There is a recurring fantasy in political life, one that grips reformers with particular intensity during moments of crisis: the belief that rewriting a constitution can reset a nation’s course. The logic appears impeccable. If institutions are failing, if the executive and legislature are locked in sterile combat, if the judiciary is perceived as either overreaching or supine, then surely the fault lies in the text itself. Amend the articles, recalibrate the separation of powers, insert a new bill of rights, and the machinery of state will hum with renewed purpose. This is a seductive proposition, and it is almost always wrong.
Constitutional reform, as a political project, suffers from a profound category error. It treats a constitution as a kind of operating manual, a technical document whose defects can be diagnosed and repaired by sufficiently clever draftsmen. But a constitution is not a manual. It is a mirror. It reflects, often with uncomfortable fidelity, the distribution of power, the habits of deference, the unspoken assumptions, and the entrenched interests of the society that produced it. Changing the reflection does not change the reality. You can write “all citizens are equal before the law” in bold letters, but if the judiciary is under the thumb of the executive, or if access to justice is prohibitively expensive, the words remain decorative. The French experience with the 1958 Constitution of the Fifth Republic is instructive here. It was designed explicitly to break the parliamentary instability of the Fourth Republic by creating a strong, semi-presidential executive. And it worked—not because the text was magically efficacious, but because the political class, humiliated by the Algerian crisis, was willing to submit to the authority of a singular figure, Charles de Gaulle. The text merely ratified a pre-existing shift in the balance of political forces.
The Text as a Sedative
Why, then, do political elites so frequently reach for the constitutional lever? The answer lies partly in the symbolic function of law-making. Announcing a grand constitutional convention or a referendum on institutional reform signals decisiveness. It allows a government to claim it is addressing the “root causes” of dysfunction without actually disturbing the informal networks of power that sustain it. The reform process becomes a magnificent displacement activity. Months are consumed by committee hearings, expert testimony, and public consultations. The media covers the procedural drama. Citizens are invited to believe that something fundamental is shifting. Yet, when the dust settles, the old oligarchies have usually found new channels through the revised text. The Italian constitutional reforms of the early 2000s, which sought to devolve power to the regions, largely failed to dismantle the centralized patronage systems that had long characterized the Italian state. The text changed; the sottogoverno adapted.
This is not to say that constitutional texts are irrelevant. They establish the formal rules of the game, and those rules can constrain as well as enable. A poorly drafted article on emergency powers can, in the wrong hands, become a license for authoritarianism. But the direction of causality is usually the reverse of what reformers imagine. It is not the text that shapes political culture; it is political culture that breathes life—or death—into the text. The Weimar Constitution was, on paper, a model of democratic progressivism. In the hands of a political class that did not believe in democracy and an electorate traumatized by economic collapse, it became a parchment barrier, easily circumvented by Article 48. The lesson is not that constitutions are useless, but that their efficacy depends entirely on the unwritten constitution: the habits of compromise, the tolerance for dissent, the independence of the judiciary, and the integrity of the civil service.
The Unwritten Constitution and Institutional Inertia
Every functioning polity operates on two levels. The first is the formal, textual level of constitutional law, statutes, and regulations. The second is the informal level of norms, conventions, and institutional culture. It is this second level that determines whether the first level is a living reality or a dead letter. Consider the separation of powers. A constitution can meticulously enumerate the respective competences of the executive, legislature, and judiciary. But if the ruling party treats the legislature as a rubber stamp, and if the judiciary owes its appointments to the executive, the separation exists only on paper. The real constitution is the unwritten understanding that the legislature will exercise genuine scrutiny, that the judiciary will be independent, and that the executive will accept adverse rulings. These are not legal rules; they are habits of mind. They cannot be created by constitutional amendment. They must be cultivated over generations.
This is why constitutional reform so often disappoints. It addresses the formal level while leaving the informal level untouched. In fact, the very act of reform can weaken the informal constitution. When a government rewrites the rules to consolidate its own power, it sends a signal that the rules are merely instruments of political convenience. The opposition, in turn, learns that it need not respect the new rules either, because they will be rewritten again when the wheel of fortune turns. The result is a spiral of instrumentalization, where the constitution becomes just another weapon in the partisan arsenal. We have seen this dynamic in Hungary, where the Fidesz government used its parliamentary supermajority to enact a new constitution in 2011. The text itself is not radically illiberal; many of its provisions are unremarkable. But the manner of its adoption—rammed through without genuine consensus—and the subsequent use of constitutional amendments to entrench the ruling party’s control over the judiciary, the media, and the electoral system have hollowed out the constitutional order. The formal text is now a façade behind which the unwritten constitution of liberal democracy has been systematically dismantled.
The Illusion of the Constitutional Moment
Advocates of reform often invoke the idea of a “constitutional moment”—a rare window of opportunity when the stars align, the public is engaged, and fundamental change becomes possible. This is a romantic notion, and it is not entirely without historical basis. The American founding was such a moment. So was the drafting of the German Basic Law in 1949, or the Spanish transition to democracy in the 1970s. But these moments are exceptional precisely because they occur in the aftermath of catastrophic rupture: revolution, total defeat in war, or the collapse of a regime. In such circumstances, the old informal constitution has been destroyed along with the old formal one. The field is genuinely open for a new settlement. But in the normal course of politics, no such rupture exists. The old informal constitution—the habits, the networks, the expectations—remains intact. The reformer is like an architect who redesigns the façade of a building while the same tenants continue to inhabit the same rooms, conducting the same business, nursing the same grudges. The new façade may impress the tourists, but it does not change the life inside.
Consider the wave of constitutional reforms in Latin America during the 1990s and 2000s. Many countries adopted new constitutions or significantly amended existing ones, often with the stated goal of deepening democracy, expanding social rights, and curbing executive power. The results have been, to put it charitably, mixed. In some cases, the reforms were used by populist leaders to dismantle term limits and concentrate power, as in Venezuela under Hugo Chávez. In others, the new constitutions proved to be paper tigers, unable to prevent the resurgence of caudillo politics or the corrosion of institutions by corruption. The problem was not the text. The problem was that the political culture—the unwritten constitution—remained presidentialist, clientelist, and impatient with legal constraints. The new constitutions were absorbed by the old political logic, not the other way around.
The French Case: Reform as Political Theater
France, my own country, offers a particularly rich case study in the futility of constitutional tinkering. Since the founding of the Fifth Republic in 1958, the Constitution has been amended twenty-four times. Some of these amendments were significant: the introduction of the referendum on the accession of new member states to the European Union, the reduction of the presidential term from seven to five years, the limitations on the president’s power to appoint judges. Yet the fundamental character of the regime—a semi-presidential system with a strong executive, a subservient parliamentary majority, and a technocratic elite that circulates between the grands corps, the ministries, and the boardrooms—has remained remarkably stable. The 2008 constitutional revision, the most ambitious since 1958, was sold as a great rebalancing of powers in favor of Parliament. It introduced a “shared agenda” for legislative business, gave Parliament a role in certain presidential appointments, and created the possibility of citizen-initiated referendums. In practice, the executive has continued to dominate the legislative process, the shared agenda has been a dead letter, and the citizen referendum provision has never been used. The unwritten constitution of the Fifth Republic—the verticality of power, the subordination of the legislature, the deference of the judiciary—has absorbed the reforms without difficulty.
Why? Because the informal constitution of France is not a product of the 1958 text. It is a product of the country’s administrative and political traditions, stretching back to the Ancien Régime and reinforced by the Revolution, Napoleon, and the two Empires. The French state is centralized because the French political class is centralized. The Élysée dominates because the political parties are organized around the presidential election, not the legislative one. The Parliament is weak because ambitious politicians seek executive office, not legislative careers. These are not constitutional problems; they are sociological problems. No amendment can solve them. Only a profound transformation of the political culture—a transformation that would take generations—could alter the real balance of power. And such a transformation cannot be decreed; it must be lived.
The Referendum Trap
One of the most dangerous illusions in constitutional reform is the belief that popular ratification—a referendum—can confer legitimacy on a new text and thereby anchor it in the political culture. The logic is superficially appealing: if the people have spoken, who dares to challenge the result? But this confuses the momentary expression of a majority with the durable consent that a constitutional order requires. A referendum is a blunt instrument. It reduces complex institutional questions to a binary choice, often in a context of low information and high emotion. The campaign becomes a plebiscite on the government of the day, not a deliberation on the merits of the proposed changes. The result, even if it commands a majority, rarely reflects a deep societal consensus. It reflects a transient political mood. And when that mood shifts, the constitution becomes vulnerable to the next wave of populist revisionism.
The Brexit referendum of 2016 is a cautionary tale, though it concerned membership of a supranational organization rather than a domestic constitution. The principle is the same. A profound constitutional change was put to a popular vote without any supermajority requirement, without any deliberative process to inform the electorate, and without any clear plan for implementation. The result was a narrow majority that fractured the country, paralyzed its politics for years, and ultimately produced an outcome that few had anticipated and fewer still had desired. The lesson for constitutional reformers is clear: referendums are not a shortcut to legitimacy. They are a gamble, and the stakes are the stability of the state itself. A constitution that is adopted by a slim majority in a heated campaign is a constitution that lacks the moral authority to constrain future majorities. It is a partisan document, not a national charter.
The Unwritten Constitution as a Bulwark
If formal constitutional reform is so often futile or counterproductive, what is to be done? The answer lies in a shift of focus from the text to the context, from the rules to the norms that sustain them. The unwritten constitution—the complex web of conventions, traditions, and institutional practices that govern the actual exercise of power—is the true foundation of a stable polity. It is what prevents a government from using its legal powers to the fullest extent, what ensures that the opposition is treated with a modicum of fairness, what guarantees that the civil service serves the state rather than the party in power. These norms are fragile. They depend on the good faith of political actors, the vigilance of the media, the independence of the judiciary, and the civic education of the citizenry. They cannot be codified, because their essence is their flexibility. They are the oil that lubricates the machinery of state, and they work best when they are taken for granted.
The danger of the current age is that these norms are being systematically eroded, often in the name of constitutional reform itself. When a government uses its formal powers to pack the courts, to gerrymander electoral districts, to muzzle the press, or to delegitimize the opposition, it is not necessarily violating the letter of the constitution. It is violating its spirit. And the spirit of a constitution is not something that can be restored by a new amendment. It can only be restored by a political class that rediscovers the virtues of restraint, of compromise, of respect for the unwritten rules that make civilized political life possible. This is a cultural task, not a legal one. It requires leadership, but not the kind that seeks to inscribe its name on a new constitutional text. It requires the kind of leadership that is willing to exercise power with humility, to accept the constraints of an inherited order, and to cultivate the habits of self-limitation that are the true foundation of any durable constitution.
Frequently Asked Questions
Why do so many constitutional reforms fail to achieve their stated goals?
Most constitutional reforms fail because they address the formal text of the constitution while ignoring the informal political culture that determines how the text is actually applied. A constitution is not a machine that can be fixed by replacing a few parts; it is a living framework whose effectiveness depends on the norms, habits, and power structures of the society it governs. When reformers change the words without changing the underlying political dynamics, the old dynamics simply reassert themselves through the new text.
Can a constitutional reform ever succeed in transforming a political system?
Yes, but only in rare circumstances, typically following a profound rupture such as a revolution, a lost war, or the collapse of a regime. In these moments, the old informal constitution has been destroyed along with the formal one, creating a genuine opportunity for a new settlement. The success of the German Basic Law after 1949 or the Spanish transition after Franco are examples. In normal times, however, the informal constitution remains intact and will absorb or neutralize most textual changes.
What is the “unwritten constitution” and why does it matter?
The unwritten constitution refers to the norms, conventions, and institutional habits that govern the actual exercise of power, as distinct from the formal rules written in the constitutional text. It matters because it determines whether the formal constitution is a living reality or a dead letter. For example, a constitution may guarantee judicial independence, but if the political class routinely ignores or pressures judges, the unwritten constitution has effectively nullified the written guarantee. The health of a democracy depends more on the unwritten constitution than on the text itself.
Are referendums a good way to legitimize constitutional change?
Referendums are a poor instrument for constitutional change because they reduce complex institutional questions to a binary choice, often in a context of low information and high emotion. They tend to become plebiscites on the government of the day rather than genuine deliberations on the proposed changes. A constitution adopted by a narrow majority in a heated campaign lacks the broad, durable consent that a constitutional order requires. It risks becoming a partisan document, vulnerable to revision by the next transient majority.
