INTRODUCTION

Quantitative analysis of European Union decision-making can be divided into two distinct traditions. First, there is a camp representing the cooperative approach; this includes the power index approach, the compromise model and cooperative bargaining and coalition formation models. A common feature of these models is that they do not consider explicitly how the outcome of the decision-making process is arrived at. Instead, it is assumed that a compromise among the actors is reached that is a result of their formal or informal capabilities, their information-gathering capacities, and/or the interaction and coalition formation among them. Using rather general assumptions about these elements, the cooperative approach derives solution concepts that also give predictions of decision outcomes.

As noted in Chapter 4, many studies of governmental decisions divide the process into two stages. The first stage is that of compromise-seeking or coalition-formation and has very few formal rules. The second stage consists of the application of the decision-making procedure, where there are explicit written rules and the sequence of moves is specified. The co-operative approach corresponds roughly with the first stage. It makes either no assumptions concerning the second stage at all, or it (implicitly) assumes that all aspects of the second stage of relevance to compromises or coalition formation have been taken into account during the first stage of the process. This approach also presumes that the compromises made in the first stage are binding.

HOW WELL DO THE MODELS FORECAST?

The previous chapters in this book have elaborated many different models of political decision-making in the European Union. To make their forecasts, some of these models focus on the incentives created by EU legal regulations or decision-making rules. Other models emphasise the power of bargaining in political decision-making. Still others start from logrolling, coalitions, or the spatial theory of voting.

The aim of this book is to set out all these models of EU decision-making, and then to evaluate how well the models predict actual decisions. Most of the discussion is quantitative. Yet in important respects, we mean to integrate prior case studies, formal theory, and statistical methods. For example, each of the modelling approaches represented in this book builds on one or more central aspects of political life known from dozens of skilful case studies of political decisions. All competent model-building depends on careful qualitative research in which explanatory factors are identified and tentative empirical generalisations are formulated. No model is worthwhile if, like some formal theorising, it applies to nothing in particular. Case studies have generated most of the interesting hypotheses in political science. They are the essential foundation for most model building.

Moreover, case studies play a crucial role in evaluating theory.

It is time to step back and consider how the various pieces discussed thus far fit together. We must consider first how they form a coherent project and then how the various principles are related and the ways they contribute. As a coherent project, constitutional design takes its form from political philosophy in general, because the constitutional project is historically the result of, and an offshoot from, Western political philosophy. This is not to say that constitutionalism is the central concern of political philosophy or that all political philosophers have contributed to constitutional thinking. Instead, constitutionalism is so deeply embedded in Western political philosophy that the content of constitutionalism and the method for pursuing it cannot be separated from Western philosophy. In large part, this resulted from the project being defined by early political philosophers as they engaged in defining the broader philosophical tradition. In Chapter 6 we considered some of Plato's contributions to defining and advancing constitutionalism, but it is to Aristotle we must turn for laying out the coherent project in which we are now engaged.

Political Philosophy as an Integrated Project

Aristotle notes in the Politics that political theory proceeds simultaneously at three levels: discourse about the ideal, about the best possible in the real world, and about existing political systems (1288b21). Put another way, comprehensive political theory must ask several different kinds of questions that are linked, yet distinguishable.

Why the Amendment Process Is Important in Constitutional Design

We have seen that framers of constitutional republics tend to increase the level of separation of powers as they increase the level of popular control. This principle of constitutional design seems to emerge from some logic inherent in the design process rather than from designers following explicit, articulated normative rules. It was suggested in Chapter 2 that the inherent logic of constitutional design results from humans, on the one hand, seeking to create a supreme power that allows an expanded pursuit of self-preservation, liberty, sociability, and beneficial innovation and, on the other hand, seeking to prevent that supreme power from itself threatening these pursued values. As a secondary principle, framers of constitutions tend to balance the consequences of constituency size with the consequences of legislative size to produce a primary legislature whose size approximates the cube root of the population.

Put another way, under conditions of popular control the elective legislatures that are the core of a constitutional republic should have constituencies that as are as small as possible; but also, under conditions of popular control, the legislatures should not be so large as to fall under the control of legislative elites. As the population of a constitutional republic grows to a size where the attempt to achieve this balance results in both a constituency size and legislative size too large for preventing government itself from threatening popular control, a second house is usually added to the legislature and gradually strengthened as the population grows larger.

A Recurrence to Fundamentals

Thomas Jefferson is famous for his notion that every generation should engage in revolution to preserve the blessings of liberty. The notion of “revolution” in use then, contrary to ours today, did not connote a violent break with the past but a thoughtful evolution away from the present. The early American state constitutions spoke of a “frequent recurrence to fundamental principles” as the bulwark of freedom and constitutional government. The framers of the United States Constitution included an amendment process at the end – not as an afterthought, but as the embodiment of this frequent recurrence to fundamentals, this permanent (r)evolution.

“Recurrence” does not mean “the reestablishment of” or “adherence to original intention.” The recent debate over the intentions of the American founders has been far from sterile, but that discussion is not what is meant here. Rather, “recurrence to fundamental principles” involves the action of going back mentally and in discourse to recapture the principles that inform and animate our constitutional system, to reconsider these principles in the light of altered circumstances and commitments, and either to reaffirm in contemporary language and symbols what still speaks the truth to us or to alter and then ratify formally modifications or additions to these principles.

We stand in need of such a recurrence in part, ironically, because our political system seems to have triumphed in the face of a half-century struggle with our political antithesis – the nondemocratic, anticonstitutional Soviet Union.

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.