This blog post summarizes some of the key findings from my article “Consistency in Constitutional Design and its Effect on Democracy” recently published in Democratization. In this article, I first ask whether the art of crafting and amending a constitution leads to a consistency among constitutional provisions. And second, if that is so, what effect has this consistency on a country’s democratic performance? Drawing from theoretical claims on the separation of power and electoral legitimacy, I develop a concept that identifies the institutional characteristics of consistency and inconsistency in the constitutional design with the example of the presidency and test its effect on the quality and level of democracy.
Research has provided us with substantive evidence that more presidential powers are associated with poorer democratic performance. But we also know of the problems of a causal argument because of the endogeneity of power (Cheibub 2007). Considering this, scholars have in recent years pushed the discussion in different directions, most importantly towards the advantages and disadvantages of individual constitutional provisions and their interaction when it comes to the power of the president (for example ,Elgie and Schleiter 2011; Sedelius and Linde 2018). Combined with the observation that the internal coherence of the classic categorizations of presidentialism, parliamentarism, and semi-presidentialism is not as strong as has been long assumed (Cheibub, Elkins, and Ginsburg 2014), I argue in this article that a new approach to understanding the mechanisms behind institutional effects on the quality of democracy is necessary.
Hence, I utilize a concept of consistency and inconsistency in the constitutional design of the presidency to assess institutional balances and effects. Constitutional designs usually combine ideas from different constitutional logics and sometimes also legal traditions. They rarely develop carefully mixed and matched institutions. Rather, constitutional designers go to a constitutional grab bag and often create a Frankenstein constitution with – presumably – very little attention to how different parts of the constitution might interact. The reasons to do so range from power considerations to historical legacies but can also be “caused by a polity’s commitment to apparently conflicting values” (Hirschl 2009, 1349). This grab bag is not necessarily a bad thing: Jacobsohn (2010, 16) for example stresses that “disharmony” in constitutional design can be a valued asset in the necessary process of renegotiation and recalibration. His idea is that inconsistency and disharmony in these designs may be more helpful in the democratic development of countries than harmonious or consistent constitutional solutions. This also informs the main hypothesis in which I assume that inconsistency benefits the level and quality of democracy.
Consistency and Inconsistency
But what is consistency in constitutional design? To develop a concept of consistency/inconsistency and assess its importance and impact on democracy, I focus on a core element of constitution making: the interaction of the way a president is elected and his/her constitutional power. This core element is often contested but is also central in nearly every modern republican constitution. This idea of consistency and inconsistency between election and power of the president touches upon two core principles of democratic government: the balance of power and the legitimacy of the presidency. Within the logic of checks and balances, a direct presidential election should be counterbalanced by a limited amount of power. But arguing in the logic of presidential legitimacy, a consistent constitutional design emphasizes the alignment of legitimacy and de jure power, and an inconsistent design reveals the counterbalance of legitimacy and de jure power. I follow the latter, relying on the rationale that a consistent constitutional design will align the way the president is elected with a coherent amount of de jure power. Hence, a constitutional design is defined as consistent when the introduction or abolition of the president’s direct election comes in tandem with matching constitutional powers or allows for an adaptation to the pre-existing order in a coherent way. Conversely, I define an inconsistent constitutional design (and amendment) when it counterbalances the mode of election with diametrically opposite powers.
In order to empirically test my theoretical expectations, I focus on parliamentary and semi-presidential systems because the varying degree of the dual authority of a prime minister and a president. I rely on a new data set of the 79 republican countries that have experienced parliamentarism or semi-presidentialism at some point in their history since 1918 (Cheibub, Martin, and Rasch 2015; Elgie 2018). The constitutions and constitutional amendments analyzed in this study can be found in the repository of the Comparative Constitutions Project (Elkins, Ginsburg, and Melton 2009).
Based on these data, we see that consistency in the constitutional design of the presidency is more frequent in parliamentary and semi-presidential republics. Also, to no one’s surprise, direct presidential elections mostly result in an accompanying higher level of constitutional power: Constitution-makers obviously consider the legitimacy of the direct presidential election and honor it by bestowing more de jure power.
Depending on the measure I use to quantify the quality and level of democracy, the effect of a consistent constitutional design varies. But the results show that a consistent design of the presidency is not supportive to democracy but suggest that inconsistency is beneficial. The inconsistency of constitutional design, a directly-elected president with only little power or an indirectly-elected president with a constitutionally powerful position, explains a higher quality of democracy, freedom, the rule of law, and horizontal accountability. As one could expect, we see the strongest positive influence of inconsistent constitutional design on horizontal accountability as measured by V-Dem (Coppedge et al. 2017).
Table 1. Effect of consistent constitutional design on horizontal accountability (GLS regression with random effects).
Source: Fruhstorfer, Anna. “Consistency in constitutional design and its effect on democracy.” Democratization (2019), Online First. DOI: 10.1080/13510347.2019.1590815.
This supports the assumption that a consistent design of the presidency creates either a president that is too strong or too weak and thus threatens the equilibrium between the core political institutions. Consistency and inconsistency are, an equally strong (in the case of the V-Dem measure an even stronger) explanation for the quality of democracy as the governmental type (parliamentary/premier-presidential/president-parliamentary system). Yet, as mentioned earlier, constitutional design is never picked in an absolute vacuum and the obvious endogeneity of this argument has to be taken seriously. But, the finding that constitutions that counterbalance the power and the election of the presidency are beneficial to the quality of democracy has major implications for the role of institutional design and the question of best institutional solution in democratization and democratic consolidation.
Cheibub, José A. 2007. Presidentialism, Parliamentarism, and Democracy: Cambridge University Press.
Cheibub, José A., Shane Martin, and Bjørn E. Rasch. 2015. “Government Selection and Executive Powers: Constitutional Design in Parliamentary Democracies.” West European Politics 38 (5): 969–96.
Coppedge, Michael, John Gerring, Staffan I. Lindberg, Svend-Erik Skaaning, Jan Teorell, David Altman, Michael Bernhard, M. Steven Fish, Adam Glynn, Allen Hicken, Carl Henrik Knutsen, Joshua Krusell, Anna Lührmann, Kyle L. Marquardt, Kelly McMann, Valeriya Mechkova, Moa Olin, Pamela Paxton, Daniel Pemstein, Josefine Pernes, Constanza Sanhueza Petrarca, Johannes von Römer, Laura Saxer, Brigitte Seim, Rachel Sigman, Jeffrey Staton, Natalia Stepanova, and Steven Wilson. 2017. “V-Dem Dataset V7.1.”.
Elgie, Robert. 2018. “The Semi-Presidential One Blog.” Accessed May 01, 2010.
Elgie, Robert, and Petra Schleiter. 2011. “Variation in the Durability of Semi-Presidential Democracies.” In Semi-Presidentialism and Democracy, edited by Robert Elgie, Sophia Moestrup, and Yu-Shan Wu, 42–61. Houndsmills: Palgrave Macmillan.
Elkins, Zachary, Tom Ginsburg, and James Melton. “The Comparative Constitutions Project: a Cross-National Historical Dataset of Written Constitutions.” Accessed February 22, 2013. http://www.comparativeconstitutionsproject.org/.
———. 2009. The Endurance of National Constitutions. Cambridge. Cambridge Univ. Press.
Hirschl, Ran. 2009. “The’Design Sciences’ and Constitutional Success.” Texas Law Review 87: 1339–74.
Jacobsohn, Gary J. 2010. Constitutional identity: Harvard University Press.
Sedelius, Thomas, and Jonas Linde. 2018. “Unravelling semi-presidentialism: Democracy and government performance in four distinct regime types.” Democratisation 25 (1): 136–57.
Shugart, Matthew S., and John Carey. 1992. Presidents and Assemblies. Constitutional Design and Electoral Dynamics. Cambridge [u.a.]: Cambridge Univ. Press.
 The article also includes two important case studies on the inconsistent constitutional amendment in Czech Republic and the consistency of the constitutional design in Moldova that will not be discussed in detail here.
 In order to study the consistency of the constitutional design of the presidency, I rely on an original dataset of constitutional presidential power, which is measured with a revised and updated version of the measurement index (Shugart and Carey 1992). Based on this, I use the mean of de jure power, i.e., 23 points, as threshold for the distribution of power. An inconsistent design interlocks an indirectly-elected president with a score that exceeds the mean of de jure power (e.g., in Bangladesh) or a directly-elected president with a score that is below the mean of de jure power (e.g., in Czech Republic post- 2012). Conversely, a consistent constitutional design gives a directly-elected president a more than mean level of de jure power, and an indirectly elected president less than the mean level of de jure power.