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45 Duke L.J. 364 (1995-1996)
Forces and Mechanisms in the Constitution-Making Process

handle is hein.journals/duklr45 and id is 390 raw text is: ESSAY FORCES AND MECHANISMS IN THE CONSTITUTION-MAKING PROCESS JON ELSTERt INTRODUCTION The topic of this Essay is how new constitutions are made, the mechanics of constitution-making. Surprisingly, there is no body of literature that deals with the constitution-making process in a positive, explanatory perspective. There are, to be sure, a number of studies, on which I shall draw heavily, of particular constitution-making episodes. Furthermore, there is a large com- parative and theoretical literature on the ordinary legislative pro- cess, as well as a substantial body of writings on comparative con- stitutional law. Much has also been written on the consequences of constitutional design-presidential versus parliamentary systems, unicameralism versus bicameralism, and so on. But there is not, to my knowledge, a single book or even article that considers the process of constitution-making, in its full generality, as a distinctive object of positive analysis.' Although the present Essay is by ne- t Robert K. Merton Professor of Social Science, Columbia University. This Essay was presented as the 1995 Brainerd Currie Lecture at the Duke University School of Law on February 13, 1995. Over the last five years I have discussed constitution-making in Eastern Europe and elsewhere with a number of colleagues. I am especially grateful to Stephen Holmes, Aanund Hylland, Claus Offe, Wiktor Osiatynski, Ulrich Preuss, Ad- am Przeworski, and Cass Sunstein. I would also like to acknowledge the support of the IRIS project and of the Center for the Study of Constitutionalism in Eastern Europe at the University of Chicago Law School. 1. Among writers who have considered constitution-making in comparative perspec- tive, MARKKU SUKSI, MAKING A CONSTITUTION: THE OUTLINE OF AN ARGUMENT (1995) is mainly legal and normative. A more explanatory approach is found in chapter 8 of ANDREA BONIME-BLANC, SPAIN'S TRANSITION TO DEMOCRACY: THE POLrICS OF CONSTITUTION-MAKING 135-61 (1987), but her discussion is less than fully general. Being limited to transitions from authoritarianism to democracy, it does not, for instance, cover such constitution-making episodes as the Federal Convention in Philadelphia. The articles in CONSTITUTION MAKERS ON CONSTITUTION MAKING (Robert A. Goldwin & Art Kauf- man eds., 1988) describe individual constitution-making episodes, with no comparative or theoretical perspectives, except for the fact that the contributors were asked to address the same set of questions. PATRICK A. FAFARD & DARREL R. REID, CONSTITUENT ASSEMBLIES: A COMPARATIvE SURVEY (1991), while useful, is mainly descriptive (and,

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