Faculty of Management
Technology
Working Paper Series
Veto Players Index:
A New Measure of Constitution Rigidity
by
Rola Nabil Kabbani
Working Paper No. 40
March 2016
Veto Players Index: A New Measure of Constitution Rigidity
by
Rola Nabil Kabbani
March 2016
Abstract
This research tests again the hypothesis of the relation between rigidity and
amendment procedures. It tries to assess one more time, whether it holds
empirically true that rigidity implies a minor amendment rate whilst flexibility permits a higher amendment rate. Several studies have tested this hypothesis yet there were no conclusive results.
This research have developed a new index of constitution rigidity.
It is
based on the VP approach. This is the first index that included both de jure
and de facto variables. De Jure variables are represented in the institutional
actors responsible for amendment ratification as stated in national constitutions. De facto variables represented in the partisan actors that might affect
the ratification of the amendment. The interaction between these two actors
defines the number of veto players.
Following Henisz (2000) methodology in developing the index and adapting
it to constitution change. Once the index was developed, a regression analysis was run to test the robustness of our new index as a determinant for
constitution rigidity.
Keywords
Constitutional Amendment, Veto Players, Positive Constitution, Constitutional Amendment Procedures.
Rola Nabil Kabbani
German University in Cairo
Faculty of Management Technology
Al Tagamoa Al Khames
11835 New Cairo – Egypt
[email protected]
1. Introduction
Constitutions are important; countries around the world invest a lot of resources to form one. Their
importance is due to the level of future forecast and stability it provides; as it specifies the rules that
regulates the political system. While it may be true that constitutions do not always describe the full
reality of countries’ operating political system – as it might be the case in less democratic countries;
however, when carefully read they still give insights into that underlying reality. As such, any changes
in that underlying reality affecting political systems, should be reflected in constitutions as well (Lutz
1994: 355).
Based on that assumption, there should be mechanisms allowing these changes to be reflected in the
constitution of a country. Using formal constitutional amendment through formal provisions is a
prevailed mechanism –among others 1- in the contemporary constitutional design, since almost all
national constitutions (with some exceptions including: Saudi Arabia 2; Israel 3; Qatar 4) include
provisions that allow partial or total change in their constitutions (Elkins and Ginsburg 2007).
The degree of constitution rigidity of each country will be specified depending on the specific
circumstances and desire of each, since there is no universal optimal level of difficulty. It is determined
based on a set of factors: exogenous factors (such as the role of technological or environmental change)
and endogenous factors (such as the level of responsiveness of political institutions under the
constitution, and the endowment of legitimacy at the outset of the constitutional system) (Elkins et al.
2007: 16). If the choice goes in favor of a system with high ability for constitutional change, choice of
rules will go in favor of flexible ones. On the other hand, if preferences go for conserving certain
constitutional values, procedures will tilt in direction of more rigid ones.
Hence, designers should be able to calculate the degree of constitutional rigidity based on the set of
amendment procedures they have chosen. Nevertheless, measuring constitution rigidity is a complicated
task due to several reasons: First, the difficulty to find a rigidity index that fits all constitutions; as it is
difficult to obtain homogeneous and valid data for a large number of cases. As such, indexes (Lutz 1994;
Ferejohn 1997; Lorenz 2005; Rasch and Congleton 2006; Elkins et.al 2007) that exist over simplify
procedures and choose the ones that are common with almost all constitutions.
1
Formal constitutional amendment is one of many mechanisms for constitution change among others: as constitution can be modified
through amendment, judicial, legislative revision or replacement.
2
The constitution is based on The Holy Qur'an and the Prophet's Sunnah (traditions). No amendments are allowed in the constitution under
the article 30, 40 and 83.
3
Amendments are only allowed for specific articles in the constitution 4, 9A, 34, 44 and 45 under the amendment rules of articles 3,11,15.
4
No articles of this Constitution may be amended before the lapse of ten years from the date of its coming into force (article 148).
1
These studies use various sets of explanatory variables that are operationalized in different ways, while
ignoring variables which are considered to be of great importance in other theoretical or empirical
analyses of constitutional change. As a result, they are not useful for comparative empirical research.
Secondly, current literature relies mainly on the assumption that de Jure variables (represented in
amendment procedures i.e. amendment provisions in constitutions) have the same effect on
constitutional change at every point in time, which might be misleading. These studies often test
hypotheses which, though theoretically convincing, fail to explain constitutional change empirically and
are more or less inconsistent with the observations made by experts on particular cases and countries.
The absence of data on real events or on the games that real actors play leads to an inefficient
exploitation of advanced methodological techniques, and to the creation of elegant but unrealistic
theories.
Recent empirical studies suggest that the effect of institutional obstacles to constitutional amendments,
such as required majorities and referenda, has, in fact, been overestimated (Rasch and Congleton 2006;
Roberts 2008). The effect of the particular circumstances in which a constitutional amendment is
proposed on the processing of the amendment proposal is another constant cause for constitutional
change. These particular circumstances are considered de facto variables that might affect constitution
rigidity and are not constant across time. These variables include the partisan structure, and the
discrepancy or congruence between the different actors’ preferences. Analyzing constitutional change
based on the relations and interaction between particular actors within a given institutional context is
essential in determining the degree of constitution rigidity and will provide with a more consistent
measure reflecting real cases and countries.
The aim of this research is to create a new index of constitution rigidity. This index will attempt to solve
the two main problems related to constitution rigidity measurement: we will use the Veto players (VPs)
Theory (Tsebelis 2002) to unify the comparative analysis of political systems. VPs are individual or
collective actors whose agreement is required for decisions making (Tsebelis 1995). VPs can be both,
parties (e.g., as part of a coalition government) and institutions, such as a second chamber. According
to Tsebelis, a political system’s potential for change/stability is a function of the number of VPs, the
distances between these players’ policy ideal points (congruence) and VPs’ internal cohesion. Using
Tsebelis VPs theory will eliminate the traditional institutional dichotomies and will provide us with a
large sample for analysis.
2
Furthermore, in order to have an index that reflects more real life cases, this index will be based on both
de jure and de facto variables. De jure variables are represented in the institutional actors responsible
for amendment ratification as stated in national constitutions; while de facto variables represented in the
partisan actors that might affect the ratification of the amendment. The interaction between these two
actors defines the effective number of veto players that in turn measures the degree of constitution
rigidity. The higher the number of effective veto players the lower is the rate of constitution change and
vice versa.
This research will add up to the theory of positive constitutions; which is concerned with explaining the
emergence and modification of constitutional rules and their alternative outcomes (Voigt 2011). More
specifically, this index uses a new method to measure constitution rigidity relying on the effective
number of VPs in the constitution amendment procedures with an index that combines both de jure and
de facto variables. Furthermore, this research will provide guidelines for constitutional designers.
Guidelines that would allow framers to link the design of a formal amendment process securely to
desired outcomes. Characteristically, an index that relies on de jure and de facto dimensions, suggests
that rigidity is not a constant variable. Thus, setting rules that aims at rendering constitutions rigid is no
longer possible due to this fact, as depending on the partisan veto players at the time of amendment
would determine the outcome of the ratification of the amendment. On that account, linking
constitutional rules choice to desired outcome of rigid/flexible constitutions solely will no longer be
valid. This raises the question of the importance of entrenching provisions of constitutional amendment
rules.
The rest of the paper is organized as follows: Section 2 discusses the definition of constitution,
constitutional change and its operationalization. Section 3 analyses previous measures of constitution
rigidity. Section 4 explains the development of the new index of constitution rigidity. Section 5
concludes and suggests possible future research.
3
2.
2.1
Constitutions, and Constitutional Change
Identifying Constitutions
Given the flood of institutional research, it is important to define constitutions since it has been expanded
and diluted to include not only formal constitutions, but they have become shorthand for political
institutions more generally (Elkins et al. 2007). Elster (1995: 364) distinguished the constitution from
other legal texts, and proposed three criteria: First, all countries that have a set of laws, collectively,
referred to as the “Constitution”, “Fundamental Law”, or “Basic Law” of a country. Second, laws that
regulate matters, in some sense, more fundamental than others, these laws change the basic pattern of
authority by establishing or suspending an executive or legislative branch of government. And third, the
constitution may be distinguished from ordinary legislation as it contains provisions that establish the
documents as highest law, either by entrenchment or by more stringent amendment procedures.
According to Elster (1995) criteria, New Zealand has a constitution according to the first and second
criteria, but not in accordance with the third. Contrariwise, Israel has a constitution according to the
second and third criteria, but not in accordance with the first. Some countries have a body of organic
laws that, despite not being part of the document cited as the constitution, require a supermajority for
their amendment. In France, the requirement is that of an absolute majority; in Hungary, it is two-thirds.
Some aspects of political life that we tend to think of as fundamental are not regulated by the
constitution, or not by all constitutions; nor are the laws regulating them always subject to more stringent
amendment procedures. The most important example is provided by laws governing elections to
parliament. Some constitutions specify the electoral system in some details; others (Poland, the Czech
Republic) do it only in general outlines; and some (France, Hungary) do not at all. Since it is difficult to
find countries that fit all three criteria together, the existence of any of them is sufficient to qualify the
document(s) as a constitution (Elster 1995: 365; Elkins et.al 2007: 3).
This research will only focus on countries with written constitutions. While this may runs the risk of
ignoring important and, seemingly, “constitutional” laws, still, formal constitutions are the norm and
defining a state’s constitution is largely straightforward. More specifically, the interest of this research
will be the constitutions of European Union (EU) Member States (i.e. 28 countries; The United Kingdom
will not be included since it has an-unwritten constitution) following Closa (2012).
The choice of EU Members States has several advantages: The automaticity of the selection as previous
research had to come up with ad hoc criteria in their sample choice. Lorenz (2005) uses systematic
4
criteria: she selects 39 countries which have been fully established as peaceful democracies between
1993 and 2003. Rasch and Congleton (2006) use advanced democracies/OECD as their sample, whereas
Roberts (2009) examines constitutional change in 17 Eastern European countries (a case of
geographically defined sample). Thus, democracy is a common factor in the construction of samples,
which is resolved in the choice of our sample since EU member states are required to have democratic
credentials as a precondition to their membership within the union. In addition, there will be no need to
account for possible shocks and crisis as exogenous explanatory factor for change. As most of the EU
member states are democratic and stable countries since the year 1945 (Elkins et al. 2007).
The sample is fairly heterogeneous, allowing variation for analytical purposes. It comprises constitutions
with very different duration (measured in years); federal, regional and unitary states and different
(territorial and population) sizes. However, it is still fairly homogenous from the point of view of the
type of regime, since almost all the EU countries can be considered parliamentary democracies and,
certainly, in all cases (with the exception of France), the Head of State has no role in constitutional
amendment procedures. The latter fact has helped with eliminating additional intervening variables, like
colonial origin or difference in geographical area, factors that had been previously accounted for as
explanatory value to constitution change (Anckar and Karvonen 2002).
2.2
Taxonomy of Constitutional Change
In our study, the dependent variable is “constitution change”. In the literature, constitution change and
constitution amendment are usually used interchangeably. Unless the whole constitution has been
replaced, any amendment is considered change. Throughout this research, we will refer alternatively
constitution change and constitution amendment. However, a clear and precise definition of what is
considered constitution change is essential for the next steps of our model.
Voigt (1997) proposed taxonomy of constitutional change based on two dimensions: The first dimension
is the legality of constitutional change; constitutions can occur within amendment rules and be
considered “Legal Constitutional Amendments”, or ignore the rules and are considered “Illegal
Constitutional Amendments”. The second dimension is the formality of the change; “Explicit change”
occurs when the text of the constitution is modified, while “Implicit change” occurs over time as the
interpretation of the constitution evolves. Four types of constitution change results of this classification:
legal explicit constitutional amendment, legal implicit constitutional amendment, illegal explicit
constitutional amendment, and illegal implicit constitutional amendment.
Following Voigt (1997), Elkins et.al (2007) has used a similar differentiation, according to their study,
an “amendment” occurs when the actors follow the amending procedure of the existing constitution and
a “replacement” when they undertake revision without following such procedure.
5
The degree of formality is related to the amending procedure followed by the actors. There is an
overwhelming variety of national constitutional amendment procedures including alternative provisions
concerning different articles or sections of the document(s), concerning normal or rapid procedures, or
depending on who has initiated the reform. This variety is one of the main methodological challenges
in measuring constitutional change. Most of the literature (Lutz 1994; Ferejohn 1997; Lorenz 2005;
Rasch and Congleton 2006; Elkins et.al 2007) on constitutional change dealt only with Explicit Legal
Constitutional Amendments according to Voigt’s (1997) classification. Studies hypothesize that the
more stringent the amending procedures reflected in formal amendment provisions, the fewer (explicit)
constitutional changes will occur. They were only concerned with formal amendment provisions and
not to alteration mechanisms or implicit change, e.g. by judicial review or new convention.
The design of constitutional amendment procedures depends on the adopted theoretical approach on
constitutional change. Two competing approaches exist: The Jeffersonian view versus the Madisonian
view. Both approaches relate constitution rigidity (i.e. difficulty to change) to the specific amendment
procedures required for constitutional change. They assume the larger the number of actors involved in
the decision-making process, the higher the cost of consensus building. Accordingly, the higher the
number of procedures and actors required for constitution change the more rigid is the constitution
(Closa 2012).
The Jeffersonian view favors flexible constitutions requiring simple amendment procedures. According
to this view, law is the codified rule of past generations, and as such, its effects on the present generation
could be subjective and even repressive. Accordingly, making the procedures beyond ordinary
majorities will protect such status, forcing present generation to deal with fixed past legislatures
(Ferejohn, 1997: 502).
Proponents of the Jeffersonian view further defend their position by arguing that constitutional change
is inevitable for several reasons, one of those is mainly that drafters could have made plain mistakes to
the original document. In practice, constitutional rules and institutional arrangements may produce
unintended, unwanted, unexpected consequences which require their change. A second reason that could
require constitutional change is changes in the environmental and social norms, whether on the national
or the international level (the European Union a concrete example of the need of constitutional changes).
Since change is inevitable, then the concept of creating a text which is eternal, regulating a given society
throughout its different changing stages is impossible (Closa 2012: 283-84). Elkins et.al (2007) linked
constitutional survival and endurance to its ability to adapt to current changes; which is made possible
thanks to the easiness of the amendment process under the existence of a proper constitutional review.
6
From a normative view, proponents of the Jeffersonian view further affirm that constitutional change is
an important prerequisite for reforming political systems as a whole during the process of
democratization. As such, constitutional flexibility is an essential requisite in order to deal with the
changes taking place (Holmes and Sunstein 1995). The constitutional amendments made in Eastern
Europe, during the transition phase to democracy, succeeded in reducing executive powers, provided a
better guarantee to human rights and ensured integration into international bodies (Roberts 2009).
Under that rationale, one would expect a higher amendment rate in democratization phase countries.
However, this view can be contested as according to Elkins et.al (2009), roughly 19 and 27 percent of
transitions to democracy and authoritarianism, respectively, coincide with constitutional change, and
authoritarian states often introduce constitutions with democratic elements for ‘window dressing’
purposes (Elkins 2010: 973f). Bolivia and Argentina maintained a constitution in 1982 and 1983 that
was enacted (Bolivia 1967) or modified (Argentina 1972) during an authoritarian period; in Chile the
1980 constitution of the Pinochet dictatorship was simply amended in 1989.
Moreover, rigidity/flexibility of amendment procedures influences other mechanisms of constitutional
change such as judicial interpretation: If the methods of securing formal amendment are difficult, there
may be pressures to adapt the constitution through judicial interpretation (Elkins et al. 2007). These
authors argue that constitutions that lack either flexible formal amendment or effective mechanisms of
informal reinterpretation may not adapt to changing environmental conditions. They predict that “such
constitutions will force actors to take extra-constitutional action when faced with environmental changes
and will then die young” (Elkins et al. 2007: 19). Or in some limited cases, a very costly civil or
revolutionary war might be the only possible method of “amendment” (Rasch and Congleton 2006:
323).
On the other hand, the Madisonian view considers that constitutional choices made at constitutional
moments have far reaching effects and guarantee the long term stability of the regime. As such, they
should be treated differently and separately than normal legislation. This separation serves the end of
creating pre-commitments in the constitution that last for more generations, making their change
difficult or even impossible, which reinforces the credibility of this pact (Closa 2012: 283). There are
two basic institutional instruments to assure the pre-commitment strategy: making certain provisions,
whose mere existence is perceived as essential for the existence of the constitution itself, unamendable
such as individual rights and some of the broad outlines of the institutional arrangements (Holmes and
Sunstein 1995). The second mechanism is by constructing strict amendment procedures that make it
very difficult to change the original pact guaranteeing constitutional stability and thus, regime stability.
7
2.3
Operationalization of Constitution Change
Explicit Constitutional change are measured either in absolute terms - as the number of amendments, or
in relative terms - as the rate of amendments (amendments divided by the years of existence of the
constitution). Measuring this concept implies determining the “amount of change” over some period of
time and dividing that amount by the length of time. This requires decisions about the period of time
upon which the measure is based and operationalizing the magnitude of constitutional change.
All previous measures of amendment rate operationalize the magnitude of constitutional change using
the frequency of amendment. Lutz (1994) and Lorenz (2005) both use the total number of amendments,
and the Comparative Constitutions Project (CCP) (Elkins et al. 2009) use the number of years taken for
constitutional amendment to be promulgated. These two approaches make different assumptions about
the ease of amendment. The former assumes that each amendment is equally difficult to promulgate.
The latter assumes that the first amendment passed in a given year is the most difficult. This assumption
is based on a belief that the primary difficulty in amending a constitution is finding a coalition willing
to pass the amendment. Once the constitution is amended once, such a coalition is identified and
subsequent amendments are easier to promulgate. Notably, no existing measure of amendment rate
considers the extent to which the constitution is changed when operationalizing the magnitude of
constitutional change.
Next to amendments, the second indicator to construct the amendment rate is the duration of a
constitution on which the sample is particularly varied. Establishing the duration requires in turn
identifying the constitution’s “birth date” which is easily spotted if it coincides with a constitutional
moment, for instance, USA in 1789 or Spain in 1978. This applies to countries in which their constitution
resulted from transition to democracy either after WWII or after the second and third waves of
democratization and a significant number of states in the EU belong to either of these categories. But
long standing constitutions subject to permanent and ongoing processes of changes present more
challenging difficulties. A way to measure the age of a constitution is to make it equal to the period in
which its original rules of amendment have been followed (Rasch and Congleton 2006: 20).
This rule raises only the question of measurement in the cases in which total amendment happens (i.e.
instances of total renovation of the regime). In the group of EU member states, there are relatively few
cases; i.e. Sweden in 1974 and Finland in 2000. The new 2000 Finnish Constitution cannot be
considered at all a revolutionary, ex novo creation and in fact, it was drafted by means of the existing
amendment procedures. However, since the aim was precisely to update the old document and, reduce
less necessary constant amendment and change, the new constitution is taken as an additional case. On
the other hand, Hungary amended its existing constitution in 1989-1990, but since it changed totally the
8
new amendments left it totally unrecognizable and it is considered to be a new one also because the
regime changed totally (Roberts 2009: 102). As for Sweden, the consensus seems to be, like in the
Hungarian case, to take the 1974 amendment as a case of a “new constitution”. Conversely, Belgium
presents something of a puzzling case: its constitution dates back to 1831 but it has suffered at least
three major reforms: 1970, 1988-1989 and 1993 which have totally and dramatically changed the
structure of the regime. In particular, the 1993 reform used the so-called “coordination mechanism”
which allows for changes in the structure, subdivisions and articles of the constitution (Closa 2012: 291).
3.
3.1
Measuring Constitution Rigidity
The Effect of De Jure variables on Constitution Rigidity
Scholars have measured constitution rigidity based on institutional procedures required for constitution
change. These institutional procedures are considered de jure variables, as they are the written provisions
in constitutions that specify the required rules for constitution amendment. Scholars have tested
empirically linking institutional procedures to constitution rigidity and have obtained mixed results.
In his seminal study, Lutz (1994), in a cross-national analysis, argued that the degree of rigidity of a
constitution affects the amendment rate. Lutz (1994) was the first to develop a rigidity index. His
measure of amendment difficulty was twofold: he developed a rigidity index based on the success of
amendment ratification in American State constitutions. Using simple legislative majority as a baseline
then normalizing it by dividing the percentage of successful amendment rate on different types of
majority. He then used the weight created to develop a difficulty index for state constitutions across the
world. While the weights created covered eight possible combinations, he completed the missing cases
with straightforward assumptions that ‘seem’ reasonable of the other index scores (Lutz 1994: 368).
At first glance, this detailed approach seems to be precise and realistic but the genesis of the Lutzian
scores is not without problems. Some of the numbers depend completely on the US evidence. The other
part of the scores is estimated, e.g. respective unicameral legislatures, which the author could not observe
in American states. Estimating values is possible and a common practice. But it makes the exactness of
scores untrue. The specific way in which scores are generated could endanger the universal usability of
the concept.
Ferejohn (1997) failed to replicate Lutz’s result and composed a category called legislative complexity
(defined as the requirement of special majorities or separate majorities in different legislative sessions
or bicameralism) which, in his analysis is the key variable to explain amendment rate. Ferejohn
concluded that legislative complexity is a good predictor of amendment rate while he found no evidence
9
that a ratification requirement, whether involving states or a popular referendum, has any significant
impact on amendment rates (Ferejohn 1997: 523).
Conversely to Lutz (1994), Lijphart (1999) used discrete classification variable and focused on the type
of majorities and judicial review in analyzing rigid constitutions. He proposes a four point scales: An
approval by an ordinary majority is the easiest way and given a score of (1); whereas by more than
ordinary but less than two-thirds majority or ordinary majority plus referendum (2); by two-thirds
majorities or equivalent (3); and by more than a two-thirds majority or a two-thirds majority combined
with other requirements, such as approval by state legislatures (4). Lijphart included in his sample
countries that do not have written constitutions (Israel, United Kingdom and New Zealand). In every
case, Lijphart considers the least restraining legal method of amendment for each country which
simplifies the measurement and is empirically justified because most reforms seem to be realized by the
easiest possible way.
Lijphart sees constitutional rigidity and judicial review as anti-majoritarian instruments while non-rigid
constitutions without judicial review, to him, permit unrestricted majority rule. As he has hypothesized
before, the results of his study show that rigid constitutions tend to have more judicial review protection
than more flexible ones, although the correlation coefficient is only 0.39 (Lijphart 1999: 229). Lijphart
states that rigid constitutions are linked with the other two variables of the federal–unitary dimension:
bicameralism and independent central banks.
Anckar and Karvonen (2002) establish a two-dimensional typology of amendment methods by
distinguishing between three kinds of legislative votes (none, ordinary, qualified majority) and the same
kinds of popular votes. A constitutional amendment may be voted on by ‘none’ (1 point), an ordinary
majority in the legislature (2 points), a qualified majority (5); by an ordinary majority vote of only a
referendum (3) or a qualified majority of only a referendum (7); by an ordinary majority of both the
legislature and a referendum (4), by a qualified majority of the legislature combined with an ordinary
majority vote in a referendum (6) or with a qualified majority in a referendum (9) or an ordinary majority
of the legislature combined with a qualified majority of a referendum (8). Like Lijphart, they measure
the rigidity of the constitutional core (Key provisions of the constitutions that specify the relation
between the government and other units such as Legislative, executive, judiciary powers, and rights
section) and not the rigidity of the constitution as an entire document.
Anckar and Karvonen’s concept is clearer than the Lutzian one and more precise than Lijphart’s because
it systematically considers whether and which majority is necessary in a referendum. Unfortunately, the
breakdown of the types of votes is not convincing. Non-approval by the legislature is too small a
category when we have only three to begin with. Furthermore, the combination ‘no legislative approval’
10
plus ‘no referendum’ is unrealistic in democracies (which is mentioned by the authors themselves).
Finally, the category of qualified majority seems to be too broad. Therefore, the very uneven distribution
of the 85 empirical cases is not surprising. While 76.5 percent of the cases are concentrated in only two
categories (5 and 6); two categories have no cases and two other categories have only one or two cases.
The authors themselves state that their results (no impact by the ten different independent variables on
the choice of amendment types) are already methodologically grounded because of this uneven
distribution of cases.
La Porta et.al (2004) measured the impact of checks and balances on freedom. They focused on both
judicial independence and constitutional review as determinants for economic and political freedom.
Constitutional review, as a constraint for legislative power, was measured under two aspects: judicial
review and a rigid constitution. La Porta et al. (2004) expressed the rigidity of constitution by both the
number of actors and threshold in one indicator. The index measures on a scale (from 1 to 4) how hard
it is to change the constitution in a given country. One point each is given if the approval of the majority
of the legislature, the chief of state and a referendum is necessary in order to change the constitution.
An additional point is given for each of the following: if a supermajority in the legislature (more than
66% of votes) is needed, if both houses of the legislature have to approve, if the legislature has to approve
the amendment in two consecutive legislative terms or if the approval of a majority of state legislature
is required. The results were that both judicial and constitutional review are strong predictors of freedom.
Judicial independence is important to both economic and political freedom whereas constitutional
review only to political freedom.
Lorenz (2005) represents yet another attempt to measure amendment difficulty. In some sense, her
measure is a combination of the strategies employed by Anckar and Karvonen, Lijphart, and Lutz. For
the vote threshold, she uses a scoring rule similar to that of Lijphart: 4 for supermajorities greater than
3/5’s, 3 for 3/5’s supermajorities, 2 for less than 3/5’s supermajorities, and 1 for ordinary majorities.
She assigns that score to each actor involved in the amendment process, and calculates her index by
adding those scores. For instance, if there is a two chamber legislature and the amendment procedure
simply requires that each house pass amendments by a majority of votes, then Lorenz would assign that
constitution a score of 2 (1 for the first chamber plus 1 for the second chamber). Lorenz’s calculates her
measure for 39 constitutions.
Rasch and Congleton (2006), like many of their predecessors, they differentiate procedures based on the
number of actors involved and the legislative thresholds required. The easiest procedures only require a
11
majority of the legislature to pass and are assigned a 1. The hardest procedures require a supermajority
in the legislature and multiple actors are involved (i.e. a referendum, approval of subsidiary units, or
approval by a newly elected legislature) and are assigned a score of 4. For the two intermediate
categories, they assume the number of actors makes the procedure harder than requiring a supermajority
in the legislature. As a result, they assign a score of 2 when amendment only requires a supermajority
in the legislature and 3 when only a majority is required in the legislature but multiple actors are involved
in the process.
Rasch and Congleton (2006) found that the empirical relationship between rigidity and amendment rate
found by Lutz and Ferejohn is not robust. Instead, they proposed controlling the influence of veto
players, with the result that the number of veto players and veto points has systematical effects on the
amendment rates. Amendment rates fall as the number of veto players increases and with the
requirements for intervening elections and/or referenda. The requirement of supermajorities in the
legislatures and the age of the Constitution have no systematic effect within their sample. Lorenz (2005),
Roberts (2009) and Anckar and Karvonen (2002) do not find strong evidence of the influence between
rigidity and amendments.
Elkins et al. (2009) also uses the amendment rate to generate a measure of amendment difficulty.
However, the CCP’s measure differs from Lutz’s measure in two important respects. First, the CCP
measure is based on the amendment rate of national constitutions, not U.S. state constitutions. Second,
the odds of amendment for different procedures are derived from a logistic regression model that
controls for a number of non-procedural factors that might affect the amendment rate. The index is
calculated by holding the non-procedural variables constant and predicting the probability of amendment
for each constitution. The resulting measure is available for all constitutions coded by the CCP. Given
the strategy employed in the CCP measure, it is not exactly clear what drives the variance in their
measure. The variables related to the vote threshold required for an amendment to pass in the legislature
are among the only statistically significant variables in the model. However, the CCP measure does not
account for statistical significant. This suggests that the number of actors involved in the process is
probably driving the variance, since most of the procedural variables included in the model are related
to the number actors involved in the process not the vote threshold.
Closa (2012) found that the only variables that had some explanatory power were the number of veto
players and the duration of the constitution. While the results of studies linking constitutional rigidity to
procedures turned out to be inconclusive and insignificant. In their analysis, Ginsburg and Melton (2015)
have concluded that the difficulty of a procedure might not necessarily rely solely on its institutional
structure, but on the configuration of preferences of the individuals within the institution itself,
12
‘Amendment Culture’, suggesting that amendment culture may explain different institutional
outcome.
3.2
5
The Effect of De Facto variables on Constitution Rigidity
While it holds true the higher the number of actors, the more rigid is a constitution. However, one should
not ignore the effect of the particular circumstances in which a constitutional amendment is proposed
on the ratification of the amendment proposal. We should not rely solely in our index of constitution
rigidity on de jure rules of constitution amendment and ignore some de facto variables that would affect
directly the constitution amendment rate. While accounting for the number of actors based on the
provisions in the constitution; we would have to account for the interaction between these actors. And
that accordingly, constitution rigidity is not constant across time but it is determined based on the
partisan structure, and the discrepancy or congruence between the VPs’ preferences.
The interaction within Legislative Chambers, such as Parliaments, is an example of a de facto variable
that could determine the ratification of the amendment proposal. This could be seen in several stances,
where constitutional amendment did not reach the ratification stage until parties formed coalitions:
Germany at times of the ‘Grand Coalition’ between CDU (Christian Democratic Union) and SPD (Social
Democratic Party). Inversely, Sweden, a country with very rigid constitutional amendment procedures,
has a surprisingly high constitutional amendment rate; as changes in the constitution are normally the
result of cross-party negotiations. In 2010, all the seven parliamentary parties voted in favor of
constitutional reform in the Riskdag. In Spain, lack of agreement between parties precluded even starting
negotiations for the process of constitutional reform that the government proposed in 2004.
This means that, apart from the actual rigidity of the procedures, other factors and, in particular, the
relations between political parties may be essential to explain amendments. In summary, institutions
may ease or make it more difficult to amend a constitution. But in the absence of powerful external VPs,
it seems that political parties’ agreements may sail through even the most stringent constitutional reform
procedure, particularly when its duration requires regular actualization (Closa 2012).
Since a legislative body (in most cases parliament) exists as an actor in every constitutional amendment
provisions across countries. Such body plays a central role in constitutional amendment procedures, as
they have the right of initiating amendments, the power of drafting them and they are one of the
institutions whose approval is necessary for the amendment to pass. While convincing reasons support
trusting parliaments as they guarantee the representativeness required and expected from a constituent
13
body, but, at the same time, the essence of parliamentary operation is the application of deliberation,
and in case of distant ideological positions between parties, this deliberation may not always be ideal as
reaching consensus might be difficult.
However, there is also a downside to this, as by entrusting the amending function to Parliaments, they
will be responsible on ordinary legislation and constitutional legislation which brings the risk that the
mixture of constitutional amending functions with the normal legislative ones pollutes the former with
the dynamics of the second. This could create additional difficulties for achieving constitutional
agreements, for instance in Germany reforms were negotiated without differentiating the arena of
constitutional politics from that of normal politics in a committee, reproducing structures of
intergovernmental and party political bargaining (Behnke and Benz 2009) which could account partly
for the reform failure. More importantly, “design actors” 6 are fully identical with actors affected by
constitutional change and, hence, they will choose the outcome that best serves their interest (Héritier
2007: 51).
The choice of Parliaments as one of the actors within constitutional amendment procedures is beyond
the scope of our research interest. Our focus is their impact on the rigidity/flexibility of constitutions.
The interaction of parties within Parliaments will be the focus in our research and will be analyzed based
on the theory of VPs. In the following section, a detailed description of the methodology of accounting
for the interaction of parties within the legislative body and its impact on the number of effective VPs.
4.
4.1
New Index of Constitution Rigidity
The number of Veto Players and their preferences
In defining VPs of constitutional amendment procedures, we will follow Tsebelis (1995) institutional
and partisan VPs definition. For institutional veto players, we collect de jure variables derived from
national constitutions; these variables reflect the relatively permanent features of a country’s
institutional environment, as compared to political outcomes, like the turnover of politicians, for
example. In our context, the former type is specified in the amendment clause of the constitution. The
parliament, a legislative chamber (in a bicameral parliament), voters in a referendum, a constitutional
court or a president are typical examples of institutional veto players. As for partisan veto players, we
will focus on two main de facto variables: the party system and the ideological difference (congruence
between different parties within the parliament).
6
According to Héritier 2007, “design actors” are actors formally engaged in the original design and redesign of the institutional rule.
14
We will develop the index following Henisz (2000) index methodology, however, adapting it to the
constitutional amendment instead of policy change. The question is does a certain political system with
its actors represented by a president, government, legislative chambers, and political parties be the
reason for rigid constitutions. The aim is to count again the number of actors within a constitution
amendment procedures while putting into consideration their interaction together. Several scenarios may
result from this interaction: Actors are fully aligned in their preferences which leads to a lower number
of VPs, consequently a higher rate of constitution change. Actors are not aligned, as such they will be
counted as independent actors and the number of VPs is similar to the number of institutional VPs.
Finally, actors may be partially aligned and accordingly the number of VPs must be recalculated based
on the degree of alignment. Accordingly, three elements needs to be considered in our analysis: the
number of veto players, their alignment (do they belong to same political party), and if such an alignment
exists then what is the degree of it.
Construction of a measure of constitution rigidity based on the above methodology requires two types
of data. First, information regarding the number of institutional players in a given polity; this will be
collected from national constitutions of EU countries (with exception to England that is excluded from
our sample). Second, data on the party composition of legislatures which will be taken The Database of
Political Institutions developed by Beck et al. (2001). Based on this information, the values of
institutional constraints were modified to form a measure of constitution rigidity using the methodology
described in the previous section.
The political actors are defined as the institutional VPs in amendment provisions within constitutions.
They could include one or more of the following: an executive, the lower house of legislature, the upper
house of legislature. “Political actors will be denoted by E (for executive), L1 (for lower house of
legislature), and L2 (for upper house of legislature). Each political actor has a preference, denoted by XI
where I ε [E, L1, L2]. The preferences of all actors are independently and identically drawn from a
uniformly distributed one-dimensional policy space [0, 1]. The utility of political actor I from a
constitution amendment outcome X is assumed equal to -|X-X1| and thus ranges from a maximum of 0
(when X=X1) to a minimum of -1 (when X=0 and X1=1 or vice versa)” (Henisz 2000: 7–8).
The variable of interest is the extent to which a constitution is rigid. This variable is calculated as (1-the
level of political discretion). Discretion is operationalized as the expected range of policies for which
all political actors with veto power can agree upon a change in the status quo. Assuming that the actors
for constitutional are almost the same actors for policies, so we can use the expected range of policies
for which all political actors can agree on as a proxy for the expected range of constitutional amendments
15
they can agree on. As the number of actors with independent veto power increases, the level of political
constraints increases as such in our study the constitution is more rigid. However, without additional
information on the preferences of the actors, it is impossible to compute the exact outcome of the game.
However, one of the virtues of the simple spatial model is that it provides a more objective insight into
the quantitative significance of adding an additional veto point. Given the assumption that preferences
are drawn independently and identically from a uniform distribution, the expected difference between
the preferences of any two actors can be expressed as 1/(𝑛𝑛 + 2) 7 where n is the number of actors.
6F
Assuming that there exist two political institutions with veto power, the initial preference draw yields
an expected preference difference equal to 1/(2 + 2) = 1/4. There are six possible orderings in this
game that we will assume are likely to occur in practice 8. The expected level of political constraints for
the game {XE, XL1} based on the number of veto points alone is the average of the political constraint
measures across the six possible preference orderings. Note that this initial measure of constitution
rigidity is based solely on the number of de jure veto points in a given polity maintaining the strong and
unrealistic assumption of uniformly distributed preferences. However, neither the constitutional
existence of veto power nor its prior exercise provide a de facto veto threat in the current period.
Tsebelis assumes that actors have fixed policy preferences. This assumption is reasonable because it
underlies the commonsensical VP argument. However, to understand its problems, one has to be clear
about the concept of “policy preferences” – which Tsebelis failed to be. Policy preferences refer to
actors’ ranking of (potential) legislative projects. Nonetheless, legislators don’t care about such projects
as those policies are means rather than ends. Policy preferences are therefore derived from actors’ more
basic goals or preferences as well as their beliefs about how they (i.e. policies) are related to policies.
I find it useful to distinguish two types of basic preferences. First, VPs can be assumed to care about
certain outcomes in the world (e.g., economic growth); they have outcome preferences. Second, at least
partisan VPs (political parties with veto power) may also care about being re-elected and getting into
government offices; they have positional preferences. The policy preferences that VP theory focuses on
ae in such a way derived from more basic outcome and positional preferences; they are “final”
preferences in the sense that they are not anymore mediated by actors’ beliefs about how to pursue their
basic goals.
7
See Rice (1995:155). the intuition for this result is that the expectation of any single draw is equal to 1/2 but there exists variation across
draws. Given a uniform distribution, the expected distance between any two adjacent positions declines proportionally to the number of
additional draws. The exact formula is 1/(#of draws + 1).
8 For expositional convenience, Henisz (2000) center each of the preference distributions on the unit line. As long as the expected difference
between any two preferred points remains ¼, the quantitative results are insensitive to the absolute location of these points. For example, where
the leftmost (rightmost) point in each distribution to be placed at 0 (1) rather than ¼ (¾), the quantitative results would be unchanged.
16
Henisz (2000), following Tsebelis theory, was concerned with the capacity of governments to credibly
commit to their policy announcements. He constructed an indicator based on the idea that the larger the
number of (political) actors whose consent is necessary to change a given policy, the less likely are
unforeseen policy reversals. Henisz takes this possibility explicitly into account by recognizing the
factual distribution of the preferences the relevant actors hold. This implies that his indicator contains a
mixture of institutional and non-institutional factors, namely the formal separation of powers on the one
hand, and the political majorities in the respective chambers on the other. Henisz finds that his indicator
has a significant impact on economic growth both statistically and economically.
Beck et al. (2001) develop a similar indicator (called CHECKS in their database of political institutions).
The number of veto players has been identified as a significant determinant with regard to a number of
dependent variables: Henisz (2000) finds it to have both a statistically and economically significant
impact on economic growth, using various estimation techniques. As for Panizza (2001), he questioned
whether the number of veto players (as calculated by Henisz) has a bearing on institutional quality
(proxied for mostly by the Worldwide Governance Indicators) and finds the impact to be statistically
significant, while its substantial effect is limited. Keefer and Stasavage (2003) proceed with the
argument that the number of veto players is crucial for central banks to be able to determine monetary
policy independently from government interventions.
This initial measurement of constitution rigidity is based purely on the number of veto points derived
from the constitutional frameset in a given polity accompanied by the assumption of uniformly
distributed preferences. But for Henisz that seems to be very unrealistic and therefore the measurement
described so far is supplemented by information on the preferences of the different actors. If two (or
more) political institutions belong to the same political party, there is an alignment between these two
(or more) institutions. In the case of alignment Henisz sees the preferences as equal in the two (or more
respective) different institutions. The alignment would be expected to expand the range of political
discretion and thereby reduce the level of political constraints. The constraint measure would be 0 if two
actors were completely aligned (same majority), even if they both have veto power.
4.2 Fractionalization of the legislature
Further modifications are required when political actors are neither completely aligned with nor
completely independent from each other. As is the case in many democratic systems. Here the
composition of the parties within separate de jure actors is also relevant for the level of constraints.
Costs vary when managing large homogeneous majorities or precarious majorities, which additionally
are heterogeneous or polarized (and – in the latter – raises the level of political constraints).
17
Actors which are aligned and have large homogenous majorities are less expensive to manage and
control. On the other hand if actors are in opposed political parties, the level of constraints is positively
correlated with the magnitude and concentration of the legislative majority. A heavily fractionalized
opposition with a precarious majority may lead to a lower level of constraints due to the difficulty in
forming a cohesive legislative opposition bloc to any given decision. Accordingly, an additional variable
needs to be calculated which measure the extent of fractionalization of the legislature.
The fractionalization of the legislature is approximately equal to the probability that two random draws
from the legislature or court are from different parties (Henisz 2000: 12). The formula is:
𝑛𝑛
1 − ��
𝑖𝑖=1
(𝑛𝑛𝑛𝑛 − 1)
𝑁𝑁 − 1
𝑛𝑛𝑛𝑛
𝑁𝑁 �
Where n = the number of parties, ni = seats held by nth party and N= total seats.
The value of political constraints for cases in which executive and legislative are aligned is “thus equal
to the value derived under complete alignment plus the fractionalization index multiplied by the
difference between independent and completely aligned values” (Henisz 2000: 12). In cases where the
opposition controls the legislature the values would be reversed (Henisz 2002: 384).
This measure of political constraints has one important virtue that also yields several weaknesses. The
strength of the measure is that it is structurally derived from a simple spatial model of political
interaction which incorporates data on the number of independent political institutions with veto power
in a given polity and data on the alignment and heterogeneity of the political actors that inhabit those
institutions. The first weakness of the measure is that its validity is based upon the validity of the
assumptions imposed upon the spatial model in order to generate quantitative results. Another weakness
is that many features of interest are left out of the model including agenda setting rights, decision costs,
other relevant procedural issues, the political role of the military and/or church, cultural/racial tensions,
and other informal institutions which impact economic outcomes.
5.
Conclusion and Future Research
This research tests again the hypothesis of the relation between rigidity and amendment procedures. It
tries to assess one more time, whether it holds empirically true that rigidity implies a minor amendment
18
rate whilst flexibility permits a higher amendment rate. Several studies have tested this hypothesis yet
there were no conclusive results.
This research have developed a new index of constitution rigidity. It is based on the VP approach. This
is the first index that included both de jure and de facto variables. De Jure variables are represented in
the institutional actors responsible for amendment ratification as stated in national constitutions. De
facto variables represented in the partisan actors that might affect the ratification of the amendment. The
interaction between these two actors defines the number of veto players.
Following Henisz (2000) methodology in developing the index and adapting it to constitution change.
Once the index was developed, a regression analysis was run to test the robustness of our new index as
a determinant for constitution rigidity.
Acknowledgment: We thank Prof.Dr. Stefan Voigt (director at the Institute of Law & Economics at
Hamburg University) for his assistance with the structure of the paper.
19
References
Anckar, D., and Karvonen, L. (2002). Constitutional amendment methods in the democracies of the
world. The 13th Nordic Political Science Congress, Aalborg, Denmark, August. 15-17.
Andrews, J. T., and Montinola, G. R. (2004). Veto players and the rule of law in emerging
democracies. Comparative Political Studies, 37(1), 55-87.
Beck, T., Clarke, G., Groff, A., Keefer, P., & Walsh, P. (2001). New tools in comparative political
economy: The Database of Political Institutions. The World Bank Economic Review, 15(1), 165-176.
Behnke, N., and Benz, A. (2009). The politics of constitutional change between reform and evolution.
Publius: The Journal of Federalism, 39(2), 213-240.
Closa, C. (2012). Constitutional Rigidity and Procedures for Ratifying Constitutional Reforms in EU
Member States. Changing Federal Constitutions, 281-310.
Dixon, R. (2011). Constitutional amendment rules: a comparative perspective. Comparative
constitutional law, 96-111.
Elkins,
Z.,
and
Ginsburg,
T.
http://comparativeconstitutionsproject.org/
(2007). Comparative
constitutions
project.
Elkins, Z., Ginsburg, T., and Melton, J. (2007). The lifespan of written constitutions. American Political
Science Association Meeting, Chicago, August.
Elkins, Z., Ginsburg, T., & Melton, J. (2009). The endurance of national constitutions. Cambridge
University Press.
Elster, J. (1995). Forces and mechanisms in the constitution-making process. Duke Law Journal, 364396.
Ferejohn, J. (1997). The politics of imperfection: The amendment of constitutions. Law and social
inquiry, 22 (2), 501-530.
Ganghof, S. (2003). Promises and pitfalls of veto player analysis. Swiss Political Science Review, 9(2),
1-25.
Ginsburg, T., & Melton, J. (2015). Does the constitutional amendment rule matter at all? Amendment
cultures and the challenges of measuring amendment difficulty. International Journal of Constitutional
Law, 13(3), 686-713.
Henisz, W. J. (2000). The institutional environment for economic growth. Economics & Politics, 12(1),
1-31.
Héritier, A. (2007). Explaining institutional change in Europe. Oxford University Press.
Holmes, S., and Sunstein, C. (1995). The politics of constitutional revision in Eastern
Europe. Responding to Imperfection: The Theory and Practice of Constitutional Amendment, 275.
Holmes, S., and Sunstein, C. (1997). The Politics of Constitutional Revision in Eastern Europe.
Responding to Imperfection. The Theory and Practice of Constitutional Amendment.
20
Huber, E., Ragin, C., and Stephens, J. D. (1993). Social democracy, Christian democracy, constitutional
structure, and the welfare state. American journal of Sociology, 711-749.
Huber, E., and Stephens, J. D. (2001). Development and crisis of the welfare state: parties and policies
in global markets. University of Chicago press.
Keefer, P., and Stasavage, D. (2003). The limits of delegation: Veto players, central bank independence,
and the credibility of monetary policy. American political science review, 97(03), 407-423.
Kittel, B., & Obinger, H. (2003). Political parties, institutions, and the dynamics of social expenditure
in times of austerity. Journal of European public policy,10(1), 20-45.
LaPorta, R., Lopez-de-Silane, F., Pop-Eleches, C., & Shleifer, A. (2003).Judicial checks and
balances (No. w9775). National Bureau of Economic Research.
Lijphart, A. (1999). Patterns of Democracy: Government forms and performance in thirty six countries.
Yale University Press.
Lorenz, A. (2005). How to Measure Constitutional Rigidity Four Concepts and Two Alternatives.
Journal of Theoretical Politics, 17(3), 339-361.
Lutz, D. S. (1994). Toward a Theory of Constitutional Amendment. American Political Science Review,
88(02), 355-370.
Panizza, U. (2001). Electoral rules, political systems, and institutional quality.Economics and
Politics, 13(3), 311-342.
Rasch, B. E., Congleton, R. D., and GMU, F. (2006). 12. Amendment Procedures and Constitutional
Stability. Democratic constitutional design and public policy: analysis and evidence, 319.
Rice, J. A. (1995), Mathematical Statistics and Data Analysis. Duxbury Press: Belmont, CA.
Roberts, A. (2009). The politics of constitutional amendment in postcommunist Europe. Constitutional
Political Economy, 20(2), 99-117.
Swank, D. (2002). Global capital, political institutions, and policy change in developed welfare states.
Cambridge University Press.
Tsebelis, G. (1995). Decision making in political systems: Veto players in presidentialism,
parliamentarism, multicameralism and multipartyism. British journal of political science, 25(03), 289325.
Voigt, S. (1997). Positive constitutional economics: A survey (pp. 11-53). Springer Netherlands.
Voigt, S. (2011). Positive constitutional economics II—a survey of recent developments. Public Choice,
146(1-2), 205-256.
21