CONSTITUTIONS F O R N E W D E M O C R A C I E S :
REFLECTIONS OF TURMOIL OR A G E N T S OF
STABILITY?
Peter C. Ordeshook
Abstract
Despite the widely held view in newly emerging democracies that constitutions are
mere words on paper or that parchment barriers cannot render a state stable or democratic, those who draft such documents commonly act as if words A R E of consequence.
The difficulty, however, is that contemporaneous conflicts too easily intervene so as to
corrupt the drafting process and to preclude optimal constitutional design. The specific
principle of design most likely to be violated is the proposition that we treat all parts
of the constitution as an interconnected whole and that we not try to assess the consequences of one part without appreciating the full meaning of all other parts. This essay
illustrates this violation by looking at the new Russian Constitution, ratified by direct
popular vote in December 1993, with special attention paid to that document's treatment of federalism. We offer the additional argument, however, that even contemporary
research in political institutional design pays insufficient heed to this principle.
CONSTITUTIONS FOR NEW DEMOCRACIES:
REFLECTIONS OF TURMOIL OR AGENTS OF
STABILITY?
1
Peter C. Ordeshook
1. Introduction
C o n s t i t u t i o n s are r a r e l y w r i t t e n in a v a c u u m , insulated from the p o l i t i c a l c o n f l i c t s that s w i r l
about them. T h e u n c e r t a i n and confused steps taken in drafting ones for P o l a n d a n d U k r a i n e , for
example, bear witness to the i m p a c t of contemporary disputes, just as the e x t r a o r d i n a r y p o w e r s
granted the president by R u s s i a ' s new constitution signal u n a m b i g u o u s l y w h o w o n the c o n f l i c t
there in 1993 between Y e l t s i n and the People's Congress. W i t h the exception of states that h a d
constitutions i m p o s e d on them by some o c c u p y i n g m i l i t a r y force or by a d i c t a t o r w h o sought to
a p p l y a d e m o c r a t i c gloss to his regime, not o n l y has the philosophy of the A m e r i c a n c o n s t i t u t i o n
been a template for others, but the process by w h i c h that document was prepared ~ contentious
w r a n g l i n g o v e r s e c t i o n a l and substantive issues — has been replayed countless times as w e l l .
There are three lessons to be learned from these wars of w o r d s . F i r s t , despite the v i e w of
many that constitutions are mere words on paper or that parchment barriers cannot render a state
stable o r d e m o c r a t i c , they t e l l u s that those w h o draft such documents act a s i f w o r d s A R E o f
consequence. E i t h e r constitutions allocate power, or contentious negotiation o v e r t h e i r content is
manifestly i r r a t i o n a l . S e c o n d , the product of these wars need not c o r r e s p o n d to any o p t i m a l or
rational design. We m a y be able to understand that product in the same terms as we come to
understand any s o c i a l process, but we c a n appeal to theories of many types ~ to s o c i a l c h o i c e
theory or to the p i t f a l l s of short-sighted vote trading — to predict that the r e s u l t i n g documents
w i l l only a c c i d e n t a l l y adhere to some definition o f social rationality. T h e final l e s s o n ~ a c t u a l l y ,
more an hypothesis ~ is that the observed failures of constitutional d e m o c r a c y s h o u l d not be
interpreted to mean that constitutions have little or no effect. S u c h examples are consistent w i t h
a contrary p r o p o s i t i o n ; that absent a theory of constitutional design s u f f i c i e n t l y c o m p e l l i n g to
overcome m y o p i c self-interest, they illustrate the consequences of the poor c o n s t i t u t i o n a l designs
born o f the imperatives o f that self-interest.
1
This essay was made possible through support provided by the U.S. Agency for International Development
under cooperative agreement DHR-O015-A-0-O031-O0 to the Center on Institutional Reform and the Informal
Sector of the University of Maryland.
O u r purpose here is not merely to argue that constitutions matter or that the exigencies of
contemporary p o l i t i c s c a n preclude the implementation of appropriate p o l i t i c a l institutions.
Instead, we want to o f f e r some advice to those who w o u l d craft such documents so that less is left
to chance or surprise. Section 1, then, considers three examples, d r a w n f r o m the Soviet experience,
that illustrate the p r e c e d i n g lessons, and w h i c h show in particular that constitutions matter even
for states w i t h o u t a democratic tradition. Section 2 considers b r i e f l y the process and conflicts that
led to the r a t i f i c a t i o n of Russia's current constitution in order to illustrate the p r i n c i p l e most
c o m m o n l y v i o l a t e d w h e n crafting new constitutions. That p r i n c i p l e is that the various parts of a
constitution s h o u l d be treated as interdependent components of the document. Section 3 focuses
on federalism and describes how that principle was violated o w i n g to contemporaneous conflicts
so that R u s s i a f a i l e d to formulate a w h o l l y integrated constitutional system. F i n a l l y , Section 4
argues that although several (but hardly all) of the problems Russians created for themselves have
subsequently been resolved, little guidance was p r o v i d e d them by the comparative p o l i t i c a l
literature on constitutional and p o l i t i c a l institutional design and that u n t i l this literature develops
further, we can suppose that states w i l l continue to duplicate Russia's experience.
1. Lessons f r o m the Soviet U n i o n
T h e c o n s t i t u t i o n of the Soviet U n i o n , both it's '36 Stalinist and '77 B r e z h n e v i a n versions,
offered a panoply of constitutional rights as detailed and expansive as a n y t h i n g set to paper in the
West. C h a p t e r X of the 1936 document "guaranteed" the right to free speech, a free press, free
assembly, equal protection, freedom of religion and thought, equal rights for w o m e n , the
i n v i o l a b i l i t y of the person and due process, and, conflating negative w i t h "positive" rights, the
right to w o r k , rest, material security, and education. T h e U S S R ' s failure to satisfy these
constitutional prescriptions, though, is often taken to indicate a f a i l u r e , if not of constitutionalism
in general, then at least of its a p p l i c a b i l i t y to Russia and "Russian tradition." T h e fault of those
documents, though is not that they f a i l e d , but rather that they w o r k e d precisely as designed.
Those who believe they failed o w i n g to the gap between promise and reality are correct to
assert that merely setting words to paper about rights and social welfare entitlements d i d not and,
in general, cannot a c c o m p l i s h much. O n l y appropriately designed and p r o p e r l y f u n c t i o n i n g
institutions can ensure adherence to rights and the promulgation of legitimate governmental p o l i c y .
T h e presumption of f a i l u r e , though, is based on a preoccupation w i t h o n l y one of three questions
we can ask about a constitution when evaluating its performance. In this instance the question
asked is: D i d the constitution lead to the realization of stated goals? T h e answer, evident to
everyone, is NO (at least insofar as rights and welfare guarantees is concerned), and therein lies
the basis of pessimism about the prospects for a democratic society g u i d e d by constitutional
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principles among the citizens of the successor states of the Soviet U n i o n . B u t before we c o n c u r in
this judgement, we must answer two other questions: D i d Soviet constitutions l e g i t i m i z e or
contribute to the stability of the p o l i t i c a l institutions they prescribed; and were those institutions
appropriate for the realization of the rights and guarantees it i d e n t i f i e d as goals?
O n l y if our
answers to these questions are NO and Y E S can we deem a constitution a f a i l u r e . In fact, our
answers are exactly the opposite.
The p r o b l e m w i t h Soviet constitutions was that they were based on a social theory that assumed
that people are perfectible and that beliefs and values can be changed fundamentally so that social
goals become private ones. T h u s , they enshrined a p o l i t i c a l system doomed to f a i l u r e . H o w e v e r ,
although they f a i l e d to achieve what is beyond the reach of any constitution — guarantee the
realization of lofty principles by mere proclamation — Soviet constitutions succeeded to the extent
that the system and institutions they l e g i t i m i z e d d i d in fact function as described. Setting M a r x i s t L e n i n i s t principles at the core of Soviet social organization, both the '36 a n d , even more
forthrightly, the '77 constitutions l e g i t i m i z e d the dictatorship of the C o m m u n i s t P a r t y , and h a v i n g
done that, all the rest was mere w i n d o w dressing. In fact, absent a C o n s t i t u t i o n a l C o u r t , neither
constitution was intended as w o r k i n g law (Blankenagel 1992). T h i s is not to say that those
constitutions played a role in f o r m i n g p o l i t i c a l structures: those structures existed before either
document was written. T h u s , the '77 document c o d i f i e d many of the post-Stalinist changes in
Soviet law and, by i n s t i t u t i o n a l i z i n g the role of the communist party more f o r t h r i g h t l y in A r t i c l e
6, signaled the transition f r o m Stalin's personal dictatorship to that of the party. B o t h documents,
then, gave legal sanction to what existed so that, w i t h respect to our second question about their
influence on p o l i t i c a l structures, we should judge Soviet constitutions as either irrelevant to events
or we can infer that they contributed to the strength of institutions. In either case, the answer to
our second question ought to be Y E S .
T u r n i n g to our t h i r d question, about the adequacy of that structure for r e a l i z i n g stated goals,
we can, of course, debate whether the U S S R ' s dissolution was inevitable and whether G o r b a c h e v ' s
"reforms" merely hastened the end (see, for example, Laqueur 1994 for a c r i t i c a l survey of the
literature). Insofar as the gap between constitutional pronouncement and reality is concerned,
though, the social theory on w h i c h Soviet constitutions were based — the '36 one, the '77 one, or
the m u c h - a m e n d e d version of the '77 one that disappeared in 1991 -- failed to anticipate the
inevitable consequences of the unchecked power: i n e f f i c i e n c y and corruption. Nevertheless, this
was the structure that Soviet constitutions l e g i t i m i z e d , and this was the one that p r e v a i l e d . Soviet
constitutions failed to deliver on their promises, then, not because constitutionalism is somehow
alien to the "Russian soul" but because they l e g i t i m i z e d a p o l i t i c a l system that f a i l e d to channel
self-interest so as to serve the p u b l i c interest. T h u s , the answer to our t h i r d question is N O .
3
So, if there is a lesson to be learned generally f r o m the U S S R ' s constitutional experience, it is
not that constitutions d i d not w o r k . T h e lesson is either that that experience is an irrelevant
experiment or that even bad constitutions can, for a time at least, be stable. T h i s argument does
not challenge the v i e w that history w o u l d have been unchanged if any of these constitutions was
m e r e l y a b l a n k piece of paper. It need not convince anyone that a new constitution can lead to
something other than what exists, and it does not contradict the assertion that the U S S R or any of
its successor states must proceed along historical paths that can o n l y be interrupted but not negated
by attempts at d e v e l o p i n g a constitutional democracy. To counter these arguments requires
consideration of the more general matter of how constitutions in fact influence p o l i t i c a l processes,
h o w they ensure rights, and h o w they facilitate the establishment of stable p o l i t i c a l systems.
O u r second example comes also f r o m the Soviet experience, and illustrates more d i r e c t l y h o w
even the Soviet constitution influenced things. A l t h o u g h both the '36 and '77 versions a l l o w e d for
secession in p r i n c i p l e ( A r t i c l e s 17 and 72, respectively), these words were generally understood to
be v o i d of content; i n d e e d , both documents precluded such a p o s s i b i l i t y by their failure to offer
any procedure for separation. H o w e v e r , t h i n k i n g that he c o u l d b o r r o w time for his reforms, in
1990 G o r b a c h e v acceded partially to L i t h u a n i a n demands and a l l o w e d i m p l e m e n t i n g legislation
that specified a clear albeit tortuous path to secession. T h e effect, though, was to legitimize
secession as part of Soviet law, thereby emboldening leaders in the B a l t i c republics to pursue
separation f r o m the U S S R more vigorously (Sharlet 1992). T h u s , p l a y i n g the c o o r d i n a t i n g role that
is the ultimate basis of the enforcement of their provisions ( H a r d i n 1989, Ordeshook 1992), we
have here an example of a constitution (and its implementing legislation) c o o r d i n a t i n g expectations
so that what was deemed illegal under one set of words becomes legal and attainable under a
different set.
O u r t h i r d example comes f r o m Russia itself and the constitution, largely a reprint of the '77
Soviet text, that was superseded by the 1993 document. A l t h o u g h that constitution was amended
to establish a president, to empower a Constitutional C o u r t , and to p r o c l a i m the p r i n c i p l e of a
separation of powers, A r t i c l e 104, consonant with the revolutionary slogan "all power to the
Soviets," gave the Congress of People's Deputies (actually, the Supreme Soviet) the authority to
legislate and govern in a l l important matters. Thus, f o l l o w i n g the demise of a c o m m u n i s t party that
c o u l d negate theoretical inconsistencies, the document's logical flaws f o u n d f u l l play in the c o n f l i c t
between Y e l t s i n and parliament that resulted in a m i n i - c i v i l war that was resolved o n l y by m i l i t a r y
force. U n l i k e Soviet constitutions, though, the Russian one can be credited w i t h e m p o w e r i n g new
institutions (notably, the presidency and the Constitutional C o u r t ) . T h u s , rather than argue that
constitutions had little in the early years of an independent R u s s i a , we can f i n d good reasons for
4
arguing exactly the opposite, p r o v i d e d we appreciate the ways in w h i c h it constitution encouraged
political conflict.
2. A F i r s t P r i n c i p l e of C o n s t i t u t i o n a l Design
A d m i t t e d l y , the evidence that S o v i e t - e r a constitutions influenced events is not s c i e n t i f i c a l l y
c o m p e l l i n g . H o w e v e r , although Russians c o m m o n l y lament that constitutions c a n never be m u c h
more than mere words, the drafting of Russia's current constitution, l i k e most constitutional
drafting processes, was approached as though it was critical to the resolution of several i n t e r n a l
conflicts: "Constitutions are usually retrospective documents, not prospective ones. T h e y are
designed to solve the most pressing problems of the past, not the future. Y e l t s i n ' s c o n s t i t u t i o n is
no exception ..." (Holmes and L u c k y 1994) and "political institutions ... often get chosen more
because of calculations made d u r i n g the process of change... than because certain versions of these
institutions are u n i q u e l y appropriate ..." (Colomer 1995). We cannot here review the events leading
to the preparation and ratification of that constitution and to Yeltsin's U k a z 1400 d i s s o l v i n g the
old parliament (for overviews of those events see T o l z 1993, R u t l a n d 1994, Semler 1994). We need
only note the basic issues that confounded that process. B r i e f l y , those conflicts were,
between those who accepted the v i e w that constitutional rights were first a n d foremost
limitations on the state, versus those who sought to compel the state to partake of a variety
of welfare entitlements and to regulate not o n l y the state, but society as w e l l .
between those who saw a constitution as a m i n i m a l document that concerned essential
institutional details, versus those who v i e w e d them more as a social contract in w h i c h as
much detail as possible was i n c l u d e d to preclude disputes over meaning.
between those who argued for the strong hand most consonant w i t h a presidential system,
versus those who feared Russia's traditions of C z a r rule and who preferred parliamentary
government.
between those who feared Russia's disintegration and preferred a unitary state, versus
those who saw federalism as the only way to govern a state as heterogeneous as R u s s i a .
Several participants in the drafting process were familiar w i t h Western practice, but opponents
in these disputes were rarely motivated by p r i n c i p l e d notions of constitutional d e m o c r a c y . Y e l t s i n
sought a strong presidency because he was president; conservatives in the People's Congress argued
for a parliamentary system because they sought to undermine Yeltsin's policies ( T h o r s o n 1993);
leaders of the republics argued for federalism because they wished to m a x i m i z e their autonomy
and control of the resources on their territories; politicians in M o s c o w preferred a u n i t a r y state
5
because they sought to m a i n t a i n control of governmental revenues and because they k n e w no other
governmental f o r m (Sharlet 1993); the Constitutional R e f o r m C o m m i s s i o n argued for an elaborate
document since that was the style of their i l l - p r e p a r e d draft and to argue otherwise was to hand
the constitutional agenda to competitors; competitors such as St. Petersburg mayor A n a t o l y
Sobchak and Y e l t s i n advisor Sergi Shakrai argued the opposite to seize the agenda and the label
'the James M a d i s o n of R u s s i a ' ; and those who argued for extensive welfare entitlements d i d so
because d o i n g otherwise was to reject their heritage of democratic centralism.
T h e details of these disputes concerned nearly every article of the various draft constitutions
( C o h e n 1993), and their f i n a l resolution was a document that contradicts many of its l o f t i l y stated
p r i n c i p l e s . Despite p r o c l a i m i n g Russia a federation (§ 5), federal subjects are precluded f r o m
establishing their o w n independent judiciaries (§ 118) or f r o m c o n t r o l l i n g the method whereby
deputies to either national legislative branch are elected (§ 96); regional governments possess few
if any exclusive p o l i c y j u r i s d i c t i o n s (§ 71 and 72) and have no authority over local governments
(§ 132 and 133); the president is empowered to overturn those regional executive acts he deems
unconstitutional (§ 85); regional governments possess no independent taxing authority (§ 72), there
is no guarantee of the obligation of contracts and no c o m i t y clause; and, in perhaps the clearest
reincarnation of L e n i n ' s idea of democratic centralism, the constitution provides that "federal
executive bodies and the bodies of executive authority of the members of the R u s s i a n Federation
shall f o r m a single system of executive authority" (§ 77). Despite p r o c l a i m i n g the people as the
ultimate sovereign (§ 3) and rights as inalienable (§ 17), citizens have no standing before the
C o n s t i t u t i o n a l C o u r t (§ 125), constitutional rights are confused w i t h c i t i z e n duties (§ 57-59), and
the law is a l l o w e d to l i m i t rights in order to uphold "the foundations of the constitutional system,
m o r a l i t y , or the health, rights and lawful interests of other persons or for ensuring the defense of
the c o u n t r y and state security" (§ 55). A n d despite p r o c l a i m i n g a governmental f o r m based on a
separation of powers (§ 10), in addition to the duties and powers n o r m a l l y associated w i t h that
office (appointment, legislative initiative, veto) and in a d d i t i o n to being anointed "guarantor of
the constitution" (§ 80), the president of the Russian Federation is empowered to dissolve
parliament (§ 84), to appoint ministers without legislative oversight (§ 83), and to issue decrees
insofar as the law is silent (§ 90) - - a power Y e l t s i n has already used under the guise of c o n t r o l l i n g
rampant c r i m e to abrogate constitutional rights (Cohen 1995).
T h i s c o n s t i t u t i o n , then, violates not only a good many ideas about democratic institutional
design, but also its o w n stated objectives. M a n y of those violations can be resolved through
amendment, j u d i c i a l interpretation, and e v o l v i n g tradition. But if we want to argue that politics
distorts the design of constitutions and precludes the implementation of appropriate institutions,
we need to consider what specific principles of design are most l i k e l y to be violated. O n l y w h e n
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we identify the "disease" can we offer a cure. A n d here our argument is that the p r i n c i p l e most at
risk is the proposition that
all parts of the constitution are interconnected and that we cannot assess the consequences
of one part without appreciating the full meaning of all other parts.
T h e v i o l a t i o n of this p r i n c i p l e is a consequence of the understandable i n a b i l i t y to isolate
w r i t i n g a constitution f r o m the conflicts that make constitutions essential and is manifest in the
tendency to address each part of the document separately, as an arena for negotiations between
competing interests. T h u s , the presidential powers enshrined by Russia's constitution are best
understood as a byproduct of the presidential-parliamentary conflict that preceded i t , and by the
fact that Y e l t s i n w o n that conflict. F o r example, the president is empowered to name a n d f i r e his
o w n ministers without parliamentary approval because of the Congress's recalcitrance at a p p r o v i n g
earlier presidential recommendations; the president can dissolve the D u m a if it fails to approve his
nomination for P r i m e M i n i s t e r because of Y e l t s i n ' s earlier i n a b i l i t y to secure the r e - a p p o i n t m e n t
of Y e g o r G a i d e r to that post; the president can issue decrees w i t h the force of l a w because the
dissolved Congress had been u n w i l l i n g to extend his emergency authority; and the c o n s t i t u t i o n fails
to provide for the office of vice-president because Yeltsin's first v i c e - p r e s i d e n t , A l e x a n d a r
R u t s k o i , became a focal point for parliamentary opposition to his policies.
As w i t h presidential-parliamentary relations, the treatment of federalism was isolated f r o m
other parts of the constitution (except the president's authority to o v e r - r i d e regional executive
actions). T h e connection of this part of the constitution to the sections dealing w i t h presidential
and parliamentary powers, for example, comes o n l y as background: Y e l t s i n o r i g i n a l l y offered the
republics special privileges to secure their support (in particular, majority c o n t r o l of the upper
legislative chamber, the Federation C o u n c i l ) . B u t once victory was achieved, he reneged on his
"constitutional promises" and has since sought to render federal mere administrative appendages
of the central government (Sharlet 1993).
E l e c t i o n procedures were relegated to implementing legislation or decree in part to ensure
f l e x i b i l i t y , but also because Y e l t s i n ' s supporters could not agree on w h i c h procedures best served
their interests. T h e issue at hand here was selecting an election method that offered the best chance
of f i l l i n g the new parliament w i t h "democratic" reformers. L i p - s e r v i c e was p a i d to the idea that
something must be done to facilitate the formation of national p o l i t i c a l parties and to a v o i d
dangerous ethnic and regional ones, but national party-list proportional representation was used
to elect half the State D u m a out of fear that communists would dominate the t r a d i t i o n a l s i n g l e -
7
mandate election districts and that even regional PR w o u l d not a l l o w democrats to take f u l l
advantage of their concentrated urban support.
3. Federalism: Violating the First Principle
It
is
understandable
that
contemporaneous conflicts
should
influence
the
actions
of
constitutional draftsmen. B u t such conflicts need not preclude good design. To see h o w this is
possible, consider again the subject of federalism. B r i e f l y , throughout 1992 and 1993 debate on
this subject focused on three words: sovereignty, supremacy, and s y m m e t r y . Y e l t s i n ' s early drafts,
w r i t t e n to accommodate r e p u b l i c demands, labeled Russia's ethnic republics sovereign, w h i c h they
interpreted as a f f o r d i n g them the same status in international affairs as Stalin c l a i m e d for U k r a i n e
and B y e l o r u s s i a w h e n negotiating their seats in the U n i t e d Nations. Sovereignty also impacted on
the issue of supremacy, and several republics asserted that republic laws were supreme over federal
ones or that republics c o u l d n u l l i f y federal laws on their territory. T h e current constitution
proclaims the supremacy of federal law, but the issue remains a contentious one and contradicts
several r e p u b l i c constitutions (as w e l l as the treaties negotiated w i t h those republics that p r o c l a i m
equal status for all constitutions). F i n a l l y , the issue of symmetry arose in the debate over whether
Russia's ethnic republics w o u l d enjoy privileges not possessed by its other regions (oblasts and
krais). Y e l t s i n ' s early drafts allowed federal subjects to renegotiate their status on a bilateral basis
w i t h M o s c o w , thereby c o n f o u n d i n g the meaning of the p r o v i s i o n that a l l federal subjects "shall
be equal in their relations w i t h federal bodies of state authority" (§ 5), and although the f i n a l
version makes no m e n t i o n of such negotiations, a variety of bilateral asymmetric agreements have
been negotiated between the republics and M o s c o w (Teague 1994).
A l t h o u g h the draft r a t i f i e d in December 1993 imposed a federal f o r m that made o n l y modest
a c c o m m o d a t i o n of regional and republic demands, there was little dispute over what parts of the
constitution were the core of its federal provisions, namely those provisions dealing w i t h
supremacy and secession;
the admission of new federal subjects or alterations in the boundaries of existing
ones;
the role of federal subjects in amending the constitution;
free trade w i t h i n the federation;
the p o l i c y j u r i s d i c t i o n s of national and regional governments;
democratic governance w i t h i n federal subjects;
the j u d i c i a l system;
representation in the national legislature.
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Insofar as h o w the constitution treats these topics, we might prefer a more restricted grant of
authority to the national government and a more e x p l i c i t guarantee of democratic governance
w i t h i n federal subjects, but most of the items on this list f i n d treatments that p a r a l l e l other state
constitutions. F e d e r a l law is unambiguously supreme (§ 15, 76), secession is p r o h i b i t e d (§ 4), new
federal subjects can be admitted in accordance w i t h procedures specified by federal law (§ 65),
no subject's boundary can be altered w i t h o u t the affected subject's consent (§ 67), a p p r o v a l by
super-majority of federal subjects is required to amend the constitution (§ 136), free trade is
guaranteed w i t h i n the federation (§ 74), and, paralleling A r t i c l e s 73 and 74 of the G e r m a n Basic
L a w , the national government has an e x p l i c i t role in most issues of p u b l i c p o l i c y ( § 7 1 and § 72).
The rather ambiguous guarantee of democratic governance (§ 5) is most l i k e l y a consequence of
the philosophy of democratic centralism that colors Russian t h i n k i n g .
T h e instinct to compartmentalize constitutional issues, though, led to an unsatisfactory
accommodation of the last two items on this list, and to a failure to consider several a d d i t i o n a l
parts of the constitution, namely those that concern the following:
c o n t r o l over the methods of election to the nationals legislature as w e l l as state
legislatures;
the t i m i n g of presidential and parliamentary elections;
the method of electing the president;
elections as a means of f i l l i n g federal subject and local p u b l i c offices;
the content of federal subject constitutions.
Insofar as the j u d i c i a l system is concerned, the constitution appears to f o i l the design of
balanced regional governmental structures based on a separation of regional executive, legislative,
and j u d i c i a l powers insofar as it precludes independent regional courts when it requires that the
country's j u d i c i a l system "be established by the Constitution of the Russian F e d e r a t i o n and federal
constitutional law" (§ 118) and that "judges [be]... subject only to the Constitution and federal law"
(§ 120). To our knowledge, little thought was given to the role of the j u d i c i a r y in a federal system.
Instead, the p r i m a r y concern was to a v o i d a repeat of Yeltsin's experience w i t h a r u n a w a y
Constitutional C o u r t chaired by someone ( Z o r k i n in the case of the old C o u r t ) w h o sided too
frequently w i t h opponents.
We can imagine ad hoc accommodations to the problems of a centralized j u d i c i a r y , i n c l u d i n g
the passage of federal laws that allow for reasonably independent regional j u d i c i a l structures,
o w i n g to regional and republic representation in both chambers of the national legislature. B u t here
we run afoul of the constitution's treatment of the last item on our first list -- representation in
9
the legislature — and its failure to consider f u l l y the consequences of its treatment (or n o n treatment) of the items on our second list. B r i e f l y , the relevance to federalism of these things,
w h i c h may be treated d i r e c t l y or o n l y i n d i r e c t l y by a constitution, is that they influence the
structure and role of parties, their degree of decentralization, the vertical integration of local
parties w i t h national ones, and correspondingly, the extent to w h i c h l o c a l , regional, and national
governmental structures f o r m an integrated whole in w h i c h local politicians "naturally" accede to
the supremacy of federal law and national politicians are "naturally" protective of regional
autonomy (Ordeshook and Shvetsova 1995). If "political parties created m o d e r n democracy ... and
modern d e m o c r a c y is u n t h i n k a b l e save in terms of political parties" (Schattschneider 1941: 1), then
it is also true that, in W i l l i a m R i k e r ' s (1964: 136) words, "Whatever the general social conditions,
if any, that sustain the federal bargain, there is one institutional c o n d i t i o n that controls the nature
of the bargain in a l l instances here examined and in all others w i t h w h i c h I am f a m i l i a r . T h i s is
the structure of the party system, w h i c h may be regarded as the main variable i n t e r v e n i n g between
the b a c k g r o u n d social conditions and the specific nature of the federal bargain." T h u s , the
preceding p r o v i s i o n s , in c o m b i n a t i o n w i t h those that treat representation in the national legislature,
are as important to federalism as are the provisions relegated to those sections of a constitution
labeled "The O r g a n i z a t i o n of the Federation."
U n f o r t u n a t e l y , u n f a m i l i a r i t y w i t h party politics c o m b i n e d w i t h contemporaneous p o l i t i c a l
conflicts to preclude consideration of R i k e r ' s admonition about the role of parties and the ways
to encourage the development of parties appropriate to a federal state. Instead, each of the items
on this second list were attended to in the context of other issues. T h u s ,
the basis of representation in the State D u m a , as we note earlier, was considered o n l y in
the context of securing control of that chamber and m i n i m i z i n g the prospects of opponents.
T h u s , the electoral system decreed by Y e l t s i n allowed Z h i r i n o v s k y to secure a p l u r a l i t y of
PR seats, ensured a h i g h l y fractured party system, and discouraged a n y t h i n g but a t o p d o w n M o s c o w - c e n t e r e d process of party formation.
fearful of regional bosses, the constitution merely states that "the procedure for f o r m i n g
the F e d e r a t i o n C o u n c i l ... shall be determined by federal law" (§ 96) and that the C o u n c i l
should "be composed of two representatives f r o m each member of the R u s s i a n Federation;
one f r o m its representative and one from its executive body of state authority" (§ 95).
T h u s , the constitution fails to provide for direct election of deputies to the Federation
C o u n c i l , and leaves to door open to presidential appointment. A l s o , w i t h "democrats" in the
K r e m l i n concerned about the strength of regional communist party organizations, it gives
10
f u l l c o n t r o l of parliamentary elections ( i n c l u d i n g the d r a w i n g of districts f o r the State
D u m a ) to M o s c o w (§ 96).
Because Y e l t s i n saw no reason to jeopardize his o w n position and because he sought to
m a i n t a i n a C z a r - l i k e distance f r o m "normal" politics, he postponed the presidential election
u n t i l June 1996. T h u s , rather than hold that election at the same time as p a r l i a m e n t a r y
ones, parliamentary elections w i l l be held six months before the presidential contest.
T h e constitution requires o n l y that the president be elected by direct vote (§ 81). T h u s ,
there is no e x p l i c i t (as in N i g e r i a ) or i m p l i c i t (as in the U n i t e d States) constitutional
requirement that the next president be elected w i t h broad geographic support.
The last two items on our subsidiary list of constitutional provisions -- regional a n d local
elections and regional constitutions — are not n o r m a l l y addressed by a national c o n s t i t u t i o n . B u t
Yeltsin's subsequent policies here are consistent w i t h a myopic view of constitutional d e m o c r a c y .
Fearing the loss of p o l i t i c a l control that might accompany the rise of regional leaders w i t h
independent electoral mandates, Y e l t s i n has resisted allowing direct election of regional governors
and the constitution sustains presidential appointment of regional plenipotentiaries (§ 83).
A l t h o u g h it is assumed that regional Dumas and local Soviets w i l l be d i r e c t l y elected, w i t h
attention focused on ensuring that local and regional governments rescind the mandated share of
tax revenues to the federal government ( W a l l i c h 1994), little if any thought has been g i v e n to the
role elections might play in regional and local governance. The constitution makes vague reference
to direct c i t i z e n involvement in local governance (§ 130), but it is clear that the authority of local
governments will be closely controlled by M o s c o w . A n d although the constitution makes reference
to 'republic constitutions' and 'regional c h a r t e r s ' ( § 5), it offers no guidance as to the content of
those documents. M o s c o w ' s attempt to control that content has focused on ensuring that they do
not contradict the federal constitution, Yeltsin's decrees, or federal law — in particular, that they
not undermine M o s c o w ' s attempt to control Russia's vast natural resources.
Of course, we should not be surprised to see manipulation of electoral procedures in the
interests of those who have the power to do so. M u c h of the early history of A m e r i c a n state and
national politics focused on such manipulations (see, for example, W i l l i a m s o n 1960, H o a d l e y 1986),
just as interests of the same type dictated the selection of procedures in C e n t r a l and Eastern
Europe after the f a l l of c o m m u n i s m (Colomer 1995, Holmes 1994). On the other hand, aside f r o m
Yeltsin's dissolution of regional Soviets after the overthrow of parliament in 1993, little thought
appears to have been given to the role of elections at the regional and local levels, and even less
to the procedures that might be used there. C e r t a i n l y the encouragement of parties that w o u l d
facilitate stable federal relations is not seen as a relevant consideration when the provisions on our
11
second list were addressed. O n e might argue, perhaps, that the creation of a true federation was
never the intent of those w h o drafted the f i n a l document. We suspect, though, that m u c h of its
d e m o c r a t i c - c e n t r a l i s t f l a v o r is the result of the general b e l i e f that o n l y traditional c o m m a n d - a n d c o n t r o l devices c o u l d arrest the forces that threatened the fragmentation of R u s s i a — a b e l i e f that
was the consequence of an i n a b i l i t y to understand the potential role of parties in a federation and
the f a i l u r e to estimate the extent to w h i c h these provisions might usefully influence that role.
4. Operating in Accord with the First Principle
It is one t h i n g to assert that constitutions ought to be w r i t t e n as f u l l y integrated documents; it
is another t h i n g to contend successfully w i t h the p o l i t i c a l pressures and crises that n o r m a l l y
s u r r o u n d their preparation and ratification. Nevertheless, referring again to the R u s s i a n case, there
are solutions to this seemingly insurmountable problem. We can begin by n o t i c i n g that several
solutions were a c h i e v e d "automatically" f o l l o w i n g the December '93 parliamentary elections.
It was soon understood that Yeltsin's aloofness f r o m the election was an error and f o r this
reason he encouraged the formation of two electoral blocks in A p r i l 1995, one headed by
P r i m e M i n i s t e r C h e r n o m y r d i n and the other by State D u m a Speaker Ivan R y b k i n — blocks
that c o u l d either support his b i d for reelection or that c o u l d support a centrist candidate
if Y e l t s i n chose not to r u n .
The
'93
elections
also
revealed
the
dangers
of
national
party-list
proportional
representation, and Y e l t s i n has since argued for a reduction in the n u m b e r of seats to be
f i l l e d this way (although incumbent D u m a deputies resist changing a system that led to
their i n i t i a l success).
F o r the same reasons that the D u m a resist changing the procedures under w h i c h it was first
elected, direct election of the first Federation C o u n c i l has become part of Russia's
constitutional order, and the role here o f 'representative and executive bodies' w i l l become
that of m e r e l y n o m i n a t i n g candidates — a role that is l i k e l y to be supplanted as regional
parties take f o r m .
M u c h of the debate over electoral reform p r i o r to December '95 e x a m i n e d the pros and
cons
of
postponing
parliamentary
elections
until
1996
so
that
presidential
and
parliamentary contests could be held simultaneously. A l t h o u g h it is u n l i k e l y that
parliamentary elections w i l l i n fact be postponed, there is g r o w i n g sentiment to alter the
election schedule to a l l o w for simultaneity some time in the future.
12
Y e l t s i n m o v e d close to issuing a decree in M a r c h '95 that w o u l d have sustained his
authority to appoint regional governors, but he has been dissuaded f r o m d o i n g so u p o n the
advice of those w i t h i n the K r e m l i n who are most f a m i l i a r w i t h regional affairs.
A l s o , although the republics, f o l l o w i n g Tatarstan's lead, adopted constitutions that c o n t r a d i c t e d
the federal one (by p r o c l a i m i n g the supremacy of their constitutions and laws), M o s c o w m u t e d this
issue w i t h a series of bilateral treaties so that, in exchange for increased autonomy, the republics
have largely dropped their claims to sovereignty (Teague 1994).
Thus, resistance to many of the things that w o u l d have led to a better integrated constitution
and a more viable federal system in fact disappeared soon after the constitution's r a t i f i c a t i o n . Of
course, this is not to say that this resistance has disappeared o w i n g to a better understanding of
constitutional design, and it remains true that there is serious resistance to m a n y of the things that
w o u l d facilitate a move viable federal state -- regional governments w i t h independent taxing
authority, more extensive use of regional and local elections, regional governments w i t h f u l l
control over their charters and constitutions, and regional control of elections to both chambers
of the national legislatures. E a r l i e r arguments for sequenced elections, p a r t y - l i s t P R , and a
president who was above politics gave way to p o l i t i c a l realities rather than more ready acceptance
of reasoned arguments about p o l i t i c a l institutional design.
Thus, many of the errors of design, both today and in 1993, were not based on strongly held
beliefs about the best way to organize the transition to democracy, but instead were the result of
faulty judgements as to what procedures and tactics best served the self-interests i n v o l v e d and of
the force of contemporaneous conflicts that compelled and continue to compel a d i v o r c e d attention
to constitutional issues. T h i s is not to say that beliefs and actions can ever be easily changed, but
especially w i t h respect to beliefs about the consequences of certain choices, we can see w i t h the
benefit of hindsight where good social science arguments might have moved things in a d i f f e r e n t
direction. U n f o r t u n a t e l y , such arguments were not forthcoming, because p o l i t i c a l scientists in the
West largely have largely ignored the subject of constitutional design or are g u i l t y of the same
error of compartmentalization that characterized Russian efforts. Despite R i k e r ' s (1964) seminal
arguments and H o r o w i t z ' s (1991) focus on the importance of electoral institutions in e t h n i c a l l y
d i v i d e d federal states, Sartori's (1994) recent discussion of presidential and parliamentary systems
and of election laws, for example, devotes less than a page to federalism, L i n z and V a l e n z u e l a ' s
(1994) 2 - v o l u m e study of the failures of presidential systems devotes a scant two pages to the
subject, while Powell's (1982) analysis of democratic stability relegates federalism to two footnotes.
Neither L i j p h a r t ' s (1992) edited volume on presidential and parliamentary systems nor Shugart and
Carey's (1992) book on presidential-legislative structures include the words ' f e d e r a l ' or ' f e d e r a l i s m '
13
in their indexes, the i n d e x to Ostrom's (1991) otherwise seminal analysis of A m e r i c a n federalism
makes no m e n t i o n of ' p a r t y ' , the W o r l d Bank's assessment of federal relations in R u s s i a ( W a l l i c h
1994) makes o n l y passing reference to p o l i t i c a l structures and w h o l l y ignores party c o m p e t i t i o n ,
none of the essays in E l s t e r and Slagstad's (1988) edited v o l u m e on constitutionalism pays heed to
R i k e r ' s argument, and although L i j p h a r t ' s (1984) w i d e l y used text devotes a chapter to federalism,
that chapter offers no discussion of parties.
B u t w h i l e mainstream comparative texts f a i l to provide m u c h guidance, Russians might have
gained f r o m their o w n experience. O u r arguments about federalism are s u m m a r i z e d by the
proposition that p o l i t i c a l parties breath life into constitutions structures, that the parties w h i c h do
this are those w i t h strong local roots but w h i c h also have an incentive to integrate w i t h national
parties, and that election laws, the t i m i n g and procedures of presidential elections, and the
autonomy g i v e n regional governments to manipulate the elections laws that pertain to regional and
local offices ( i n c l u d i n g representation in the national legislature) are important influences on these
incentives. Interestingly, the communist party performed an equivalent f u n c t i o n w i t h respect to
Soviet p o l i t i c a l institutions. A l t h o u g h the party operated w i t h a t o p - d o w n c o m m a n d - a n d - c o n t r o l
administrative apparatus and its authority d i d not rest on any electoral mandate, there was
s u f f i c i e n t content to the theory of democratic centralism that our arguments here about parties and
federalism might not have appeared w h o l l y alien to those who drafted the R u s s i a n constitution.
T h u s , constitutional engineering consistent w i t h our first p r i n c i p l e of design, although
u n r e a l i z e d , was not infeasible. It was more the psychology of c o n f l i c t rather than specifics that
compartmentalized the drafting of Russia's constitution. Greater awareness of the need for
integration, in c o m b i n a t i o n w i t h a better theory of federal constitutional design, w o u l d have
s u f f i c e d to a v o i d m a n y of the inadequacies of that document. T h i s is not to say that the instinct
to write a document that favored democratic centralism and a unitary state c o u l d have been
averted. It is naive to argue that theory and mere consciousness can c o m p e l p o l i t i c a l elites in
M o s c o w to embrace f u l l y the precepts of democratic constitutional federalism. Nevertheless,
consciousness and better theory w o u l d have encouraged such a government. At the same time,
a v o i d i n g violations of our first p r i n c i p l e of constitutional design w o u l d have been made easier if
another aspect of the example set by those who met in P h i l a d e l p h i a w o u l d have been f o l l o w e d -shutting the w i n d o w s and closing the drapes around those who w o u l d write a constitution.
14
R u t l a n d , Peter (1994). "Has Democracy F a i l e d Russia," in A d r i a n L e f t w i c h , Democracy and
Development, f o r t h c o m i n g , P o l i t y Press.
Sartori, G i o v a n n i (1994). Comparative Constitutional Engineering. N e w Y o r k : N Y U Press.
Schattschneider, E . E . (1941). Party Government. N . Y . : H o l t , R i n e h a r t , Winston.
Semler, D w i g h t (1994). "The E n d of the First Russian R e p u b l i c , " East European Constitutional
Review, 3, 1 (Winter).
Sharlet, R o b e r t (1992). Soviet Constitutional Crisis. A r m o n k ( N . Y . ) : M . E . Sharpe, Inc.
Sharlet, R o b e r t (1993). "Russia's ' E t h n i c ' Republics a n d Constitutional Politics," Eurasian Reports:
What Is Russia, C e n t e r for A m e r i c a n - E u r a s i a n Studies, 3, 2, (Winter).
Shugart M a t t h e w S. a n d J o h n M. C a r e y , 1992. Presidents and Assemblies: Constitutional Design
and Electoral Dynamics. Cambridge: C a m b r i d g e U n i v e r s i t y Press.
Teague, E l i z a b e t h (1994). "Russia and Tatarstan Sign P o w e r - s h a r i n g Treaty," RFE/RL Research
Report. 3, 14, A p r i l 8.
T h o r s o n , C a r l a (1993). "The Battle for Central A u t h o r i t y in Russia: A Presidential or Parliamentary
System," Eurasian Reports: What Is Russia, Center for A m e r i c a n - E u r a s i a n Studies, 3, 2,
(Winter).
T o l z , V e r a (1993). " D r a f t i n g the N e w Russian Constitution," RFE/RL Research Report, 2, 29,
July.
W a l l i c h , C h r i s t i n e (1994). Russia and the Challenge of Fiscal Federalism. Washington, D . C . : W o r l d
Bank.
W i l l i a m s o n , C h i l t o n , 1960. American Suffrage from Property to Democracy 1760-1860. Princeton:
P r i n c e t o n U n i v e r s i t y Press.
16
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Alvarez, Michael R. and Nagler, Jonathan. "Correlated Disturbances in Discrete
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916.
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917.
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919.
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920.
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927. Page, Scott E. Two Measures of Difficulty" May 1995.
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