Constitutional Ethnography: An Introduction

When the well-known paleontologist Stephen Jay Gould was diagnosed with a rare form of cancer, he was told by his doctor that he had eight months to live. But being a scientist who understood statistics, he realized that the doctor was telling him the central tendency of a distribution rather than an individualized prediction of the trajectory of his individual life. And what he cared about, being human, was not aggregate rates of mortality but what was going to happen to him. He wanted to know what he could concretely do to increase the likelihood of living longer. For this, the general statistics were not particularly helpful because they only indicated a simple correlation between the date of diagnosis and the date of death. They said nothing about all of the other factors that would allow some particular case to be out in the long tail of the mortality distribution, which is where a particular individual would want to be. So Gould set about trying to disaggregate the statistics, noting: Variation is the hard reality, not a set of imperfect measures for a central tendency. Means and medians are the abstractions. . . . I had to place myself amidst the variation. (Gould 1991:476) Unpredictable things occurred that made his prognosis better-new cancer regimens became available; he noted that having a good attitude helped. Having been diagnosed with less than a year to live, Gould managed to thrive another 20 years before succumbing to an entirely different form of cancer (Dunn 2002). Gould's lesson also applies to constitutional regimes. The scholar, the citizen, and the politician typically care about constitutional orders one at a time, as individuals care about their own life trajectories. And sometimes the unexpected and the contingent matter more than the broad patterns in determining what occurs in individual cases. It does only a limited amount of good, therefore, to say that the life expectancy of a regime with proportional representation in the legislature is higher than the life expectancy of a regime with winner-take-all election districts. Or that certain judicial selection mechanisms are correlated with a particular sort of judicial activism. What most people want to know about constitutions is whether Germany or Taiwan or Nigeria would do better if their constitutions contained these features, not just whether regimes on average work better with one design rather than another. Or alternatively, one may want to know what the distinctive problems are of particular constitutional arrangements (for example, the instability that can be caused by unconstrained votes of no confidence or the dangers that follow when the executive alone can declare a state of emergency) so that one can protect against constitutional pathologies. For this, knowing how constitutional regimes fare on a handful of variables abstracted from context may say little. New knowledge may come on-line over the course of a constitutional trajectory; particular features of the individual state help or hurt in ways that cannot be corralled in any model. The urgent issue in constitutional studies typically is to know whether the experiences of some constitutional settings are helpful for understanding others-and that will depend on how similar other systems are to one's own, whether they have dealt with the same sort of historical problems, whether they have drawn their constitutional ideas from the same well. Of course, one can come closer to being useful in this way by simply having a model with more variables. In general, however, the study of individual polities up close and in detail is nearly always more helpful for those concerned with the foibles and fates of particular constitutional regimes than ambitious multivariate models in this field, given that the number of relevant countries is typically smaller than the number of relevant variables one would want to take into account. The more one is interested in particular constitutional dilemmas and the knowledge that can be brought to bear on understanding them, the more one may be drawn to constitutional ethnography. …