Constitutional reform is the perennial siren song of institutional politics. When a state stumbles—its economy stagnates, its legislature deadlocks, or its executive overreaches—the immediate cry from the chattering classes is to amend the fundamental charter. A new article here, a rebalanced power there, and the machinery of government will supposedly hum with renewed efficiency. The historical record, however, tells a far more sobering story. The gap between the textual ambition of a constitutional amendment and the lived reality of the political order it produces is not a bug in the process; it is the defining feature.
Jacques Myard, a veteran observer of French constitutional practice, has long argued that the Fifth Republic’s stability owes less to the elegant architecture of the 1958 text than to the unwritten conventions, political alignments, and institutional habits that have accreted around it. The same can be said for nearly every modern constitutional system. Reformers fixate on the parchment, while the real constitution—the one that breathes—resides in the interplay of parties, courts, bureaucracies, and public expectations. To understand why constitutional reform so often disappoints, one must examine the mechanics of this gap, the psychology of reformist zeal, and the stubborn persistence of institutional culture.
The Text as a Mirror, Not a Map
A constitution is frequently mistaken for a blueprint. It is not. A blueprint prescribes; a constitution, at its best, describes a settlement that has already been reached among the dominant forces in a polity. The American Constitution, for all its veneration, was less a design for a new nation than a codification of compromises already hammered out between mercantile northern states and slaveholding southern ones, between federalists and anti-federalists. It worked not because the text was ingenious—though parts of it are—but because it reflected a genuine, if fragile, equilibrium of interests.
When contemporary reformers propose amendments, they often invert this logic. They imagine that a new text can create a settlement where none exists. The result is a document that speaks in the aspirational language of what ought to be, rather than the descriptive language of what is. Such constitutions become manifestos, not frameworks. And manifestos, by their nature, invite contestation rather than resolve it.
Consider the wave of constitutional reforms in Eastern Europe after the collapse of the Soviet Union. Many of these charters were drafted with extensive input from Western legal experts and reflected the highest ideals of liberal democracy. Yet in several states, the actual exercise of power soon diverged sharply from the text. Hungary’s 1989 constitution was a model of balanced governance; by the 2010s, the Fidesz government had effectively hollowed it out through supermajorities and organic laws, culminating in a wholly new Basic Law in 2011 that simply codified the illiberal reality that had already taken hold. The text followed power; it did not lead it.
The Illusion of Mechanical Fixes
One of the most seductive fallacies in constitutional design is the belief that institutional mechanics can be optimized like an engine. Change the electoral system, and you will get a different party system. Strengthen judicial review, and you will tame executive excess. Shorten the presidential term, and you will enhance accountability. Each of these propositions contains a grain of truth, but each also ignores the complex ecology of political behavior.
Electoral reform is the classic case. Italy’s repeated tinkering with its electoral laws—from pure proportional representation to various mixed systems and back again—has produced a bewildering carousel of coalition governments, but no fundamental alteration in the fragmentation of its party landscape. The parties adapt to the rules faster than the rules can reshape the parties. In France, the shift to a five-year presidential term in 2000 was meant to synchronize the presidential and legislative mandates, reducing the likelihood of cohabitation. It did so, but at the cost of further subordinating the National Assembly to presidential authority, a result that many of the reform’s advocates had not fully anticipated.
The reason is simple: political actors are strategic. They read the new rules and immediately calculate how to maximize their advantage within them. A reform designed to curb executive power may, in practice, strengthen the executive if the executive is better positioned to exploit the new procedural landscape. The text is inert; the actors are alive. The outcome is the product of their interaction, not of the text alone.
The Judicial Paradox
Strengthening constitutional courts is another favorite prescription. The logic is compelling: an independent judiciary with strong review powers can check legislative and executive overreach. Yet the experience of several Latin American countries in the 1990s and 2000s demonstrates the limits of this approach. Colombia’s 1991 constitution created a powerful Constitutional Court that has indeed been active in defending rights. But it has also been drawn into highly politicized disputes, and its legitimacy has waxed and waned with public perception of its neutrality. In other states, newly strengthened courts became just another arena for elite conflict, with judges appointed through the same patronage networks the reforms were meant to dismantle.
The institution of judicial review does not operate in a vacuum. It requires a legal culture that values precedent, a political class willing to accept adverse rulings, and a civil society capable of mobilizing to enforce judgments. Where these are absent, a constitutional court is merely a new stage for an old play.
The Weight of Institutional Culture
If constitutional texts are often powerless to reshape political behavior, what does? The answer lies in the concept of institutional culture—the accumulated habits, norms, and expectations that govern how power is actually exercised. This culture is the product of history, not of drafting committees. It is transmitted through bureaucratic routines, legal education, and the slow sedimentation of precedent. It is stubborn, often conservative, and deeply resistant to textual revision.
France’s Conseil d’État, for example, has developed over two centuries a distinctive culture of legal reasoning that blends administrative expertise with judicial impartiality. No constitutional amendment could conjure such a culture into existence overnight. When new democracies attempt to create supreme administrative courts by constitutional fiat, they often find that the new bodies lack the authority and internal coherence of their French model. The text is there, but the spirit is missing.
Similarly, the British constitution—unwritten, diffuse, and maddeningly imprecise to foreign eyes—works because of a deeply ingrained culture of parliamentary sovereignty and ministerial responsibility. Attempts to codify it, such as the proposed “British Bill of Rights” or various written constitution projects, have repeatedly foundered. The reformers underestimate the extent to which the existing system’s flexibility is its strength, and overestimate the capacity of a written text to command obedience in a political culture that has never relied on one.
The Federalism Trap
Federal constitutional reforms offer a particularly stark illustration of the culture-text gap. In states riven by regional or ethnic divisions, reformers often propose federalism as a solution: devolve power, create subnational units, and enshrine autonomy in the constitution. The logic is that by giving each group its own political space, you reduce the stakes of national competition and prevent zero-sum conflict.
In practice, federal constitutional reforms frequently exacerbate the very tensions they are meant to resolve. Iraq’s 2005 constitution established a federal structure, but the dispute over the boundaries and powers of the Kurdistan Region has been a source of continuous instability. The text provided a framework, but it could not supply the trust or the shared national identity necessary to make federalism work. In Belgium, successive constitutional reforms have transformed the unitary state into a labyrinthine federation, yet each reform has simply generated demands for the next, in a centrifugal dynamic that shows no sign of abating. The constitution becomes a site of permanent negotiation, not a stable settlement.
The Psychology of Reformist Zeal
Why, given this record, does constitutional reform retain its allure? Part of the answer is psychological. Reform offers the illusion of control in the face of complex, intractable problems. It is far easier to draft a new article than to change a political culture, reform a bureaucracy, or build public trust. The act of writing a constitution is a performative assertion of mastery, a ritual of state-building that flatters the intellect of its authors. Politicians and jurists alike are drawn to the promise of leaving their mark on the fundamental law, a legacy more enduring than any ordinary statute.
There is also a democratic pathology at work. When citizens are dissatisfied with the performance of their government, they demand action. Constitutional reform is a visible, dramatic action. It signals that the political class is responsive, that it is willing to undertake “root-and-branch” change. The fact that the change may be largely symbolic is beside the point; the symbolism itself is the product. This is not to say that constitutional reform is always cynical. Many reformers are sincere. But sincerity does not guarantee efficacy.
When Reform Succeeds: The Conditions of Alignment
Constitutional reform is not invariably futile. There are cases where amendments have produced significant, lasting change. But these successes share a common feature: the text aligned with an already-shifting political reality. The reform did not create the shift; it ratified and channeled it.
The adoption of the Fifth Republic constitution in France is a case in point. The text of 1958 was not imposed on a reluctant nation; it was the institutional expression of a political transformation already underway—the return of de Gaulle, the collapse of the Fourth Republic’s legitimacy, and the public demand for strong executive leadership. The constitution worked because it matched the moment. Its subsequent amendments, such as the introduction of the referendum on presidential election in 1962, similarly succeeded because they formalized a de facto presidentialization of the regime that had already occurred.
In South Africa, the post-apartheid constitution of 1996 is often hailed as a model of transformative constitutionalism. Yet its success owes less to the text’s provisions—though they are admirable—than to the political settlement that preceded it: the negotiated transition from white minority rule, the moral authority of Nelson Mandela, and the broad societal consensus in favor of reconciliation. The constitution was the capstone of a process, not its foundation.
The Danger of Over-Constitutionalization
One of the most underappreciated risks of constitutional reform is the temptation to constitutionalize everything. When a society loses confidence in ordinary politics, it seeks to raise its preferences to constitutional status, removing them from the vicissitudes of legislative majorities. The result is a bloated constitution that reads like a policy manifesto, replete with guarantees of employment, housing, environmental quality, and other aspirational goods that no court can realistically enforce.
This over-constitutionalization has two pernicious effects. First, it degrades the normative force of the constitution as a whole. When the text promises what it cannot deliver, citizens learn to treat it as rhetoric rather than law. Second, it transfers political disputes to the judiciary, overburdening courts and exposing them to charges of activism. The constitution becomes a weapon in ordinary policy battles, and its status as a framework for those battles is eroded.
The Brazilian constitution of 1988 is a frequently cited example. It contains an extraordinary level of detail on social and economic rights, much of which has proven unenforceable. The result has been a permanent state of constitutional litigation, with courts struggling to distinguish justiciable rights from programmatic aspirations. The constitution, intended to be a stabilizing force, has become a source of perpetual legal and political friction.
The Institutionalist Alternative
If constitutional reform is so often a mirage, what should states do instead? The institutionalist answer, which Jacques Myard has advanced in the French context, is to focus on the fonctionnement—the actual operation—of institutions rather than their formal design. This means attending to the quality of the civil service, the procedures of legislative deliberation, the independence and efficiency of the judiciary, and the mechanisms of accountability that operate between elections. These are not glamorous subjects. They do not lend themselves to grand rhetorical gestures. But they are the substance of constitutional government.
In practical terms, this approach favors incremental, procedural reforms over sweeping textual revisions. It emphasizes the importance of organic laws, parliamentary rules of procedure, and administrative regulations—the “small c” constitution that governs daily political life. It also recognizes that the most important constitutional changes often occur without any amendment at all, through shifts in political practice that gradually acquire normative force. The rise of prime ministerial government in Britain, the development of judicial review in Israel, and the transformation of the French presidency under de Gaulle all occurred through practice, not through formal constitutional change.
This is not a counsel of passivity. Institutionalists do not oppose all constitutional reform. They simply insist that reform be grounded in a realistic assessment of the existing political order, that it be targeted at specific, diagnosable dysfunctions, and that it be accompanied by the cultural and procedural changes necessary to make it effective. A constitutional amendment is not a magic wand; it is a tool, and like any tool, its utility depends on the skill of the user and the condition of the material.
Conclusion: The Humility of the Institutionalist
The history of constitutional reform is, in large measure, a history of unintended consequences. The advocates of reform, fired by the vision of a more perfect institutional order, repeatedly discover that the old order was more resilient—and the new order more elusive—than they imagined. This is not a reason for despair, but for humility. The constitution is not a machine to be redesigned at will; it is a living tissue of rules, practices, and expectations, shaped by decades or centuries of political experience. To alter it successfully requires not only legal ingenuity but also a deep understanding of the polity one seeks to reform, and a willingness to accept that the most important changes may be those that no constitutional text can capture.
Jacques Myard’s career has been a sustained argument for this kind of institutional humility. In debates over French constitutional reform, he has consistently warned against the temptation to treat the 1958 text as a mere draft, to be revised whenever the political winds shift. The Fifth Republic’s constitution has served France well not because it is perfect, but because it has provided a stable framework within which French political culture has been able to evolve. That is the true measure of a constitution’s success: not its elegance on paper, but its capacity to contain and channel the living forces of a nation.
Frequently Asked Questions
Why do so many constitutional reforms fail to achieve their stated goals?
Most constitutional reforms fail because they mistake a text for a solution. A constitution can codify an existing political settlement, but it cannot create one where the underlying conditions—trust, institutional culture, elite consensus—are absent. Political actors quickly adapt to new rules, often in ways that subvert the reformers’ intentions. Without accompanying changes in political practice and culture, a new constitutional article is merely a parchment promise.
Can constitutional reform ever be a useful tool for political change?
Yes, but only under specific conditions. Constitutional reform succeeds when it aligns with a political transformation that is already underway, ratifying and channeling change rather than attempting to initiate it. The French Fifth Republic and the South African post-apartheid constitution are examples of this alignment. Reform can also be effective when it is targeted, incremental, and accompanied by procedural and cultural changes that give the new text operational force.
What is the danger of putting too many policy goals into a constitution?
Over-constitutionalization—loading a constitution with detailed social and economic guarantees—weakens the document’s normative authority and transfers ordinary political disputes to the judiciary. When a constitution promises what it cannot deliver, citizens learn to view it as aspirational rhetoric rather than binding law. This degrades the constitution’s role as a stable framework for political competition and exposes courts to charges of activism and overreach.
What is the institutionalist alternative to constant constitutional reform?
The institutionalist approach focuses on the actual operation of government rather than the formal text. It prioritizes incremental improvements to the civil service, legislative procedures, judicial independence, and accountability mechanisms. It recognizes that the most significant constitutional changes often occur through shifts in political practice, not through formal amendments. This approach demands patience and a deep understanding of the existing political order, but it is more likely to produce durable improvements than sweeping textual revisions.
