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A crucial, and not at all trivial, step is to identify a country's “constitution” at any given time. The flood of institutional research over the last two decades has expanded and diluted the concept of a constitution. For many, constitutions have become shorthand for political institutions more generally (Persson and Tabellini 2003). Recent constitutions like that of Brazil's 1988 document, which attempt to constitutionalize nearly every aspect of public life, have not helped to circumscribe their meaning. Other countries such as Britain and, until recently, Saudi Arabia, have unwritten constitutions. To add even more confusion, countries like New Zealand and Canada accumulate a set of important documents over a period of years until at some point, scholars determine that the collection is too important not to be a constitution. Of course, the vast majority of countries have discrete documents that are clearly recognized as constitutions. Still, a necessary component of the present project will be to clearly delineate the concept of a constitution and its relationship with written documents. This will be a central task of the introductory essay. The remainder of this section summarizes some of the issues to be addressed in the introduction.
What constitutes a “constitution?”
We can move towards a definition by identifying exactly what it is constitutions do. Arguably, the most important (and defining) attribute of constitutions is that they limit the behavior of government. That is, they generate a set of inviolable principles to which future law and government activity more generally must conform. This function, often summarized as constitutionalism, is vital to the functioning of democracy. Without a commitment to higher law, the state operates for the short-term benefit of those in power or, at least, for that of the majority. Those who find themselves out of power may find themselves virtually unprotected, which in turn may make them more likely to resort to violence. By limiting the scope of government, constitutions make government possible (for a broader discussion of this rationale, see Przeworski 1991; Weingast 1997). A second function that constitutions serve is the symbolic one of defining the nation and its goals. Constitutions operate as a device that declares the legitimacy of the perhaps fledgling, or otherwise rudderless, state. This function is particularly important for young states whose citizens have strong ethnic or communal identities that may compete with an identity with the state. A third and very practical function of constitutions is that they define patterns of authority and set up government institutions. Even a dictatorship, for example, needs established institutions through which to govern.
It is this last function of defining authority that creates some confusion. In many countries, a parallel set of “organic laws” or “institutional acts” also define institutions. Are these documents constitutional? In some sense, yes, in that they do share with constitutions an important function. In a critical sense, however, they are not at all constitutional. For one thing, they are usually not adopted in the formal and often deliberate manner that typically (although certainly not always!) characterizes the process of constitution making. More importantly, even in those countries where organic lawmaking is entrenched, such laws can usually be abrogated more easily than can a constitution. This idea of entrenchment is an important contributor to its status as higher law. We see constitutions as not only being higher law (a characteristic that they may share with organic acts and other rules) but of being highest law.
In short, it is important to distinguish between “Big C” Constitutions and the “small c” constitutional structure of a country. Our focus is on the former. The latter might include rules setting up fundamental political institutions, such as electoral systems, or authoritative interpretations of the written constitution such as supreme court decisions. While in theory these “constitutional” rules ought to be analyzed as well, the conceptual difficulty of determining the precise scope of the small-c constitution, as well as the methodological challenge of identifying and finding the various acts that compose it, argue against using it for comparative analysis at this stage.
From Concept to Measurement
Thus, we identify constitutions by appealing to three conditions, any one of which is sufficient to qualify the document as a constitution. Constitutions are those documents that either:
(1) are identified explicitly as the “Constitution,” “Fundamental Law,” or “Basic Law” of a country
(2) contain explicit provisions that establish the contents as highest law, either because they are entrenched or limit future law
(3) change the basic pattern of authority by establishing or suspending an executive or legislative branch of government
These rather bright-line rules provide a fairly straightforward classification of documents that, upon implementation, appears to have face validity.
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