Are constitutional rules the product of benevolent institutional engineering or the result of short-sighted partisan conflict? Making Constitutions defies a naive conception of institutions as mere ‘rules of the game’ by showing how institutional performance and partisan majorities influence the content of constitutional rules endogenously. The book offers a thorough account of the design of Latin American legal frameworks with regard to presidential powers and the rules for electing the chief executive.
Gabriel Negretto argues that the crafting of constitutional rules is driven by cooperative goals as well as by redistributive struggles. Prevalence of either motivation depends on the historical context confronted by political leaders. Major crises of institutional performance force elites to pursue cooperative goals, while political realignments encourage leaders to pursue institutional change for selfish partisan purposes.
The outcome of cooperative processes is hard to predict because it ultimately depends on the shared understanding of the situation that is embraced by reformers. The book shows, for instance, that elites have responded to serious legitimacy crises by strengthening representative institutions (Colombia in 1991) and also by strengthening the executive branch (Ecuador in 1998).
The outcome of redistributive party struggles, by contrast, follows a predictable logic. When a single party dominates the constituent assembly, electoral rules are framed to reinforce its electoral advantage. The outcome typically is a constitution with plurality rule for presidential elections and feeble constraints on re-election. When, by contrast, multiple parties negotiate the contents of the constitution, the result is a hybrid constitutional design that combines run-off elections and moderate term limits in exchange for a stronger concentration of policy-making powers in the executive branch.
In chapter 3 of the book, Negretto tests this argument with a careful statistical analysis of 68 constitutional reforms – constitutional replacements as well as amendments – in 18 Latin American countries between 1900 and 2008. The analysis develops four systematic measures to compare the content of the constitutional texts.
Constitutional rules regarding presidential elections are ranked in terms of their inclusiveness (plurality versus run-off) and in terms of their permissiveness (term limits versus unrestricted re-election). A series of ordered probit analyses show that the likelihood of adopting run-off procedures increases when several parties control the constituent assembly, while the probability of adopting more permissive re-election rules increases when one or two parties have control of the reform process.
Presidential powers are harder to measure, and Negretto builds on a pre-existing tradition initiated by the seminal work of Matthew Shugart and John Carey. His measurement strategy avoids assigning arbitrary weights to specific presidential prerogatives, relying instead on the observed historical distribution of constitutional features to rank cases. The study employs a categorical principal-components model to scale the information for a large number of legal clauses into two aggregate measures reflecting the powers of the president to intervene in lawmaking and to exercise authority over appointments.
A regression analysis using those items as dependent variables demonstrates that, in line with the theory, the president's legislative powers increase when multiple parties negotiate the outcome of the reform, and that the marginal effect of partisan pluralism increases when partisan structures are weaker. By contrast, a fragmented constituent assembly has no clear effect on the size of the president's powers unrelated to legislation.
The author interprets those results as evidence of a redistributive bargain among partisan actors who are forced to accept complex institutional outcomes when they lack the majorities to impose their preferences unilaterally. However, a more benevolent interpretation of the findings is also possible. For example, in the presence of a fragmented party system, a benevolent legislator could sincerely adopt a majority run-off electoral system to prevent the ascent of presidents supported by small segments of the electorate, and also delegate greater constitutional powers to the executive branch to avoid legislative deadlock. Thus, it is hard to adjudicate between political and functional explanations of constitutional design.
Because of this reason, case studies play a very important role in the architecture of the book. Chapters 4 through 7 offer careful historical reconstructions of four processes of constitutional change under alternative causal configurations: partisan motivations with partisan hegemony (Argentina in 1949), partisan motivations in a bargaining environment (Argentina in 1994), cooperative motivations leading to power redistribution (Colombia in 1991), and cooperative motivations leading to power concentration (Ecuador in 1998). Those chapters, based on extensive fieldwork and careful legal analysis, provide an extraordinary example of how qualitative evidence can inform and complement quantitative analysis without distorting the interpretation of historical events to fit the mould of statistical findings – an unfortunate source of historiographic bias in many works.
Broad in scope and theoretically ambitious, Negretto's theory of constitutional reform applies to all constitutions adopted by deliberative bodies. However, it fails to account for the content of constitutions granted by military dictatorships, such as the 1980 Chilean charter. The Latin American version of the octroi deserves careful consideration in further research. It is possible that Negretto's theory of partisan motivations will eventually be nested into a broader theoretical framework incorporating the goals of military reformers, a theme explored, for instance, in the work of Robert Barros and in Negretto's own recent production.
Making Constitutions is a seminal book that sets a new standard for empirical legal scholars and for political scientists concerned with institutional design. It is part of an emerging trend of scholarly work seeking to predict the content of constitutional rules, illustrated by the work of Zachary Elkins, Tom Ginsburg, James Melton and other experts. This volume will therefore serve as an exemplar for scholars interested in explaining other features of constitutional design in the years to come.
