ARENA Working Papers
WP 02/23

 

Coping with Conflict at Constitutional Moments

 

Johan P. Olsen

Paper prepared for a conference in honour of James G. March, Lucca, Italy July 4-6 2002.

 

Whether societies of men are really capable or not,
of establishing good government from reflection and
choice, or whether they are for ever destined to depend,
for their political constitutions, on accident and force'
(The Federalist Papers, No 1).
                                                      

Constituting government

The theme of this paper is the dynamics through which political order and organized government is constituted and re-constituted in democratic contexts. Attention is on how basic political rules evolve and change and the possible significance of reflection, deliberate design and explicit constitutional policy (Verfassungspolitik). That is, how constitution making may, and may not, turn a political system with enduring tensions and conflicts into an organized system of democratic governance, cooperation and problem solving. In democratic contexts this implies an understanding of how support is mobilized and acquiescence, agreement and allegiance is achieved.

 

Focus is on the following puzzle. In the literature, it is commonplace to argue that democracies require constitutional rules in order to function well. It is assumed that there are significant benefits of a legitimate and durable constitutional order. In particular, constitutional rules provide a framework that makes it easier to regulate and limit conflict and secure civilized co-existence. Democratic constitutions are assumed to balance unity and diversity. They are supposed to prevent arbitrary discretion and create predictability by regulating the power following from winning (and loosing) elections and governmental positions and by regulating the legitimate use of individual and group resources. Furthermore, the doctrine of popular sovereignty, as an important part of the democratic creed, suggests that citizens should be able to make and unmake their constitutions and institutions. Developing political institutions of self-governance is a first-order political process and human will, intelligence and power are supposed to play a key role in constitutional and institutional change. Democratic governance signifies an ability to purposefully shape political and social life.  Institutions are understood as a means to achieve human purposes and constitutional change is seen as the deliberate manipulation of formal rules and structures in order to improve human conditions. 

 

Yet, it is also commonplace to observe that it is difficult to agree on comprehensive constitutional change in democracies. Radical reorganization of a polity with a single scheme at a specific point in time is unlikely to be politically digestible. Actual reforms are usually incremental rather than comprehensive and attempts of re-constituting government through radical reform often create stalemates, confrontation and crises. In general, it seems to be easier for democracies to live with durable tensions and to cope with conflict in routine politics than at ‘constitutional moments’. It also seems to be easier to agree on political practices and rules than to agree on how those practices and rules can be described, explained and justified.

 

The puzzle suggests a need to develop a better theoretical understanding of the dynamics through which democratic constitutional orders are constituted and re-constituted. There is a need to specify the conditions under which the democratic vision of enlightened self-governance is viable, and reflection and purposeful constitutional change is likely to be a significant part of constitutional transformations. In particular, we are interested in how characteristics of the institutional context in which constitutional change takes place, as well as the organization of the change process itself, may influence to what extent humans are capable of establishing political order from reflection and choice. That is, to what degree and in what ways democratic contexts make comprehensive constitutional reform, based on deliberate design and choice, politically needed, legitimate and feasible (Olsen 1997b).

 

Democracy is a distinct political order that provides a distinct historical-institutional context for governance and constitutional change. Democracy signifies a set of historically evolving political ideals, principles, and identities, as well as a changing collection of accumulated institutional practices, rules and distributions of rights, obligations and resources (March and Olsen 1995). Constitutional rules and change procedures achieve legitimacy from the consent of the governed. Agreement and allegiance are based on argumentation, persuasion and compromises, more than on commands and coercion. The effectiveness of governance ultimately rests on the loyalties of the governed and on their willingness to comply with legitimate rules and authorities and provide resources to the polity (Ferguson and Mansbach 1996: 382). Constitutional democracy is a special type of regime based on the philosophy of limited government and the aspiration to tame political power and constrain majorities. 

 

The paper starts out with three stylised interpretations of how constitutional transformation can take place in democratic contexts (part 2). These frames are based on different conceptions of political actors, institutions and change and different understandings of the relationship between human agency, institutions and the flow of history. They portray the constitution and re-constitution of organized government as a result of respectively constitutional design and choice, evolution and gardening. The three interpretations are not discrete and exclusive; they supplement and create preconditions for each other. Together they suggest a repertoire of change processes further elaborated within organization theory (March 1981). An inquiry into the mechanisms assumed to guarantee agreement and allegiance within each of the three frames is then used as a starting point for discussing how some organizational properties may make democratic polities better able to cope with conflicts in routine politics than at constitutional moments. Focus in part 3 is on constitutional conventions as fairly open structures and routine governance as usually performed within more specialized structures of attention and access for participants, problems and solutions (Cohen, March and Olsen 1972).

 

In the last part of the paper, these ideas are applied to a specific historical-institutional context: the European Union. Political theories of constitutional change are to a large extent state-centered and based on ideas, language and institutional templates with roots far back in history, such as the English, American and French revolutionary experience (Bellamy and Castiglione 1996, Alexander 2001). One question in part 4 is to what degree such ideas are adequate for understanding constitutional change in a rather different historical and institutional context - a contemporary context characterized by peaceful cooperation rather than war and revolution, and at the supranational rather than the national level. Are the ideas helpful for making sense of the current large-scale European experiment of constituting a political union of well-established nation-states? A second question is: what can students of constitutional and institutional dynamics learn from the ongoing transformation of the European system of governance? Will watching ‘government begin’ in the European context make it necessary to reconsider existing understandings of how organized government is constituted and reconstituted?

 

Constitutional design, evolution and gardening

A constitution deals with how a group of people organizes and governs themselves politically. Constitutions prescribe a political order. They specify the basic institutions of government, their powers, responsibilities and interrelations. They outline the normative principles on which government is to be based and the ideas that explain and justify the rules. Most constitutions also include rules specifying the appropriate ways of establishing constitutional arrangements and rules for orderly amendments. Then, through what processes are constitutive rules and government instituted? If such rules have an effect on power relations and how welfare and life chances are allocated, how are conflicts over such rules coped with at constitutional moments and in other political-organizational contexts? For example, how is agreement achieved to impose legitimate constraints on the sovereign power of democratically elected decision makers and under what conditions is it tolerated that a minority is binding a majority, or one generation is binding the next one (Elster 1988a)?

 

Unsurprisingly, there are competing accounts of the nature of constitutions, the processes through which they change and the factors used to account for constitutional developments. Historically, and inspired by in particular American and British experiences, constitutional change has often been interpreted either instrumentally, as a matter of deliberate purpose, design and choice among alternative arrangements; or as the outcome of organic, evolutionary processes (Mill 1861). This paper joins the tradition, but suggests three frames for understanding constitutional dynamics - constitutional design, evolution and gardening. [1]

 

 

A distinction is also made between an expediency perspective and a normative perspective. In an expediency perspective constitutional arrangements are interpreted as a negotiated order and a result of voluntary exchange among self-interested actors with pre-determined given preferences. The efficiency of dispute resolution is depending on the characteristics and quality of opportunity structures, formal contracts, gains of trade, side-payments and simulated market exchanges. [2] The key is to understand the nature of tensions and conflicts and then to eliminate ‘negotiation barriers’, that is, obstacles to rational exchange and successful conflict resolution (Arrow et al. 1995, also Vanberg and Buchanan 1989). 

 

Constitutional developments can also be seen as part of a normative project and as symbolizing a collective identity and constitutive norms beyond immediate expediency and functional efficiency - including who citizens are and want to be, and what they see as constituting good governance and a good society. Constitutional politics is then not limited solely to efficient aggregation of pre-established preferences. Change and dispute resolution also involve modification of normative beliefs and identities. Citizens accept principles and rules not as external constraints to be taken into account in individual calculations, but as internalised normative imperatives or guidelines. Constitutional reform involves more than making decisions and implementing political purposes. Reforms provide an occasion for deliberation, learning and education - for interpreting purposes, meaning and symbols, developing shared concepts of civic virtue, justice, legitimate rule and power; and for building new relationships and creating or reaffirming a sense of community and collective identity (March and Olsen 1976, 1983, 1986, 1995, Olsen 1997a, 1998, 2001a,b). 

 

Constitutional design. The constitutional design-frame assumes that government is constituted through a specific foundational process. It emphasizes the purposes, knowledge and power of an identifiable set of actors (‘founders’) and deliberate choices at specific points in time (Edington 1975). [3] The key premises are that alternative constitutions make a difference; that designers know the effects of institutional alternatives; that there is a choice among constitutions and that designers control the choice. In sum, constitutions are the instrument of constitution-makers and political development is planned and willed. An adequate understanding of why some constitutional arrangement is chosen over others, requires knowledge about who are the ‘founders’, what they try to achieve, how and why they come to believe that a certain alternative will best achieve their objectives, and how and why they succeed in getting the necessary support for their views.

 

Here, attention is on the Constitutional Convention model known from, for example, the American experience in 1776 and the French in 1789-91 (Elster 1992). Organized government is constituted through an original and exceptional act at a privileged point in time and by a special representative body, a constituent assembly. Constitution making and governance are separated. As argued by Paine, a constitution is the act of a people constituting government. All power exercised over a nation must have some beginning and government without a constitution is power without a right (Paine 1984: 185). The key role of the people is also reflected in current visions of constitutions as acts of higher law in the name of ‘We the People’ (Ackerman 1993).

 

For the Federalists, constituting a common government would make it possible to do things each state could not do separately. Still, a major task was to limit the exercise of political power and prevent misuse. The selfish nature of both rulers and ruled was taken as given. Neither were angels and external incentives were needed to guarantee the common good. Government had been instituted because the passions of men will not conform to the dictates of reason and justice without constraint. Ambition had to counteract ambition. Power had to be pitted against power. Focus was primarily on changing legal rules and incentives, not moral and ethical codes of conduct and peoples’ minds and emotions. Sentiments and a feeling of unity could not be created through a constitutional act at a given point in time. Rather, an existing unity and shared interest were to be expressed in the constitution. (Hamilton, Jay and Madison 1964: 122-3). As observed by Wolin (1960: 389-90), there was no theory of how constitutions and political organization could educate citizens. [4]

 

In sum, the constitutional convention was portrayed as an occasion for epochal decisions, a break with the past, and a decision difficult to amend. Yet, in order to secure a peaceful continuity, rather than an accumulation of errors, stagnation and revolution, rules for future amendments were needed. The system had to be able to benefit from experiences and correct mistakes, ‘which they inevitably fall into’ (Hamilton, Jay and Madison 1964: 166). Reconciling continuity and flexibility was difficult, but elasticity could be promoted by making the constitution deal only with the most general elements of government. Paine also suggested that constitutions should have a fixed period. Every seven years a new Convention should be elected, so that improvements could be made based on experiences (Paine 1984: 185-191). 

 

Constitutional evolution. Within the constitutional evolution frame, the role of political actors and processes is less heroic. Constitutional change is the product of human action, but identifiable actors do not design constitutions at a specific point in time. Institutions, as collections of rules and practices, are part of a cultural heritage with a value beyond expediency and immediate instrumental utility. Society is basically self-organizing. Political development is a result of ‘organic’ growth and historic evolution. Constitutions evolve slowly and incrementally as practical experiences, political compromises, judicial precedents and customary practices are encoded into constitutional rules. The rules reflect the accumulated collective intelligence, morals and power-balances of a country.

 

For example, Burke was in favour of a settled scheme of government that had proved its worth, against any untried project and grand revolutionary plan. The corporate structure that kept society together depended on deep-seated feelings of love and loyalty and only to a limited degree on conscious will, reason and the calculation of self-interest. The settled scheme would guarantee a constitution ‘made by what is ten thousand times better than choice, it is made by peculiar circumstances, occasions, tempers, dispositions, and moral, civil and social habitudes of the people, which disclose themselves only in a long space of time’ (Burke 1856: 147). Burke warned against ‘contriving politicians’, with speculative, radical and abstract plans for new and untried constitutions and institutions. Such arrangements would not work simply because they would lack the familiarity and habitual respect and positive sentiment of the established arrangements. [5]  

 

Burke underscored the relevance of history. The constitution was seen as having deep roots in the past. It had grown out of the past with no break of continuity (Burke 1856: 146). The people were seen as an organized group with a history and institutions, and with deep-seated loyalties, morals and a sense of belonging to something larger and more enduring than oneself. Society was a partnership between ‘those who are living, those who are dead, and those who are yet to be born’ (Burke 1968: 194-5). Experience was the best test, and the authority of the constitution was based on the fact that it had been tested through time and that it had successfully served the community. For Burke, the individual was foolish, but the species was wise and would over time always act right. A basic premise was that a historical process of competitive selection systematically would eliminate the constitutional rules and institutions that failed to serve the community, functionally and in terms of its normative traditions. Stepwise reforms would be possible and desirable, however, if the goal was to alleviate a clear and present evil in society; if reforms were in accordance with the habits and spirits of its people and history and not based on general rules and principles; and if the aim was change in order to preserve.

 

Constitutional gardening. The constitutional gardening-frame portrays political actors as purposeful, bounded rational and neither omnipotent or impotent. Constitutions cannot be designed and reformed at will in arbitrary ways, but political intervention and leadership is possible. Constitutions and institutions are partly malleable through piecemeal political reform and a continuous ‘constitutional conversation’. Historical change is guided but not controlled in detail according to any grand plan.

 

For example, Popper (1961) observed that few social institutions have been consciously designed. The vast majority have just ‘grown’, as the unintended result of human action. Holistic re-constitution of the political system and the remodelling of human beings were beyond the capabilities of political actors, as well as normatively unacceptable. Still, there was a role for ‘piecemeal social engineering’. Political ends could be achieved by continuous small adjustments and re-adjustments. Improvements could be gained, and the causes of harm, injustice and discontent could be removed, because the piecemeal social engineer knew how to learn from mistakes by proceeding step-by-step and carefully comparing the results achieved. In the same vain, Offe has suggested that piecemeal reformers can exploit windows of opportunity and capture situational options for establishing agreements on new rules or institutions as they emerge. ‘Creative opportunism’, based on ad hoc-proposals, mixed and impure rather than clear principles, priorities and a master plan, will possibly be ‘the closest approximation to the notion of institutional design that we find in the real world of politics’ (Offe 2001: 368).

 

However, a constitution must possess a certain unity and internal coherence, so that appeals to it may be meaningful and capable of carrying conviction (Castiglione 1996: 7). A complication then is that piecemeal reform, at least under certain conditions, tends to create a chaotic system and eventually to generate demands for comprehensive, planned reform to re-establish system coherence and unity of purpose (March and Olsen 1983). Therefore, in order to turn piecemeal reformers into constitutional gardeners, step-wise change cannot be governed by randomly generated exogenous events. Such reforms need to be given a sense of direction and purpose by continuous constitutional conversations, including a critical debate over legitimate preferences, interests and identities (Chambers 1998, Slaughter, Stone Sweet and Weiler 1998). Popper, for example, saw institutionalized free competition of thought as a precondition for progress. He also argued that a proper role for the social sciences was to study proposals for social improvements and critically assess whether or not a particular reform would be likely to produce an expected, or desired, result (Popper 1961: 58). According to Habermas (1996), the need to justify constitutional reform proposals by giving reasons in public may also foster ‘constitutional patriotism’, peaceful dispute resolution, and a sense of allegiance and mutual recognition.

 

In brief, piecemeal reforms supported by a continuous constitutional conversation, may over time make it possible for democracies to develop a consistent normative project. Constitutional gardeners then have some long-term normative standards that make it possible to recognize constitutional weeds and to turn incremental reforms into a unified, coherent constitution. Along the way, individual preferences, collective values, norms and identities are contested through critical debate. They are dynamic, not stable.

 

A repertoire of change processes. Sketching the three frames of interpretation is only a first step towards understanding under what conditions enlightened reflection and choice will be important in constitutional change.  First, the three frames are not mutually exclusive and there is no exact metric that tells when radical design turns into piecemeal reforms, or Popperian piecemeal engineering shade into Burkean ‘reforms to conserve’ or an historical drift not intended by any identifiable decision makers. Second, the frames are not exhausting the relevant processes of change. For example, the frequent observation of ‘epidemics’ of constitution making suggests the significance of processes of imitation and diffusion (Loewenstein 1951: 151). Likewise, Bagehot observed the relevance of processes of regeneration and a shift of generations. A new constitution could not be expected to produce its full effect as long as all its subjects were reared under an old constitution, and as long as its statesmen were trained by that old constitution (Bagehot 1961: 10,11). Change can only be observed over long intervals of time, in particular when it came to changes in mentalities.  

 

Most likely, a well-developed theory of the dynamics of constituting and re-constituting organized government would require the reconciliation of different time-perspectives on change. It would include long-term linear trends such as democratization and constitutionalization; countervailing and period-specific cyclical change such as between centralization and decentralization; and situational, moment-specific change when single events or decisions create perturbations around a trend or cycle. Such a theory would also require a reconciliation of several processes and logics of political change. The three frames would have to be ‘unpacked’ and decomposed into specific processes and mechanisms. For example, deliberate design and choice, evolution and competitive selection, socialization, piecemeal social engineering, learning, deliberation, imitation, diffusion and regeneration, would have to be supplemented with processes like war and coercion, as well as historical coincidences and chance.

 

The list may, however, be limited rather than indefinitely long. All institutionalized systems of governance develop a repertoire of experience-based standard operating procedures and processes of change for dealing with changing circumstances (March 1981, March, Schultz and Zhou 2000). While the different processes may combine and interact in complex ways and their significance may be difficult to disentangle, a specification of the scope conditions of each process would be helpful for developing a better understanding of constitutional change. [6] In particular, under what conditions is deliberate, radical change in constitutive rules likely to produce agreement, acceptance and allegiance rather than confrontation and conflict? A modest step in this direction is to ask how diversity, tensions and conflict are dealt with and what characteristics of democratic institutions make it easier to cope with conflict in routine politics than at constitutional moments.

 

 Achieving agreement and allegiance

It is frequently observed that there are limits to what constitutional reform a democratic political system can digest at a single point in time. In general, it seems to be complicated to reach agreement on the identity and the fundamental principles of a polity and attempts of radical change tend to generate conflict (Russel 1993, Zielonka 2001). Constitutional rules are symbolic representations and a new constitution founded on new principles of organization and legitimization is likely to be contested, not least because of the impact on strong symbols  (von Beume 2001: 6). Mobilizing support and achieving agreement and allegiance then become key processes and the legitimacy of the change process tends to be one important determinant of whether change is accepted or revolted against. How, then, is conflict assumed to be overcome by constitutional designers, constitutional evolution and constitutional gardeners? 

 

Mechanisms of acceptance and allegiance. Paine assumed acceptance and allegiance based on the procedures of representative government. Even a large minority would accept majority decisions, because they were supposed to believe in the principle of majority governance (Paine 1984: 190). The Federalists, however, observed that limited changes and single propositions were easier to accomplish than a complete new constitution  (Hamilton, Jay and Madison 1964: 165).  In addition to common needs and utility, they appealed to social and cultural unity - one united people with the same ancestors, speaking the same language, professing the same religion, attached to the same principles of government, similar in their manners and customs, and sharing the experience of fighting a long and bloody war together (Hamilton, Jay and Madison 1964: 7).  In fact, the Federalist Papers were written as an attempt to explain and justify the need for a stronger federal government, in order to counteract the expected conflict over ratification of the proposed constitution.

 

Burke presupposed acceptance and allegiance based on strong socialization into a community of causal and normative beliefs. Even those occupying the lowest positions in society would acquiesce. They would do so due to their feeling of moral obligation, following from their belonging to a society and the values and traditions cherished by that society. Competitive selection would over time eliminate constitutional rules and institutions inconsistent with the spirit of the (successful) community (Burke 1782, 1790).

 

Popper took as given that it was easier to get political acceptance of smaller changes through ongoing bargaining and fact finding. He based acceptance and allegiance on the system’s ability to learn from piecemeal reforms and experiments (Popper 1961).  Likewise, Habermas and others have faith in the ability of democratic systems to reach agreement through force-free deliberation (Habermas 1996, 2001, Eriksen and Fossum 2000). Learning aspirations are in general high in modern democracies. The expectation is that experience will improve the intelligence, effectiveness and adaptability of governance. Experiential learning is supposed to enable governments to detect and counteract failures, to revise or eliminate rules that do not serve citizens well, and to improve their performance record as well as the polity's fitness for the future (March and Olsen 1995, Olsen and Peters 1996). Informed citizens and officials are supposed to learn realistic expectations when it comes to what different institutions can and cannot do. Therefore, in an ideal democracy, equilibrium institutional solutions are assumed to be common. That is, no actors are likely to act so as to radically defy existing institutions. The democratic challenge is not to make great designs and big leaps possible, but to foster the continuous learning and adaptation that make such leaps unnecessary (Olsen 1997b).

 

The bounded legitimacy and the imperfections of each change process are, however, well known. For example, the doctrine of constitutional democracy reflects the limited legitimacy of majority government as a mechanism for dispute resolution. Neither is there agreement about what can be achieved by changing legally valid constitutions. In political science it has long been contested whether written constitutions play a vital role in the life of democracies, as well as what explanatory power can be assigned to constitutions compared to political, military, economic and social forces (Finer 1950, Loewenstein 1951). Studies of formal organizations also suggest that action is rarely uniquely specified by rules (March, Schultz and Zhou 2000: 23) and that change in rules may be loosely coupled to behavior and functional performance (Meyer and Rowan 1977, Brunsson 1989).

 

Processes of competitive selection are also imperfect for resolving disputes, inter alia because political systems tend to eliminate the variations required by competitive selection. Institutions are influenced by, but not completely dominated by their functional and normative environments. Neither is system identification a guarantee against social discontent and conflict over constitutive rules. Citizens are unlikely to be so thoroughly and consistently socialized as Burke suggested and different institutions socialize citizens into partly competing identities and belief systems. For example, some come to think that the constitution is what the judges say it is. Others see democratically elected representatives as the legitimate interpreters of constitutive rules, or they do not want binding constitutional rules at all. Furthermore, civil society, as a deliberative and communicative sphere of its own, from time to time creates mobilization from “below” that articulate social discontent and Zivilisationskritik. Sometimes change in a political system can fail so badly that it generates change of the system itself (Kochanek 1971:319).

 

Small and well-timed interventions can have significant consequences when multiplied by other processes of change (March and Olsen 1995: 44).Still, piecemeal constitutional reforms do not necessarily solve the problem of acceptance and allegiance. There is no guarantee that a number of loosely coupled piecemeal reforms will accumulate to a coherent set of constitutive rules. Piecemeal reform also does little to help remedy the problems of calculating the consequences of constitutional change (Elster 1988b: 304, 308-9) [7] and such reforms tend to breed new demands for reforms rather than making reforms redundant (Brunsson and Olsen 1993). Furthermore, conflicting parties can sometimes make ‘working agreements’ based on open and free public deliberation and argumentation (Eriksen 2000: 59), but deliberation is no panacea to achieve acceptance and allegiance. The conditions for open and force-free deliberation are seldom met in contemporary democracies where information often is treated as a strategic resource or commodity of trade. Sunstein also argues that incompletely theorized agreements are an important source of successful constitutionalism and social stability (Sunstein 2001: 50-1). Citizens can agree on constitutional practices and rights even when they cannot agree on constitutional theories.

 

In general, there are ‘many ways in which reforms in the name of intelligence may not serve intelligence’ (March 1999a: 8). Studies of organizational learning show that functional as well as political learning is taking place. Yet learning is often unreliable, myopic or superstitious and imperfections are caused by characteristics of individual actors as well as organizational settings. [8] History is inefficient and institutions do not adapt immediately and precisely to environmental changes or deliberate reforms. The dynamics of constitutional rules are shaped and constrained by a variety of institutional structures and dynamics. Sometimes, institutions have an independent ordering impact long after their designers and the problems they were assumed to solve have disappeared (March and Olsen 1989, March 1994a).

 

A preliminary conclusion is that while political actors pursue moral and causal intelligence and political control, no single process of constitutional change guarantees acceptance and allegiance. Why then are tensions and conflicts accumulating in some political systems while others are transformed through mundane processes of learning and incremental adaptation? How does the relative importance and the legitimacy of comprehensive constitutional change depend on the imperfections of other change processes, such as variations in institutional ability to learn routinely from experience and adapt to changing circumstances? What are the effects of organizing constitutional change in different ways, given a certain level of enduring tensions and disputes? Why is it under normal circumstances more difficult to cope with tensions and conflicts through a constituent assembly or Convention than through routine politics? Which properties of contemporary democracies and organized government make them able to live with enduring disputes?

 

Coping with conflict at constitutional moments and in routine politics. In pluralist democracies heterogeneity and endurable differences generate demands for constitutional guarantees for minorities. Changing the rules requires large-scale majorities and sudden radical change of established compromises has limited legitimacy (Weaver and Rockman 1993).  At a given level of heterogeneity, we would also expect the need for comprehensive change to be reduced in democracies where processes of learning and other mechanisms of adaptation are fairly well developed. In such systems comprehensive constitutional reforms and a radical re-constitution of government is likely to be a rare and exceptional event. [9] A primary source of such change will be unexpected external shocks, such as war, conquest and defeat.

 

The less developed are routine processes of learning and adaptation, the more likely that internal tensions will build up. Radical change may take place in the wake of a revolution, social unrest or as the result of a financial crisis or some other serious performance crisis. These are situations with a breakdown in institutionalized arrangements for dispute resolution where it becomes obvious that extraordinary solutions are required. Then a constitutional debate and reform may be triggered. Major external shocks or internal breakdowns create drama and focus collective attention. They may focus attention on common destiny and shared sentiments rather than on what divides people under normal circumstances. Yet, in cases of long-term build-ups of tensions and disputes focus may also reinforce historical cleavages and injustices and challenge the unity of the polity.

 

Consider some organizational aspects of the politics of constitutional change, i.e. how open and specialized structures organize attention and access differently. A Convention is a fairly open organizational structure. The Convention is likely to be highly visible and attract attention. Symbolic matters dominate its agenda and the Convention is very likely to mobilize a large variety of participants, problems and solutions. The more open the decision and access structures are, and the longer the Convention last, the more likely that constitutional reform becomes an overloaded ‘garbage can’, making it difficult to reach a joint decision (Cohen, March and Olsen 1972).

 

In routine politics, attention and access are organized differently. An extensive use of specialized and segmented structures has the effect that conflicts are routinely limited and curtailed. All democracies live with tensions and contradictions between institutions, principles and ordering ideas (Lepsius 1990: 256). Some issues are removed from the public agenda and government intervention. Different institutions based on different logics regulate different aspects of political and social life. They prescribe partly incompatible rules and shape citizens differently. Consider the institutional differentiation of modern society, for example the separation of law making, execution and adjudication. Specialization and separation into institutional spheres makes it legitimate to give access only to a restricted number of participants. Likewise, it becomes legitimate to pay attention to a limited number of normative and causal considerations viewed as relevant to a specific institution or role (Weber 1978). Sometimes tensions or collisions between institutions create inconsistency and incoherence and becomes an important source of change. Yet, studies of formal organizations suggest that most of the time organizational specialization and separation of attention and access may make a system function in acceptable ways in spite of diversity and contradictions.

 

Selecting an appropriate area for joint decision-making, allocating authority and power and balancing coordination and separation are key decisions in all formal organizations. These are also decisions on which organizational conflict is quite possible. The stronger the felt need for joint decision-making, and the more collective decisions, the more likely is conflict (March and Simon 1958: 121-22). However, organizations develop standard mechanisms for absorbing and coping with conflict by separating them in time and space. A number of organizational processes, such as sequential attention, local rationality and the creation of buffers of slack resources make it possible to live with enduring tensions most of the time (Cyert and March 1963). 

 

Open structures such as a constituent assembly at constitutional moments cannot benefit from these organizational mechanisms for delimiting and constraining disputes. For example, the break-up of Czechoslovakia, where ‘the failure to create a new constitution was closely related to the failure of keeping the country together’, illustrates that a constitution-making process may itself foster conflicts by bringing to the forefront divisive issues that possibly could have been accommodated with less conflict by other types of processes (Elster, Offe and Preuss 1998: 64).  Even in a fairly homogeneous and stable country such as Norway, an aversion against comprehensive constitutional reform is partly based on the fear that such a reform would provoke ’unnecessary conflicts’. The frequent use of a don’t-wake-a-sleeping-bear argument suggests that Norwegian political leaders believe that a Convention or reform committee would not be able to cope with conflict equally well as routine processes based on institutional specialization and separation (Olsen 2002).

 

Can then these ideas on constitutional change and institutional dynamics contribute to a better understanding of the ongoing European political transformations and in particular the role of reflection and deliberate choice? Can students of constitutional and institutional change learn something new from European integration, as an attempt of supranational and peaceful constitution making? To what degree is it necessary, in the light of contemporary European constitutional experiences, to modify or reject ideas that to a large extent reflect the successful revolutions of a limited number of nation-states far back in time? [10]

 

Paine (1984: 185) suggested that the attempt of the American states to constitute a federal government was an opportunity for ‘seeing government begin’. [11] However, while observing the birth of organized government may give special insights, we are also warned by Bagehot about the difficulty of studying an object in change, in particular constitutional change where it may take many years to disclose the real consequences of reforms (Bagehot 1961).

 

 ‘Seeing government begin’ -

Europe’s constitutional moment?

Possibly, the European Union is in the midst of a constitutionalization process, providing an organizational and historical context quite different from those in which most available ideas on constitutional change were developed. The Union is an ongoing attempt to develop a supranational democratic political polity out of sovereign nation states. It is an experimental Union still in flux that do not ‘fit’ the usual categories such as ‘a state’ or ‘an international organization’ (Laffan, O’Donald and Smith 2000). While the European political order historically has often been constituted and re-constituted through conquest and colonization, rebellion, revolution and civil war (Bartlett 1993, Tilly 1993), current change is non-violent.

 

The challenge is to build consensus around a political project in a situation where constitutional reform cannot assume a shared vision of future Europe, or a common analysis of the present situation. Already the Preamble to the Treaty of Rome (The European Economic Community 1957) spoke about an ‘ever closer union among the peoples of Europe’. For some this vision has also been what the French institutionalists called a ‘theme of development’ or a leading and directing idea (Broderick 1970). The idea has in particular been institutionalized in the Commission, as the ‘guardian of the treaties’, in the European Parliament and in the European Court of Justice. Some full-time participants in the integration process have kept the idea alive even in periods of ‘Euro-sclerosis’.

 

The Union has, however, never agreed upon a coherent long-term plan for an end point for its polity building - a finalité politique. There are competing purposes and partly incompatible conceptions of the future Europe, from a federal polity to a free market area. The meaning and significance of ‘democracy’ as a normative standard is contested (Majone 1998). There is also disagreement about how the emerging polity can best be described, explained, justified, consolidated or changed. Furthermore, there is pluralism in power resources and a high level of consensus is required for change. Because the Union is ‘the first-ever attempt to construct democracy at a level beyond that of the nation state’, there is no obvious precedent or blueprint model to be copied. Neither is it clear how democracy can be organized beyond the individual country, in a Union that covers an increasing part of the European continent (Prodi 2001a). Finally, the causal and moral beliefs and the identities of European citizens are still primarily shaped by national contexts.

 

Constituted government. Some trends of development can be detected. Half a century of European cooperation and integration has produced a large-scale, heterogeneous, multi-level and multi-centered polity. Territorial boundaries and agendas have expanded and a dense institutional order; a quasi-federal polity and a system of governance based on constitution-like treaties have developed. [12] The Union is based on four basic treaties and more than 700 articles, 50 protocols and 100 declarations (Stubb 2001: 7), as well as important court decisions (Slaughter, Stone Sweet and Weiler 1998, Weiler 1999). There has been a development from a limited purpose organization to a full blown polity with the expressed aim to reconcile the need for economic competitiveness and efficiency, global influence, military security, social inclusion and justice, ecological sustainability, democratic governance, human rights, and protection of national identities, language and cultural diversity and distinctiveness.

 

Nevertheless, there is no agreement whether the European Union has a constitution, whether it needs one, and, if so, what kind of constitution is needed for what kind of polity (Joerges, Mény and Weiler 2000). One suggestion is that the Union has a constitution in legal terms but is lacking a constitutional theory where its foundational values have been worked out. The hierarchy of rules is neither rooted in a hierarchy of normative authority nor in a hierarchy of real power (Weiler 1995, 1999, 2001).

 

According to the European Commission the Union now needs ‘a text of a constitutional nature’, a constitutional Treaty which ‘clarifies the unique organization of European public authorities and which will enable the people of Europe to understand that it has for the Union the same value as a constitution for any Member State’ (European Commission 2002: 18). The aim of the Commission and its President, Romano Prodi, is a document that clearly explains what the Union is, what it is for, what its objectives are and what values it embody. It is argued that a political organization along federal lines does not mean centralization of powers and a super-state. Rather, the aspiration is to develop an organizational model that balances effective governance at the European level with respect of diversity, national identities and sovereignty. A constitution is supposed to simultaneously improve the problem solving capacity of the Union and to place limits on the growth of Community competences; to strengthen the coordination among member states and take greater account of the diversity of local situations (Prodi 2001a: 3,4, European Commission 2002: 6-7). The balancing act also includes reconciling functional efficiency and democratic control and thereby to win back the trust and support of the citizens of Europe (Prodi 2001a: 3). Likewise, the Commission observes the need to balance legal codification and flexibility in a rapidly changing world (European Commission 2002: 20). 

 

Constituting government. An incremental process of constitutional development has characterized European integration (Kohler-Koch 1999). While the long-term trend is clear, the emerging European constitutional order has not been established by a single constituent assembly or changed through a linear process. There have been succession of fits and starts and sometimes ‘seemingly haphazard developments’ (Dehousse and Majone 1994: 194). Periods of spurts in integration have been followed by stagnation and Euro-sclerosis. Cycles of political and legal integration have not always been synchronized (Slaughter, Stone Sweet and Weiler 1998, Weiler 1999). The Union has decided on issues where near-consensus has been achievable, and postponed the rest. Special events, such as the ousting of the Santer Commission and the Kosovo crisis, have had their impacts.

 

A standard interpretation of Union dynamics is to see constitutional and institutional developments as the result of voluntary bargaining among the member states  - die Herren der Verträge, or ‘the masters of the treaties’ (Moravcsik 1999). There have been important treaty agreements, but also disappointments, such as the Treaties of Amsterdam and Nice, where it turned out to be impossible to agree on radical reforms. An argument has been that the Union is able to negotiate only one thing at a time (Stubb 2001). Partly as a consequence, a process of intergovernmental conferences (IGCs) has become institutionalised. In 15 years the Union’s basic treaties have been revised four times, interpreted by some as a process of constitution making.

 

In his studies of the Amsterdam and Nice Treaties, Sverdrup argued that bargains among the member states involved more than an aggregation of pre-determined preferences and powers. An adequate understanding had to take into account how bargaining was influenced by the institutional, normative and temporal contexts in which they took place (Sverdrup 2002, also 2000).  Furthermore, bargaining processes, primarily involving executives and diplomats, take place within ecology of other change processes.

 

For example, over the last 50 years, the EU has been only one of several attempts of European integration. Compared to the other initiatives, such as the European Free Trade Association (EFTA), the EU has proved its attractiveness and competitiveness and has continuously attracted new members. While there has been no ready-made template to copy for the Union, the EU has imitated rules and ideas from other international organizations, such as the European Convention on Human Rights, the World Trade Organization and the OECD, as well as from member states. Loosely coupled processes of institution-specific learning and adaptation have also influenced the development of the European polity. The Common Assembly, on its own initiative, renamed itself the European Parliamentary Assembly. In 1986 the name was formalized to the European Parliament. This change took place after a long period of deliberate ambiguity, where the name was different in different languages and translations, reflecting different opinions about what the institution should be (Bainbridge 2000). Likewise, the body of people formulating the Charter of Fundamental Rights in the European Union renamed itself ‘Convention’, a name with clear constitutional overtones (Menéndez 2002:1). Generally, institution specific learning and adaptation has taken place as new institutions have tried to find their place in the larger political order, after they had been legally established. For example, Laffan has shown how the European Court of Auditors, as a new institution, had to ‘chart the difficult waters of inter-institutional relations’ in order to develop acceptable working relationships with other institutions (Laffan 1999: 255)

 

Furthermore, language development, with an increasing use of English in many EU-fora, is also primarily a process of local adaptation (Karlsson 1999). Both language development and the rewriting of European history books (Soysal 2002) are part of changing the cultural basis of European governance and constitution making. The same is true for the type of change through regeneration reflected in the ‘banal europeanization’ taking place as new generations through daily practices come to take their belonging to the Union as a given fact (Cram 2001). However, while a common flag or currency is increasingly becoming a given fact for a new generation, the war experiences that have been so important for European integration, may fade into the background as an older generation bent on preventing a new war in Europe dies out.  

 

The ‘local’ – specialized and segmented - processes of adaptation have to a limited degree been given systematic direction by a single European political discourse, as part of a European civic education and identity formation. In the EU major decisions have often been made without public debate or even notice of what was going on. There has also been a tendency to first act and then trying to make sense of the acts and understand what had been done (Weiler 1999: 5). For example, the Amsterdam IGC in 1996-97 did not develop a common understanding of the shape of the future European polity, the problems facing the EU, or the proposed solutions (Sverdrup 2000: 253).  As late as in 1996, there was a ‘ban on talking about constitution in Brussels’, even if that ban has now been weakened (Fossum 2000: 121). Possibly, it might also take at least one more generation to build a truly ‘res publica Europae’ (Kühnhardt 2001). Nevertheless, supplementing a dominant functional discourse of European development with a democratic discourse, may be one possible source of future constitutional dynamics. The potential is illustrated by the problematic ratification of the (Maastricht) Treaty on European Union (1992), involving a politicization of both its substantive content and the change process used.

 

Before Maastricht, European constitutional developments were primarily seen as part of a functional project and a question of expediency, functional performance and effectiveness. Nation states were cooperating to build an institutionalized action capacity in order to achieve specific substantive results and satisfy the interests of the member states. A basic idea was that  ‘a national go-it-alone approach can no longer be the answer for any country’ (European Commission 2002: 3). Supranational institutions were established as impartial referees monitoring and implementing prior bargains among member states. 

 

Increasingly, however, constitutional dynamics have also been driven by a normative project and an effort to make the institutionalized action capacity of the Union democratically responsible. A desired development has been signalled, from market building to democracy building with the aim to bring the European institutions ‘closer to the citizens’ and to reduce a perceived ‘democratic deficit’ (European Council 2001, European Council Presidency’s Conclusion 2001). Then the key problem is not limited solely to a technical process of efficient problem solving, finding the right tools and designing an institutional ‘machinery’ to aggregate pre-determined preferences and implement agreed-upon policy goals. Rather, the Union is involved in a pursuit of meaning and identity as well as. Disputes concern the normative foundations of the Union - the values and principles that should underpin its institutions and their interrelations, and the fundamental rights and obligations of its citizens. New normative criteria for assessing good governance in a multi-level and multi-centered polity are possibly to be developed and interpreted.

 

The problems of routine politics and the faith in a Convention. A complaint from those aiming at radical constitutional change is that incremental processes of historical evolution, together with local adaptations with strong elements of specialization and segmentation, do not produce acceptable results. Continuous bargaining in intergovernmental conferences, a decade of institutional reforms and processes of learning and adaptation have not eliminated the need for comprehensive change. It has also been argued that the incremental development of the European institutional system will almost inevitably lead to deficits and pathologies and to an opaque, inscrutable and cumbersome system (Schuppert 1995: 360). As a polity and a system of governance the EU is said to meet neither standards of functional efficiency nor democratic standards. The problems are also expected to increase when the Union is enlarged (Olsen 2001b).

 

The Commission brands the intergovernmental method of revising the treaties as the source of the problems. The method is time consuming, with drawn-out negotiations and decisions taken in the middle of the night by exhausted heads of state or government. It makes the process hostage to the veto of individual states and therefore produces timid solutions and paralysis, rather than giving an answer what the Union wants to achieve and what the nature of the European project is. The four basic treaties are a source of confusion, inconsistency and reduced effectiveness. Now, the role of the institutions should be defined within a single institutional arrangement and all the institutions should refocus on their core task and agree to undergo root-and-branch reform (Prodi 2001a, European Commission 2002). According to the President of the Commission: ‘We cannot think about building a new democratic Union if we leave the task of preparing and deciding on the new constitutional structure of the Union to Governments and officials’ (Prodi 2001a: 3). 

 

Throughout the history of the EU, enthusiastic federalists have produced drafts for a federalization and constitutionalization of the Union. Such drafts have never mobilized general support. Currently several member states, among them the United Kingdom and the Scandinavian countries are unlikely to want to move in a federal direction, a development they interpret as a centralization of power in Brussels. Neither do they see a need to rethink the basic institutional architecture of the Union. Some want a free market protected from governmental intervention (Economist 2000). Some prefer intergovernmental cooperation, not more supra-nationality, and recently important initiatives for cooperation have been initiated outside the EU institutions. Others see further integration without changing the treaties as an option. According to a Finish diplomat, whenever the member states do not want to talk about change that could be done within the existing treaties, the debate turns to futuristic visions. But because the member states are by nature conservative, those expecting radical treaty changes are likely to be disappointed (Stubb 2001). Even a simplification of the treaties is seen as problematic. For example, the Swedish prime minister argues that treaty articles are often the result of delicate compromises among member states. It will therefore be difficult to simplify them without changing their content (Persson 2001: 3). For many, a constitution is a symbol related to the nation state (Grimm 1995) and they do not want the EU to become a state. Since most of the key terms of the constitutional debate are loaded with symbols and interpreted differently within different political and legal traditions, misunderstandings are also common (Joerges, Mény and Weiler 2000).

 

Nevertheless, the European Union has now pinned its faith on the Convention model for constitutional and institutional reform – a model that otherwise seems to work only under  very special circumstances. The ‘Declaration on the Future of Europe’, an Annex to the Treaty of Nice, opened up for a process of constitutionalization and the Union has now set up a special Convention with broad representation. Its task is to prepare a document for the next IGC in 2004 that is supposed to revise the Treaties and possibly culminate in a ‘European Constitution. [13]

 

The Commission sees the Convention model as a deliberate break with the past and a radically new approach to change. The Convention is expected to ‘take the European project forward’ and to reveal the weaknesses of other approaches to change. A strong representation of parliamentarians is supposed to strengthen the role of the people; to involve the European Parliament and national parliaments more directly in the reform of the Union; to help winning back the trust and support of the citizens of Europe and to create a feeling of common purpose (Prodi 2001a,b). According to the Commission, the challenge is not to give a political declaration, or write a legal text, but to establish a constitution with real impact on political and social life in Europe. The Commission expects that the Convention will submit ‘a truly constitutional text with which the people of Europe can identify and where they can also identify their common project’. The Convention should also confirm that ‘an à la carte Europe is not the right option for the future development of the Union’. Furthermore,  the text should serve as the basis for ‘a subsequent renovation of the institutional system’ (European Commission 2002: 4,18).  

 

Constitutional moment or (temporary) equilibrium? Is it likely then that the Convention will be able to do what executives and diplomats have not been able to accomplish so far? Is the European Union at a crossroads, facing a constitutional moment or has the EU reached a constitutional equilibrium? Euro-speak is filled with grand words: Europe now ‘sets course towards new era’. The Union ‘has launched a new constitutional phase in the building of Europe’. A ‘historic turning point’ is expected. [14] The Commission sees the Union as moving toward federalism, but it also acknowledge that the trend is by no means certain to continue. For federalists, enlargement is viewed as making radical institutional change even more necessary than before. A major concern is that the increased heterogeneity following from enlargement should not be allowed to create a stalemate, or to reverse the trend of integration and turn the Union into a free trade area. 

 

Possibly new dynamics may be generated by the Union’s search for democratic legitimacy, including an open debate about what democracy can mean in the European context and where democratic principles should be applied. Schmitter, for example, argues that a full-scale constitutionalization is currently impossible because the member states are not ready for a ‘major overhaul of their ruling institutions’. Such change would require that the Union use a larger time frame and mobilize citizens in deliberation and referenda (Schmitter 2000: 1). The Convention has focussed transparency, democratic representation and participation, rights and freedoms as foundational principles of the Union and these may be themes not easily excluded again from European constitutional politics (Menéndez 2002). Generally, Habermas has argued that Europeans can constitute themselves as a nation of citizens based on acceptance of common legal rules, and that constitutionalization might encourage a new European consciousness and change current power constellations (Habermas 2001).

 

Indeed, it remains to be seen how the relative importance of democratic criteria of institutional assessment might change as part of the ongoing European transformations, and how the meaning of ‘democracy’ might be modified. Scharpf argues that the preconditions for a Union operating on the basis of ‘governance by the people’ and majority democracy are lacking and he sees legitimacy as depending primarily upon the Union’s problem-solving capacity (Scharpf 1999).  Member states that are relatively satisfied with the current state of affairs are also unlikely to want the Convention to produce a unanimous constitution-like text proposing precise, detailed and radical change. After a discussion of functional and democratic factors that might generate new dynamics or maintain status quo, Moravcsik (2002) also concludes that the EU is approaching the end of a decade of institutional reform. In his opinion we already glimpse the constitutional compromise that is likely to remain stable and be the end point of European integration for the foreseeable future. There will be no super-state but a more narrow and weaker federation than the existing national ones.

 

Establishing a constitutional Convention, the Union has locked itself into an organizational framework where the price of failure is likely to be high, possibly so high that the EU cannot afford a complete failure. Nevertheless, the Convention will attract considerable attention as well as a large number of participants and issues. It can easily become an overcrowded ‘garbage can’ preventing radical decisions on change. In addition, after a spurt in integration since the mid-1980s the Union may have entered a new cycle and a period of consolidation, or a retreat to inter-governmentalism, where the Council confirm or further strengthen its leading role. The disappearance of the cold war and increased support for right-wing nationalism and populism may work in the same direction.

 

In general, the analytical framework of the paper and the history of the EU suggest that in the absence of a major crisis and ‘great mentality-shaping events’ (Habermas 1988: 12) - changing who and what Europeans identify with - a formal codification of earlier achievements of integration is more likely than a radical change in the European political order. Probably, further constitutionalization and institutionalisation is likely to be a process stretched out in time, rather than a discrete act by the Convention and the next IGC in 2004. Most likely, the convention will be part of a long-term process, stretching backwards in time as well as far into the future.

 

Conclusion

The aim of the paper is, however, not to predict the outcome of the European Convention. Focus is on some basic questions in political theory about how organized government is constituted and re-constituted. The aspiration is to contribute to a better theoretical understanding of the processes through which political order is established and changed in democratic contexts. A key questions is: Are available ideas about constitutional and institutional dynamics, developed in quite different historical and institutional contexts, of any help for understanding the current dynamics of an emerging multi-level and multi-centered polity, or do current developments in Europe invite a major rethinking, revision or rejection of these ideas?

 

The European Union has transcended the old European habit of changing the political order by force. Still, the Union has struggled with old and well-known problems of re-constituting organized government by reflection and choice. Like in other polities, it has been difficult to achieve agreement and allegiance when radical change and comprehensive designs have been proposed. Again, like other polities the EU has been better able to live and cope with tensions and conflicts through routine politics than through a constitutive assembly. A key observation is that the EU has been facing a variety of challenges and balancing acts well known from other polities. Rather than behaving like a polity sui generis, the Union has coped by using a repertoire of change processes, frequently observed in other organized settings. Some institutional gardeners have had their loadstar – ‘an ever closer Union – but that vision has always been challenged. Change has usually been incremental and it has been taking place in specialized and segmented structures. Likewise, there have been ‘pockets’ of debate rather than a common public sphere with debates about the future of Europe. Often practice has come first. Interpretation, explanation and justification of change have come afterwards. In brief, a new polity is developing primarily through familiar political and organizational processes. The imperfections of these processes have created tensions and demands for comprehensive reform that it has been difficult for the Union to deal with at any single crossroads.

 

If European integration is currently in a period of consolidation, it becomes important to avoid myopic theories based solely on the most recent developments. Understanding the political development of the European Union, like the developments of other polities, includes making sense of the interaction between changes in long-term trends of integration and cooperation, cyclical and period specific differences in the tempo of integration and disintegration, and situation-specific events that are creating windows of opportunities where small interventions can create significant effects. We also have to observe that changes in legal rules, in political institutions of governance, and in language, identities and the cultural basis of EU-governance, are likely to follow different patterns and have different rhythms.

 

One possible conclusion is that European developments have so far reconfirmed, rather than fundamentally challenged available theoretical ideas about constitutional and institutional change. The European Union has avoided coercion, yet it has not invented a panacea for improving significantly the role of reflection and choice in the development of political institutions and constitutions.

 

Still, like Bagehot, we should not expect reforms to produce their full effects as long as citizens and leaders have been reared under an old order. The Union is in the midst of a process that involves developing an institutionalized capacity for collective action and efficient problem solving. Likewise, the EU is involved in a search for foundational principles that can give the Union a feeling of common purpose and direction and make its action capability accountable. In the process some key concepts, such as ‘democracy’, ‘federalism’ and ‘constitutionalism’ are likely to be given new meanings and new institutional embeddings.

 

Along the way, the European Union faces ‘collisions’ between national political systems and constitutional traditions that can lead to constructive tensions and constitutional and institutional innovations and reinterpretations. Yet the collisions can also be a source of destructive conflicts and system breakdown. The exact conditions for the different trajectories are difficult to specify, but the institutional framework for resolving disputes now established at the European level makes the first trajectory more likely than the latter.

 

 


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Endnotes.

 

[1] In the presentation of the three frames, references to specific authors are used as illustrations. The aspiration is certainly not to analyse in any detail the positions of these authors or their opponents.

 

[2] The assumption that the test of political institutions lies in expediency, the ability to meet the need for security and make mutual intercourse safer and easier, is hardly new. At least since the epicureans schools of thought have assumed that human institutions develop upon primarily materialist principles and a restless pursuit of individual happiness. All men are essentially selfish. Yet, there are tacit agreements on how to live together. Morality is identical with expedience and what is considered as right and just will vary with circumstances and time and place. Yet, the optimistic conclusion is that ‘the wise men will act justly because the fruits of injustice are not worth the risk of detection and punishment’ (Sabine 1947: 134-5). 

 

[3] Design refers to a process aimed at producing prescriptions, usually with some adaptive rules for coping with unforeseen circumstances. The process involves how institutions might be, and ought to be, constructed and adapted to human purposes in order to function well and create improvement (Simon 1970, Nystrom and Starbuck 1981, Goodin 1995).

 

[4] In spite of the reference to ‘We, the People’, the Federalists were not strong proponents of popular self-government. One concern was that public reactions would reflect the passions and not the reason of the public. Therefore, they warned against ‘the danger of disturbing the public tranquillity, by interesting too strongly the public passions’ (Hamilton, Jay and Madison 1964: 118, also p.120).

 

[5] Like many other constitutional thoughts, the idea that formal-legal rules and institutions are unlikely to be effective if they are not supported by, or consistent with, the prescriptions of moral rules and traditions, has long historical roots. Unwritten laws, internalized traditions and feelings of obligation, reverence and shame are then assumed to trump the official written laws (Sophocles 1969).

 

[6] It may be a mistake to see problems as a result of the complexity of contemporary societies. For example, in the foreword to the second edition of The English Constitution (June 20 1872), Bagehot observed that it was difficult to identify the effects of the Reform Act of 1867 and to disentangle its effects from other sources of change (Bagehot 1961: 10-11).

 

[7] Elster argued that radical constitutional change could only be justified on the grounds of justice, not consequential arguments (Elster 1988b: 304). Sartori responded that it is not easier to defend constitutional change based on ‘justice’ and that one should avoid ‘seeking a paradise that will eventually turn into an inferno’. Sartori saw constitutions as incentive structures structuring decision-making processes. In his view, the practical implication of an inability to predict is inability to reform. The task of the researcher is to specify the conditions under which specific constitutional reforms are likely to cause, or not, the intended effects (Sartori 1997: 198-9).

 

[8] March and Olsen 1975, Levitt and March 1988, March 1991, 1994b, 1999a,b, Levinthal and March 1993, March, Schultz and Zhou 2000: 199. 

 

[9] For example, Habermas (1996: 389) writes about the ‘rare moments of a revolutionary founding of a constitution’ and Elster (1988a: 6) refers to ‘the rare moments in a nation’s history when deep, principled discussion transcends the logrolling and horse-trading of everyday majority politics, the object of these debates being the principles which are to constrain future majority decisions’.

 

[10] Ackerman argues that American scholars have been unable to ‘escape the predictable consequences of the Europeanization of constitutional theory’. An implication is that the distinct American principles are increasingly interpreted ‘with theories fabricated elsewhere’ (Ackerman 1993: 4, 5). However, over the last few decades it has not been uncommon for European political scientists to get the feeling that theoretical ideas developed in the American context have been used to interpret European developments, with somewhat mixed results. Still, treating the European Union as a phenomenon sui generis, is a less adequate response than improving our understanding of the scope conditions of theoretical ideas developed in whatever organized context.

 

[11] In 1791 Paine also speculated that ‘for what we can foresee, all Europe may form but one great republic and man be free of the whole’ (Paine 1984: 209).

 

[12] Kohler-Koch and Eising 1999, Petersson 1999, Wallace and Wallace 2000, Hooghe and Marks 2001, Stone Sweet, Sandholtz and Fliegstein 2001.

 

[13] The Convention is lead by former French president Giscard d’Estaing, and was opened on February 28, 2002. The Convention involves more than 100 participants from member states as well as candidate countries, including representatives of the European Parliament, national Parliaments and the candidate countries. On the agenda are issues such as, how to bring European citizens closer to the Union, how to organize governance and politics in an enlarged Union, and how to make the Union a more important global actor. The Convention does not have any formal decision making authority. Its task is to prepare the issues for the next IGC in 2004 under the German Presidency.

 

[14] For example, European Commission 2001, 2002, European Council 2001, European Council Presidency Conclusions 2001, Prodi 2001a,b.