Constitutional Crowdsourcing: Democratizing Original and Derived Constituent Power in the Network Society by Antoni Abat Ninet, a Book Review – Part I

June 13, 2024

[Editor’s note: this is the first of two posts featuring the book Constitutional Crowdsourcing by Antony Abat Ninet, (Edward Elgar Monographs in Constitutional and Administrative Law, 2021)]

Constitutional Crowdsourcing: Democratizing Original and Derived Constituent Power in the Network Society by Antoni Abat Ninet, provides empirical evidence from online citizen feedback within various constitution(s). The book demonstrates that despite the normative skepticism about implications of participatory constitution making, citizen participation matters. The book argues that using data of online votes and comments on the constitution, make the draft provisions with higher public approval less likely to change and those with lower approval more likely to change. It argues that the provisions related to rights and freedoms are more likely to change based on online public input. These arguments highlight the conditions under which participatory constitution making becomes more operative. First, ijma‘a (consensus) among citizens over the most prominent matters increases the prospect that those questions would be positively incorporated in the constitution. Second, without ex ante elite agreement over the constitutional design, it becomes problematic to account for citizen proposals amid political clash between elites. Ninet argues that the essence of any constitution is to capture a set of fundamental principles and rules that will outline public life and interactions within a society for any given moment in time. Drafting constitution requires a collective reflection on who “We the People” are, and what we imagine for our nation’s future.

In the past few decades, constitution-making processes have been changed to give “We the People” a literal meaning. The manuscript argued that various new constitutions promulgated recently, and many of them have incorporated at least one form of citizen participation, ranging from the election of constitution drafters to direct citizen input and public deliberation over the content of constitutions. These participatory processes legitimize the constitution by giving the people a role in the writing of their constitution. This book also emphasized that an emerging perspective is to open the deliberation phase of constitutional design processes to the public and to permit citizens to debate the text, propose provisions, and(or) add amendments to prevailing drafts. Several nations, including Iceland, Mexico, Egypt, and Tunisia, have boarded on cutting-edge, online actions to crowdsource public input on the content of the constitution. The book presents a precise response(s) to queries like, do these new initiatives authentically channel citizen preferences? Does “the nation write its own constitution”, as suggested by many Constituent Assemblies around the globe? Using a dataset of constitutional drafts and online public votes and suggestions, it tests whether online public debate – especially for countries during transition towards democracy – in the constitution-making process had any impact on the likelihood of constitutional draft changes. Several cases are instructive for constitutional reform around the world through a participatory process (e.g., Egypt is the first in the Middle East after the 2011 Arab Spring uprisings). Understanding whether participation was operative/effective or under which circumstances it can be activated can provide insight into the causes of its failure and how its ill fate could have been prohibited.

In response to the consequential frustration and power imbalances/inequalities, the book argued that platform users created external tools for communication and platform monitoring, as grassroots alternatives to an improved platform design. Analogous solutions emerged in most paid crowdsourcing platforms, regardless of top down controls. This attitude of asymmetric governance destabilizes the expected future of paid crowdsourcing. In contrast to the top-down governance structures that paid crowdsourcing platforms presently use, the author explored a bottom-up approach: open source governance (online or physical) communities. He describes a crowdsourcing stand where constituents have full access to governing documents and participate in drafting/writing legislation through an iterative community process akin to how open source software is developed. Ninet highlights throughout the pages of the book, that crowdsourced democratic deliberation offers an actual bridging of these approaches into a mechanism driven by participant stakeholders. He argues that, a governance document intended to generate a formal process for paid crowdsourcing marketplaces that permits and manages operational changes, driven by its users’ preferences will be needed to meet future democratic transitions. This document (the constitution) provides a set of legal norms governing the community and a mechanism for those laws to evolve through an amendment process. The constitution frees the platform owners to make any design changes or improvements, as long as they do not violate the constitution or its amendments.

It should be noted that open source governance structures exist in political governance societies. Nevertheless, collective efforts in crowdsourcing marketplaces have focused their efforts outside of the marketplaces per se, as many efforts have been distributed and maximize individual independence rather than collective effectiveness. Asymmetric trust and power in crowdsourcing constitutions challenge the process of governance by changing the design of the platform (mediating issues). The manuscript argues that constitutional design underscores the crucial challenges of governance in crowdsourcing marketplaces: balancing power between the stakeholder groups, and providing an official, platform extensive conduit for debate. To accomplish this, it is essential to develop mechanisms for making decisions about changes influencing the stakeholder groups and for dealing with conflicts. Additionally, it is critical to set the tone of governance by providing initial all-embracing community values. One of the most significant arguments proposed by the author is that in order to attain a democratic transition, it’s very important to ratify an initial constitution that formally specifies a process for decision making, conflict resolution, and a protocol for its own evolution through amendments. The constitution is setup with initial community standards which are designed to evolve/mature.

In terms of the principle of Separation of Powers, the book argues that crowdsourcing platforms are normally interested in making design decisions permitting them to endure developing and improving the platform to remain competitive. Ninet argued that the constitution aims to support democratic deliberation among its users, while also affording adequate technical freedom for the platform to develop quickly. As a result, the active individuals are the voting constituency, submitting ideas/notions, developing amendments, and voting on which ones to add to the constitution. On the other hand, the platform team is tasked with operationalizing the modern version of the constitution through technical deviations. It should be noted that the constitution evolves via an amendment process – as amendments develop over time, and entail a practicability check – but they are eventually submitted for a vote from the community. New philosophies can be added incognito by anyone to a public idea listing, then the listing supports discussion and empowers platform stakeholders to designate interest by upvoting. After reaching an upvote edge, the idea evolves into a possible amendment, and an intended task force sets out to draft changes to the constitution formalizing the notion and also to ensure it adheres to the updated constitution.

In the last few decades, practitioners and public law scholars alike have endorsed the general public’s direct participation in articulating and debating constitutions, claiming that the nature of the constitution-making process has serious consequences for constitutional outcomes. This emphasis on the process is deep-rooted in theories of participatory and deliberative democracy that underscore citizen participation and deliberation as circumstances for democratically legitimate political processes. The book argues that participatory and deliberative schemes are principally established in response to the rising criticisms of traditional democratic institutions and to fix the disconnect between citizens and decision makers. While participatory and deliberative concepts of democracy (e.g., debate/deliberation, voting and amendment processes are conducted on a forum with some minor modifications to enable specific voting features) both target democratic lawfulness and policy efficiency, they diverge on the means for achieving these objectives. Theories of participatory democracy emphasize the status of inclusion and political equality for policy efficacy and legitimacy. Participatory democrats underscore the fundamental value of participation as an educative and progressive process. Participation allows citizens to gain a “practice of democratic skills and procedures.” Although the educative feature of participation remains vital, legal scholars and political scientists have progressively stressed its influential value as a means against arbitrary power. As such – and as the author argued – democratic innovations in citizen participation redraw the classical forms of decision making found in representative systems by permitting citizens to have more impact in the political decision-making process by offering their own expertise.

Ninet argues that despite skepticism about the democratic implications of participatory constitution-making processes, the design of constitution-making processes can affect both the content and the legitimacy of the final document. He suggests that constitutions produced through more democratic processes tend to be more democratic. The conclusions on the effect of citizen participation on content of constitutions are not decisive, but several case studies point to the influence of participation on the constitutional content. For example, a comparative case study on many constitutional processes (e.g., Tunisia, Kenya, South Africa, Colombia) highlights that more participatory processes tend to create constitutions with more democratic framework including more provisions related to fundamental human rights defenses. Moreover, that participatory processes resulted in constitutions with provisions on social and economic justice and corruption that were needed by citizens, and also show that processes including referenda normally produce constitutions that are more likely to have numerous rights provisions. Hence, the book argues – successfully – that the more the role of citizens in constitution making upsurges, the more the quantity and quality of rights afforded by the constitution increase, advance and improve.

Bringing the Constitution Online: United States, Europe and Beyond – Several European countries along with few in the Middle East (Tunisia, Egypt) were among the first(?) countries in the world to use online means for constitution making. One of the most significant chapters is entitled “Crowdsourcing and Constitution-making.” In this chapter, Ninet argues that, in an effort to make constitutional processes as participatory as possible, crowdsourcing creativities have become a platform for public participation in the constitution-making process. After the Icelandic Constitutional Council pioneered crowdsourcing in 2011, other nations such as Egypt and Tunisia – after the failure of the 2011 Arab Spring – have used comparable attitudes to engage their citizens in the deliberation phase of constitutional processes. In this context, crowdsourcing could be defined as “that the constitution as the process of posting the draft constitution [or parts of it] online on official websites and[or] social media [p]latforms/webpages where citizens can propose/suggest recommendations to the draft and[or] vote on it.”

In this chapter, the author argues that generally, there is a prevalent optimism concerning the participatory potential of the internet. Although crowdsourcing cannot resolve the low levels of participation and the self-selection prejudice/bias intrinsic in participatory processes or “participation distortion,” online deliberation can eradicate geographical obstacles and bring a great variety of groups into the national deliberation. Moreover, no matter the numbers, participatory processes are significant because they give all citizens equal opportunity and right to participate and influence the final outcome. This chapter is critical from a comparative perspective. For instance, in Egypt, people participated in the crowdsourcing initiative, and made several contributions in the form of comments and/or voting “Like” or “Dislike” on proposed drafts for public review and feedback (e.g., collect and separate public feedback based on the means through which suggestions were submitted; documenting suggestions members of the public made during the deputies’ personal and those received via phone calls, fax, mail, e-mail, or written suggestions handed directly). The Egyptian case is unique because each draft article (provision) was posted online and changed several times following citizen’s feedback, as opposed to other cases where citizens could comment on only one draft (e.g., Tunisia). Thus, the Egyptian model, presents an extraordinary feedback loop of online public input and constitutional changes.

The “Crowdsourcing in Constitutional Interpretation and Control,” is another significant chapter in that book. It deals with numerous transitional countries with an authoritarian heritage, precisely when there is power imbalance between opposing groups. Accordingly, agreement among citizens over the most prominent issues can increase the prospect that those matters would be reflected in the constitution. The legacy of fascism and the abuse of citizens’ rights and freedoms in various places around the world, including the Middle East (and Ukraine at the moment) led to public concerns about provisions relating to citizen rights and freedoms and the wider bond between the state and society, as opposed to provisions regarding independent and regulatory bodies or public authorities. In these cases, the public obviously conveyed their concerns about these provisions, and their recommendations pushed change in articles affecting to rights. Also, citizen participation should follow ex ante elite consensus, as this shows the importance of agreement, and elite agreement in particular, for successful constitution making.

This chapter argued that the consensus among elites is even important for an effective participatory process. When conflict emerged among drafters, citizens lost their leverage. If there is no prior agreement on the broader design of the constitution, it becomes more problematic to integrate public proposals amid dispute or contention. In moments of transition, building a robust political will and trust among various political groups is one of the crucial initial steps for democratization, and whether a consensus occurs from the onset or it is preserved through the process has grave consequences for this trust building. In many nations, liberals and conservatives (e.g., Islamists and non-Islamists in Egypt) failed to sustain the risky agreement they reached early on in the process (e.g., 2012 ex post facto Constitution!). The absence of agreement, harmony and trust only made these opposing groups more doubtful of the other, ensuing in gradual restoration of undemocratic rules and loss of receptiveness and accountability to the public/citizens.

[To be continued]