Why Constitutions Fail, and What Makes Them Flourish

Why constitutions fail is the question at the heart of Mian Ashiq Hussain's book How Constitutions Flourish or Fail. His answer is not that the wrong people happened to be in charge. It is that some constitutions are badly built, and the most important part of the building is the rule for raising and spending public money. Where elected representatives hold the purse, he argues, states grow; where an executive or an inherited bureaucracy holds it, they stall. This essay is the starting point for a series that follows that argument across federalism, elections, the courts and Pakistan's own history. Read the full argument in the book.

What does it mean for a constitution to fail?

For Mian Ashiq Hussain, a constitution fails when it cannot do the job it was written for: keeping the peace among diverse communities, protecting minorities and drawing ordinary people into the running of their state. A document can survive on paper for decades and still have failed in this sense.

He reminds readers that the Quaid-e-Azam, speaking at Aligarh in 1941, approved a description of imitation democracies whose written constitutions were no better than "a piece of dead wood". The author's reading of Pakistan's record is that the country fell into exactly that trap. The Government of India Act, 1935, which the Quaid had condemned and wanted swept away entirely, lived on in the spirit of every later constitution. In some respects the framers even went backwards: the Senate was made the weaker house although the 1935 Act had given both houses equal standing, and the distribution of revenue became more centralised.

A failed constitution, then, is one that leaves power where colonial rule left it. The author insists that power must be shared both horizontally, among the branches of government, and vertically, down to provinces and local communities. Without that, he says, a state cannot energise its people, and a state that cannot mobilise its people cannot thrive.

What are the reasons why the Articles of Confederation failed?

America's first constitution, the Articles of Confederation adopted in 1781, failed within a decade because the central government could neither levy taxes nor regulate trade. The states were unsure they wanted a real union, the pact had been a wartime emergency measure, and memories of British rule made people wary of any strong centre.

These reasons why the Articles of Confederation failed matter to the author because the same men who wrote them also wrote their replacement. George Washington complained that the machinery of government had seized up, and the founders soon accepted that a new charter was unavoidable. The 1787 Convention in Philadelphia produced the Constitution that, in the author's telling, transformed the American state and society for its first seven decades.

The lesson he draws is direct. Many people in developing democracies believe every constitution is sound and that success or failure depends only on who administers it. The American experience disproves that belief: the same founders produced a failed document and an enduring one. A legal instrument, he concludes, carries its own force for good or ill, and institutional defects cannot be fixed by improvisation.

What is the power of the purse, and why does it decide a constitution's fate?

The power of the purse is the right of elected representatives to approve every tax and every item of public spending. Mian Ashiq Hussain treats it as the foundation stone of democracy, and argues that the strength or weakness of a state's fiscal governance largely decides whether that state rises or falls.

He traces the principle to the long struggle against royal prerogative. Monarchs once collected taxes and tribute as they pleased and spent them on wars and court luxury, with subjects having no say. As trade grew, so did demands for accountability, marked by the Magna Carta and the Bill of Rights of 1689. By the close of the seventeenth century two rules had become settled constitutional norms: the people's representatives must consent to every tax, and they must sanction every outlay from the public purse.

The fault line, in his account, is that Britain observed these rules at home but did not extend them to its colonies. The former colonies inherited a financial system run from the top, and many of them, Pakistan included, never fully broke from it. Pakistan's Parliament, he points out, has still not passed an Income Tax Act of its own; the country moved from the colonial 1922 Act to ordinances issued under military rulers in 1979 and 2001, while India legislated its own Act in 1961.

How do ten countries write parliamentary control of money into their constitutions?

The author's power of the purse examples show the same principle written in different words. In each case the constitution itself says that only the elected legislature can authorise taxes, borrowing and spending, and several go further by forcing taxes to be renewed or loans to be approved separately.

• Japan: taxes exist only as provided by law, and the state may spend or take on obligations only with the Diet's authorisation.
• Norway: taxes imposed by the Storting lapse at the end of the following year unless a new Storting renews them, and parliament appoints auditors to examine the state accounts every year.
• Sweden: the Riksdag sets taxes, approves the budget and must authorise any government borrowing.
• Germany: no money may be spent, and no obligation assumed, without the Bundestag's authorisation.
• Finland: parliament's consent, including a ceiling on new or total debt, is required before the state borrows.
• Singapore: no tax without law, and no loan or guarantee without parliament's authority and the concurrence of a directly elected president.
• United States: Congress alone lays taxes, and nothing leaves the Treasury except by appropriation made by law, through separate authorisation and appropriation stages before any spending.
• United Kingdom: the parliamentary home of both principles, explored in The Financial Procedures of the United Kingdom and Colonial Governance.
• Peru: its 1993 constitution set out detailed budget rules, which the author links to the country's later turnaround.
• India: a partial step forward, because the lower house votes on most spending, but a large block of charged expenditure is still kept beyond its vote, and the upper house can only make recommendations on money matters.

Against these, Pakistan is the author's cautionary case. Its legislatures, he argues, have withered in financial matters through colonial habit and elite capture. Debt servicing, the largest item in the budget, is not open to a vote. The country has entered some 25 IMF programmes without the approval of parliament. Compare Singapore, where he describes almost every item as votable and the elected president holds a veto over the national reserves; or early America, which he says kept its finances in surplus for decades before later relaxations of its debt limit let borrowing soar. Parliament's power of the purse, in short, is not a formality. It is the brake on ruinous debt.

Why do some written constitutions work and others fail?

Drawing on Noah Feldman's question of why some constitutions work while others fail, the author answers that a constitution works when it produces peace, protects minorities and gives the people real control over their government, above all over public money. It fails when it preserves colonial-style rule under a democratic label.

India illustrates both sides for him. Its constitution is longer even than the 1935 Act it replaced, and keeps much of the same administrative design, whereas brief charters such as those of the United States and Japan leave room to grow. He cites Ambedkar's warning that India was entering a life of contradictions, and the estimate that India's share of world income collapsed between 1700 and 1950, to argue that design choices have consequences measured in generations. He also argues that first-past-the-post voting lets a party win power on little more than a third of the vote, a theme developed in Proportional Representation vs First Past the Post.

Even a celebrated constitution can stall. The author describes American history as a cycle: periods of broad participation and equal opportunity bring great leaps forward, while periods of monopoly and inequality bring panics and depressions. The New Deal and the GI Bill widened opportunity; since 1980, he argues, money and elite capture have narrowed it again. A rigid amendment process, with only a few dozen amendments adopted from more than ten thousand proposed, and a judiciary that has often defended the status quo make course correction slow. Thomas Jefferson's idea of revising the constitution every generation was never adopted in America, but Switzerland built something like it into its system.

Pakistan's 1973 constitution, in the author's judgment, was never implemented in letter and spirit even before military rulers distorted it. Emergency powers carried over from 1971 kept fundamental rights suspended, schedules shielded dozens of orders and regulations from challenge, and later amendments clouded the text further. Constitution-making, he observes, has remained the preserve of elites who inherited the imperial mode of rule, and top-down governance cannot give people a sense of ownership in their state.

What do flourishing constitutions have in common?

Flourishing constitutions, in the author's account, share three features: elected representatives who truly control taxes, borrowing and spending; power distributed both across branches and down to provinces and localities; and a text concise and flexible enough to change as society changes. Charismatic leaders cannot substitute for these structures.

He rejects the hope, common in Pakistan, that a strong leader can lift the country despite flawed institutions. Leaders matter, he accepts, but national contests are won or lost by whole populations: by their productivity, knowledge and ability to co-operate. Hierarchical, bureaucratic systems inherited from the past are in retreat everywhere, and systemic reform for balanced institutions is the precondition for progress.

Each of the following essays takes up one part of that reform agenda:

• The Basic Structure Doctrine: India, Germany and Pakistan
• The NFC Award and How Federations Share Revenue
• Fiscal Federalism: Lessons from Five Federations
• Local Self-Government: Nordic, Indian and Pakistani Lessons
• The 18th Amendment in Pakistan: Devolution Compared
• Does Trickle-Down Economics Work? Tax, Inequality, Growth
• Constitutional Amendments in Pakistan: Who Holds the Pen?
• Proportional Representation vs First Past the Post
• How Judges Are Appointed: UK, India and Pakistan Compared
• Provincial Autonomy in Pakistan: Beyond Legislative Lists
• Semi-Presidential Systems: Examples and Lessons
• Why Nations Fail: A Fiscal Answer

Frequently asked questions

Why did the Articles of Confederation fail?

According to the author, the Articles failed because the central government had no power to tax or regulate trade, the states were ambivalent about a federal union, the arrangement was born of wartime urgency that soon faded, and fear of British-style central rule kept the centre weak.

What is an example of the power of the purse?

Norway is a clear one in the book: taxes approved by its parliament expire at the end of the following year unless a new parliament renews them. In the United States, no money can leave the Treasury except through appropriations made by law.

Can a good constitution fail?

The author argues that constitutions fail mainly because of their design, not their administrators. Even a celebrated document can stall when it becomes too rigid to change or lets elites capture public money, which is why he favours concise, flexible texts that can be revised.

What makes a constitution successful?

In the book's view, success comes from real parliamentary control of public money, power shared across branches and down to the people, protection for minorities, and a concise text that can evolve with society.

Read the full argument

This essay outlines the central thesis of Mian Ashiq Hussain's comparative study of constitutions. The book traces the American, Indian, Chinese, British and Pakistani experiences in full and sets out his proposed amendments. Get How Constitutions Flourish or Fail.

Related reading: The Key Insight: Fiscal Governance and the Rise and Fall of States, The Way Forward: Renewing the Social Contract, The Historical Role of Financial Governance in Federal Evolution, and more essays by Mian Ashiq Hussain.