What Is “constitutional Efficacy”?: Conceptual Obstacles for Research on the Effects of Constitutions

When and why are codified constitutions efficacious? Answering these key and apparently straightforward questions turns out to be extremely challenging. The road to responding to them is paved with conceptual, theoretical, and empirical difficulties. In this article, I make a modest, but nevertheless hopefully useful, claim: that overlooking certain conceptual difficulties is detrimental to the advancement of the theoretical and empirical agenda on constitutional efficacy. In other words, I posit that empirical and theoretical research linked to these questions can benefit from a clear conceptualization of constitutional (or more broadly formal) efficacy that is consistent with their research objectives. It is not uncommon for social and political science research in this area to overlook the question “how should constitutional efficacy be conceptualized?” A close analysis of academic sources makes it clear that even specialized literature on questions related to constitutional (or more broadly formal) efficacy have assumed conceptualizations that are theoretically problematic given their research objectives, potentially leading to theoretical inconsistencies or inaccurate empirical conclusions. To exemplify this point, I analyze the conceptualization of constitutional efficacy used in two influential political science texts: Barry Weingast’s “The Political Foundations of Democracy and the Rule of Law” and Gretchen Helmke and Steven Levitsky’s Informal Institutions and Democracy. I argue that the conceptualizations of constitutional (or more broadly formal) efficacy used in their theoretical proposals are not adequately suited to their own research objectives, and that this conceptual misfit affects the theoretical consistency and empirical applicability of their conclusions.