The Process of Constitution-Making: A Law and Economics Analysis

This dissertation analyzes the overarching question of how the process of constitution-making affects the written constitution. To shed more light on this issue from a broad perspective, positive and normative research questions are dealt with. Besides an introductory chapter, which sets the stage for the dissertation and an overview of the key literature in chapter 2, this dissertation consists of four content chapters and a short concluding chapter. Chapter 3 deals with the question whether the process of constitution-making affects the choice of constitutional features. A rational-choice model shows how the introduction of a stage of constitution-making influences the constitutional choice of form of government. Chapter 4 looks further into the details of the constitution-making process and discusses which procedural rules can effectively constrain the drafters. To analyze this question, we use a theoretical model as well as a regression analysis. Following this positive analysis, chapter 5 and chapter 6 deal with more normative issues. Chapter 5 follows up on the issue referendums for the ratification of constitutions and discusses the advantages and disadvantages of simple and qualified majority requirements. Chapter 6 focuses on one specific channel through which drafters can influence the constitutional development in the future, namely unamendable provisions. A final chapter summarizes the findings in light of the limitations of this dissertation and discusses paths for future research.