CONSTITUTIONS.CONSTITUTIONS AS DIAGNOSIS AND PRESCRIPTION: THE CASE OF GERMANY
RECONSTITUTING THE STATE IN SPAIN, FRANCE, AND ITALY
CONSTITUTIONS AND THE VERTICAL ALLOCATION OF AUTHORITY
THE ANOMALOUS CASE
OF THE UNITED KINGDOM
A CONSTITUTION FOR
THE EUROPEAN UNION?
Constitutions are documents that set forth and describe the fundamental organizing principles of a state, the rights possessed by citizens of the state, the institutions that exercise public authority and the allocation of powers among those institutions, the allocation of responsibilities between the national government and subnational levels of government, and the means by which the constitution may be amended.
Constitutions are typically prepared after the demise of an existing state and its succession by one or more new states or in order to transform an existing state into a new state. Representing as they do the reconstitution of public authority in an existing or a newly created state, constitutions invariably present, even if only implicitly, a diagnosis of the institutional flaws that existed in the previous regime and were assumed by those drafting the new constitutions to have contributed to the failures—perhaps even demise—of that regime as well as a prescription, again often only implicit, for how to ensure that those failures do not occur again. But they may of course also contain provisions that, under certain circumstances, have consequences that were unanticipated by their authors.
Since 1914, Europe has experienced three periods of especially intensive preparation of new constitutions—after World War I, after World War II, and after the demise of the Soviet Union and the communist-dominated regimes of Central and Eastern Europe. In all three periods, new constitutions were prepared after the demise of the regimes that were defeated in the wars and the creation of new states in their place—for example, after the defeat of the German Empire and Austria-Hungary in World War I, after the defeat of Nazi Germany and Fascist Italy in World War II, and after the demise of the Soviet Union, Yugoslavia, and Czechoslovakia and the demise of communist regimes in other countries in the 1990s. There were, however, other notable moments at which new constitutions were prepared, such as after the demise of a military-dominated dictatorship and subsequent abdication of a monarch in Spain in 1931, after the death of Francisco Franco (1892–1975), the Spanish head of state, in 1975, and after the return of Charles de Gaulle (1890–1970) as prime minister of France in 1958.
Most of the European constitutions drafted since World War I have been drafted by constituent assemblies composed of the representatives of parties elected for that purpose or already sitting in representative institutions. That they typically provide both a diagnosis of the past and a prescription for the future is suggested by the content of many of the constitutions drafted over the past century. None illustrates that better than the constitution of the German Republic (1919–1933) and the Basic Law (Grundgesetz) of the Federal Republic. And the fate of the short-lived republic illustrates, also, that constitutions can, despite the best of intentions, have unintended and even tragic consequences.
One week after the Armistice that ended World War I, the German emperor (kaiser), William II (1859–1941), abdicated and the leaders of the parliament (Reichstag) declared Germany a republic. An election for a constituent assembly was called for 19 January 1919. In the election the Social Democratic Party, the Catholic-based Center Party, and the Democratic Party won a substantial majority of the seats in the assembly.
The empire created in 1871 was a federation of German states in which the king of Prussia was the emperor, the minister president of Prussia, the largest state, was the chancellor (Kanzler), the states were represented in the upper chamber of the parliament (the Reichsrat), and males voted for representatives of parties who sat in the lower chamber (the Reichstag). Despite the facade of democratic politics, the empire was an executive-dominated, authoritarian regime. The chancellor was accountable to the emperor, not to the parliament. The emperor could dissolve the parliament. The parliament did not have the right to question the government and could not initiate legislation. In addition, although parties existed, the opposition—most notably the Social Democratic Party, which drew substantial support from industrial workers, and the Catholic-based Center Party—were subjected to legal restrictions during much of the late nineteenth century (e.g., via the antisocialist laws in the case of the Social Democrats) and harassment, intimidation, and attacks on their institutions (e.g., via the Kulturkampf in the case of the Center and other Catholic parties).
The Weimar assembly replaced the executive-centered empire with a republic in which sovereignty was vested in the people, civil liberties were guaranteed in the constitution, the government was formed in and accountable to the parliament, and the parliament had the right to initiate legislation, question the chancellor, and vote or withhold confidence in the government. Article 22 of the new constitution stipulated that the lower house of the parliament was to be elected by universal, equal, direct secret suffrage of all men and women over twenty in accordance with the principle of proportional representation. According to Article 109, all Germans were equal before the law. In marked contrast to the empire, Article 135 of the Weimar constitution guaranteed full liberty of faith.
Perhaps more than any other until then, the Weimar constitution appeared to maximize liberal values and democratic institutions and accountability. And yet, within fourteen years, on 30 January 1933, Adolf Hitler (1889–1945) came to power—peacefully, appointed chancellor at the head of a government formed by his National Socialist German Workers Party (NSDAP) and the German National People's Party (DNVP)—bringing with him the seeds of the Holocaust and the imperial pretensions that would eventually lead to World War II.
While many political, economic, social, cultural, and international factors contributed to the coming to power of Hitler and the Nazis, the Weimar constitution itself contributed to that outcome. For one thing, its requirement that the seats in the Reichstag be allocated by proportional representation and the use of a national list system resulted in an exceptionally low threshold of representation—well under 0.5 percent of the national vote—that removed any incentive for parties to coalesce and dispersed the seats in the Reichstag among many parties. As a result, no party came close to having a majority and parties that sought to govern could do so only by forming coalitions with other parties. For the first decade of the republic, coalitions were able to obtain the support of a majority in the parliament. But once the Social Democratic Party, the largest in the republic, withdrew from the government in March 1930 in a dispute over the funding of unemployment compensation, it became impossible to form a coalition that enjoyed the support of a majority in the parliament.
At that point, a second flaw in the constitution became apparent—its retention, despite the democratic form of government, of an unusual degree of power in the office that replaced the emperor as the head of state. The Weimar constitution replaced the emperor with a president who was to be directly elected (Article 41) for a term of seven years (Article 43). The president could dissolve the Reichstag, which would result in an election within sixty days (Article 25); issue emergency decrees, impose martial law, and suspend the rights of citizens in order to ensure the state's performance of its duties and restore public order and security (Article 48); and appoint and dismiss the chancellor (Article 53).
Lacking a parliamentary majority, the government that took office after the March 1930 resignation of the Social Democratic-led government attempted to use the president's decree powers in Article 48 to pass a financial bill. But it was defeated and so President Paul von Hindenburg (1847–1934) dissolved the Reichstag and called new elections. In the election of 14 September 1930, the NSDAP won 18.3 percent, a substantial increase over the 2.6 percent it had won in 1928, and became the second-largest party in the chamber. Without the Communists, who won 13 percent, the Nazis, and the Social Democrats, who obtained almost 25 percent of the vote, a parliamentary majority did not exist. As a result, government lapsed into rule by presidential decree and a series of unsuccessful efforts by presidential appointees to form a government that could command a majority.
The turn to presidentialism provided additional legitimation to that office beyond what already existed as a result of direct election. And as that office became increasingly powerful relative to the parliament, it was not surprising that Hitler decided to challenge Hindenburg when the president, despite his age—eighty-four—ran for reelection in 1932. In the first ballot on 13 March 1932, Hitler obtained 30 percent of the vote and deprived Hindenburg of a first-ballot victory. Hindenburg won reelection in the run-off ballot on 10 April 1932, but Hitler, with 36.8 percent of the vote, had doubled the Nazi vote, compared with the election of September 1930.
The president's advisers sought Hitler's support for a new government formed by the parties of the center-right of the political spectrum but not including the Nazis. Hitler agreed, providing new elections were called. In the election on 31 July 1932, many of those who had voted for Hitler in the presidential election voted for the NSDAP. In fact, it received 37.3 percent, almost the same vote Hitler had received in the second round of the presidential election. With the NSDAP now constituting the largest party by far in the parliament, Hitler demanded the position of vice-chancellor as the price of support for a government. Hindenburg refused, but without the NSDAP and the Communists it was impossible for any grouping of parties to form a parliamentary majority, so the president dissolved the parliament and called another election on 6 November 1932. The NSDAP vote dropped slightly, to 33.1 percent, but it was still the largest party by far, and the president's advisers asked Hitler under what circumstances he would support a government. He demanded that he be appointed chancellor. Hindenburg refused and appointed instead the defense minister, General Kurt von Schleicher (1882–1934). But both the NSDAP and the DNVP refused to support Schleicher and so, seeing no other alternative, in late January 1933 Hindenburg appointed Hitler chancellor of an NSDAP-DNVP government.
The Hitler-led government took office on 30 January 1933. Less than two months later, using a fire in the Reichstag as a pretext, a new election was called on 5 March 1933, in which the NSDAP won 44 percent of the vote and the DNVP 8 percent. Commanding a majority in the Reichstag, the government put through an Enabling Act that gave the government all of the parliament's powers for four years, thus terminating the Weimar Republic.
After the defeat of Nazi Germany in World War II, the victors—the United States, the United Kingdom, France, and the Soviet Union—divided the country into four occupation zones. In December 1946 the United States and the United Kingdom combined their zones into a new entity called Bizonia, and a year later France was persuaded to join its zone to Bizonia. In February 1948, at a meeting in London to prepare the distribution of assistance through the American Economic Recovery Program (better known as the Marshall Plan after the U.S. secretary of state George Marshall, who had proposed the plan), the three Western occupying powers agreed to transform Bizonia into a federal, democratic state.
At Frankfurt on 1 July 1948 the military governors of the three occupation zones met with the minister presidents (i.e., prime ministers) of the twelve states within the zones—the other five states were located in the zone occupied by the Soviet Union—and recommended that the ministers convene a constituent assembly before September to draft a constitution for the state and put it to a referendum for approval. The ministers were less than enthusiastic, fearing that to do so would permanently divide the country, and agreed, instead, to convene a Parliamentary Council to draft a Basic Law, rather than a constitution, that would be ratified by the states. The council, consisting of delegates of the twelve states, met in Bonn from September 1948 and completed preparation and adoption of the Basic Law (Grundgesetz) in May 1949. Several months later, the five states in the Soviet zone were transformed by the Soviet Union into the German Democratic Republic (GDR) in October 1949, thereby creating the institutional and legal basis for a division of Germany into two states that would remain until the five states of the GDR entered the Federal Republic on 3 October 1990.
Just as the constituent assembly that met in Weimar in 1919 had sought to correct the deficiencies of the empire, so too the Parliamentary Council that met in Bonn in 1948–1949 sought to correct the deficiencies of the Weimar constitution. It stipulated that those who abused the freedoms granted by the law to fight the democratic order would forfeit those rights (Article 18). It created a "democratic and social federal state" (Article 20). It stipulated that acts tending to or undertaken with the intention of disturbing peaceful relations among states and preparing for aggressive war were unconstitutional (Article 26). In order to prevent the centralization of power that occurred in Hitler's Germany, it recreated a federal system of states and empowered the states through both the allocation of competences and the representation of their governments in the Bundesrat, the upper chamber of the bicameral legislature (Articles 30 and 70). It created a parliamentary form of government with a strong bicameral legislature and a weak, indirectly elected president (Article 54). It stipulated that the Bundestag, the new lower house, could express its lack of confidence in the chancellor only by a majority vote for a successor (Article 67).
The Basic Law did not explicitly mandate a change in the electoral system used in the Weimar Republic. But the electoral statute that was adopted was designed to prevent the dispersion of votes and proliferation of parties that occurred with the republic's form of proportional representation. It established a dual-ballot electoral system in which one-half of the seats in the Bundestag were filled by representatives elected on a first-past-the-post basis in single-member districts and one-half were filled from party lists in each state for which voters expressed a preference. But it stipulated that only parties winning a district seat or 5 percent of the party vote could receive seats from the party lists, thereby favoring the large parties and under-representing or excluding altogether small parties and inducing them to coalesce with larger ones. (In 1953 the threshold was raised from 5 percent of a state list to 5 percent of the second-ballot vote for the party in the entire electorate. And in 1956 the minimum number of district seats required in order to qualify for seats from the party list according to the national vote was raised to three.) Taken together, these institutional changes played a large role in facilitating the development of two large parties—the Christian Democratic Union and the Social Democratic Party—that were able, with one or more smaller parties, to form stable majorities for long periods, thereby avoiding the parliamentary instability that characterized the last years of the Weimar Republic.
In Spain, after the resignation in 1930 of General Miguel Primo de Rivera (1870–1930), who had seized power and established a dictatorship in 1923, the king, Alfonso XIII (1886–1941), decided to hold municipal elections. The elections, in April 1931, produced a massive vote for parties favoring a republic, and the king abdicated. Two months later, on 28 June 1931, a constituent assembly was elected and drafted the constitution that created the Second Republic. In an assembly dominated by the Republican and Socialist parties, it was perhaps not surprising that the constitution would establish a "democratic republic of workers of all classes." And in a country in which the Catholic Church had been a political, economic, and social power for so long, it was not surprising that the constitution would be sharply anticlerical. Article 26 stipulated that much of the property owned by the church was to be taken by the state, that public salaries for priests and the church's role in education were terminated, that orders such as the Jesuits that required a vow of loyalty were prohibited, and that divorce was legal. The explicitly class-based and anticlerical provisions of course contributed to the mobilization of Catholic and conservative opposition to the republic and to a deepening ideological polarization that eventually led, in 1936, to a military insurrection led by General Franco against the republic and the civil war of 1936–1939.
In France, the Third Republic, which had been formed in 1875, had been brought to a close with the vote by the Chamber of Deputies and Senate in July 1940, one month after the German invasion, to grant full governing power to Marshal Philippe Pétain (1856–1951). On 21 October 1945, a provisional government headed by Charles de Gaulle (1890–1970) called an election to elect representatives who would either constitute a restored Chamber of Deputies of the Third Republic or a new constituent assembly. De Gaulle urged the latter but demanded that the assembly have a limited duration of seven months and that the constitution it prepared be submitted to a referendum. The voters chose to create a constituent assembly that would, as de Gaulle wished, be limited to seven months' duration and would submit its draft to a subsequent referendum.
On 5 May 1946, a draft constitution supported by the Communists, the largest party in the assembly, and the Socialists was rejected in a referendum. Following new elections and negotiations among the major parties, a slightly modified constitution was put to a referendum on 13 October 1946 and approved by 54 percent of the voters, thereby constituting the Fourth Republic. The constitution created a "secular, democratic and social republic" (Article 1), an indirectly elected president (Article 29), and a parliamentary form of government in which the prime minister and government must receive the confidence of the National Assembly (Article 45). While it left the mode of election to be determined by law, it clearly expressed a preference for proportional representation (Article 6).
Italy had been a monarchy since the country's unification in 1861. The country had been ruled, at least nominally, by King Victor Emmanuel III (1869–1947) from 1900 until his abdication in May 1946, even throughout the two decades from October 1922 until July 1943 when Benito Mussolini (1883–1945) and the Fascists controlled the state. On 2 June 1946, Italian voters were asked to decide in a referendum whether they wished to retain the monarchy or preferred creating a republic. Fifty-four percent voted for a republic and elected a constituent assembly that drafted and, on 11 December 1947, approved the constitution creating a new republic. As in France, it created an indirectly elected president (Article 83) and required that the government enjoy the confidence of both houses of parliament (Article 94). And it stipulated that the lower house, the Chamber of Deputies, would be elected by proportional representation (Article 56).
In the wake of Franco's death in Spain in November 1975, the nature of the regime was uncertain. He had made Prince Juan Carlos de Borbón (b. 1938) his designated successor as head of state, but it was far from clear in what direction, if any, the regime would evolve. But led by Adolfo Suárez (b. 1932), and with the guidance of King Juan Carlos I, the post-Franco government engineered a gradual and peaceful transition to a democratic regime. In 1976 political parties were legalized, and in December of that year the government called a referendum that overwhelmingly approved the transitional process toward democracy outlined by the government. On 15 June 1977, an election was held for a constituent assembly. On 6 December 1978, after having been approved by an overwhelming margin in the assembly, 88 percent of the voters approved the new constitution in a referendum. Three weeks later, King Juan Carlos I signed and promulgated the new constitution that created a democratic and parliamentary form of government in a state that was a constitutional monarchy.
In at least two notable instances, constitutions were prepared not by constituent assemblies elected by voters or indirectly elected assemblies such as the German Parliamentary Council but, rather, by political executives. Not surprisingly perhaps, the constitutions prepared by sitting executives greatly enhanced the power of the executive at the expense of the legislative branch.
In France, de Gaulle had abruptly quit as head of the provisional government in January 1946, in part because of his frustration with the political parties in the constituent assembly. On 16 June 1946 he spoke at Bayeux and criticized the parties and the constitution they had wrought, and called for one that concentrated power in the presidency. While his supporters organized politically and participated in the Fourth Republic, de Gaulle remained aloof from politics, living at his country home in the small village of Colombey-les-deux-Églises in the east and writing his memoirs.
Making use of various forms of proportional representation to elect the National Assembly, the Fourth Republic had experienced a fragmentation of partisan support that made it exceptionally difficult to form stable governments. After the Communist Party, which was the largest party and remained so throughout the Fourth Republic, withdrew from the government in May 1947, it became difficult if not impossible to form stable majorities, and over the next eleven years twenty different governments held office. In addition to their short life expectancy, governments in the Fourth Republic were severely weakened by their involvement in two colonial wars, the first in French Indochina from 1946 until 1954 and the second, from 1954, in Algeria.
In the spring of 1958, with the war against the Algerian National Liberation Front (FLN) in its fourth year and the French government's resolve to continue the war weakening, the French military, with the vocal support of the large settler community, created a Committee of Public Safety in Algiers and called for de Gaulle's return to power, assuming—incorrectly as it turned out—that de Gaulle would keep Algeria as an integral part of France. De Gaulle indicated he was available, and President René Coty (1882–1962) invited him to return as prime minister, which he did on 1 June 1958.
But de Gaulle returned on one condition—that he be empowered to revise the constitution. His aides, led by Michel Debré (1912–1996), rapidly prepared a new constitution that substantially increased the power of the president. According to the new constitution, which was approved by 79 percent of the voters in a referendum on 28 September 1958, the president was given the responsibility to ensure that the constitution was observed, the public authorities functioned properly, and the country's independence was maintained (Article 5). The president would appoint the prime minister and, on the latter's proposal, the ministers of the government (Article 8). He presided over the government (Article 9), had the power to veto legislation (Article 10), could submit a proposed law to a referendum and, if it passed, promulgate it (Article 11), could dissolve the parliament and call new elections (Article 12), was the commander in chief and in charge of the military (Article 15), could take whatever measures were required to defend the republic when it was threatened (Article 16), could negotiate and ratify treaties (Article 52), and could initiate an amendment of the constitution (Article 89). In December 1958, de Gaulle was elected president by an electoral college consisting of members of parliament, departmental councils, mayors, and councilors of the communes.
In the early years of the Fifth Republic, de Gaulle mobilized support for the major initiatives of the government, and for himself personally, by calling referendums on Algerian self-determination (8 January 1961), Algerian independence (8 April 1962), and direct election of the president (28 October 1962). Legislative elections were held immediately following the 1958 referendum that approved the constitution and the 1962 referendum instituting direct election of the president, thereby transferring to the party led by de Gaulle's supporters and colleagues a good deal of the support for him expressed in the referendums. Ironically, de Gaulle, who was elected to a second seven-year term in December 1965, was defeated in a referendum on Senate and regional reform on 27 April 1969, after which he resigned.
Another instance in which a sitting executive prepared a constitution that greatly enhanced the power of the president occurred in the Russian Federation in 1993. The Russian Federation was the successor to the Russian Soviet Federated Socialist Republic, one of the fifteen that, together, constituted the Union of Soviet Socialist Republics (USSR). At the Nineteenth Party Conference of the Communist Party of the Soviet Union (CPSU) in 1988, Mikhail Gorbachev (b. 1931), who had been elected general secretary of the Central Committee of the CPSU in March 1985, initiated a series of political institutional reforms that transformed the Soviet Union and, many would say, contributed to its demise. Over the next two years, the Supreme Soviet of the USSR was transformed into a standing legislature; a Congress of People's Deputies was created, from which the Supreme Soviet was elected; multiple candidacies in the elections for the Congress were tolerated; the Central Committee of the CPSU voted, following a vote by the Congress, to remove Article 6 of the USSR constitution, which gave the CPSU a leading role in the state; elections were held for the Supreme Soviets in which multiple candidacies were allowed; and several republics declared sovereignty or outright independence.
Boris Yeltsin (b. 1931) had been brought to Moscow to be Central Committee secretary for construction in 1985 and was soon elevated to first secretary of the Moscow City Party and a position in the Politburo of the CPSU. He was dropped from both positions in 1987 after criticizing the slow pace of Gorbachev's perestroika (restructuring) but made a political comeback in 1989–1990. Elected to the Congress and Supreme Soviet in 1989 and then to the Supreme Soviet of the Russian Republic in 1990, he was elected chair of the latter in May 1990. One month later, the Russian Supreme Soviet followed the lead of the Baltic republics and others and declared its sovereignty in the Union.
Faced with declarations of sovereignty or independence by most of the republics, Gorbachev sought in 1990–1991 to renegotiate the Union Treaty. In March 1991, a referendum was held in nine republics to preserve the USSR as a "renewed federation of equal sovereign republics." At the same time, the electorate of the Russian Republic was asked whether it wanted direct election of the chairman of the Supreme Soviet. More than 70 percent said yes, and on 12 June 1991 an election was held and Yeltsin won, obtaining 57 percent of the vote.
The Union Treaty was to be signed by nine of the fifteen republics on 20 August 1991. Fearing the de facto breakup of the Soviet Union, the heads of some of the most important ministries and agencies, including defense, interior, and state security (the KGB), attempted unsuccessfully to carry out a coup. In the wake of the coup attempt, the three Baltic republics declared their independence. The Ukrainian Supreme Soviet declared the republic independent on 24 August 1991, and in October it unanimously rejected the Union Treaty. On 1 December 1991, in a referendum in which 84 percent of Ukrainian voters participated, more than 90 percent voted in support of Ukrainian independence. One week later, Yeltsin, Leonid Kravchuk (b. 1934) of Ukraine, and Stanislav Shushkevich (b. 1934) of Belarus met in Minsk, declared the USSR treaty null and void, and invited the other republics to join them in a Commonwealth of Independent States. On 25 December 1991 Gorbachev resigned as state president—he had resigned as general secretary of the CPSU on 24 August 1991—and the USSR ceased to exist.
After the demise of the USSR and transformation of the RSFSR into the Russian Federation, Yeltsin, who had played a major role in thwarting the August 1991 coup, sought to pursue a program of rapid economic reform. But he and his government soon encountered considerable resistance from within the Congress and Supreme Soviet. By early 1993 there was so much opposition to Yeltsin that a motion to impeach him nearly won. In September 1993, Yeltsin dismissed the Supreme Soviet and Congress, and the Supreme Soviet responded by terminating his presidency. The Constitutional Court upheld the Supreme Soviet's action but Yeltsin refused to leave office. When the leaders of the parliament refused to vacate the White House, he used military force to drive them out.
Meanwhile, Yeltsin had set his aides to work drafting a new constitution. The latest version of the USSR constitution, which dated from 1977, was obviously no longer applicable, and the federation had obtained independence without any constitutional structure other than what it inherited from the Russian Republic. Not surprisingly, in view of the deep hostility that had arisen between the presidency and the legislature in 1992 and 1993, the constitution prepared by Yeltsin's advisers provided for an exceptionally strong president and shifted public authority from the legislative to the executive branch. According to the constitution, which was put to the voters in a referendum on 12 December 1993 and approved by 58 percent, the president is the guarantor of the constitution and the sovereignty and independence of the federation and defines the basic domestic and foreign policy guidelines of the federation (Article 80). He appoints the prime minister, presides over meetings of the government, decides on the resignation of the government, appoints and dismisses the deputy prime ministers and ministers, nominates the judges of the Constitutional and Supreme Courts, and forms and heads the Security Council (Article 83). He can dissolve the House of Representatives (the Duma) and call elections and referendums (Article 84). He is responsible for the federation's foreign policy and negotiates and signs treaties (Article 86), is the head of the military and can introduce martial law (Article 87), can impose a state of emergency (Article 88), and can issue binding decrees and orders (Article 90). Regarding his relations with the House of Representatives, if it rejects his nominee for head of government three times he can appoint the head, dissolve the House, and call new elections (Article 111). And if the House passes two nonconfidence resolutions within three months, he can dismiss the government or dissolve the House (Article 117).
In the period since the demise of the communist-dominated regimes of Central and Eastern Europe and the Soviet Union, many of the states have succeeded in establishing democratic institutions. Most of the states in Central and Eastern Europe, seeking to join the European Union (EU) and aware that the EU's criteria for membership include the establishment of a democratic policy, have succeeded in establishing democracy and the rule of law. But most of the former republics of the Soviet Union except for the Baltic states have turned, instead, toward a form of executive-centered politics marked by an exceptionally strong president, a weak legislature, a weak judiciary, and an absence of secure guarantees for individual rights and liberties. Since 1993, the Russian Federation has exemplified this mode of politics, and to a very large degree its turn toward executive-centered authoritarianism is the result of, and dates from, its adoption of the constitution drafted by the presidency in December 1993.
If the relationship between the executive and legislative branches figures prominently in all constitutions, an equally important relationship involves that between the national government and subnational levels of government. Broadly speaking, constitutions create either unitary systems of government—that is, systems in which all responsibility and authority lies with the national government, although it may delegate or devolve some of its authority to subnational levels—or federal systems of government in which subnational units have constitutionally defined competences and powers. There are, however, intermediate arrangements, as in the case of unitary systems that devolve some degree of authority to subnational units or regions. France, Italy, and the United Kingdom have all enacted limited devolutions of authority to subnational units such as regions.
Occasionally, constitutions have been drafted primarily for the purpose of altering the existing arrangements between national and subnational governments. Among the notable examples are the 1971 and 1974 constitutions of the Socialist Federal Republic of Yugoslavia and the 1993 constitution of Belgium. The 1974 constitution, one of the longest and most complicated ever written, dealt with relations between the six republics of the federal republic—Serbia, Croatia, Slovenia, Bosnia-Herzegovina, Macedonia, and Montenegro—and the two autonomous regions within Serbia, Vojvodina and Kosovo, as well as the sharing of power by the republics and regions in a collective presidency. Designed by Tito (Josip Broz; 1892–1980), the leader of the League of Communists since 1939, prime minister from 1945 until 1953, and president since 1953, to prepare for his passing from the scene and partly to contain the resurgent nationalism that had appeared in Croatia in the early 1970s, the constitution created a collective presidency in which the six republics and two provinces had equal weight, diminished the power of Serbia in the collective presidency, increased the power of Vojvodina and Kosovo in the Serbian parliament, and increased the autonomy of those regions—all of which would, a decade later, provoke the first upsurge of Serbian nationalism, which in turn fueled a drive for secession in Slovenia and Croatia and started the descent into the wars of the 1990s.
The 1993 Belgian constitution represented the culmination of a quarter century of discussion over the relations among the linguistic and cultural regions of the country and between the regions and the national government. It replaced the unitary state with a federal state made up of communities and regions (Article 1) and created three communities—the French, Flemish, and German (Article 2); three regions—the Walloon, the Flemish, and Brussels (Article 3); and four linguistic regions—the French, Dutch, bilingual Brussels, and German (Article 4). It restricted the power of federal authorities only to matters that were formally attributed to it by the laws and the courts and reserved power in all other matters to the communities and regions. In creating a multiplicity of subnational jurisdictions possessing considerable authority while substantially limiting the powers of the national government, the constitution has moved perhaps further than any other in reversing the traditional dominance of the national government over the subnational units.
While most constitutions are quite unambiguous in creating either a federal or a unitary system, the Spanish constitution of 1978 was unusual in creating the possibility of substantial regional autonomy without precisely defining its extent. Article 117 provided for the organization of the state into municipalities, provinces, and autonomous communities, the latter to be formed voluntarily by contiguous provinces (Article 143). Articles 146 and 147 stipulated that the assembly of the provinces can then draft the statutes of the autonomous community, including its competences. Article 148 elaborates a large number of domains of policy in which the autonomous community may assume competences, and Article 150 allows the state to transfer or delegate to the autonomous community matters that are within its competence. In so doing, the constitution allows both variation across the country in the presence or absence of autonomous communities and a variation among the communities in the scope of their autonomy.
Almost every state has a written constitution. There are, however, some notable exceptions. The United Kingdom, for example, does not have a written constitution in the sense of a single constituting document. A reflection of the exceptionally long, uninterrupted existence of the English, and subsequently British, state, the most important reconstitution of public authority occurred in the seventeenth century, beginning with the civil war of 1640–1649 and culminating with the Convention Parliament of 1689, its Declaration (later Bill) of Rights, toleration act, declaration that King James II had abdicated, and transfer of the monarchy, limited in its powers, to the Dutch stadtholder, William of Orange (1650–1702) and Mary (1662–1694). Those events having taken place long before the practice, epitomized by the American and French postrevolutionary constitutions of the late eighteenth century, of describing all aspects of the forms and exercise of public authority in a single written document, the British constitution consists of all the acts, norms, and practices since 1688 that, taken together, define the rights of citizens, the powers of the monarch, the means by which a government is formed, the institutional structure of Parliament and its relations to the monarchy and the government, and the place of Scotland, Wales, and Northern Ireland in the United Kingdom.
In December 2001, the heads of state and government of the European Union (EU), meeting at Laeken, Belgium, issued the Laeken Declaration on the Future of the European Union. Noting that the EU stood at a crossroads, a defining moment in its existence as the enlargement of its membership to include the formerly communist states of Eastern Europe and the consequent unification of Europe approached, the leaders stated that the EU had to become more democratic, more transparent, and more efficient. It had to bring its citizens, especially the young, closer to its institutions; it had to redesign institutions that, for the most part, were created for the European Coal and Steel Community in 1952 and European Economic Community in 1958—both of which consisted of only six states, France, Germany, Italy, Belgium, the Netherlands, and Luxembourg—so they could function effectively for a union of thirty or more member states; and it had to develop the capacity to play a role in the world commensurate with its size.
In order to pave the way for an Intergovernmental Conference that would address these and other challenges, the leaders announced they had decided to convene a European Convention consisting of representatives of the national parliaments, the European Parliament, the European Commission, and the member states to consider the key issues for the EU's future development and identify the various possible responses. They suggested the convention should consider simplifying the four complex treaties that governed the EU, review the distinction made in the Treaty on European Union between the Union and the Community and the three pillars (the European Community and intergovernmental cooperation in justice and home affairs and in foreign and security policy), consider whether a Charter of Fundamental Rights agreed upon in 2000 should be incorporated into the treaties, and examine whether this simplification and reorganization "might not lead in the long run to the adoption of a constitutional text in the Union" and, if so, "what might the basic features of such a constitution be?" (Laeken Declaration).
The convention, composed of fifteen representatives of the heads of state or government, thirty members of the national parliaments of the fifteen member states, sixteen members of the European Parliament, two representatives of the European Commission, and two representatives of the national parliaments and one representative of the government of each of the thirteen accession candidates, as well as a president—former French president Valéry Giscard d'Estaing (b. 1926)—and two vice presidents, convened on 28 February 2002. Over the next sixteen months, the convention drafted a Treaty Establishing a Constitution for Europe that introduced a large number of changes in the institutions of the EU that were designed to enhance its democratic legitimacy and increase its efficiency both within the union and vis-à-vis the rest of the world.
The constitutional treaty was presented to the European Council in July 2003 and an Intergovernmental Conference began on 4 October 2003. After a protracted dispute over a proposed change in the weight of the member states in voting within the council and several other issues, the now twenty-five member states agreed to the treaty on 18 June 2004. The treaty was officially signed in Rome on 29 October 2004 and then referred to the member states for ratification. As with any treaty of the EU, all of the member states would have to ratify it in order for it to take effect.
By late May 2005, nine member states had ratified the treaty, starting with Lithuania in November 2004, then Hungary in December 2004, Slovenia in February 2005, Italy and Greece in April 2005, and Germany, Austria, Slovakia, and Spain in May 2005. But on 29 May 2005, in a referendum in France in which more than 69 percent of the registered voters participated, 54.7 percent of the voters rejected the treaty. Three days later, on 1 June, in a referendum in the Netherlands in which more than 63 percent of the registered voters participated, 61.7 percent of the voters rejected the treaty.
Recognizing the legal reality that the treaty could not take effect until all of the member states approved it, the leaders of several member states that had planned referendums and in which approval of the treaty was far from assured immediately announced postponement of the referendums. Meeting two weeks after the French and Dutch referendums, the leaders of the EU called for a "period of reflection" and agreed to reconsider the situation in June 2006. Several member states nevertheless continued with the ratification process: Latvia and Cyprus in June 2005, Malta in July 2005, Luxembourg—after a referendum that endorsed the treaty—in October 2005, and Belgium in a series of votes extending from April 2005 to February 2006. As a result, by the latter date, a total of fourteen of the twenty-five member states had approved the treaty. But it was clear to all that the treaty would not take effect until France and the Netherlands reversed their votes—and it was far from clear whether, and if so under what circumstances and when, that would happen, just as it was not at all clear that, in the event the referendums were rescheduled and held in all of the member states that postponed them, the treaty would be approved.
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David R. Cameron