What We Know

8.2.1 Constituent Assemblies

Much of what we know - in the general sense - about constituent assemblies comes from Jon Elster’s work.^[242] Comparing the Philadelphia Constitutional Convention of 1787 and the French Constituent Assembly of 1789-1791, Elster draws a distinc­tion between deliberating and bargaining, and focuses as well on the implications of holding a constituent assembly in public or behind closed doors, and of the exis­tence of a deadline for action, connecting the transparency and deadline issues to bargaining and deliberation. For Elster, bargaining involves appeals to the material interests of different groups, who use their relative political and numerical power to make trades whose sole justification is that the result is acceptable to all. Bargaining ends with agreement on a “deal.” In contrast, deliberation is a process of reasoning in which some participants attempt to persuade others that some constitutional pro­vision is more rationally defensible, in terms of goals upon which all agree, than alternatives. Deliberation ends with agreement on principles embodied in specific provisions.

The connection between secrecy versus openness on the one hand, and delibera­tion and bargaining on the other is this: Bargains are easier to reach out of public view. Participants can state their sincerely held positions, the ones they would must like to see embodied in the constitution. But, when confronted with opposition or alternatives, participants can compromise. They need not defend the compromises as based on principle, but rather can invoke - inside the secret session - the simple need to arrive at a conclusion. Exposed to public view, the process of reaching com­promise would open participants to criticism for being “mere” politicians more interested in making a deal than in arriving at the best set of constitutional provi­sions. Once a bargain is reached in secret, of course the participants can invent principled reasons explaining why the bargain is defensible as more than a bargain.

Unfortunately, openness need not conduce to deliberation. True, participants in open sessions will tend to offer principled reasons for their positions, but they may find it difficult to recede from those positions when other take equally principled but different, sometimes opposing positions: If their positions were correct when announced, departing from them means moving away from the principled position. And, Elster points out, public proceedings may lead participants to posture for the public, appealing to the extremes. They might do so to stake out a position in later bargaining: the compromise reached after moving from an extreme position toward the center might be more favorable to the proponent of that position than the com­promise reached after moving from a less extreme position. Yet, the politician who postures in public may find it difficult to explain any compromise.

Deadlines force participants to consider whether returning to the status quo - that is, failing to reach agreement before the deadline expires - is better than any result that could be reached near the end of the proceedings.^[243] Typically, Elster suggests, deadlines push participants into bargaining for some compromise; deadlines, that is, may reduce deliberation and increase bargaining at the deadline approaches.

(deferred for later resolution). Sometimes participants will understand the flaws, accepting them as the cost of reaching agreement before the deadline, but some­times participants will overlook the deficiencies in the product.

Elster also identifies “upstream” and “downstream” constraints on constitution­making. Upstream constraints determine (or condition) the membership of the con­stituent assembly. The “round table” form of constitution-making in the course of the collapse of the Soviet empire in 1989-1990, for example, resulted from the “upstream” constraint that the leadership of the local Communist parties would not vacate their positions of power without having some say in the design of the succes­sor constitution; and similarly with the role of white South Africans in the South African constitution-making process. The downstream constraint arises from the fact that the new constitution will have to be accepted through some process. That constraint determines (or conditions) the new constitution’s content, because the content plays an important role in eliciting support from the constitution’s ratifiers.

In addition to Elster’s work, there is some general material on the role of expert advisers, including international advisers, in modern constituent assemblies. Here the evidence suggests that we should distinguish between core and peripheral con­stitutional issues.^[244] Core issues are the ones around which politics revolves, and participants in constituent assemblies know where they stand on those issues. They might bargain or they might deliberate, but whichever path they choose, the partici­pants are rather likely to disregard advice they receive from outside.

8.2.2 Constitutional Courts

Elster’s distinction between deliberation and bargaining is relevant as well to constitution-making by constitutional court decision. Most constitutional courts make decisions in secret, which, on Elster’s analysis, makes it easier for participants to bargain, making trades that could not be defended as a matter of principle. Yet, at least with respect to the U.S. Supreme Court, studies make it reasonably clear that almost no bargaining of that sort occurs. No one has credibly identified an example in modern times of vote-trading across cases, for example, which would be the para­digmatic example of bargaining.

Some scholars have described strategic interactions among U.S. Supreme Court justices. Those interactions are, in my view, examples of deliberation dominating bargaining. The most significant examples of strategic interactions are ones in which one Justice has a preferred position about a constitutional provision’s proper interpretation, but modifies that position to ensure that some other Justice will join his or her opinion.

As the preceding paragraph suggests, U.S. Supreme Court Justices circulate draft opinions to their colleagues, who then can “join” the opinion. Not infrequently, though, another justice will suggest that language in the draft opinion be modified. Sometimes the reason for the suggestion is that the justice disagrees with the lan­guage and thinks it unnecessary to the disposition of the case at had. In such cases the objecting justice will explain the reasons for his or her disagreement, and for thinking that the language could be changed without undermining the opinion’s rational integrity. Other times, the justice will explain an objection by indicating why the objectionable language might point to the resolution of some future cases, as to which the justice has a different (tentative) view or believes it best to express no view whatever. Although sometimes phrased in terms similar to those used in bargaining, such as “I can join your opinion if you make the following modifica­tions,” these comments are examples of deliberation in an almost pristine form. They are based on the author’s interpretation of the relevant legal materials, they are backed up by arguments, and they are accepted or rejected based on their cogency, coupled again with the institutional desire to assemble a majority.

Secrecy within the U.S. Supreme Court, then, does not seem to have licensed the unprincipled bargaining that Elster says it licenses in constituent assemblies. One possibility, to which I return below, is that the roles of participants in constituent assemblies and of judges are different enough to generate different norms govern­ing their behavior. To overstate the point: Participants in constituent assemblies typically have been politicians, comfortable with bargaining out of public view, whereas judges adhere to norms favoring deliberation over bargaining. That would explain why, given similar institutional arrangements of secret proceedings, con­stituent assemblies find it easier to engage in bargaining and judges deliberate and only rarely bargain.

With respect to deadlines, the evidence is almost entirely anecdotal. The U.S. Supreme Court operates with a reasonably strong deadline rule, according to which all cases argued during one “Term” of the Court - running from October through late June or early July - be decided during that Term.^[246] There is reason to think that important cases argued late in the Term, in March and especially April, are sometimes rushed, with analytic errors or minor internal inconsistencies that would have been eliminated had the Justices had more time. And, there is similar anecdotal evidence that constitutional courts without deadlines sometimes delay issuing a decision for quite a long time, hoping to identify the strategically best time to announce the decision. These observations are consistent with Elster’s analysis of deadlines’ effects.

Openness in judicial proceedings with respect to arriving at results is quite rare. Some have suggested that we can observe openness of that sort in the public argu­ments at the U.S. Supreme Court. Recent reports suggest that deliberation after argument is relatively unusual. That is, justices do not discuss the cases in detail after argument, but announce their positions. After the votes are counted, one jus­tice is assigned the task of writing an opinion, and, apparently, quite often the opin­ion as drafted garners a majority relatively quickly. That reduces the author’s incentive to accommodate principled objections offered by late-comers or potential dissenters. If post-argument deliberation is rare, justices may use the public argu­ments as the venue for deliberation, in the form of posing questions to the advocates that are actually efforts to persuade their colleagues to see the case in the way the questioner sees it. But, as Elster suggests, the openness of the oral arguments makes it possible for justices to posture rather than attempt to persuade.

Another example that has received reasonably extensive attention is the practice of the Brazilian Supreme Federal Court. My impression is that most scholars who have examined the process find it quite deficient, as is suggested by the title of one study, “Deciding Without Deliberating” (Alfonso da Silva 2013). These critics describe the justices as posturing for the public, a practice exacerbated by the fact that the deliberations are televised live. The critics see justices are hardening their positions when challenged, rather than taking fair rational account of principled objections. To that extent, the critics’ arguments are consistent with Elster’s analy­sis. Yet, as my discussion of the U.S. Supreme Court’s secret practice suggests, Elster’s account does not tell us why secret judicial decision-making would be more deliberate than public decision-making. As I have suggested, perhaps U.S. Supreme Court justices have internalized a set of norms that encourages deliberation even when bargaining is possible. Then, though, one would wonder whether Brazilian justices, as described by their critics, have not internalized such norms. Perhaps if they posture in public, they would posture in private as well. Norms rather than institutional arrangements might account for the aspects of the Brazilian practice that have drawn criticism.

Summarizing a host of studies, Mark Warren and Jane Mansbridge write, “By now, the empirical evidence on the deliberative benefits of closed-door interactions seems incontrovertible” (Warren and Mansbridge 2013, 108). The studies do not deal with judges, though, and it seems possible that public deliberations about the law might be different from negotiations about other matters. The idea is that many of the closed-door negotiations that are the object of empirical study deal with prob­lems in which competing interests are at stake, such as labor negotiations and per­haps, as with Elster’s study, constitutional framing, and as to which there is no external standard for evaluating the quality of the outcome. In contrast, at least in principle or, more narrowly, at least in some cases, judges are attempting to deter­mine what “the law” means or requires, and all agree that there is a determinable answer. There might be forms of deliberation in the open in which the participants, all oriented toward reaching the correct result, actually make arguments and con­sider what each participant is saying, on the merits.

8.3