Imagine two written constitutions. One sets out a standard series of political structures and governmental empowerments and limitations; it concludes with a clause saying: “Anything in this constitution can be changed by the passage of ordinary legislation as spelled out in this constitution.” Were this “parliamentary sovereignty” model – found, for example, in the Austrian Constitution – present in the United States Constitution, then constitutional amendments could come about by agreement of majorities in both houses of Congress and assent by the president or by two-thirds vote in each house overriding a presidential veto. Our second constitution comes to a radically different conclusion: “And the Articles of this confederation shall be inviolably observed by every state …; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a congress of the united states, and be afterwards confirmed by the legislatures of every state.” Not only does the second constitution require assent by a different institutional layer from that of the national political assembly, in this case, the constituent states of the union; it also requires that this latter act of assent be unanimous. By definition, as with Poland's (in)famous liberum veto, this allows one holdout state to countermand the desire of every other state (and, presumably, the national legislature) for constitutional change. Both of these examples are taken from real political life, even though the latter constitution, the U.S. Articles of Confederation, lasted only six years.

Theories of constitutional change try to see the U.S. Constitution whole. They attempt to understand how all three branches of government have contributed to the course of constitutional development in the United States. Among recent theorists of constitutional change, Bruce Ackerman deserves great credit for highlighting the importance of this issue and stressing the need to consider the relationships among all the branches of government during three great constitutional moments: Founding, Reconstruction, and the New Deal (1991; 1998).

Whereas Ackerman is primarily interested in exploring the implications of constitutional change for constitutional law, I am interested in what this means for constitutional theory (Griffin 1996). Using the New Deal as my focus, I argue in this chapter that the new concern with constitutional change has the potential to transform American constitutional theory. In particular, I wish to press two related ideas: that because theories of constitutional change are historicist, they are not necessarily interpretive. Indeed, there is an important sense in which theories of constitutional change are prior to theories of constitutional interpretation.

This perspective on constitutional change is inspired in part by the methodology of “historical institutionalism” in political science. Historical institutionalism is often called a “state-centered” approach because it takes the concept of the state seriously and focuses on its halting evolution through American history. Perhaps the most important contribution of historical institutionalism has been its emphasis on the autonomy of the state.

INTRODUCTION: WHO SHOULD CONTROL CONSTITUTIONAL INTERPRETATION?

Madison, in a letter sent to John Brown during October 1788 discussing Jefferson's 1783 draft of a constitution for Virginia, pointed to a flaw in the U.S. Constitution, which has never been remedied by formal amendment: “In the State Constitutions & indeed in the Federal one also, no provision is made for the case of a disagreement in expounding them” (Meyers 1981, 42). Writing as Publius in The Federalist some eight months earlier, he had noted that the legislature is supposed to be supreme in a constitutional democracy: “In republican government the legislative authority, necessarily, predominates” (Federalist 51, 350). But the flawed design of American constitutions allowed the judiciary to claim supremacy over the legislature: “[A]s the Courts are generally the last in making the decision it results to them by refusing or not refusing to execute a law, to stamp it with its final character. This makes the Judiciary Department paramount in fact to the Legislature, which was never intended and can never be proper” (Meyers 1981, 42–3). Madison thus seems opposed in principle to one of the most salient features of American constitutionalism as it has evolved, namely, the doctrine of judicial supremacy, which (whatever its origins) was enunciated by the federal Supreme Court as early as 1803.

This is not to say that Madison regarded federal judicial supremacy in matters of constitutional interpretation as a catastrophic development, unacceptable in comparison to, for example, a state legislature claiming final say over the meaning of the national constitution. He may well have grown more receptive to the doctrine with experience.

In his reflections on the nineteenth-century British Constitution, Walter Bagehot remarks: “It is often said that men are ruled by their imaginations; but it would be truer to say that they are governed by the weakness of their imaginations” ([1867] 1963, 82). In this chapter I take the politics of post-Communist Eastern Europe as a point of departure from which to explore Bagehot's suspicion. More specifically, I hope to show that, contrary to what Bagehot insinuates, popular political imagination is not so much constrained by inherent deficiencies as it is differentially sustained by political possibilities that occupy the intersection of symbol and strategy.

What I offer is an exploration of political possibility occasioned by historical events, rather than a detailed report on those events. I am especially concerned to examine the rapidity with which assessments of Eastern European politics shifted, in the aftermath of the revolutionary events of 1989, from a sense of enlarged, perhaps limitless, possibility to more or less rampant fatalism. The primary focus for my argument is the impact of such fatalism on assessments of the prospect of establishing enduring constitutional democracy in post-Communist Eastern Europe. I thus am more concerned with the politics of constitution making than with the substantive features of the resulting constitutions. However, compared with those who view the politics of constitution making primarily in terms of the fairly narrow compass of bargaining over institutional arrangements and legal provisions, I focus on what is an analytically separate and, for political purposes, arguably prior question.

When a constituent assembly or other constitution-making body convenes in order to draft a constitution, the members of that assembly face a complex task. Their main goal is to agree on a constitution that will serve as the basis for a government for the present and, presumably, future generations. The constitution must establish a framework for the administration of government as well as enumerate the principles that will govern the relationship between the government and the citizenry. This is essentially a process of creating political institutions that will structure the behavior of the members of that society, a set of rules that will guide them toward a particular set of substantive political and economic goals.

In order to accomplish this task the members of such a body must come to the negotiations with some sense of which rules will best achieve their substantive goals. Because the rules will affect future outcomes, constitution makers want to create constitutional provisions that will produce the future outcomes they prefer given their expectations about the future conditions relevant to those outcomes. Thus, their preferences over constitutional provisions will be a function of their substantive preferences over future outcomes. But constitution making is a political process and these initial preferences must be modified by two primary concerns. First, they want to propose provisions that will achieve the assent of a sufficient number of additional constituent members to enact their proposals. In this politics of constitution making, they must take account of the compromises that must be made in order to garner the support of those who do not share their basic interests.

THE BIRTH OF THE CONSTITUTION

The birth of the U.S. Constitution was marked by two prominent and connected features. First, the process by which the Constitution was proposed and ratified differed radically from the means for constitutional change specified in the extant legal order that preceded the Constitution. At the national level, the Articles of Confederation announced themselves to be perpetual and required for amendment the vote of the Continental Congress followed by confirmation in the state legislature of each of the compacting states. In contrast, Article VII of the Constitution provided for ratification by special state conventions and required the ratification of only nine of the states to launch the Constitution as the highest law (binding only in the ratifying states but fully destructive of the confederated regime nonetheless). At the state level, each of the thirteen state constitutions specified a procedure for amendment. Included were requirements that the state legislature initiate an amendment, that a supermajority of the electorate approve, and that the amendment take place after a certain year or in a specified cycle of years. Article VII's ratification procedure depended on special state conventions rather than legislatures, contained no intrastate supermajority requirement, and paid no homage to temporal requirements in the extant state constitutions. Thus, the Articles of Confederation were annulled and replaced, and the constitutions of the states were subordinated to a national government, all by a careful and elaborate process that ignored the specified channels for foundational change.

Second, the process by which the Constitution was ratified was selfconsciously democratic and driven – at least in part – by a common democratic mechanism, simple majority rule.

The spread of the “third wave” of democratization to Africa in the early 1990s represented the most significant political change in the continent since the independence period three decades before. Throughout the continent, significant political liberalization resulted in the emergence of a free press, opposition parties, independent unions and a multitude of civic organizations autonomous from the state. In twenty-nine, out of forty-seven states in the region, the first multiparty elections in over a generation were convened between 1990 and 1994. In a smaller set of countries, elections were fully free and fair and resulted in the defeat and exit from power of the erstwhile authoritarian head of state. By the end of the decade, only a small minority of states were not officially multiparty electoral democracies, even if the practice of democratic politics was often far from exemplary.

Has the new, more open, political climate undermined economic reform in Africa? Has there been a negative (or positive) correlation between economic and political reform in the 1990s? What has been the impact of democratization on the patterns described in earlier chapters? It is important to understand the impact of democratization on African economies because it can provide real insights into the dynamics of change in Africa's political economy.

At the beginning of the 1990s, the dominant point of view among observers of the African scene appeared one of optimism about the region's politics, but pessimism about its economic prospects. Rather curiously, today that assessment seems reversed.

The optimism that greeted African independence in 1960 seems incongruous today. Then, few Western observers doubted that Africa would develop rapidly, and many made favorable comparisons between the prospects of African countries like Ghana and those of Asian countries like Korea, which in 1956 enjoyed roughly the same economic level. Most Western observers believed that African countries would build rapid industrialization through revenues provided by handsome prices for the primary commodities of the region. Anticipating a continuation of the Korean War commodities boom, few observers anticipated the volatility and downward trend that primary commodities would undergo in the 1960s and especially 1970s. More crucially, they did not view manpower constraints as particularly onerous and tended to be impressed with leaders like Nkrumah or Nyerere, who were generally believed to be capable of great things. In retrospect, the capacity of foreign aid to promote economic growth and build effective public institutions was greatly overestimated.

At the end of what is a fairly pessimistic account of Africa's contemporary political economy, it may be useful to remember how wrong these earlier outside observers have proved to be. I hope that this account, too, has missed a key trend or a critical new development, which will in time prove my pessimism to be unwarranted.

In events a couple of weeks apart in the fall of 1999, the Western donors announced that Cameroon was slated to be among the first nations to receive significant debt relief in the context of the revised highly indebted poor countries (HIPC) initiative; and Transparency International (TI) announced that Cameroon had for the second year in a row received the dubious distinction of ranking as the most corrupt nation in the world in the annual TI Corruptions Perceptions Index. The discourse surrounding the first event was emblematic of the world community's concern for poverty alleviation and economic renewal in Africa. The discourse surrounding the latter event was deeply cynical about governance in places like Cameroon, even if imperfections in TI's methods were duly noted. But the two events appeared to take place in two distinct and unconnected worlds. Governmental corruption in Cameroon was little remarked on in the HIPC announcements, while the news stories about the country's ranking made no mention that its government was due to receive several hundred million dollars from the world community in extra financial support.

This disconnect would be only mildly ironic in isolation. But, indeed, a key feature of Africa's twenty-year crisis has been the critical role played by the financial support of Western donors for governments in the region. The domestic dynamics I have described in the three previous chapters occurred in the context of a massive flow of resources from governments in the West to governments in Africa.

Senegal received its first structural adjustment loan from the World Bank in 1979, the first such loan extended to Africa. The economy appeared overheated, with a burgeoning balance of payments crisis and a fiscal deficit exceeding 12.5 percent of gross domestic product (GDP). Agricultural production was stagnant and had been weakened by recurrent drought. The country's small industrial sector seemed incapable of competing with imports, barely surviving thanks to protection and subsidies. Overall, Senegal's GDP had grown by 2.1 percent annually between i960 and 1980, even though its population was growing 2.8 percent a year over the same period. A year later, the government signed a three-year enhanced structured adjustment facility (ESAF) loan with the International Monetary Fund (IMF). At the time, the IMF Survey blamed the crisis largely on drought and announced confidently that the loan would quickly restore macroeconomic balance.

Since then, the country has been undergoing “adjustment.” The country's international debt burden in 1980 totaled $1.47 billion, representing a dangerous but still manageable 49 percent of GDP, but the government did not hesitate to borrow from the international financial institutions (IFIs) and France to face the crisis. In the 1980s, it received fifteen different stabilization and adjustment loans from the Bank and Fund, several of which were canceled for noncompliance with conditions. In addition, it would receive some $350 million a year in bilateral assistance, and 2 billion French francs' worth of debt forgiveness by the French government in 1989.

The Nigerian government passed decrees in 1972 and 1977 intended to limit and regulate foreign participation in the economy. The general commitment to what came to be called indigenization was established in the Second National Development Plan in 1970, and the policy was then implemented through the Nigerian Enterprises Promotion Decrees of 1972 and 1977. They established that certain parts of the Nigerian economy would exclude foreign-owned companies while other parts would tolerate them, as long as Nigerian equity participation was increased to at least 40 percent. Indigenization was motivated by the perception that ten years of independence had not lessened the economic dominance of both Western multinational corporations and of Middle Eastern (mostly Lebanese) family companies. Nigerian businessmen complained they were discriminated against and could not access bank credit to finance their expansion, while state officials, worried that foreign companies were not reinvesting their profits in the economy, wanted to exert greater control over the economy in order to accelerate Nigeria's industrialization.

The impact of the two indigenization decrees is hard to assess. They would affect well over a thousand companies, which were partly or wholly transferred either to private Nigerian business interests or to the public sector. Lebanese businesses were particularly hard hit, although the use of front men, various legal adjustments, and special exemptions helped many survive. Implementation of the decrees proved haphazard, prey to corruption and inefficiency, as “the state lacked the capacity to implement the program as its originators intended.”

Since the onset of Africa's economic crisis over twenty years ago, political scientists have sought to explain the inability and or unwillingness of governments in the region to undertake thorough policy reform. This chapter reviews the most valuable insights from this literature, before staking out a modified approach, which will then be considerably expanded in subsequent chapters. Most analyses of why Africa has not been able to renew with economic growth in the last twenty years place the blame squarely on the inability of governments to overcome societal opposition to the policy reform imposed on them by the international financial institutions (IFIs). The policy reform literature usually views societal power as being asserted through organized interest groups, but disagrees on the extent to which state agents can act to achieve real policy change. Much of the academic literature on African political economy also views African governments as prisoners of their societies through their reliance on clientelist practices to ensure political stability.

Both of these literatures contain valuable insights, but they underestimate the autonomy of African governments from societal forces. Most states in the region combine weak capacities and discipline with a fair amount of autonomy to make economic policy decisions, largely because of the weakness of organized pressure groups that would hold the state more accountable. Instead, I argue in this book that the main obstacles to sustained economic reform are to be found within the state itself and the political institutions that link state and society.

The first years of Tanzania's economic crisis in the 1980s were marked by the government's intense political and ideological opposition to the economic liberalization policies proposed by the multilateral donors. President Julius Nyerere, the country's undisputed leader since independence and a long-standing advocate of “African socialism and self-reliance,” quickly emerged as one of the most eloquent opponents of reform programs. He argued in a wide number of international forums that the effort demanded of his country represented an intolerable burden, with potentially devastating effects on political stability. Until his retirement from politics in 1985, Tanzania achieved virtually no progress on coming to grips with its devastating economic crisis. Balance of payments and fiscal deficits hovered in the double digits as a percentage of GDP, while real GDP per capita declined by some 20 percent between 1976 and 1983.

Nyerere was comforted in his position by the growing volume of aid the country received, which helped limit the impact of the crisis. In fact, much of the large infusions of aid by bilateral donors, notably the Scandinavians, was explicitly motivated by ideological solidarity with Nyerere's stance against the IMF. As a result, the break with the IMF notwithstanding, Tanzania was a leading recipient of aid in the region. Indeed, the World Bank itself continued to provide substantial support, despite misgivings about the country's policy stance. From 1981 to 1986, the Bank officially insisted that the government come to agreement with the IMF as a prerequisite for a structural adjustment loan, but it continued to disburse an average of $83 million a year in project funding.