In previous posts I have criticized the lack of consultation with political scientists in the constitutional reform process. I have further documented my concerns in comments to the legislative committee (in Icelandic) in charge of dealing with the proposal. Others, including the President of Iceland in his New Year’s address, have echoed these concerns. Naturally, the president’s address drew far more attention to the issue than my comments. As before several proponents of the proposed constitutions, including my former colleagues Thorvaldur Gylfason and Svanur Kristjansson, whose response has essentially been that the proposed constitution has been endorsed by the foremost experts on constitutions in a report on the proposal which can be found here. That struck me as strange and I re-read the report.
In short, I was stunned that Thorvaldur and Svanur were able to reach this conclusion on the basis of the report. Its authors, Zachary Elkins, Tom Ginsburg and James Melton, are engaged in an interesting and a useful project that, on the basis of my reading of the report, has fairly specific aims. It documents and codes the different provisions and characteristics of constitutions around the world (and historically). On the basis of this data, they then estimate a model to explain (and predict) how long constitutions endure. On the basis of their model they predict that the proposed constitution would be likely to endure for quite a while. That is, however, a far cry from being an endorsement of the whole proposal. It doesn’t consider the effects of the proposed electoral system on party competition, government spending, corruption, etc., etc. It doesn’t evaluate how the powers of the president are affected. It doesn’t consider whether initiatives and referenda are likely to have positive or negative effects on, e.g., political accountability. It does, address the strength of the legislature as it appears in the constitutions but they are very clear that these are based on the formal rules – i.e., they are not being considered in interaction with other factors (e.g., presidentialism vs. parliamentarism) which can have enormous effects on who these formal powers are translated into actual powers. Importantly I don’t see anything in the report that suggested that the authors intended to analyze these issues that are, in my view, fairly crucial. Rather their analyzes aimed at addressing questions that are central to their research proposal. Thus, I was more than a little puzzled by the fact that Thorvaldur, Svanur and others choose to interpret the report in this manner. For this reason, and the fact that I would be more than a little miffed if someone mischaracterized my work in this manner, I contacted one of the report’s authors, Zachary Elkins. After all, I could have been the one who got it wrong. This was Elkins response:
I haven’t read any of the references to our report by those discussing the proposed constitutional changes. However, I understand (through years of teaching), that most documents are cited far more often than they are actually read. I also realize that, rhetorically, it can be useful to appeal to endorsements by authorities (this is not to profess that we are such!) in making an argument.
It probably makes sense to clarify, then, that we (and our report) are highly agnostic with respect to the proposed constitutional changes. True, I admit to being intrigued by the crowdsourcing process and to admire some of those who have been involved in managing it. Frankly, the Icelandic constitutional process is highly innovative and imaginative. Also, some of the principles behind the process (e.g., transparency and participation) are ones that are normatively attractive to fans of democracy, like myself.
Nonetheless, those readers expecting either endorsements or condemnations of the proposal will be very disappointed by the report. Our intention was, simply, to put the proposed draft in comparative and historical perspective. We have a compiled comprehensive dataset of the characteristics of the world’s constitution, which allows us to say something about how any given constitution looks according to some recognizable benchmarks. The report does nothing more and nothing less.