CONSTITUTIONAL RIGIDITY: A VETO PLAYERS APPROACH
By
George Tsebelis
Kellogg Fellow
CONSTITUTIONAL RIGIDITY: A VETO PLAYERS APPROACH
This paper uses the theory of veto players to measure constitutional rigidity, which is the difficulty of revising a constitution on the basis of its own rules. The low correlation among indexes characterizing previous approaches, as well as the restricted number of countries they cover, generates the need for a theoretically-based assessment of all democracies. I explain the rules of assessing constitutional rigidity, apply them to a complicated case with many veto players, qualified majorities, and alternative procedures (Italy) so that the reader understands the procedures. Then, I apply the rules to all (92) democratic constitutions. Constitutional rigidity is important not only for constitutional revisions, but also to assess the power of constitutional courts.
CONSTITUTIONAL RIGIDITY: A VETO PLAYERS APPROACH
“…Amending clause…describes and regulates…amending power. This is the most important part of the constitution.”
(John W. Burgess,Political Science and Constitutional Law1890: 137).
Country constitutions systematically involve (besides Burgess’s“most important” amending clauses) two categories of items: individual rights, and the rules of the political game.These two categories of items require time consistency. That is, individual rights and the rules of the political game mustbe well known in advance and respected by all participants in the political game. In addition, they need to remain constant, so that all participants know their rights and obligations. For this reason, constitutions protect their text from change by making modification difficult. Indeed, constitutions include provisions requiring qualified majorities of one body—or concurrent majorities of several bodies, or both—in order to be modified. In addition, many constitutions specify alternative procedures for constitutional amendments (for example, provide for less stringent majorities in the legislature if the modifications are supported by a referendum). Finally, many constitutions involve provisions that cannot be modified at all (like human rights or the political regime existing in a country).
The multiplicity of these constitutional amendment provisions is extremely important for the way the political game is played in different countries, since if the restrictions are stringent, then, at any point in time, institutions have to be considered almost “exogenous” (the outcome resulting from decisions made in the past and imposed on the current players);on the other hand, if these restrictions are weak, anytime the actors disagree with the constitutional rules, they will include a constitutional revision in their agenda.
For example, in some countries,such as France (art. 77), the rules concerning the electoral system are set by customary law. This is why the electoral system became the subject of political competition in 1985 (from plurality to proportional) and 1986 (back to plurality). In other countries, like Slovenia (art. 80), a majority of two-thirds is required for a change of the electoral system. In Greece (art 54), the electoral system is protected either by the requirement of a two-thirds majority in Parliament, or “shall be applicable as of the elections after the immediately following ones.” Preliminary constitutional debates in Greece indicate that some government officials want to include proportional representation in the constitution. Because such rules are evidently consequential for the political game, students of constitutions have been studying the issue of “constitutional rigidity.”
These studies have been done at the normative and/or theoretical level, starting with the debate between Jefferson (who advocated frequent changes of constitution) and Madison (who prevailed in establishing a long-standing one), as well as the empirical one, trying to assess the level of constitutional rigidity in different countries. Given the variety of locking mechanisms of constitutions, and given the ability of founders to combine them either as supplements or as substitutes, the range of constitutional rigidity is extremely high, and the conclusions of the empirical literature are quite diverse.
In this paper, I will focus on the empirical literature, and review the different methods that have been used to assess rigidity (section I). Then, I will analyze the different mechanisms that ensure rigidity, as well as their combinations (as supplements or substitutes) and the effects they produce on the basis of the veto players theory (Tsebelis 2002; section II). I will apply this methodology specifically in the case of the Italian constitution (section III). Then, I will provide the resulting rules of empirical evaluation of constitutional rigidity based on the theory of veto players (section IV). Finally, I will apply this methodology to 92 countries of the world that are considered “democratic” since they scored above 6 in Polity(Marshall 2016)(section V).
- Constitutional Rigidity Literature
Following Lutz’s (1994) pioneering work on constitutional amendments, a series of authors tried to provide empirical measurements ofconstitutional rigidity. The challenges of the enterprise are many, and this is the basic reason that the results differ. Constitutional rigidity may differ from one article of a constitution to the next[1] as the constitution itself may provide for different provisions for the modification of different articles (not to mention the prohibition of amending certain articles like human rights, or the regime type); for the same article or sets of articles, alternative methods of revision may providea choice of alternative political institutions. Finally, the array of revisionprocedures applicable is incredibly wide, ranging from multiple bodies, to referendums, to time delays sometimes involving intermediate elections, and sometimes even creating special bodies (assemblies).
Focusing on institutions, some authors consider only a subset of the issues. For example, Lutz (1994) focuses on the qualified majorities required in the amendment process (Lorenz 2005: 341-2) and Anckar and Karvonen (2002) focus manly on the political actors involved (Lorenz 2005: 344-5). Lutz studied 82 constitutions and found that “the amendment rate is highly correlated with the degree of difficulty (Lutz 1994: 364).” As noted above, he examined two different sets of constitutions. The first set was the US state constitutions (n=50), and then he looked at 32 countriesin different time periods in a second round of analysis (Lorenz 2005: 347). But Lorenz (2005) was not able to apply Lutz’s index successfully to “measure the rigidity in countries which are not mentioned by him…(Lorenz 2005: 342).”Anckar and Karvonen’s work establishes a “two-dimensional typology of amendment methods by distinguishing between three kinds of legislative votes (none, ordinary, qualified majority) and the same kinds of popular votes (Lorenz 2005: 344).”
On the other extreme, Lijphart (2012) bases his assessment mainly on the threshold required for the approval of the amendments creating a fourfold typology: The classes are defined as approval by an ordinary majority as the easiest way (1.0); by more than an ordinary majority but less than a two-thirds majority or an ordinary majority plus a referendum (2.0); by two-thirds majorities or equivalent (3.0); and by more than a two-thirds majority or a two-thirds majority combined with other requirements, such as approval by state legislatures (4.0) (Lijphart 2012: 207). He finds that this classification correlates with the strength of judicial review (which he assesses independently, and also classifies in a fourfold group) (Lijphart 2012: 214-5). Schneier (2006) uses a similar method, and classifies 101 constitutions in five categories and nineteen subcategories. Tsebelis (2016) uses each one of these extreme methods: either the number of actors involved or the required majorities. I comment on Schneier’s indicators later.
Most of the authors use a combination of the actors involved and thresholds required, while a few (Elster (2000), Lane (2011)) use also non-voting criteria such as time delays. La Porta et al. (2004)examine a group of countries whose constitutions have remainedunchanged since 1980 (La Porta et al.: 448). They measure constitutional rigidity on a scale from 1 to 4, which is broken down in La Porta et al.’s Table 1:“One point each is given if the approval of the majority of the legislature, the chief of the state, and a referendum is necessary in order to change the constitution. An additional point is given for each of the following: if a supermajority in the legislature (more than 66 percent of votes) is needed, if both houses of the legislature have to approve, if the legislature has to approve the amendment in two consecutive legislature terms, or if the approval of a majority of the state legislature is required (La Porta et al.: 451).”
Rasch and Congleton (2006) combine data on amendment rates from Lutz (1994) with the institutional information they have on formal amendment rules in countries. They then “create indexes of consensusand of the number of central government veto players or points of agreement required to secure a constitutional amendment (Rasch and Congleton 2006: 546).” The number of governmental veto players is coded as 0-3, with a single point awarded foreach center of institutional authority beyond parliament that must agree to a proposed amendment (bicameral, presidential, and federal). They consider the number of veto points to be the “number of governmental veto players plus an additional point if an intervening election is required and another if a referendum is normally used to ratify constitutional amendments (Rasch and Congleton 2006: 546).”They find that “amendment rates fall as the number of veto players increases and with requirements for intervening elections and/or referenda [and also that] the requirement of supermajorities in the legislature and the age of the constitution have no systematic effect within the present sample…the regression results are consistent with the existence of a significant cost-effect on the demand for constitutional amendments. As the cost of passing an amendment increases, fewer amendments are adopted (Rasch and Congleton 2006: 546).”Furthermore, they find thatthe “frequency of lawful constitutional changes, unfortunately, cannot be understood by focusing on the number of veto players and degree of required consensus alone (Rasch and Congleton 2006: 548).” Rasch and Congleton argue that“the political demand for constitutional reform reflects economic, political, and cultural circumstances, as well as the magnitude of unresolved problems at any given point in time (Rasch and Congleton 2006: 548).”
Lorenz (2005) focuseson a mix of institutional and contextual variables and combined elements of Lutz’s, Lijphart’s, and Anckar and Karvonen’s work to identify “the type of majority rule with the number of voting arenas or actors (Lorenz 2005: 346).”She uses the Lijphart scale (1 to 4) to score the majority rules in each voting arena, but she modifies it by treating the three-fifths majority like two-thirds majorities (3.0 points), and then assigns four points to majorities that are greater than three-fifths. She adds one point for an approval by a constitutional court, a government, or the President.She also includes pre-final votes in her scoring rule:“if a required vote does not relate to the final document but only to the declaration of a need to amend the constitution, a first, still general draft or similar, then this vote is scored with half of the normal points for the respective action (Lorenz 2005: 347).”Lorenz found that the Lutz index “tends to explain only those amendment data which he presented (Lorenz 2005: 354),” while the Anckar and Karvonen index “tends to confirm the hypothesis about an inverse correlation between the difficulty and the contemporary amendment rates (Lorenz 2005: 347).” Lorenz found Lijphart’s index “tends to result in the consistently weakestrelationship between rigidity and amendment rates (Lorenz 2005: 355).”
However, a more interesting distinction in the literature is if the approach uses institutional measures exclusively to assess constitutional rigidity, or if it combines it with other criteria that measure the frequency of amendments (and indicators this frequency depends on). Lutz has used this combined approach, but the most recent and sophisticated effort has been done by the Comparative Constitutions Project (CCP) of Elkins, Ginsburg, and Melton. This is why I have chosen to focus on it. Here I will summarize the argument, and later, in the end of section II, I will use the theoretical arguments to scrutinize it.
The CCP authors start with the assessment that constitutional rigidity should be calculated by the combination of the institutional procedures required to amend and the actual (in)frequency of amendment. According to them, neither of these two components is sufficient on itsown. And while the institutional component can be assessed (with difficulties that they enumerate and that this lit review corroborates) by looking at the constitution, the frequency of amendment depends on a host of social and historical factors: “Thus, we regress the amendment rate on a set of amendment procedure variables as well as a host of factors thatshould predict political reform more generally, including those factors included in our model of constitutional duration (Ginsburg and Melton 2015: 695).” Such factors include percentages of different ethnic groups, economic development, amendment rate, amendment rate squared, etc. (Elkins et al. 2009: 227-28).I will argue below why the inclusion of social and historical indicators may affect amendment frequency, but cannot affect constitutional rigidity. And that institutional arguments like: “constitutional rigidity has a negative effect on amendment frequency,” which most of this literature shares,[2]cannot be accurately evaluated with the use of measures that include amendment frequency as an ingredient of constitutional rigidity. This is the reason that Tsebelis (2016) replaced the CCP measures by purely institutional variables to extend the Tsebelis and Nardi (2014) results from OECD countries to all democracies.
Given the variety of variables included, the reader will not be surprised by the table that follows, where I present the correlation coefficients among the different methods. For reasons of economy of space, I have included in this table the measure I propose in this article. Before I turn to this measure, however, let me make some remarks on the table that follows.
All the authors mentioned above consider constitutional rigidity as an impediment to constitutional revisions. This is a rational expectation, because the reason that the founders of a constitution create all these restrictions is to make amendments more difficult, and therefore infrequent. Most of the literature finds a negative correlation between constitutional rigidity and the frequency of amendment (however each one of them is measured), although sometimes quite small.
The three indexes used in Tsebelis (2016) called “constitutional rigidity 1, 2, and 3” are calculated on the basis of either the qualified majorities required for a successful amendment (either in percentage terms, or as a categorical variable), or the number of institutions required to approve. The fact that they are negatively correlated indicates that the founders in each country use mainly one of the two methods to protect the constitution.Actually, 89% of the countries that require just one body for constitutional changes also require a two-thirds majority or greater. Among countries that require two bodies, that percentage decreases to 63%, whereas only 52% of countries that require three bodies also require a two-thirds majority or greater. The most extreme countries (using only one of the two methods and generating the negative correlation) are Bulgaria and Mongolia on the one hand (requiring ¾ qualified majority from a single chamber) and Australia, Canada, Denmark, France, Iceland, Ireland, Italy, and Paraguay on the other, requiring the simple majority approval of 3 different bodies (usually including a bicameral legislature).
It is interesting to note that “constitutional rigidity 1 and 2” are positively correlated with Lijphart’s indicators since they refer to the size of the required qualified majority alone, while the number of constitutional actors correlates with the other indicators.
The fact that despite the negative correlation among them they are all associated with “time inconsistency” of long constitutions: as Tsebelis (2016) demonstrates, should be considered as an indication ofthe robustness of the finding.The fact that the CCP indicator of rigidity has many negative correlations with other indices indicates the significance of the departure from institutional variables, and the inclusion of social, economic and other ingredients in the calculation. INSERT TABLE 1
The index I introduce in this paper has a high correlation with the other indexes measured on the basis of institutional constraints (the number of veto players recognized by the constitution and the required majorities to each one of them), particularly with Lutz, Lorenz, and Rasch and Congleton. But even if the correlation is low, its statistical significance remains high, despite the small number of observations (the intersection of countries selected by different authors). The major exception is with the CCP index, where the number of countries is high, the correlation negative, and its significance nonexistent. The numbers reflect a difference in approach (institutions in the case of my index, and a mixture of institutions and frequency in the case of CCP).
II. Constitutional Veto Players and Constitutional Core
Every constitution includes a series of articles that specify the rules concerningits futurerevision. The rules of constitutional revision specify a series of collective or individual actors (like one or both chambers of a legislature, or a special assembly, or a referendum, or an elected president) that are required to agree on the revised text in order for a revision to be valid. In other words, they specifythe set of constitutional veto players. In the same or subsequent articles, the constitution specifies a series of provisions (required quorums, majorities, time constraints, and additional rules, such as intermediate elections) to make the decision of each one of these constitutional veto players valid. On the other hand,it is often the case that the constitution presents a series of alternative mechanisms for constitutional revisions (what Albert (2014) calls “multi-track”). If these alternative paths of revision are followed, the previously specified constitutional veto players are rescinded or quashed (partially or completely).In other words, the articles of constitutional revision set and (may) rescind constitutional veto players.
This section will analyze constitutional rigidity on the basis of the “constitutional veto players” defined by the constitution and the “constitutional core” that they produce. The constitutional core is the set of provisions that cannot be changed on the basis of the rules specified by the constitution. On the basis of this definition, it is obvious that the higher the required majorities (say 2/3 instead of 3/5, or simple majority),the more rigid (protected) the constitution. It is also obvious that the higher the required majorities, the more provisions will remain unchangeable, that is, the larger the constitutional core. As a special case, if the requirement for revision is unanimity (like the EU Treaties), then revisions become almost impossible. Similarly, the more bodies that are required to agree for a revision (for instance, a bicameral parliament with equal weight, as opposed to lopsided with one chamber making the final decisions, or unicameral), the more difficult it is to change the constitution. In this section, I will specify the implications of different rules on the size of the constitutional core.