The Reality Addressed by Sovereignty

Constitutionalism and, with it, the design of constitutions rest ultimately on an idea that today is rarely used in political analysis and, when it is, is generally misunderstood. That idea is sovereignty. The disuse into which the concept has fallen, and the misuse to which it is sometimes put when not ignored, impoverishes our political discourse at the very point where it should be the richest and most subtle – at the point where justice and power meet in constitutionalism. Constitutionalism is a human creation that results from the interaction between human nature and the brute facts of social existence in a postneolithic world. One brute fact is the absolute need for some form of order in any organized society; another is the inevitable chaos that results when such order is not achieved. Sovereignty is a human creation, an idea that attempts both to denote the factual necessity of order in human society and to connote a preferred way of relating to that fact. The preferred way of relating to the brute facts of social existence connoted by sovereignty is a constitutional order that marries justice with power in such a way as to tame that power and turn it to the service of a civil society.

Constitutionalism is one way of organizing sovereignty, but not the only way.

Why the Term “Separation of Powers” Is Used

“Separation of powers” is usually associated with so-called presidential systems, but all political systems use separated powers to some extent. We later use the concept of a “pure parliamentary system” to explicate precisely the codification of an Index of Separation of Powers and demonstrate that only two or three political systems reasonably approximate a pure parliamentary system. At this point it is useful to consider how framers of parliamentary systems develop ways to limit majority rule and to indicate in preliminary fashion why such limits are best considered as manifestations of a separation of powers.

In a “pure” parliamentary system, an electoral majority is translated into a parliamentary majority, and that parliamentary majority selects a prime minister who serves as the sole executive. Also, parliament is the final court of appeal for judicial matters. As we will see, this model is almost always rejected in practice for a more complex one. For example, almost all parliamentary systems also have a separately elected or appointed executive outside of parliament, as well as a supreme or high court that serves as the final body for legal appeals. Regardless of the actual powers of these two separate entities, they articulate institutionally a reluctance to place the power for all governmental functions in the same hands.

Some Initial Considerations

Constitutionalism and constitutional design are not defined by some set of principles that can be listed, memorized, and then mechanically applied. Nor are they to be discovered through some straightforward logical technique such as that based on rational-actor analysis. Constitutionalism and its attendant design principles have resulted from a centuries-old discussion aimed at understanding how to marry justice with power; how to blend hopes for a better future with the realities of the present; how to construct an order that takes into account human irrationality as well as rational actors; and how to recognize principles that are useful everywhere despite the inevitable diversity among successful political systems. If we are to understand constitutional design, then, it is essential that we reprise some of that conversation for the simple reason that the project does not rest as much on a set of principles as it rests on the reasoning implicitly contained in those principles. That is, constitutionalism and constitutional design rest on a way of looking at the world and on a method of thinking that proceeds from that perspective. The principles are thus important to us primarily to the extent they help us produce a constitutional perspective, and to achieve this perspective it is extremely useful to consider what has been rejected as well as accepted by earlier thinkers who together discovered and developed constitutional thinking.

Four Interesting Curves

Our aim in this book has been to consider principles of constitutional design in order to better understand the project as a whole rather than to develop formulae for designing constitutions. The nature of the project demands such a stance, because, if a constitution must be matched to the people who will live under it, there is no one ideal or model constitution. Instead, the history of constitutionalism shows that there is a large variety of possible successful designs. Still, various empirical regularities have emerged that can be used by framers of constitutions as they consider the preferred institutional pattern that best suits them; as a result, although there is not an overall science of constitutional design, the design project can be informed by political science.

Several empirical findings fairly plead for further explication, because together they suggest a deeply interesting aspect of constitutional design. Under conditions of liberty, those who frame constitutions exhibit a set of patterned choices that suggest constitutionalism has a certain underlying logic, and perhaps an underlying rationality. We will examine these four curves that designers seem to strain toward without conscious intent: the index of amendment difficulty generating a nearly hyperbolic curve with respect to amendment rate; the size of legislatures tracking the curve for the cube root of the population; the separation of powers increasing as popular control increases; and the historical curve for constitutional democracies tracking the curve for the number of written constitutions.

The Relationship of Popular Sovereignty to Sovereignty

It must be made clear at the outset of this chapter if we are to make sense of the term “popular sovereignty” that a “popular” sovereign is still a sovereign and therefore a supreme power. Popular sovereignty is sometimes treated as a “God word” – one that seems to be immediately clear and descriptive of an unqualified good. If analysis of the term is to proceed fruitfully, however, one must remember that popular sovereignty is by definition both a supreme power and one that is limited. An analysis of popular sovereignty is therefore a logical extension of an analysis of sovereignty, because any theory of popular sovereignty first requires a clear and useful concept of sovereignty. By the same token, rejecting the notion of sovereignty as somehow time-bound, no longer relevant, or merely mythical entails conferring the same status on popular sovereignty as well. This in turn implies the rejection of constitutional democracy and constitutional republicanism and brings into question constitutionalism of any sort. If one does not like the term “sovereignty” and prefers to use a different vocabulary to describe a limited supreme power, the shift in language will not alter the fact that we are still talking about the same thing. Like the green, leafy thing outside my window, the limited supreme power will continue to exist and function. Those who would like to change the language need to show the advantages that will result.

What follows will disappoint those looking for a “how-to” manual on constitutional design. Certainly there is much here that can be used by those writing or rewriting a constitution, but the major intent of this book is to help us understand constitutional design rather than lay out guidelines for constitutional construction – to help us think about the constitutional project rather than direct us toward specific institutional or constitutional outcomes. Even if one wanted to provide a set of instructions for those framing a constitution, it would be unwise for an outsider to do so. A fundamental fact about constitutional design is that there is no optimal model, no clear set of rules for matching a people and their situation with a set of institutions, and no inherently stable or superior constitutional system. We do know a great deal more about institutional design than Aristotle did, and even a good deal more than we did half a century ago. The empirical knowledge we now possess, however, tends to be piecemeal, theoretically unfocused, and sometimes contradictory. As important as the contributions of empirical and analytic approaches have been over the past half century, there is no substitute for just backing off and asking, How do we go about thinking about constitutionalism and the design of constitutions as an integrated project? That is the deep focus of this book, and that is why it is best to think of it as an exercise in political theory.

Previous chapters have demonstrated how negotiations in the EU lend firm support to the theory of formal leadership. In the EU, the member states have delegated extensive powers of agenda management, brokerage, and representation to the Presidency in response to identifiable collective-action problems. Drawing upon these powers and the Presidency's informational and procedural advantages, EU governments have used the office as a platform for political influence, thus raising the efficiency of negotiations and shaping the distribution of gains from negotiated agreements. Yet what does the EU case actually say about the power of the chair in multilateral negotiations? The EU is sometimes described as sui generis – one of a kind – because of attributes that cannot be assumed in all multilateral negotiations, such as the low number of actors, the high level of homogeneity, and the high degree of institutionalized cooperation. To what extent can the conclusions from this particular negotiation context be generalized to multilateral bargaining at large? Is the phenomenon of a negotiation chair that wields power and influences outcomes isolated to the EU or is it a general feature in multilateral bargaining and international cooperation? This chapter addresses these questions by placing the European experience in a comparative perspective. I consider evidence from multilateral negotiations in the areas of security, trade, and environment, drawing mainly on existing secondary accounts.

The central argument of this book is that the empowerment of chairmanship institutions in international cooperation reflects a rational response by states to collective-action problems in decentralized bargaining, and enables formal leaders both to raise the likelihood of negotiation success and to favor their own preferred outcome. This chapter presents in greater detail the logic of this theoretical argument, summarized in Figure 2.1.

The theory of formal leadership draws on rational choice institutionalism, originally developed in the study of American politics and subsequently imported into IR theory: a view of politics as a series of contracting dilemmas that may prevent or inhibit mutually advantageous exchange; a functionalist approach to institutional choice and development; a conception of states as rational actors that behave instrumentally in the pursuit of their preferences; a recognition of the agency problems inherent in the processes of delegation; and a perspective on formal rules as enabling and constraining factors. Simultaneously, this theory integrates core elements of rationalist bargaining theory: a recognition of the collective-action problems involved in complex multilateral negotiations; an emphasis on the tension between cooperative and competitive negotiation moves; an appreciation of information as a bargaining asset; a perspective on leaders and entrepreneurs as strategic actors; and an analysis of negotiated outcomes in terms of efficiency and distribution. The epistemological affinity between the two literatures is substantial, and the scope for synergies in theory development significant and important.

The previous two chapters have explored the EU Presidency's capacity to shape political outcomes as agenda manager and broker. This chapter turns to the third and final of the Presidency's key functions – representing the member states in negotiations with third parties. The EU Presidency negotiates on behalf of member governments in two principal contexts. It functions as the Council's representative in inter-institutional negotiations with other EU bodies. In particular, it engages in legislative negotiations with representatives of the European Parliament as part of the co-decision procedure, the dominant legislative procedure in the EU. Furthermore, the Presidency acts as the member states' representative in certain international negotiations. The area where the function as external negotiator is most institutionalized is accession negotiations with countries that wish to become members of the EU.

The central argument in this chapter is that EU governments' engagement of the Presidency as their representative leads to a classic principal–agent problem, with divergent preferences, incomplete control, and agent discretion. This claim shares important affinities with arguments about delegation and agency in other contexts where collective principals have delegated powers of representation to an executive agent, for instance, international trade negotiations. In the EU, the member governments have delegated the authority to negotiate agreements to an actor with its own interests and stakes in the outcome. Simultaneously, they have refrained from establishing mechanisms of complete control, since the Presidency must be able to negotiate with some flexibility in order to arrive at external agreements.

The chairmanship is a generic feature of political decision-making, whether at local, national, or international level. In city councils, parliamentary committees, and multilateral institutions, chairmen facilitate and influence decision-making by managing the agenda, brokering agreement, and representing the decision body vis-à-vis external parties. In many cases, the institution of the chairmanship is itself an object of contention. Political parties compete for formal control of legislative committees, and states struggle over the right to appoint the chairmen of multilateral conferences and international organizations. Indeed, this phenomenon extends beyond the political domain, to decision-making in other areas of social organization, from company boards to university departments and local associations.

Yet, so far, political scientists have been slow to ask and answer the kind of questions motivated by these observations. Influenced by the game-theoretical heritage of the field, students of negotiation and decision-making have tended to treat bargaining parties as functionally and formally equivalent, thus leaving little theoretical space for formal leaders with asymmetrical control over the nature of the game. In this book, I have sought to remedy this lack of attention to formal leadership in existing research. Developing and testing a rationalist theory of formal leadership, this book offers answers to three questions of general interest: Why is the institution of the chairmanship a universal feature of political decision bodies? What are the power resources of formal leaders? When, why, and how do negotiation chairs wield influence over political outcomes?

The rotation of the Presidency gives every member state of the EU an opportunity to engage in agenda management, brokerage, and representation. Yet what are the political implications of this arrangement? Does the Presidency office constitute a power platform that permits the incumbent to pursue national interests through extraordinary means, or a burden that forces governments at the helm to sacrifice private concerns for the collective good? In this chapter and in Chapters 5 and 6, I turn to the question of how the powers of the Presidency office may be used to influence the direction of EU negotiations. I begin by analyzing the Presidency's function as agenda manager.

Existing literature is highly skeptical about the capacity of Presidencies to shape the EU agenda. Typically, three forms of arguments are advanced. According to the first argument, the office of the Presidency office has not been conferred any exclusive formal powers of initiative, and therefore cannot set the EU's policy agenda. In this vein, Richard Corbett stresses: “[T]aking on the Presidency does not mean acceding to an executive office but is merely the chairmanship of one of the EU institutions for a short period.” The second line of reasoning emphasizes the limitations on Presidencies' room for maneuver imposed by inherited agendas and unforeseeable events. In an early and widely cited assessment, Guy de Bassompierre asserts that “any Presidency, however worthy and able, can only influence, at best, 5–10 percent of the issues.”