focus on the institutional impacts, though future work will surely explore these themes from alternative perspectives.

In sum, from a normative and political science perspective, the books are a welcome addition. For those of us interested in democratic advancement, these books go beyond hope to provide concrete evidence that reforms can work. Where they have worked, in the participatory governance reforms, for example, they have brought informed and involved citizenry, improved government oversight, and reduced infant mortality. Reforms to the constitutional courts, as another example, fundamentally affect the inner workings of democracy by changing the mix of autonomy and authority of those institutions. The books also show that constitutional designers can empower different parts of the citizenry and limit potentially authoritarian tendencies of presidents. From the perspective of the politically disinterested political scientist, the books open debates about rational goals and power politics. In the most reductionist view, incumbents would control constitutional reforms to enhance their own authoritarian powers, but this is not the result of the processes discussed in this set of books. Instead, constitutional designers seem to balance some normative preferences with the goals of advancing their personal interests. Later, the institutions influence multiple actors who then wrestle with, evade, or comply with them, to varying degrees. The results of institutional change, then, vary greatly and are contingent on multiple factors. The normative implications, contingent responses, and variance in outcomes give readers much to contemplate.