This book examines how the meaning, content, and practice of constitutionalism have evolved from 1787 to the present. Rogers Smith and Richard Beeman have gathered a superb group of legal scholars and political scientists to address these topics. The first part of the book discusses the declining international influence of the US Constitution, its democratic deficit, and the contrasting legacies of American constitutionalism at the federal and the state level. The second part covers international human rights, the role of constitutions in authoritarian regimes, constitution making as a strategy of democratic erosion, institutional design and constituent power in multinational polities, and the impact of constitutions as instruments of state building and democratization in Africa. I highlight here the contributions of this project and discuss some of its limits with the aim of promoting a debate about how to study constitutionalism and constitution making in comparative perspective.

Part I starts with David Law and Mila Verteeg’s chapter, which documents how the US Constitution has become increasingly atypical in terms of rights and structure compared to the rest of the world’s constitutions. They suggest that one of the main reasons for this phenomenon is the difficulty in adapting the Constitution to changing environments because of its highly stringent amendment procedure. This approach to constitutional adaptation also implies that formal change in the federal Constitution is usually out of reach for citizens and elected representatives, a characteristic that Sanford Levinson decries as an integral part of a less-than-democratic design. As Emily Zackin shows in her chapter, the situation is different at the state level, where citizens and legislative majorities have more influence on ordinary legislation and constitutional change. Yet this brand of democratic constitutionalism, although important for US citizens, has generally remained out of sight for foreign observers.

Part II is more diverse in its coverage. Christopher McCrudden proposes that domestic constitutional rights have become intertwined with an increasingly internationalized understanding and practice of human rights. Tom Ginsburg and Valerie Bunce highlight the importance of authoritarian constitutions in modern constitutionalism. Ginsburg discusses how these constitutions matter not only for the working and duration of authoritarian regimes but also for the constraints and legacies they often create for democratic regimes. Bunce analyzes the design and experience with “ethno-federalism” in communist regimes and whether this approach to the accommodation of cultural diversity is advisable in democratic plurinational states. Jaime Lluch somewhat recapitulates this topic by analyzing the importance of accommodating the demands of substate nationalism in multinational democracies. In her thought-provoking chapter, Kim Lane Scheppele addresses the use of constitution making as a strategy of democratic erosion. Focusing on the case of Hungary under Fidesz, she argues that constituent power cannot be invoked as a self-legitimating force. To be legitimate, it must be constrained by the general will of the community expressed through inclusive representative agreements and genuine citizen participation, which were absent from the unilateral, partisan imposition of the 2011 constitution. In the last chapter, Heinz Klug discusses the experience of constitution making in postcolonial Africa, proposing that the source of divergence between formal democratic constitutions and authoritarian practices in the region is found in the weak administrations and patrimonial states that emerged after the process of decolonization.

Given the broad scope of the book, readers would have benefited from a more developed analytic framework to assess the changing tasks of constitution making over time. The introduction mentions six organizing questions to analyze the evolution of constitutionalism: who has the authority to write or amend constitutions, what makes a constitution legitimate, whether the constitution should be difficult to amend, whether it should be fully written, what sort of governing institutions should a constitution include, and what should be the purposes of a constitution. This is a list of important questions, but one that is not organized on clear theoretical grounds and is not systematically covered by the different essays in the volume. More importantly, the organizing questions omit some key issues in the contemporary study of comparative constitutionalism and constitution making.

A comparative analysis of who has the authority to write constitutions and what makes constitutions legitimate requires a theoretical examination of the conditions, logic, and limits of constituent power in different political contexts. Constitution writing has widely diverse meanings and implications in a revolution, a transition to democracy, or a preexisting democratic regime. Scheppele’s essay attempts to fill this analytical gap but lacks an explicit comparative framework. Discussing the stringency of amendment procedures calls for a systematic examination of the role of unwritten conventions and judicial interpretation vis-à-vis amendments as alternative means of constitutional adaptation. Sanford Levinson addresses this topic but only partially and indirectly. The basic political institutions that constitutions should include, as well as the purposes of constitutions, are mentioned in several chapters but without a specific organization or structure. Law and Versteeg include a comparative survey of some central institutions such as federalism, presidential government, and judicial review, but this analysis is not taken up in other chapters, and the book includes no similar study of bicameralism, electoral formulas, malapportionment, or minority vetoes. Ginsburg’s chapter surveys the purposes of authoritarian constitutions, some of which also apply to democratic constitutions, yet there is no comprehensive introduction to the topic.

One also misses from Modern Constitutions some conceptual issues that are relevant for a historical and comparative discussion of constitutionalism. Two such issues are the role of majority rule and popular participation in democratic constitutions. Although the specific content of the US Constitution may be declining as a source of inspiration for contemporary constitution makers, the general model of checks and balances with its emphasis on minority vetoes and representative government still exerts an enormous influence on definitions of a liberal-democratic order. This is visible in constitutional change. The idea that supermajorities are necessary to amend constitutions is an important legacy of American constitutionalism. So is the idea that after enacting the original constitution, the constituent power of the people should remain as an extra-institutional force. The Swiss constitution and some new constitutions in Latin America regulate their own replacement to allow citizens to adopt a new constitution. But most national constitutions follow Madison’s advice in Federalist No. 49 to avoid frequent appeals to the people to alter or replace constitutions.

The US Constitution has also been very influential in the use of counter-majoritarian institutions in ordinary lawmaking. Over time, most democratic constitutions in the world have incorporated power-sharing features that limit pure majority rule. Their impact on democracy is, however, highly contested. Although many political scientists believe that majority-restraining institutions such as separation of powers, bicameralism, or supermajority thresholds for special legislation are essential for the protection of minorities and opposition forces, others regard these institutions as instruments to protect privileged elites against the interests of popular majorities. The evidence in support of these positions is mixed because one can find minority vetoes in constitutions of democratic and authoritarian origins alike. The deleterious effects of minoritarian institutions on democracy are currently being debated in the United States. Yet similar discussions can be found in many new democracies that struggle to deepen popular rule by getting rid of inherited counter-majoritarian institutions created in nondemocratic periods or imposed by autocratic rulers.

Another important topic that is missing in this volume is whether and how the origins and content of constitutions matter for democracy. It is apparent that both politicians and citizens, particularly in new democracies, invest a lot of time and energy in constitution making. In the past, successful democracies have emerged from carefully crafted compromises among contending political elites, as was the case of Spain after the 1977–78 constitution-making process. More recent episodes, such as the making of South Africa’s 1996 constitution, show that citizen participation can also promote democratization by providing legitimacy to elite compromises. In fact, mounting comparative evidence indicates that the democratizing effects of constitution making depend on both inclusion at the representative level and participation at the citizen level. Yet there are examples of successful democracies, such as France after 1958, which followed a highly exclusionary and nonparticipative constitution-making process. Similar uncertainties can be observed in the analysis of the content of constitutions. Many scholars claim that specific institutions are key for the consolidation or deepening of democracy. Yet democracies have flourished and failed under widely varying designs, so the relationship between the content and efficacy of constitutions is still uncertain.

These critical comments notwithstanding, Modern Constitutions is an excellent contribution to the rapidly growing field of comparative constitutional politics. It is a timely and ambitious reflection on the origins and content of constitutions since the then-unique experiment with constitution making at the national level in the United States between 1787 and 1789. It should be placed at the top of the reading list of anyone interested in the role that constitutions play in politics.