Because of its editor and lead contributor Gabriel L. Negretto, Redrafting Constitutions in Democratic Regimes has the twin virtues of being more focused and more ambitious than most edited volumes. Deploying an international array of legal scholars and political scientists and blending normative theory, quantitative analyses, and qualitative case studies, Negretto’s volume illuminates many empirical dimensions of a little-studied phenomenon and makes important prescriptive arguments. The phenomenon is the full redrafting (not simply amending) of constitutions in regimes that have been defensibly democratic for at least five years. Negretto finds 25 examples from 1900 to 2015. The book’s most provocative argument is that, even in democracies, constitution making requires the forging of extensive agreement among plural, competing political elites, along with a meaningful degree of mass participation—or else the new constitution probably will not serve democratic constitutionalism well.

Here “serving democratic constitutionalism well” has a chiefly procedural meaning, centered on maintaining the rule of law and civil liberties against authoritarianism. The contributors do not discuss in detail the substance of the new constitutions they examine, referring only briefly to how, for example, many “transformative” democratic constitutions have added numerous positive rights to traditional negative rights. This focus is less a flaw than a feature, however, because it contributes to the volume’s coherence.

Negretto’s opening chapter frames the book clearly. After noting circumstances that have led to new constitutions in democratic regimes, Negretto observes that in 20 of the 25 (80%) of the cases the book considers, democracies adopted new constitutions in ways that at least putatively conformed to established legal processes for doing so. In an identical number of cases, they did so through “constituent legislatures,” not special “constituent conventions” charged with constitution writing. In 12 of the 25 cases (48%), direct citizen participation occurred before or during the drafting of the constitution, and 16 cases (64%) included popular referendums to authorize or ratify a new constitution. When assessed by the Liberal Democracy Index of the Varieties of Democracy Project (V-DEM) or the Polity index of democratization of the Polity IV Project, however, the results of these democratic legal processes are decidedly mixed.

Data on one case (Nepal) were not available, but for the 24 others, 9 improved in their “liberal democracy” scores, 9 declined, and 6 remained even. The Polity IV “democratization” scores improved in 7 cases but declined in 8, and in 9 remained unchanged. From these astonishingly 50–50 outcomes, Negretto draws five conclusions that most other chapters in the volume (including one authored and one coauthored by Negretto) reinforce. First, legal frameworks for constitution making in democratic regimes are important. Second, those frameworks must prevent domination by powerful minorities or by a factious majority. Third, judicial interventions on accompanying legal issues are often consequential, but again, they are sometimes beneficial from the standpoint of liberal democratic values and sometimes not. Fourth, “inclusive agreements among a plurality of representative elites” (p. 26) are essential for good outcomes. Fifth and as a result, the redrafting of constitutions in democratic regimes has the potential to contribute to further democratization but may end up abetting new authoritarianism.

The most controversial of these conclusions is the contention that, even in democratic regimes, constitution making will likely not turn out well if it only involves direct popular decision making, without accompanying deal making and consensus building among rival elites. This argument may suggest that the volume is a brief for elitist liberal theories of democracy. Critics, however, will find they must confront potent reasoning and evidence if they wish to oppose the book’s claims. After Negretto’s opening chapter, Part I of the book analyzes general issues of constitution redrafting in democracies. Part II’s chapters present case studies in Colombia and Venezuela, Poland and Hungary, Thailand, Kenya, and Iceland. Most chapters rely on Negretto’s framing of the volume’s issues and themes.

In Part I, Joel I. Colón-Ríos considers the normative criticism that exercises of a people’s constituent power to make constitutions cannot be confined to established legal channels. He responds that, even so, it is not illegitimate for a people to choose to act through such channels. William Partlett argues that constitutions should include directive principles for constitution-making procedures. He calls for representative participation in drafting and for final approval by binding popular referendums, with supermajorities required at both stages to combat factious majorities and minorities. David Landau reviews judicial interventions in legally established constitution-making processes and finds that courts may be as much barriers to needed changes as they are guardians of the rule of law. Finally, Negretto himself uses large-N global quantitative analyses, as well as qualitative evidence from Kenya and Bolivia, to bolster his key contention that “it is elite cooperation and not citizen participation in constitution writing that contributes to improving democracy in its liberal dimension” (p. 102). Negretto makes clear that he means elite “cooperation among a plurality of elected political representatives,” so that these elites can claim some real democratic authority. He also makes clear that he thinks this process preferable to the kinds of mass democratic action that radical democrats often espouse.

Opening Part II, Ana María Berejano and Renata Segura explicitly support Negretto’s argument. They compare constitution drafting in Colombia and Venezuela, arguing that both included high levels of direct citizen involvement. In Colombia, however, the constitution “was designed and approved by a consensual agreement among a plurality of political representatives,” whereas in Venezuela “the incumbent executive and his party imposed the new text.” They see the results as “deepening of democracy in Colombia” but its deterioration under Hugo Chávez in Venezuela (p. 132). Negretto then adds a coauthor, Solongo Wandan, to assess constitution making in Poland and Hungary. They depict the 1997 Polish constitution as “the result of a compromise among a plurality of political interests,” whereas in Hungary, Viktor Orbán’s Fidesz government “unilaterally imposed the constitution with negative consequences for the future of democracy” (p. 155). They acknowledge that the ensuing rise of the increasingly authoritarian Law and Justice Party in Poland weakens this contrast. Conceding that there are no long-term guarantees, they conclude, “Features of constitutional origins … matter in the short term to keep a country within a democratic path or derail it” (p. 172).

Tom Ginsburg’s chapter on Thailand cannot so squarely address the volume’s “elite cooperation and citizen participation” theme, because Thailand’s story is one of instability. Since it became a constitutional monarchy in 1932, Thailand has had “twenty constitutions … somewhere between seventeen and twenty-four coups and coup attempts, and nearly sixty governments” (p. 175). Ginsburg does maintain, however, that even though Thailand’s 1997 constitution, adopted after a restoration of democracy in 1992, has since given way to a 2017 constitution “produced under strict military dominance,” Thailand does retain some “independent watchdog institutions” and other democratic features established in 1997 (p. 188). He also credits the 1997 constitution with raising baseline expectations for public participation, even if meaningful democracy in Thailand remains remote.

Christina Murray’s analysis of the decade-long constitution-making process in Kenya again stresses the importance of agreements among plural elites during drafting stages. Kenya experienced a failed first attempt to adopt a new constitution before a happier second try. Murray holds that “insisting on a ‘people-driven’ process and failing to secure elite buy-in was fatal for the first process; requiring consensus among the elite, along with a degree of public involvement, was key to bringing the second process to a successful conclusion” (p. 190). However, Murray recognizes that, despite a celebrated handshake between President Uhuru Kenyatta and his rival Raila Odinga in 2018, abuses of power have since arisen. She fears that “politics is back on its old track of deal-making among elites with little attention to the underlying problems that hold back development” (pp. 212–13).

In the final chapter, Thorvaldur Gylafason explores the shocking fact that Iceland’s democratic constitution, “although drafted and ratified by citizens according to a procedure established in advance,” with nearly two-thirds of Iceland’s electorate voting for approval in 2012, “is still not in force” (p. 217). Iceland’s Supreme Court tried to invalidate the election of the Constitutional Council that crafted the new constitution, and then its parliament, whose members were ineligible for the council, repeatedly refused to add its ratification. We are surely expected to conclude that the case of Iceland dramatizes the need to involve existing elected political elites in constitution making, because even adhering to legal processes with great citizen participation has left the country with its democratic standing “thrown into doubt” (p. 238).

Perhaps we should so conclude. Negretto and his colleagues have made a strong case for this need, while clarifying many other aspects of constitution recrafting in democracies. To be sure, when we consider the three “success” stories in the case studies—Colombia, Poland, and Kenya—it is clear that the constitution-making processes that most of these contributors recommend cannot guarantee effective, responsive, law-abiding governance. All three nations are deeply troubled today. Many will surely debate whether their difficulties suggest that changes dependent on elite deals are more susceptible to declines into illiberalism than Negretto and his colleagues believe. Those debates are appropriate. Still, in politics as in life, nothing is guaranteed but death and taxes—and certainly not constitutional success. This volume will aid reflection on how to increase the odds that efforts at democratic constitution making will do more good than harm.