Does Institutional Design Make a Difference?

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Autor	Steven G. Calabresi
Cargo	Northwestern University School of Law; Chicago, EUA
Páginas	188-206

Does Institutional Design

Make a Dierence?

Steven G. Calabresi*

Northwestern University School of Law; Chicago, EUA

One of the greatest questions that hangs over political science and law

is whether the institutional design of a constitutional democracy does or

does not make a difference with respect to whether that democracy is a

success. I believe quite f‌irmly that institutional design does make an im-

portant difference, but others argue that the effects of institutional design

are dwarfed by the effects of culture or of religion or of linguistic and/or

racial and ethnic homogeneity or of poverty.

The chief skeptic of the institutional-design-makes-a-difference argu-

ment on the Northwestern Law faculty is my good friend and colleague Jide

Nzelibe who is acutely aware of how little institutional design has contribut-

ed to good governance in some constitutional democracies around the world

such as Nigeria. Nigeria has an American-style constitution with separation

of powers and federalism, but those institutional features are dwarfed by the

division of the country between Christians and Muslims and by problems of

corruption. If the U.S. constitution is, as I think it is, an institutional success

story, the Nigerian constitution stands as a reproach. The lack of cross-cut-

ting cleavages in Nigeria seems to trump everything else.

Direito, Estado e Sociedade n.45 p. 188 a 206 jul/dez 2014

* Clayton J. and Henry R. Barber Professor of Law, Northwestern University; Visiting Professor of Political

Science, Brown University 2010-2018; Chairman, Board of Directors, The Federalist Society. s-calabresi@law.

northwestern.edu.

I would like to thank Jide Nzelibe for comments that have been helpful to me in writing this draft.

189

Two distinctive features of American constitutionalism that have been

much copied abroad are the U.S. system of federalism and the U.S. sys-

tem of a presidential separation of powers. The results have not been very

encouraging. Federalism in otherwise stable western constitutional de-

mocracies such as Canada (Quebec), the United Kingdom (Scotland), and

Spain (Catalonia and the Basque Region) has led to powerful separatist

movements, and, as a result, the specter of secession hangs over those

countries. The experience abroad with exports of U.S. style presidential

separation of powers has been if anything even worse. Every presidential

separation of powers democracy in Latin America has at some time or

another degenerated into an authoritarian system of one-man presiden-

tial rule, and the same thing has also happened in Russia, Indonesia, the

Philippines, and South Korea. As a result, political scientists and advisers

to constitution writers today often weigh in against federal or separation

of powers systems and in favor of unitary, parliamentary structures. Those

structures too, however, have in the past degenerated into authoritarian

rule as happened in the unitary, parliamentary regimes in Japan and Italy

prior to World War II.

I want in this essay to identify two key features of U.S. constitutional

design, which I think are integral to the success of U.S. federal and pres-

idential, separation of powers, but which are not widely known and are

therefore not widely copied when newly emerging democracies around the

world choose to write a constitution. In Part I, I will focus on the fact that

American federalism is characterized by a much larger number of state en-

tities than exist in most federal regimes and on the fact that state boundary

lines are drawn pretty arbitrarily and cross-cut regional and ethnic cleav-

ages. In Part II, I will focus on f‌ive features of the U.S. system of presiden-

tial separation of powers, which make out presidents much weaker than

the presidents of other countries with presidential systems such as France.

I will argue here that the failure of presidential systems in other countries

are largely due to the failure to copy the aspects of U.S. constitutionalism

that constrain our presidents and keep them on a tight leash. I will focus

my discussion in both parts on the experience in constitutional democra-