The Endurance of National Constitutions by Zachary Elkins; Tom Ginsburg; James Melton

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The Endurance of National Constitutions by Zachary Elkins; Tom Ginsburg; James Melton
Review by: Nathan J. Brown
Perspectives on Politics,
Vol. 8, No. 2 (June 2010), pp. 700-702
Published by: American Political Science Association
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Bciciic Rawiews | Comparative Politics
continue, against their
will, to be
marked and shaped by
the war.
It is
most interesting
that
Coulter employs a framework
commonly adopted by other researchers, scholars, and
humanitarian actors engaged
with armed groups and fight
ing forces in
order to grasp
what has happened to these
young
women. Her account thus
focuses on a number of
elements: entry into the rebel group; experiences
within
that
group,
with a focus on roles, violence, and violations;
exit from the
RUF; and reception upon return
and liveli
hood strategies
at present. In employing this
framework,
Coulter goes well beyond what most other scholars on
these topics have accomplished to
date.
Important among Coulter's contributions is her atten
tion to the silences among her key informants. She helps
us understand when silence may be about deliberate
choice, healing, and survival,
and when it
expresses
pains
that go far,
far beyond what words could convey. She
also raises important questions about why some
wartime
violations?such as cutting off of hands or disembowel
ing
pregnant
women to identify
the sex
of fetuses?were
widely recounted (though few admitted to actually see
ing such horrors), while other crimes?particularly sex
ual mutilations of
women?though widespread and often
witnessed, were rarely
recounted. She shows how women
formerly
with the rebels have learned to narrate their
stories to
humanitarian actors, often through a variety
of
silences, omissions, and deadening of their language and
emotion. She pays careful attention to the stories that
unfold in her own interviews, the work of her Sierra
Leonean research assistant, the narratives presented to
humanitarian agencies, those running the
Disarmament
Demobilization and Reintegration (DDR) programs, and
the proceedings of the Special Court for Sierra Leone
(Special Court) and the Sierra Leonean Truth and Rec
onciliation Commission (TRC). Refreshingly, her work
moves well beyond trying to reconstruct
women's war
narratives as something that can be taken and presented
at face value. Instead, she further
develops our under
standing of the distinction between narratives of "experi
ence and experience as expressed" in light
of the
present
(p. 19). In
doing so, she is less worried about reconstruct
ing the stories of her informants and more focused on
the understanding that comes from her informants'
re-presentation,
reinterpretation
and resequencing of their
experiences.
Throughout the book, Coulter pays careful attention .
to the social and cultural situation within Sierra Leone
during and after the
war, and thereby skillfully
engages
some of the
main debates centered around understanding
armed conflict and violence through
gendered and femi
nist perspectives. She challenges the notion that
war is
always a
masculinizing endeavor, recalling
how rebel
boys
and young
men would engage in
transvestite
dressing
using
the
dresses and hair extensions of
women, at
which times
they carried out some of the
most gruesome forms of
violence. Drawing from the literature
on rape in
war, her
painful and detailed discussion of the forms of sexual abuse
and rape
makes clear that the
humanitarian discourse of
these
young women as "sex slaves" or "forced wives" fails
to engage with the
ways in
which these young women
experienced violence, sought to shield themselves from it,
and tried to
mitigate it.
Furthermore, such terms
obscure
how these
women survived, maneuvered, or tried to
plan
and live their lives.
The author correctly posits that
rape and sexual violence are socially constructed experi
ences, and that the intensity
of the trauma
will depend in
part on the response of the society.
For
women victims in
Sierra
Leone, "war rapes thus etched everything
from
med
ical conditions to social stigma
on their
bodies," and this
resulted in "factors
beyond their control that delineated
their
possibilities to act" (p. 134).
Coulter also draws on feminist analyses of the use of
pornography in
wartime rapes to
make sense of the fact
that her informants
were subjected to sex
acts that they,
as
rural
females,
had never known existed?even though the
known distribution of
pornography
was largely
isolated to
the capital during the time of the
war. Moreover, in
her
damning overview of the gender-blind DDR programs,
she adds a further
nuance to our understanding of
why
some women chose not to try
and enter the programs,
again showing that
such programs require
a deeper under
standing of the local
moral order. She details evidence of
much confusion among civilians?and especially those
for
merly associated with the rebels?regarding the mandates
of the
DDR, the Special Court, and the
TRC. And she
shows how misguided were those internationals who
believed that "testifying
about violence and humiliation,
talking about what happened to them during the
war,
would be cathartic and healing for
people" (p. 179).
This is
a sobering account of the effects
of violence on
a society
wracked by civil
war and especially on the
women
of such
war-torn societies,
who are still
a long
way from
any redress
for their suffering.
The Endurance of National Constitutions. By
Zachary
Elkins,
Tom
Ginsburg,
and
James Melton.
New York:
Cambridge
University
Press,
2009. 270p.
$85.00 cloth,
$28.99 paper.
doi:10.1017/S1537592710000988
? Nathan
J.
Brown,
George
Washington
University
Comparative constitutionalism as a distinctive field is his
torically
deep and empirically
wide. Scholars of politics
have compared constitutions since the
days of Aristotle.
And writing constitutions is increasingly
a transnational
enterprise, involving the
melding of domestic politics, for
eign experiences, and international expertise.
Some things should now be clear from an admittedly
very
diverse set
of
global experiments
with writing consti
tutions: a constitution that attempts to please everyone,
700 Perspectives on Politics
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specify too
much, and open itself
too easily to extensive
rewriting
will be verbose, ugly, friendly to rent-seeking,
overly rigid in details but also overly friendly to rapid
change. In short, it would resemble an ordinary law
more
than
our image of what a constitution should be.
With appropriate hedges and qualifications, Zachary
Elkins, Tom Ginsburg, and James
Melton now tell us
that this
would be a good thing?assuming we want an
enduring constitution (and, with even more qualifica
tions, they think
we usually should). As they say in
clos
ing, "Constitutions endure,
we find,
when they
are more
like statutes?flexible, detailed, and infused
with self
interest?than the conventional image of constitutions
would have it" (p. 211). In the
process they
come close
to arguing that constitutional politics can work (and
be understood) best the less it is treated as a distinctive
field.
The field of comparative constitutional analysis that
they
wish to
enter (and perhaps gently
undermine) is
quite
diverse.
Actually, it is
not so
much a single
field as a col
lection of
disparate intellectual enterprises?each with its
own set
of
questions, assumptions, conventions and blind
spots?clustered around an a single
phenomenon: a
writ
ten
constitutional text.
Normative political theory
has long
focused on constitutions and constitutionalism; special
ists
in
comparative politics have discovered (and then aban
doned only to have a subsequent generation rediscover)
constitutional analysis; legal scholars have probed specific
language and institutional arrangements; judicial special
ists have sometimes shown a special interest
in constitu
tional law and adjudication of
constitutional disputes; new
institutionalists have discovered that constitutional design
provides fertile
ground for
study; scholars
of specific
coun
tries and regions (of course the
United States but also
other areas such as eastern
Europe and
Africa) have increas
ingly
reached outwards in
order to
better understand the
cases they
study.
Actually, to say that these
diverse inqui
ries are unified by a common subject
matter is itself
an
exaggeration since the term "constitution" has prompted
some of the
most wide-ranging definitional discussions
among disciplines already inclined toward
prolonged ter
minological tussles.
Elkins, Ginsburg, and
Melton attempt to
draw on and
contribute to these
various intellectual traditions (though
they are too modest and too inductive to pretend to
resolve any of them).
They succeed.
While their book is
broad it is
not shallow.
They have some interest
in
what
makes for better and worse constitutions and therefore
participate usefully in some of the normative debates.
But their real interest lies less in theory and more in
what makes constitutions last longer in
practice.
They do
pay considerable attention to the environment in
which
constitutions are
written, but their
deepest interest is in
questions of design. How can a constitution be written
to
make it last longer?
In attempting to answer this
question, they
use a vari
ety
of tools. First, they
delve into some of the theoretical
debate, arguing gingerly that constitutions are likely to
last longer if they are written in an inclusive process,
favor specificity
over generality, and allow for
flexibility
in their
application and especially their revision. This is
far
from
a banal set
of claims; indeed, they
stand in sharp
contrast to
much of the
writings in various fields on
constitutions. An inclusive process is
often held to risk
promotion of rent-seeking and short-sighted politics; a
specific text
might seem to
be rigid
and allow little
room
for normal politics; and a constitution that can be
amended with ease
may open basic arrangements to con
stant contestation and renegotiation. Elkins, Ginsburg,
and Melton are bucking much conventional wisdom,
though they
are fairly
tentative in the
way they
advance
their claims.
Their hesitancy is largely
because they are primarily
interested in
empirical analysis.
They set to
work using a
variety of tools?chiefly statistical analysis and a set of
structured case studies?to test their ideas. Because they
are careful, and perhaps because they
are more comfort
able working inductively, their
findings are presented as
largely
consistent
with their
claims but far
from
definitive.
The authors' empiricism is
not careless; neither is
it
mind
less.
They pose important
questions of broad interest,
and
their
findings, for all their tentativeness,
are striking
and
will be of interest
to the
many communities of scholars
(and the army of international experts and consultants)
interested in
constitution drafting.
Readers who find data analysis deadening will be kept
alert by a lively
writing style. Some might object that
"lively" is
not the best term to use.
While they
focus on
the birth of constitutions, their real interest is in their
death. Organic metaphors are very common in constitu
tional analysis, but Elkins, Ginsburg, and
Melton favor
a
set
of
morbid variants.
They speak not only of "constitu
tional
death," but also analyze "risk
factors"
and label their
approach "epidemiological." When they
confront the
fact
that the American constitutional experience seems to run
counter to their general lessons, they compare it to a woman
who lived to a 120 subsisting on chocolates, cigarettes,
olive oil, and wine. (It should be noted here that they
avoid the troublesome if increasingly less common ten
dency of American authors on constitutions to use their
own country's experience as the
only yardstick of consti
tutional standards and store
of constitutional experiences.
The United States is
a steady
but not dominant presence
in their
analysis).
But if
disease and death provide the
most frequent
met
aphors for
the
authors,
ultimately
more provocative is
their
observation that
writing constitutions is
like
nothing
more
than
politics
more generally.
Constitution drafting is
a less
distinctive form of politics than so
many have come to
think:
they
conclude iconoclastically that "the
overall thrust
June 2010 |
Vol 8/No. 2 701
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of our argument is to emphasize the similarities between
constitutional politics and ordinary politics" (p. 211).
Dual Transitions from
Authoritarian Rule:
Institutionalized Regimes in
Chile and Mexico,
1970-2000. By
Francisco
E.
Gonzalez. Baltimore:
Johns
Hopkins
University
Press,
2008.
304p.
$55.00 cloth,
$25.00 paper.
The Illusion of Civil Society: Democratization and
Community Mobilization in
Low-Income Mexico.
By
Jon
Shefner.
University
Park:
Pennsylvania
State
University
Press,
2008. 240p.
$55.00.
Savage Democracy: Institutional Change and Party
Development in
Mexico. By
Steven
T.
Wuhs.
University
Park:
Pennsylvania
State
University
Press,
2008.192p. $45.00.
doi:10.1017/S153759271000099X
? Eduardo
Aleman,
University
of Houston
The authors of the books reviewed here share a common
interest
in the
process of democratization in
Mexico. All
three seek to explain how political actors?party leaders,
civic groups, or outgoing authoritarians?confronted an
uncertain environment characterized by major political
changes
with potentially
high costs
and benefits. The books
differ in their research designs, but all three employ a
qualitative approach characterized mainly by in-depth
narratives.
Savage Democracy focuses on the
organizational dilem
mas confronting the two
main opposition parties, the
National Action Party (PAN) and the
Party of the
Dem
ocratic Revolution (PRD), as the authoritarian regime
began to retreat.
Steven
Whus is
particularly interested in
examining how the leadership of these
opposition parties
adapted to a changing political environment that made
their
parties serious challengers to the
historically domi
nant Institutional Revolutionary Party (PRI). Both the
PRD and the
PAN strongly
condemned the PRI's corpo
ratist system and were committed not only to bringing
about democratization but also to
being internally
demo
cratic parties.
These twin objectives, according to
Whus,
impacted how the
parties confronted the
new demands of
electoral
competition. Leaders intent
on transforming
their
parties into efficient
vote-getting organizations were con
strained by norms that stressed internal participatory
democracy.
Whus examines reforms to candidate selec
tion
mechanisms, initiatives for
developing professional
party bureaucracies, and efforts
to build links
with civil
organizations.
These reforms,
he argues, raised serious
con
cerns among influential
groups inside the PAN and the
PRD, which saw them as incompatible with the demo
cratic imperative
characteristic
of their
parties.
According
to the author, even party leaders,
primarily
motivated by
electoral goals,
were concerned about the impact that
pro
fessionalization and bureaucratization may have for the
rank and file and for the
potential loss
of
party
mystique.
In the
end, however, parties adapted to the
new environ
ment and embraced electoralist
modes of
political organi
zation. For
Whus, the PAN and the PRD turned away
from their
members even before the
end of
PRI rule,
and
in
doing so they
weakened Mexico's new democracy.
Savage Democracy addresses an important yet under
studied area of research
and is
a
welcome contribution to
the literature
on political parties in
Mexico. It
presents a
rich account of how party leaders dealt simultaneously
with the
need to
keep party factions together
and the
goal
of
maximizing electoral benefits. The chapter on the build
ing
of central party offices is
particularly informative
on
the
process of bureaucratic development, and the chapter
on candidate selection mechanisms complements a grow
ing literature
on candidate selection mechanisms in
Mex
ico.
Whus's description of the efforts made by the PAN
and the PRD to link
with civic society raises some inter
esting
questions about the
ability of opposition parties to
forge ties
with social actors in
a nonclientelistic, noncor
poratist manner.
It is
unfortunate, however, that some of the
main argu
ments about institutional change are not discussed until
the
concluding chapter and are presented in
a rather
suc
cinct
way. For instance, the author identifies
at least seven
different
paths of institutional reform
and inductively
con
cludes that
two
main factors, institutional specificity
(i.e.,
requiring formal
processes to reform
or not) and strength
of
opposition, determine the
path of institutional reform.
While the
argument about institutional specificity
is
par
ticularly interesting, it
does not seem to be sufficiently
developed as a sound theoretical proposition. While the
normative predilection for internally
democratic proce
dures is
highlighted throughout the book, it is
not clear
when and how we should expect the "democratic imper
ative" to constrain leadership choices. As a result, some
readers
may be left
wondering whether those PAN and
PRD factions that opposed reform
were actually moti
vated by a commitment to
democratic norms, rather
than
by a desire to avoid losing political influence inside the
party.
These criticisms notwithstanding, Savage Democ
racy
succeeds in conveying the importance of party poli
tics. It shows how heightened competition impacted the
internal
organization of opposition parties, and presents
an enlightening account of the internal
development paths
followed by opposition parties during the
Mexican tran
sition process.
Jon
Shefner's
The Illusion of
Civil Society
focuses on the
evolution of a civic organization formed in
a poor urban
community
during the
transition
to
democracy and
market
oriented economic policies. The book offers
a rich
por
trayal
of both the
difficulties
associated with challenging
long-standing clientelistic practices in low-income urban
communities and the
organizational and collective-action
dilemmas faced by grassroots
movements. The engaging
narrative, based on extensive fieldwork, centers on the
702 Perspectives on Politics
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