Political theorist Hélène Landemore:
Openness, and ‘taking citizens seriously’ are key to successful constitution-making
Interview by Claudia Heiss for the Observatory of the Constituent Process in Chile.
Hélène Landemore, Professor of Political Science at Yale University and Ph.D. from Harvard, recently visited Chile to address some of the challenges to contemporary democracy and discuss the role of deliberative participation in constitution-making. Invited to the “Congreso del Futuro” [Congress on the Future], organized by the Chilean government and several private instututions, and by Tribu Foundation, her agenda was intense: she made presentations at the Congreso del Futuro, at the forum “Democracia 2050”, organized by the business-oriented NGO ICARE [Chilean Institute on Rational Business Administration] and Tribu, and at the seminar on “Constitution-making processes and the case of Chile” organized by the Chilean office of the inter-governmental organization FLACSO [Latin American Social Sciences Institute] and Tribu. In the latter, she drew examples from a detailed account of the Icelandic process in order to explore the role of participation, random rather than electoral representation, and the use of crowdsourcing in order to open the political debate to the entire population. At the end of this conference, professor Landemore took some time talk to the Observatory of the Constituent Process in Chile about participation and constitution-making.
What role does citizen participation play in constitution-making processes? What kind of involvement and participation do you think would be most desirable?
What we used to mean by participation was for a long time “let us have a referendum”. People have grown tired of that. It is not enough to have the final say. If you did not have a right to shape and determine the content of what is decided on, your final say is not very meaningful. The French and the Dutch rejected the European Constitution in 2005 for that reason. They said “this is not the constitution we wanted”. The question then is how to increase participation so that it is more meaningful and takes place throughout: at the beginning, in the middle and at the end of the process. People should have a say in setting the agenda of the debate and in discussing the model for constitution-making. I always use the Icelandic constitutional process as a good example of how to implement such participation, but even they could have been even more inclusive. The National Forum in Iceland was composed of 950 people who gathered to think about values they wanted to see embedded in the constitutional text; they could have had a crowdsourcing phase at that level, to make sure they were not forgetting important perspectives. Additionally, the National Forum could have been mirrored at the city level in similar bodies of citizens (with some mechanism for sending their input to the National Forum), so as to get as many groups of citizens as possible to talk about the constitution. True, there are limits to what’s feasible: including citizens, for example via randomly selected assemblies of several hundred people, means a costly procedure. But it also guarantees an enormous gain in the legitimacy and the quality of the product, and in the likelihood that it succeeds, both in the sense of bringing about good outcomes and being supported by the population.
I do not particularly like the notion of “direct democracy.” Instead I propose a new concept of “openness” where you don’t have to be involved directly in the decision-making process but you have an oportunity to be involved if you want to. If a process is open, it means there is equal opportunity to participate. An open process may not necessarily involve mass participation, but it is accessible to ordinary citizens, via mini-publics like the National Forum, but also via deliberative and crowdsourcing platforms and the transparency of the whole procedure. Based on what people see and understand of the process they can choose to participate or not in the deliberative phase. They can say “those who are already participating are doing a good enough job, I don’t need to chip in” or “this or that is missing, I have to say something”. When a process is opaque, by contrast, then you don’t know whether you need to participate or not because you don’t have all the information you need to make a decision.
In Chile what you could try is a version of the Icelandic model, where, at the drafting stage, the constitution-writers crowdsourced their draft by putting it on the Internet at various points. They gathered a lot of useful feedback that way, which made its way into the final draft –about 10% of the comments made a causal difference to the text–. You could also implement something like a right of initiative so people can send a proposal to the Constituent Assembly and have the Assembly debate it at least, and give some feedback as to why they chose to take it into account or not. In Iceland, where they were trying crowdsourcing in a constitutional context for the first time ever, they may have missed great proposals because of lack of time, misunderstandings or ideological misalignment. They were not fully prepared to handle the input they got. People could have probably put more topics on the table. There are so many ways to reinvent constitutional processes! We need to see all the options of constitutional design and only later consider political and economic restraints. We tend to assume constraints first and then think of the design. Let us be ambitious about design first and then see what is feasible.
Empirical studies seem to have been unable, so far, to produce conclusive evidence that citizen participation affects constitutional outcomes in any particular direction. How do you think the process affects the result?
The evidence is mixed, in part because researchers use different concepts of participation (are we talking about a referendum or a genuine deliberation; is participation taking place at the beginning of the process, during the drafting stage, or only at the end?) or measure it differently, which makes it all the harder to compare results.
The “outcomes” researchers look at are also very different. Some researchers have tried to measure the impact of participation on the levels of democracy post-implementation of a new constitution. Eisenstadt, Levan and Maboudi, for example, have shown that cases of popular participation at the drafting stage show higher levels of post-implementation democracy. John Carey said that more inclusive constitutional processes yield more democratic, temperate and durable political systems. On the negative side, for countries transitioning from authoritarian rule or after war or civil war, participation can make things worse, yielding less liberal outcomes (which we usually deem “worse”). Research has often been done in contexts of crisis. If you do it right and in the right circumstances, however, the theory predicts that you should get a better text with a more participatory process; a more stable democracy, because people benefit from the system that is produced and the process has greater legitimacy.
Another problem is that very often “participation” is just a way for power to buy legitimacy on the cheap. That happened in South Africa. Two million submissions (from signatures to letters) were left unread because political parties had already set the terms of the agreement. Government gave people the illusion that their voice mattered but in the end they did not listen. This kind of participation may be better than nothing in terms of symbolic value and in terms of the democratic expectations it creates in the population, but it is also dangerous. The danger is that if you do this too often –create expectations and then disappoint them–. you breed cynicism and disengagement among citizens. If you are going to ask for citizens’ participation, you should think hard about your institutional design and how you are going to make the most out of people’s time and contributions. You should take citizens seriously.
Based on your study of Iceland and perhaps also on the Chilean case, what do you think are the main pros and cons of separating a participatory consultation phase form actual constitution making?
I think there is a big conceptual problem. If you pass all the information gathered in the first stage through the narrow filter of a few people at the top, there will be an enormous loss, no matter how well-intentioned the people doing the filtering are. It is important to infuse participatory principles all throughout the process. Constitution-making should be made by a specific assembly, convened for this specific purpose, preferably elective, perhaps randomly selected. It could be mixed: partly randomly selected and partly elected, as in Ireland. I don’t have the answer and no expert has the answer. This assembly should consult widely, via deliberative and crowdsourcing platforms where all citizens can give the constitution-makers some feedback. The mechanisms and procedures themselves should be discussed in a democratic fashion, with ample scrutiny by all citizens. The real proof that a government trusts its own people is when you include the people in the writing of the constitution itself.
It seems inevitable that the final drafting of a new Constitution will be done by a small group of people, however participatory the process may have been up to that point. How should the actual drafting take place so as to guarantee the legitimacy of the resulting text?
It is inevitable. You cannot have all of us writing the constitution. It is good that a body that is accountable do it. But it can be open. It can be receptive to brainstorming of ideas, to get input and modify their ideas in light of it. A Constituent Assembly seems to me the best model in general.
If the drafting takes place within a representative body like an Assembly, Congress, or some other type of organ, what features should it have in order to preserve the legitimacy that a participatory process provides?
It should explain its choices. Engage in a dialogue and deliberation with the people. It has to explain and engage in a conversation. The discussion should involve ordinary citizens, regular politicians, and constitution-makers. For this kind of conversation to happen, the media has an important responsibility. The Icelandic example is a cautionary tale from this point of view, because the Icelandic media did a poor job of covering the work of the constitutional council.
How should the members of the representative body in charge of drafting be selected? Is it advisable that Congress itself should draft the new Constitution or must it be a whole separate body?
Congress is the least credible for the job. Elective assemblies already in power are not adequate to create a new constitution. It should be a one-time assembly created for the specific task of drafting the constitution, in order to prevent the promotion of vested interests through constitutional design.
 Véanse Abrak Saati, The Participation Myth: Outcomes of Participatory Constitution Building Processes on Democracy, PhD dissertation, Umeå University, 2015; William Partlett, “The Dangers of Popular Constitution-Making”, Brooklyn Journal of International Law 38 (1), 2012; and Nathan Brown, “Islam and Constitutionalism in the Arab World: The Puzzling Course of Islamic Inflation.” en Aslı Bali and Hanna Lerner, eds., Constitution Writing, Religion, and Democracy, Cambridge University Press, 2016.
Hélène Landemore is the author of Hume. Probabilité et Choix Raisonnable (PUF: 2004) and Democratic Reason: Politics, Collective Intelligence, and the Rule of the Many (Princeton University Press 2013), where she argues for a democracy based on the collective intelligence generated by the inclusion of citizens with different ideas. She is also co-editor with Jon Elster of Collective Wisdom: Principles and Mechanisms (Cambridge University Press 2012).
She is currently working on a project on Digital Technology and Democratic Theory as well as in her next book: Open Democracy: Reinventing Popular Rule for the 21st Century, where she theorizes an alternative to representative democracy on the basis of concrete examples of participatory and deliberative democratic innovations.