Explaining constitution-makers’ preferences: the cases of Estonia and the United States

This article is concerned with the effects of the kinds of framers involved in constitution-making on the content of constitutional provisions proposed during the drafting process. It tests the hypotheses that predict framers’ constitutional preferences on the basis of their institutional position, partisan background and constitutional expertise with two specific cases: the Constitutional Assembly of Estonia (1991–1992) and the Federal Convention (1787) of the United States. The case studies show that most of the hypotheses find only partial confirmation in both instances of constitution-making. The institutional position of a framer (being a member of existing legislature or executive) and constitutional expertise does not necessarily influence his or her constitutional preferences in the predicted way. The only theoretical proposition that is corroborated in both cases concerns the importance of group interest in a constitutional choice of electoral system and modes of representation: in the Estonian case, the design of the constitutional electoral rules was strongly influenced by partisan interest; in the US case, the interests of territorial subunits played a major role.