In the first post in this series, I talked about issues with abstract provisions in a constitution, and introduced the concept of democracy-relevance. In the second post in this series, I talked about issues with more concrete provisions in a constitution. In this final post, I’ll talk about my recommendations, what I’d put in a constitution if I were designing one from scratch.
Recommendations
Let me first restate my recommendations for the process for changing the constitution from my post on Tyranny of the Majoriy. An amendment process that’s substantially harder or substantially easier than what I’m describing would likely change the other recommendations I lay out somewhat1, so I think it’s important to be precise:
I think there should be multiple processes for amending the constitution. There should, at minimum, be one with a supermajority requirement and one with an enduring majority requirement. The supermajority process should be used for bipartisan legislation, especially that which is time-dependent, like if someone is running for president from jail and you want to disallow that before they win the election. I think 2/3 is a good supermajority threshold - it’s high enough that it basically always necessitates support from the left and right, an empirical observation that holds across countries and throughout history, especially with a proportional electoral system. It’s also a very common existing number for constitutional amendment. I’m less confident about the enduring majority threshold, but I think the approval of 3 consecutive legislatures (ie with elections in between) could be good. It is hard but not impossible for a party or coalition to do well enough in 3 consecutive elections to where they and maybe a few members of the opposition party/coalition make up a majority. I imagine enduring majority to be the easier route, used for constitutional provisions which the minority party is never going to approve because it limits their power but which is nevertheless necessary.
Ok, onto the recommendations on what to put in your constitution. I think democracy relevance is so important that these types of laws should be permitted by inclusion while all other laws are permitted by exclusion. That is, there should be a provision in the constitution saying “any provision of ordinary law (ie not constitutional amendment) classified as democracy-relevant is permissible only as the implementation of a constitutional provision, while all other laws are permissible unless they violate a constitutional provision”. There should then be a bunch of explanation as to what is and isn’t democracy-relevant, as well as some principles you can point to to justify democracy-relevant law. For the latter, I would probably include “there shall be regular free and fair elections, where each voter has the right to hear the different arguments, vote for candidates whose views match their own, and be counted equally” and “legislatures have the power to regulate their own conduct, but must allow the minority party members to give input and propose legislation”. There should probably be some more concrete stuff too - voting rights, term limits, the requirements to pass a law and constitutional amendment, the timing of elections for national positions, etc.
Honestly I’m not sure I would add anything else to the constitution outside of these democracy-relevance provisions. There are no other laws that I’m very confident shouldn’t be changed without majority vote but simultaneously scared could realistically be changed without major backlash. I would rather leave out of the constitution laws I believe shouldn’t be changed and also don’t believe will be. A world where such provisions would actually change is probably a world where something has come up to make such a change necessary.
That said, if I were to include others, I think the most plausible candidates would be those meant to protect against arbitrary arrest. Arbitrary arrest is a real issue in developing countries, eg used in gang crackdowns. I’m still a bit nervous that I would feel differently about the necessity of these arbitrary arrests if I lived in a country terrorized by gang violence, but I think it can probably be tackled in a better way. As for the specific provisions, I really don’t love the due process clause, whose vagueness has been used to overturn laws that weren’t really about arbitrary arrest. Instead I would outline the general procedure of a trial - collection of evidence by proper means, input by lawyers to which every defendant has a right, conviction and sentencing by a jury and/or judge, all of this mostly in a public setting - and require that these be used for any punishment that’s not minor2. The provision against ex post facto law (Edit: and bills of attainder) seems good too.
If you have to add abstract provisions, the one thing I ask is that please for the love of God specify that the concrete provisions override the abstract provisions. None of this bullshit where these Latin American supreme courts get to decide that abstract “human rights of the president” override concrete term limits.
I also want to push for a norm where the legislature goes in and modifies the constitution fairly frequently, especially if you are going to put a lot of stuff in it. As I argued previously, the constitution is just a set of higher level laws that override normal laws, and I want it mostly treated that way too. If there comes a time where it’s decided that there’s a better way to decide cases than the form of trial I described, the legislature should go in and amend this provision - constitution writers aren’t perfect. If there are new exceptions to constitutional provisions discovered, I would rather the legislature add them specifically in writing than rely on the supreme court. Judicial review should be a last resort.
Enforcement
This leads me to discussion about enforcement. You need some entity to enforce the provisions of the constitution. It does not need to be a single entity - you can specify that provision X is enforced by entity A while provision Y is enforced by entity B (like how Germany has different high courts for different categories of legislation), or you can have many entities able to enforce any provision - although you may need a high court to settle disagreements3.
I’m a bit conflicted on how to do this, honestly. On the one hand, constitutional review is a substantively different job from enforcing normal laws, and I don’t love the same entity doing both. On the other hand, in keeping with my message that a constitution is just higher-level law, the constitutional questions that don’t have to do with overturning legislation (eg when the executive tries to infringe on people’s right to vote) seem right at home in the normal judiciary. I also don’t love creating an entity whose entire job is to do constitutional review, as I think it should be a fairly rare practice.
So I’m not going to make specific recommendations on what the entity should be. I will say that I don’t think anyone but the highest court(s) or commission(s) should be able to do constitutional review. This American practice where a lower court can strike down legislation only for a higher court to reinstate it is madness. If you want lower courts to be able to comment at all, allow them to send the case to appeal if they think a law should be struck down.
I will also recommend the practice of advisory opinions, where the court/commission informs the legislature on whether a proposed law is likely to pass constitutional muster. This is probably something that should exist for normal legislative enforcement, but it’s especially important for constitutional review.
Mechanisms
I would like to end with a discussion of my favorite topic, political mechanism design. For simplicity let’s say we decide on a single constitutional commission for doing constitutional enforcement.
The first thing to institute is fixed-length nonrenewable terms. The American practice of lifelong appointments and death timings is ridiculous. You should also make it so that if a justice retires early the replacement is elected to finish their term rather than to serve a full term, so there is no advantage to retiring early and being replaced by someone of the same party. A good idea is also to have the number of commissioners be some integer multiple of the term length (eg 21 commissioners and 7-year terms, although honestly more realistic is like 17 and 17) so that each year there is a fixed number of appointments. For countries with fixed-length terms this ensures that each term gets the same number of appointments, and for variable-length terms (ie snap elections) the number of appointments is proportional to the term length.
One other mechanism you could institute is a supermajority requirement for the commission to strike down laws. I was originally going to include this with the tone of “that’s something clever to throw out there”, but the more I think about it, the more I like this mechanism. As I discussed previously, the cases where constitutional review is most necessary are regarding democracy-relevant legislation. With these types of legislation, it’s important that upon taking power a president/party can’t change a bunch of laws to benefit themselves and destroy democracy. Since newly elected antidemocratic figures usually don’t have the support of the elites who came before them, it’s likely that there is a supermajority in the constitutional commission to block all the antidemocratic stuff they’re trying to do4, as has been mostly true for the Supreme Court with Trump. The opposition in the court is going to side against them, and a decent number of your own party in the court are going to side against them too. The abusive Supreme Court action mostly comes when there is partisan consensus on some issue for a long time, and they use judicial review power excessively. But in those cases, there likely won’t be supermajority consensus necessary for striking down laws.
This isn’t a perfect solution. Depending on term lengths and term limits, you might not be able to sustain supermajority on the court not appointed by the current antidemocratic figure. There’s also a bit of a problem with having constitutional review take supermajority requirements while the rest of constitutional enforcement take simple majority requirement - a majority might agree that a provision is to be interpreted x way but not have the standing to strike down laws inconsistent with this interpretation. Even so, I think it could work quite well.
And finally, I want to talk about appointments to the commission. The above discussion implies that justices are partisans appointed in a partisan manner, but you can try to design against this. You probably need some input, even if indirect, from the legislature or other political actors on appointments. The commission is at the end of the day going to be handing down political opinions, particularly in constitutional review, and if you try to shield all political actors from the appointment process you’re just going to get judges with the bias of whatever institution is appointing them. I’ve had the idea for a while for a mechanism that I think could work well for appointing figures who are supposed to be nonpartisan. It goes like this:
Once someone is nominated, the legislature must approve them by 2/3 vote.
If there is a vacancy and the legislature doesn’t approve someone within some period of time (eg 3 months), all legislators become ineligible for re-election for the rest of their life.
More cleverly, you could have some proportion of the legislators (1/2?), chosen at random, become constitutionally ineligible. Disallowing every single legislator from running for re-election would be quite bad, as you’d lose a ton of institutional knowledge.
Nominees are chosen by petition. I talk about this more in Tyranny Of the Majority, but the details aren’t too important, as long as it isn’t one person responsible for doing the nominating.
If it were nominated by one person, and that person (e.g. a separately elected president) had some reason to want everyone in the legislature ineligible for re-election, they could intentionally nominate people that would get shot down
This could be done by secret ballot, but it’s probably better not. Secret ballot might make it more likely that someone actually gets nominated, but it requires a lot of public trust, which would be especially bad in countries with a lot of corruption.
The above mechanism ensures appointed commissioners are approved by supermajority vote, while simultaneously giving a strong incentive for legislators not to leave the spot empty even if it would be to their partisan advantage. I honestly can’t imagine what type of commissioners would result from such a process - maybe they’ll find enough people like Anthony Kennedy, or maybe it turns into compromises for partisan commissioners in exchange for legislation that the other side wants, which also might be ok. It seems worth trying, at the very least.
Constitutional enforcement will inevitably come down to norms. You have to hope that the body in charge of enforcement it will use its power when necessary and show restraint when not. There’s only so much that good design can do.
This is no excuse for poor design, however. I believe that by thinking carefully about the provisions in their constitution, heeding the warnings and recommendations in this piece, a country can put itself in a much better position to prosper for a long time. This isn’t the 1700s anymore; we have centuries of evidence and better philosophy to learn from. We just have to use it.
I’m also assuming that the legislature in the country is elected somewhat sensible, so it’s not blatantly antimajoritarian like the US Senate. Once you have blatant antimajoritarianism in your system you kind of have to design everything else to give it as little power as possible.
Minor being defined to strongly suggest things like fines for traffic violations
Maybe not though. If you have different courts responsible for different provisions - eg, for constitutional review - you could have a law struck down if any one of them finds in unconstitutional, for instance.
The issue then is with antidemocratic figures like Hungary’s Viktor Orban who stick around for a long time. I think constitutional term limits protect against this however, and I think they’re doable even in parliamentary democracy, something I’ll hopefully talk about more in a future piece.