I thank Professor Smith for his thoughtful and generous review of Redrafting Constitutions in Democratic Regimes. As he rightly observes, the essays in this book set out to discuss the nature and impact of constitutional replacements within democratic regimes, with a focus restricted to the political and procedural origins of these constitutions. With this limited goal in mind, all contributors in the volume deliberately avoided discussing in depth other factors that potentially affect democratization, such as long-term institutional legacies, socioeconomic structures, or even the content of new constitutions. An expansion of this research agenda should, of course, incorporate these features into the analysis, as I myself am now doing in related works.
The reviewer notices that the most controversial argument of the book is that, even in democratic regimes, constitution making will likely not turn out well if it only involves direct popular decision making, without rival elites engaging in deal making and building consensus. We sought to back up this claim both normatively and empirically. On normative grounds, various contributors to the volume highlighted the importance of enabling transformations through constitutional change while preventing partisan majorities from engaging in self-dealing. On empirical grounds, several chapters—including my own contribution in Chapter 5—show the democratizing effects of compromise and accommodation at the level of representative elites. However, neither the general framing of the book in its introduction nor the specific chapters examined in detail the assumptions underlying the emphasis on elite compromise or the various possible interactions between political elites and citizens across different episodes of constitution making.
Political elites, by which the book generally means party representatives with the capacity to make binding collective decisions, obviously matter because they are the ones who decide whether a constitution will be replaced, what rules should be followed to write the new text, and its content. Yet they also matter in a more fundamental way because in making these decisions they are supposed to channel and aggregate the interests and views of important social groups. In this sense, the democratizing effect of inclusive constitutional agreements depends less on the fact that they are forged by elites than on the distinct bases of social support that these elites presumably have.
The main proposal made in the book about direct popular involvement in constitution making is that, although it builds democratic legitimacy, it cannot contribute to democratization independently of plural deliberations and negotiations among political representatives. Popular participation is, however, obviously crucial when the assumption about the social bases of representation is untenable. Even if it can never replace plural representation, direct citizen participation in constitution drafting is essential to provide social support for a constitutional bargain when the linkage between citizens and political representatives has been eroded.
Professor Smith astutely notes that the fact that some of the success stories in our book, such as Poland or Kenya, are today deeply troubled democracies may cast doubt on the presumed democratizing effects of elite deals in constitution making. This, however, may be true of any aspect relating to the origins (or the content) of constitutions as the time elapsed since constitution writing increases. Despite the importance of the phenomenon, neither legal nor social science research has been able to establish with certainty the link between constitutions and democracy in the long run. We have tried to take a small step toward understanding that link on normative grounds and assessing the political impact of democratic constitution making in the short term.
