elster arguing and bargaining

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Arguing and Bargaining

102

ARGUING AND BARGAINING

in the Federal Convention and the Assemble Constituante

WORKING PAPER NUMBER 4 Center for the Study of Constitutionalism in Eastern Europe

Jon ElsterUniversity of Chicago

August 1991

Introduction

The topic of the paper is the nature of the debates that took place in the Federal Convention in

Philadelphia in 1787 and the Assemble Constituante in Paris 1789-91.1 I shall not be concernedwith the outcomes of the debates, i.e. with the constitutional documents that emerged. Instead, I

focus on the style of debating. To what extent can the debates be described as a form of bargaining,

oriented towards a compromise between different interest groups? And to what extent were the

participants engaged in ar gument and discussion, constrained by ideals of impartiality and

consistency?

The Federal Convention for a considerable part revolved around bargaining and compromise. The

Constituent Assembly had very little bargaining, if any at all. Instead, its members argued

consistently in terms of the common good. This difference was due partly to the nature of the

issues, partly to the very different settings in which the debates took place, and partly to differences

in political philosophy.

I am not claiming that the French were motivated by loftier ideals or were somehow more rational

and disinterested. To argue for and against claims of this sort, one would have to go beyond what

was said in the assemblies, and look at what the participants said elsewhere and, above all, at their

actions. I am concerned with their words, not with their thoughts. But sometimes words matter as

much as thoughts. One difference between open debate and closed conclaves is that the public

setting forces the participants to argue in terms of the general good: certain arguments from self-

interest do not stand the light of day.2 This does not imply that a genuine consensus will be reached.

As wonderfully shown in Tocqueville's Souvenirs, assembly debates can also lead to polarization

and to false consensus. The debates of 1789-91 illustrate both these perversions of public debate.

But even if the participants only pay lip- service to the common good, the outcome will be different.When voting is public, they have to put their vote where their mouth is. And when debates are

public, their utterings are constrained by the need to argue in general, disinterested terms.

Although the paper ostensibly is about the late eighteenth century, it was written very much with

the late twentieth century in mind. The political transitions and constitutional debates that are

currently taking place in Eastern Europe and the Soviet Union have a number of features in

common with the American and French experiences. In a final section I briefly allude to some of

the similarities. Needless to say, as all historical analogies they are partial and limited, but used with

caution they may suggest distinctions to be made and hypotheses to be explored.

Arguing and bargaining

Let me first spell out the distinction between the two modes of communication, and first note that I


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am concerned here only with communications that are constrained by the need to make a decision

within a specified time limit. A constituent assembly, for instance, cannot behave as if it were a

philosophical seminar, in which argument and counterargument can be pursued indefinitely without

any need to reach a conclusion.

To argue is to engage in communication for the purpose of persuading an opponent, i.e. to make theother change beliefs about factual or normative matters. In such discussions, the only thing that is

supposed to count is "the power of the better argument". The parties are not allowed to appeal to

their superior material resources. The factual or normative statements asserted in a process of

arguing are made with a claim to being valid. For factual statements, validity means the same as

truth. For normative statements, the notion of validity is more controversial. For the present

purposes, I shall focus on impartiality as a necessary condition for normative validity.

To bargain is to engage in communication for the purpose of forcing or inducing the opponent to

accept one's claim. To achieve this end, bargainers rely on threats and promises that will have to be

executed outside of the assembly itself.3 Bargaining power does not derive from the "power of the

better argument", but from material resources, manpower and the like. Statements asserted in aprocess of bargaining are made with a claim to being credible, in the sense that the bargainers must

try to make their opponents believe that the threats or promises would actually be carried out.

Threats and promises involve post-communication behavior. The need for credibility may also

induce specific forms of pre-communication behavior. Before the actual bargaining begins, the

parties may take certain actions - precommit themselves - for the purpose of lending credibility to

threats. Routine precommitment strategies include the choice of people well-known for their

intransigeance as negotiators; the imposition of bound mandates on the negotiators; the use of

delaying devices such as the obligatory referral of proposals to one's constituency; and the public

announcement of demands in ways that make it hard to step down without loss of prestige. More

exotic devices can also be imagined.4

The process of rational argument can also involve pre-discussion choices. Since universal

participation is often impracticable, selection and representation procedures have to be established.

Since the pursuit of consensus may take too much time, some voting procedure usually has to be

adopted. Clearly, the representatives cannot themselves decide how they are to be selected.

Typically, in the process that decides how representatives are to be elected or selected it is also

decided how they are to decide once assembled. The representatives may, however, decide to

overrule that prior decision (see below).

Most instances of bargaining also contain elements of argumentation. In collective wagenegotiations, for instance, much of the time is spent arguing about factual matters, such as trends in

the purchasing power of the workers or the financial health of the firm. Normative arguments are

also used, as when workers claim that their moderation in bad times entitles them to a larger share

of the gains in good times.5 Yet typically normative arguments serve a different function in such

contexts, that of lending credibility to threats that would otherwise not be believable. Usually,

threats are credible only if it would be in the interest of the threatener to carry them out if the

occasion should arise. However, individuals who are motivated by strong perceptions of fairness are

sometimes willing to hurt themselves rather than be treated unfairly. Hence they can credibly

threaten to break off negotiations even when it is clear that they would do worse on their own than

on the terms proposed by the opponent.

Conversely, many apparently rational discussions take place behind a hidden threat that one or more

of the participants might leave the table or the assembly. In countries where the government has the


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power to dissolve parliament, this threat is constantly present. Even when it is rarely invoked and

still more rarely used, the threat may have a considerable impact on the proceedings. Also, members

of the parliamentary opposition may be influenced by implicit or explicit promises that their

constituencies will receive government contracts if they vote for the government's proposal.

Sometimes, it may be difficult to decide whether a given communication is part of an argument or amove in a bargaining process. In particular, it is not always clear whether a given statement is

meant as a threat or as a warning. To influence the beliefs of the other party, it is sometimes useful

to utter a warning to the effect that if the opponent does such-and-such, so-and-so will happen. In

principle, it is easy to distinguish threats from warnings. In practice, there is considerable

ambiguity. A trade union leader may tell the management negotiator that "Unless our demands are

met, I will be unable to keep my members from striking". Formally, the statement is issued as a

warning - an assertion about certain objective facts outside anyone's control. In reality, it is common

knowledge to the parties that the strike propensity is to a large extent within the control of the union

leader. When a threat is disguised as a warning, we could also and equivalently say that a process of

bargaining is disguised as a process of arguing or rational discussion.

In actual communicative situations one will usually find elements of both arguing and bargaining.

And in some situations it may not be clear whether we are dealing with the one or the other. These

facts do not, however, destroy the distinction. Arguing and bargaining have to be seen as two ideal-

typical modes of communication, which are rarely instantiated in their pure form.

We may distinguish between opportunistic and non-opportunistic statements. An opportunistic

factual statement is a misrepresentation of facts for self-serving purposes. In bargaining contexts,

such misrepresentations routinely occur when the parties make statements about their own

preferences. A party who can successfully disguise his impatience, for instance, will enhance his

ability to make credible threats and be more likely to get a good agreement. Similar

misrepresentations of fact take place in argumentative situations. Each party will typically stress the

factual aspects of the situation that support its own position, and neglect others. Other parties may

in turn be counted on to expose this bias, so that in the end a more balanced picture emerges.6

An opportunistic normative statement is a self-interested claim dressed up as an impartial one. In

collective wage bargaining, for instance, appeals to principles of distributive justice are often made

opportunistically. The number of plausible-sounding norms of fairness is so large that most groups

will be able to find some norm that corresponds, at least roughly, to their self-interest. (In fact,

rough correspondence is usually better than perfect correspondence, since it may enhance the

efficacy of the normative argument by defusing the suspicion that the norm is used for self-serving

purposes.) In political argumentation, conservatives may appeal to liberty and fundamental rightswhen defending the interests of private business, while socialists may appeal to ideals of social

justice when defending the interests of their constituents. But there is an important difference

between arguing and bargaining in this respect. In bargaining contexts, one may appeal to impartial

normative arguments, to convince the opponent or to lend credibility to threats and warnings, but

one does not have to do so. Bargaining often proceeds without reference to any motives beyond

self-interest. In argumentative situations, one has to phrase one's argument in impartial terms, as if

one were arguing for the public good and not for one's own self-interest. To persuade others that

society ought to be organized so as to accommodate a particular set of private interests one must

either back the claim by a credible threat or argue that this arrangement will in fact serve a more

impartial end that commands general acceptance. One cannot say, "I want this outcome because it is

good for me", and expect others to be persuaded. There simply is no language game of that kind.

I do not mean to suggest that all impartial normative arguments are opportunistic, or that all motives


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ultimately are self-interested. An argument to the effect that environmental policies have to take

account of the interests of future generations is likely to be genuinely impartial and disinterested.

Arguments in favor of the mentally handicapped or of third-world countries are also likely to have

an impartial basis. And even when a group argues for a policy that does favor itself, it may do so for

other than opportunistic reasons. When women claimed the right to vote, they could ground their

claim in widely accepted standards of fairness. My point is not, therefore, that self- interest isrampant. Rather my claim is that when people are moved by self-interest, the context of rational

discussion forces them to disguise it as something else.

In addition to the norm of impartiality that constrains argumentative communication, such debates

are subject to a norm of consistency. Any given normative argument may, in any given situation, be

used in an opportunistic manner. But once it has been used, the speaker is stuck with it. If he wants

to retain his persuasive powers, he cannot simply disregard the argument if a later situation should

arise in which it works against his self-interest. A participant who is seen as choosing norms a la

carte, and discarding them whenever they work against him, will undermine himself in the long run.

The joint impact of the constraints of impartiality and consistency can be considerable. They forcespeakers to deploy arguments that not only contain no explicit reference to their self-interest, but

may actually go against it. And when the decision procedure is public, a further norm of consistency

- between words and behavior - forces people to vote for the proposal whose merit they have been

arguing. The final decision may not in any recognizable sense reflect the public interest, but nor is

there any reason to believe that it will always reflect a compromise between the private interests of

the parties.

Philadelphia and Paris

The differences between the two assemblies are more striking and far-reaching than the similarities.

I begin, nevertheless, with the latter.

The two assemblies took place at about the same time. They had many intellectual ancestors in

common. The orators use many of the same historical precedents in arguing for or against various

institutional arrange-ments. The British political system, in particular, is constantly invoked in both

cases. Several of the issues on the agenda were similar: bicameralism, executive veto, the link of

suffrage to property, how the constitution itself was to be revised. Also, as discussed more fully

below, both assemblies faced the problem of how far they could deviate from their mandates and

claim to represent the nation as a whole rather than the states or estates that had sent them. The most

important difference is that in Paris the first task of the assembly was to destroy the old regime,

including the institutions that supported two of the three deliberating estates. After the abolition offeudal privileges and the confiscation of church property, the Revolution in France became a

"winner-take-all" process which gave very little room for compromise. Some exceptions are noted

below, but the characterization seems roughly correct. In Philadelphia, by contrast, the

Confederation remained very much a political reality throughout the proceedings. Consequently, the

bootstrapping procedures used in the Convention (see below) were much less radical than those of

the Constituent Assembly.

A second important difference is that the American events more naturally lend themselves to a

bargaining interpretation, because the actors were geographically distinct states rather than

functionally defined estates. I shall return to this point later. Here it is sufficient to point out that

while it is clear what it means for a state to threaten to withdraw from a federation, it is harder tounderstand what it would mean for, say, the nobility, to threaten to withdraw from society. Yet

bargaining among estates cannot be excluded. A Church under attack can threaten to withhold


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services that are of immense importance to the citizens and that no other institution can provide.

The American assembly did not work under pressure. Although most of the delegates thought that

the Confederation was in need of reform, there was agreement that the situation was less urgent

than it had been when the Confederation had originally been formed. Indeed, James Wilson argued

that the Convention, precisely because it took place under less urgent circumstances, could be usedto redress some of the unfair decisions that had been made in 1776.7 In Paris, by contrast, the work

of the assembly took place under menace and pressure first from the king and later from the

Parisian crowds.8 Also, the financial situation was desperate.

The American debates took place behind closed doors, and the proceedings were kept secret. The

secrecy could be kept because the group of delegates was small and the Convention itself lasted less

than four months. The French debates were intensely public; there were more than a thousand

delegates; and the proceedings stretched out for more than two years. These facts of space, time and

number inevitably set the tone for the debates. The American discussions, in particular, are virtually

free of the moralizing cant - invoking either the goodness and wisdom of the king or similarly

infallible virtues in the people - which characterizes all but a very few of the French delegates.

Finally, the American constitution lasted - the French did not. Since 1791 up to the present France

has had about a dozen constitutions, whereas the United States have kept the constitution made in

Philadelphia, amended only within the framework laid down in that document itself. Since the

successors of the 1791 constitution have also been short-lived, the circumstances in which it was

made may not provide the full explanation of its lack of staying power. There may be more general

elements in French political culture that enter in to the explanation of its failure as well as of that of

later constitutions. But it seems plausible that part of the explanation could be the radical

procedures adopted by the Constituent Assembly. As we shall see, it did not adopt for itself any of

the flywheels it recommended to stabilize later legislatures, nor any other cooling or delaying

devices.

In summary, it is evident that the conditions for reaching agreement and sticking to it were much

more propitious in Philadelphia than in Paris. An overdrawn way of stating the contrast could be

that in France the debates led to a false and unstable consensus, made under the pressure of events

and the radical clubs, whereas in the United States the outcome was a viable compromise,

hammered out by pragmatic negotiators. But the contrast is too stark. In both assemblies, there were

genuine discussions that led to genuine consensus.

Bootstrapping

Constitutions can be changed or even made within a constitutional framework.9 This was not the

case in either of the two assemblies. Instead, they had to make up their own rules to a considerable

extent. In the French case, everything was essentially created ex nihilo. In the American case, the

procedure by which the Convention was established did to some extent constrain what the delegates

could do and propose, but they also had a great deal of latitude in defining their own mandate.

To get the question properly in focus we may distinguish between four sets of procedures.

First, there are the procedures used in sending delegates to the assembly.

Second, there are the procedures used by the assembly in its deliberations.

Thirdly, there are the procedures proposed by the assembly for future legislatures.

Finally, there are the procedures proposed by the assembly for ratification of these proposals.These procedures can be most clearly contrasted in the American case.


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delegates just went ahead and decided that they were "entirely constituted".

The French case presents an important aspect not found in the American one. The Assemble

Constituante functioned also as an ordinary legislative assembly. That arrangement may be

undesirable, since a main task of a constitutional assembly is to strike the proper balance of power

between the legislative and the executive branches of government. A legislative assembly thatwrites itself into the central place in the constitution may not enjoy sufficient legitimacy. The

members of the French Assemble Constituante were acutely aware of this problem, and solved it

by voting themselves ineligible for the first legislative assembly. Today, this decision - proposed by

Robespierre - is generally acknowledged as a disastrous piece of populist overkill. It did, however,

reflect a genuine problem.

The problem of bootstrap-pulling is an aspect of the problem of legitimacy. Procedural legitimacy

can be upstream or downstream, by delegation or by ratification. (The two can interact, since those

who delegate the power to propose changes often want to approve them.) Some strategic aspects of

the constitutional process follow from the need to compromise with legitimacy-conferring

institutions. The Federal Convention could not ignore the States. The Constituent Assembly couldnot ignore the King. At the same time, framers may try to secure legitimacy by the soundness of

their proposals. This was the strategy adopted by the leading delegates in Philadelphia: to work

within the framework of the Confederation, yet bend and stretch it as much as possible to promote a

better mode of government. A roughly analogous scenario might have occurred in France, had it not

been for the King's flight to Varennes.

Bargaining, uncertainty and impartiality

At one point during the Philadelphia debates, Gouverneur Morris argued that "If we can't agree on a

rule that will be just at this time, how can we expect to find one that will be just in all times to

come."19 Perhaps we should stand this observation on its head. It may be easier to create a

constitution for the future than to find one that commands agreement in the present. The basic fact

of uncertainty that makes it hard to legislate for the future may also in other and more important

respects make that task easier.

The future circumstances and needs of society cannot be known with any degree of precision.

Hence, for instance, George Mason's doubts about the motion to deny Congress the right to emit

bills on the credit of the U.S.: "Though he had a mortal hatred to paper money, yet as he could not

foresee all emergences, he was unwilling to tie the hands of the Legislature. He observed that the

late war could not have been carried on, had such a prohibition existed."20 Yet in another context

Mason argues persuasively that uncertainty can create consensus:We ought to attend to the rights of every class of people. He had often wondered at the indifference

of the superior classes of society to this dictate of humanity and policy, considering that however

affluent their circumstances, or elevated their situations, might be, the course of a few years, not

only might but certainly would distribute their posteriority through the lowest classes of society.

Every selfish motive therefore, every family attachment, ought to recommend such as system of

policy as would provide no less carefully for the rights and happiness of the lowest than of the

highest orders of citizens.21

Such veil-of-ignorance arguments 22 were also used in other contexts. Thus Gouverneur Morris

argued that "State attachments, and State importance have been the bane of this Country. We cannot

annihilate; but we may perhaps take out the teeth of the serpents. He wished our ideas to be

enlarged to the true interest of man, instead of being circumscribed within the narrow compass of aparticular spot. And after all how little can be the motive yielded by selfishness for such a policy.

Who can say whether he himself, much less whether his children, will the next year be an inhabitant


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of this or that state."23

This argument refers to the thirteen states then in existence, but it was also used to cover the

accession of future states. Against Gerry's proposal to "limit the number of new states to be

admitted into the Union, in such a manner, that they should never be able to outnumber the Atlantic

States"24, Sherman replied that "we are providing for our posterity, for our children and grandchildren, who would be as likely to be citizens of new Western states as of the old states".25

These veil-of-ignorance arguments are based on uncertainty and the long-term interest of families.

They form, therefore, an intermediate category between self-interested bargaining and disinterested

reasoning about the common good. On the one hand, there is no scope for bargaining when interests

coincide, as they do behind the veil of ignorance. On the other hand, veil-of-ignorance arguments

based on uncertainty should not be confused with arguments from impartiality. Mason's argument

for granting new states equal states belongs to this latter category: "Strong objections have been

drawn from the danger to the Atlantic interests from new Western states. Ought we to sacrifice what

we know to be right in itself, lest it should prove favorable to states which are not yet in existence.

If the Western states are to be admitted into the Union as they arise, they must, he would repeat, betreated as equals, and subjected to no degrading discrimination."26

For the remainder of this paper, I shall disregard the intermediate category, and focus on the

extremes of bargaining among parties with conflicting short-term interests and impartial, rational

discussion about the common good. In the American case, I shall assume that delegates bargain on

behalf of their states, not on behalf of their personal interests.27 Since this is a paper about the

nature of the debates and not about ultimate motivations, this assumption seems justified. Although

the closed doors of the Philadelphia assembly made it possible to argue explicitly in terms of the

interests of states, the doors were not closed enough to allow personal self-interest to come into the

open.

The distinction between bargaining and rational discussion can be related to a distinction between

the transitional effects and the equilibrium effects of a new constitution. It is tempting to see the

goal of rational discussion as that of creating the best constitution sub specie aeternitatis, i.e. the one

with the best equilibrium properties. This view is misguided, however. The goal ought to be that of

finding the best possible development from now on.28 Extreme focus on equilibrium properties can

lead to unjustified imposition of suffering on the generations that have the bad luck of living in the

transitional period.

In the Constituent Assembly, Malouet stands out in referring to "tous les hommes paisibles qui ne

veulent point sacrifier leur repos et la gnration actuelle aux gnrations futures".29 The welfare ofthe current generation ought to count more heavily than that of any single future generation, not

because of time discounting per se, but because of the uncertainty that will always surround

conjectures about long-term effects. But even were there no uncertainty at all, the current generation

has rights that block the intertemporal utilitarian calculus. For these reasons, rational discussion

ought to take account of transitional effects and not only of equilibrium properties of the new

system.

Other transitional effects may be relevant for reasons of upstream and downstream legitimacy. If

impartial discussion about the common good led to consensus on a constitution that stood no chance

of being adopted, it would be an instance of rationalism, not of rationality. In the Federal

Convention, the debate over ratification illustrates this point. As observed by Rufus King, "AConvention being a single house, the adoption may be more easily carried thro' it than thro' the

Legislatures where there are several branches. The Legislatures also being to lose power, will be


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most likely to raise objections."30 King and Wilson 31 used the latter fact as an argument for a

different procedure of ratification, not involving the State legislatures. Charles Pinckney, however,

argued the other way around. The first branch of the national legislature, he argued, should be

elected by the state legislatures and not by the people, among other reasons because "the

legislatures would be less likely to promote the adoption of the new government, if they were to be

excluded from all share in it."32

I shall focus, however, on the transitional effects that are related to bargaining. Any specific

constitutional design will affect the interests of currently existing groups. Even if all expect to gain,

as I shall assume, each arrangement will have special benefits for some groups. This is the general

problem of bargaining: how to divide the benefits from cooperation? How to choose one among

several Pareto- improvements? In the long-run, the differential impact is attenuated by uncertainty,

as I explained earlier. In the short run, however, gains can differ strongly.

The interaction between bargaining arguments and arguments from impartiality is too complex to

be considered here, especially since it is often not clear whether arguments from the common good

are not really group interest arguments in disguise. My task here is to isolate the two strands as theyappear in the debates, not to consider how well they reflect different types of motivations or how

they interact to produce the final outcome. One challenge must be faced, however.33 Given the

need for the framers to have the constitution ratified or, more generally, accepted by interest groups

in society, why would the final outcome differ from that which would be produced by pure

bargaining? In other words, are not the pragmatic constraints on impartiality so strong as to remove

all bite from the idea of rational discussion among disinterested agents?

Let us assume, for simplicity, that there is no element of bargaining in the assembly. The framers

are exclusively motivated by the common good. Let us call their first-best outcome A. Let us

assume, moreover, that if they had been exclusively concerned with bargaining on behalf of

economic and political interest groups, outcome B would have been reached. The question is

whether the constraints on ratification or, more generally, acceptance of the proposed constitution,

will force the framers to propose B or something very close to B, or whether they have some

latitude to move a considerable way towards A. If the situation is very urgent, because of the threat

of war, a financial crisis or need for reconstruction, the framers may be able to impose what is from

their point of view a very good second-best solution. The costs of sending the delegates back to the

conference table or of breaking off talks altogether would be prohibitive. A second reason for

believing in the autonomy of the constituent assembly is that in general nobody knows exactly or

even approximately what B looks like. If the proposed constitution provides a minimal degree of

satisfaction to all parties, no party may feel certain that it would have been able to get more by

using credible threats. Thus the framers can play on transaction costs as well as uncertainty to carveout a space for impartiality.

Rational argumentation

I shall distinguish between consequentialist and non- consequentialist arguments. Both were

important in the constituent assemblies. Appeals to consequences abound, as do rights-based

arguments. Proceeding from this distinction, I shall discuss two sets of issues. First, how are rights

and consequences set against each other? Second, what is the structure of consequentialist

reasoning?

Issues of representation and suffrage can be used to illustrate the trade-off between rights andoutcomes. John Dickinson argued that any scheme that would give some states no representation in

the Senate would be "unfair".34 Madison argued that any deviation from proportional


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representation was "unjust".35 To reconcile the two claims from justice, the smallest state could be

given one representative, and the larger ones a proportionally larger number. This would, however,

give a very large Senate, which would, in Madison's eyes, be "inexpedient".36 One way of

describing the system that was finally chosen would be to say that expediency and Dickinson's

conception of justice won out against Madison's conception. Another way of describing it, to which

I turn below, would be to say that the bargaining power of the larger states proved to be no largerthan that of the small states.

The issue of suffrage similarly had two aspects. On the one hand, there was a concern for outcomes,

i.e. with good decision-making. In both assemblies, property restrictions on suffrage were justified

on various consequentialist grounds. In his speech on the suffrage, Barnave singled out three

arguments for property qualifications. They tend to promote, if not invariably at least usually,

lumires, intr t la chose publique, and independance de la fortune.37 At the FederalConvention, Gouverneur Morris argued that property rather than tax-paying should be the criterion

for the right to vote. If the poor had the vote, the rich would buy their votes, and a an aristocracy of

wealth would be set up.38

On the other hand, there was a concern with the right to participate. The right was perceived not as

unconditional, but as contingent on contribution to one's country. The idea was not only "No

taxation without representation", but equally "No representation without taxation". Siyes, for

instance, made a distinction between active and passive citizens: "Les femmes, du moins dans l'tat

actuel, les enfants, les trangers, et tous ceux qui ne contribueraient en rien soutenir

l'tablissement public, ne doi vent point influer activement sur la chose publique. Tous peuvent

jouir des avantages de la socit, mais ceux-l seuls qui contribuent l'tablissement public, sont

comme les vrais actionnaires de la grande entreprise sociale."39

Contribution does not only include paying taxes, but also defending one's country. In Philadelphia,

Benjamin Franklin insisted strongly on this idea: "in time of war a country owed much to the lower

class of citizens. Our late war was an instance of what they could suffer and perform. If denied the

right of suffrage it would debase their spirit and detach them from the interest of the country".40 In

Paris, Clermont- Tonnerre made a brief reference to the fact that Jews serve in the national militia,

to refute one of several arguments for denying them citizenship and, a fortiori, the right to vote.41

Various voting schemes can be seen as attempting to incorporate all of these elements, instrumental

as well as rights-based. Thus on August 28 1789 the Constituent Assembly set up a three-tiered

system that was designed to ensure universal participation as well as concern for the quality of

decision.42 At the lowest level, there were weak tax-paying qualifications for being an active

citizen, including the right to vote in the primary assemblies. These assemblies elected a corps ofelectors who in turn chose the deputies to the national assembly. To be eligible as elector, relatively

strong income qualifications had to be satisfied. To be eligible as deputy, it was enough to satisfy

the weak qualification. Here, the (conditional) right to participate is embodied in the first and third

stages, and the instrumentalist requirements of competence at the second stage.

I now turn to the structure of the consequentialist arguments. They turn largely on factual issues of

two kinds. First, how will society develop over the foreseeable future? Second and most important,

what are the causal relations between institutional environment and individual behavior? I shall

discuss them in that order.

In the debates in the Constituent Assembly I have not come across a single reference to probablefuture developments of the economy or demography of the country. In the Federal Convention, both

Madison and Gouverneur Morris draw support for their views on suffrage from socio-economic


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extrapolations. Madison was worried about requiring landed property for members of Congress.

Looking back, he observed that "It had often happened that men who had acquired landed property

on credit, got into the legislatures with a view of promoting an unjust protection against their

creditors".43 Looking to the future, he asserted that "The three principal classes into which our

citizens were divisible, were the landed, the commercial, and the manufacturing. The 2d and 3rd

class bear as yet a small proportion to the first. The proportion, however, will daily increase. We seein the populous countries in Europe now, what we shall be hereafter."44 From this he concluded

that the non-landed interests ought not to be excluded from the Legislature.

In his views on the suffrage, cited above, Gouverneur Morris draws on a similar analysis. "We

should not confine our attention to the present moment. The time is not distant when this country

will abound with mechanics and manufacturers who will receive their bread from their

employers."45 As mentioned, he drew the apparently paradoxical conclusion that since the number

of citizens without landed property could be expected to increase, it was all the more important that

they not be given the vote. He agreed with Madison, however, in that landed property should not be

a condition of eligibility. In fact, the two of them "concurred... in thinking that qualifications in the

electors would be much more effectual than in the elected".46 The resemblance with the Frenchscheme discussed earlier should be noted.

These predictions, however, are much less important than the general causal propositions asserted

time and again in the two assemblies. The members dabbled in psychology, economics, sociology

and political science to an extraordinary extent. Some of their arguments seem fairly sound, while

others are highly speculative. Generally speaking, political institutions can have two kinds of effects

on behavior. The first belongs to economics and public choice: given individual motivations,

institutions can set up incentives for individuals to act in socially desirable or undesirable ways. The

second effect falls within the scope of psychology: individual motivations may themselves be

affected by the institutional environment. The more robust arguments fall mainly in the first

category, whereas the arguments of the second kind are more fragile and conjectural.

A general assumption made in the debates at the Federal Convention is that officials will act in the

interests of their constituents if and only if this coincides with their own self-interest. Wilson,

Gouverneur Morris and Madison all make this point.47 It is not clear whether the claim reflects a

substantive theory of human nature or, as in Hume 48, simply a worst-case assumption adopted on

grounds of prudence. If the latter, the apparently cynical assumption is actually tainted with rosy

optimism, since there are worse things than self-interest. Envy, for instance, can induce people to

act against their self- interest, cutting off their nose to spite their face.49 In the debates at the

Convention there are a few passages that sound as if they are assuming envious motivations 50, but

by and large the general hypothesis seems to be that people act in their narrowly conceived materialinterest.

Madison's fear that indebted landowners might adopt legislation favoring creditors is a typical

example of incentive-effect reasoning. Another example, also from Madison, occurs in his

comments on a proposal that in voting for the president, each elector should have two votes, one of

which at least should be cast for a candidate not from his own state. Madison "thought something

valuable might be made of the suggestion... The only objection which occurred was that each

citizen after having given his vote for his favorite fellow citizen would throw away his second vote

on some obscure citizen of another State, in order to ensure the object of his first choice."51

A further Madisonian example refers to the advantage of having the president elected by a set ofelectors specifically chosen for this purpose: "As the electors would be chosen for the occasion,

would meet at once, and proceed immediately to an appointment, there would be very little


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opportunity for cabal, or opportunity".52

A final example, also from Madison, is less convincing. Arguing against selection of the executive

by the legislature, he writes that "the candidate would intrigue with the legislature, would derive his

appointment from the predominant faction, and be apt to render his administration subservient to its

views".53 But it is not clear that a candidate's promise to favor his electors would be credible.Although Madison seems to subscribe to the maxim "Let the king beware of the kingmaker", the

opposite view, "Let the kingmaker beware of the king", would seem just as appropriate.

Many other examples from the Convention could have been cited, but these give the general flavor

of the arguments. Straightforward incentive reasoning of this kind is much rarer in the Constituent

Assembly, mainly, no doubt, because the French delegates were totally lacking in political

experience. Although the French representatives, like their American counterparts, draw on

examples from ancient and modern history, they lacked the practical knowledge of politics that the

Americans had acquired in Congress or in the State legislatures. Although the speeches contain

many general warnings about the risk of the legislative or the executive usurping power, there are

few specific analyses of the kind cited in the previous paragraph. To be sure, there are exceptions. Ishall cite two of them, both taken from the report by Bergasse on the organization of the judiciary.

Bergasse beings by asking, "Comment, par l'institution m me des formes destines procurer laconviction des coupables, parviendrez vous faire natre la confiance dans le coeur de l'homme

injustement accus?" One of the procedures he proposes for enhancing confidence in the judiciary

is the following:

La confiance natra, si le magistrat qui applique la loi est distingu du magistrat qui met sous la

puissance de la loi, c'est--dire du magistrat qui dcrte l'accus. ...Tant que le magistrat qui dcrte

sera le m me que celui qui juge, vous aurez toujours craindre, s'il a dcrt sur de faux soup ons,son amour-propre ou sa prvention ne le portent justifier, par une condamnation inique, un dcret

injustement lanc.54

The argument, in other words, is that the unjustly accused man has less to fear if he knows that the

judge has invested nothing of his "amour-propre" in the decision to prosecute. The argument is not

that others might corrupt the judge, but that he might be corrupted by his own pride and refusal to

admit that he had made a mistake.

In discussing the organization of the police, Bergasse suggests that justices of peace, unlike other

judges, should be chosen by popular election for a short period. Anticipating the objection that such

judges might abuse their position, he asserts that

Tant qu'un homme ne dispose que du pouvoir d'un moment, et que, destin rentrer dans la classe

ordinaire des citoyens il sent qu'il ne peut accrotre ce pouvoir sans se nuire lui-m

me lorsqu'iln'en disposera pas, il n'est pas craindre qu'il en abuse, et qu'il fasse server ses passions

particulires une autorit qui, dans la suite, employe par un autre, pourrait si facilement lui devenir

funeste.55

The argument can be read in one of two ways. (i) If the judge abuses his power, the increased

powers of his office will make it easier for his successor to punish him. (ii) If he abuses his power,

his successor will do so too, and that might harm him. On either reading, especially the second, it

lacks the robust realism of the Americans, who assumed that officials "make hay when the sun

shines"56.

The other causal issue concerns the impact of institutions on the motivation of individuals. As a

broad generalization, I think it is true to say that this concern is more prominent in the Frenchassembly. The American delegates did not think that the citizens could be reformed by the

constitution. At best, cleverly designed institutions could force them to consider their enlightened


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self-interest, rather than yielding to the impulses of the moment and the passions of the crowd. This

was the purpose of the various delaying and cooling devices that figure centrally in both debates.

The French, however, went further. They believed in the virtues of public deliberation as a means

for changing preferences, rather than merely aggregating them.57 The argument is most clearly

stated by Siyes: "Il ne s'agit pas ici de recenser un scrutin dmocratique, mais de proposer,d'couter, de se concerter, de modifier son avis, enfin, de former en commun une volont

commune".58 Arguing along similar lines, several members of the Constituent Assembly attacked

the idea that revisions of the constitution could take place at the initiative of local assemblies and

individual petitions.59 A preference that has not been purified by public discussion is not a true

preference ("un vritable voeu")60. Representative institutions were sharply distinguished from

mere democracy, "ce qu'il y a dans la nature de plus odieux, de plus subversif, de plus nuisible au

peuple lui-m me".61 The ideal of rational discussion thus enters twice into the debates of theConstituent Assembly. The professed goal of the members was to create legislative institutions that

would foster consensus rather than vote counting and horse trading. And by the nature of that ideal,

such institutions could only be established by similarly consensual means.

Constitutional bargaining

In this section I attempt to take the notion of constitutional bargaining in a (somewhat) non-

metaphorical sense, by interpreting the debates in the light of modern bargaining theory.62 For

reasons briefly indicated above, I shall rely exclusively on the Federal Convention. There were no

doubt elements of bargaining and compromise in the Constituent Assembly. The abolition of feudal

privileges was tempered by compensations which may have been subject to some bargaining. The

single-chamber system with a suspensive veto for the King can be seen as a compromise between

the full "three-headed hydra" and Siyes's proposal of an entirely autonomous assembly. But the

debates themselves do not, to my knowledge, indicate any such dealings.

Two bargaining compromises stand out in the Convention: the rule that a slave should be counted as

three fifths of a free man for purposes of representation, and the mixed congressional system with

proportional representation in one house and equal representation in the other. I shall limit myself to

the latter issue, which was much more explicitly discussed in bargaining terms.

First, however, I need to say something about bargaining theory in general. Bargaining concerns the

division of the benefits from cooperation, compared to a state-of-nature alternative. In the case of

bargaining among separate states, this alternative is just the ordinary international order. In the case

of bargaining among estates, among political parties or between civil and military institutions, the

non-cooperative alternative is a state of permanent guerilla warfare.

Bargaining theory has two distinct branches. The most developed is two-person bargaining theory,

as applied, for instance, to wage bargaining between capital and labor. The more general n-person

theory is qualitatively different, since it has to take account of the possibility of sub-coalitions. In

bargaining over government formation, for instance, the grand coalition that includes all parties

almost never forms. And even when the grand coalition does form, as it did in the United States in

1788, the threat of sub-coalition formation can play a vital role in shaping the terms of agreement.

For various reasons, n-person coalition problems are less tractable than two-person bargaining. We

do not really have a good theoretical understanding of coalition formation. We can, however, use

two-person theory to throw some light on the n-person case.

In the Federal Convention, we may talk as if the large states formed one actor and the small states

another, and use two- person theory to understand the nature of the bargaining between them. But


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there were many other, cross-cutting divisions among the states that rivaled with the size issue as

potential foci for coalition formation, the North-South division being the most important. Hence a

full account would have to specify the payoff structure for all possible subcoalitions of the thirteen

states, and to propose a theory that, on the basis of these payoffs, predicts that the grand coalition

will form and the terms on which it will form. The first task is impossible for practical reasons, and

the second is unresolved at the time of writing. This is why the following discussion offers at best asomewhat non-metaphorical use of bargaining theory.

Let us assume that the parties to the bargaining are rational and, more specifically, that they act to

maximize material rewards. In that case, the outcome of bargaining is largely shaped by two factors.

On the one hand, the outcome is constrained by the outside options of the parties, i.e. by the rewards

they would obtain if the bargaining broke down and a permanent state of non-cooperation were to

obtain. A rational agent will not accept an outcome that is worse than his outside option. On the

other hand , the outcome will be determined by the inside options of the parties, i.e. by the resources

available to them while the negotiations are going on. Typically, the inside options are inferior to

the outside options. An agent will do better for himself if he breaks off the negotiation altogether

and redeploys his resources than if he keeps negotiating while his resources are idling. Yet thedifferences in inside options may matter more for the outcome, because they determine which

threats are credible and which are not.

Rather than elaborate on the formal definitions, let me explain the idea of outside and inside options

by an illustration from wage bargaining. For the workers, the outside option is set by the wage they

could obtain elsewhere or the level of unemployment benefits. Their inside option is set by the size

of their strike fund any whatever other support they might receive during a strike. The outside

option of the firm is set by the resale value of the plant, while its inside option is determined by

fixed costs, inventory size and the like. Outside options constrain the wage agreement: neither the

workers nor the firm will accept an outcome that is inferior to what they could get on their own.

Inside options determine the credibility of threats, and hence how much the parties can get over and

above their outside options. Intuitively, a party to the bargaining has an edge if his resources enable

him to hold out longer than the other party.

This proposition throws light on Wilson's argument that the equality of states in the Confederation

was due to "the urgent circumstances of the time"63 or to "necessity"64, and that the Convention

ought to adopt proportional representation since "the situation of things is now a little altered".65 In

a time of national danger, time is of the essence. No single state can better afford to hold out than

any other; hence bargaining power is equalized. In periods of comparative calm, the larger and

more self-sufficient states regain their natural bargaining advantage.

On two occasions Gouverneur Morris used a similar argument with respect to future contingencies.

Arguing against the proposal that all bills for raising money should originate in the first branch, he

referred to the following scenario: "Suppose an enemy at the door, and money instantly and

absolutely necessary for repelling him, may not the popular branch avail itself of this duress, to

extort concessions from the Senate destructive of the constitution itself?"66

This argument is more dubious than Wilson's , since the threat of the popular branch to withhold

money would hardly be credible. On a later occasion a proposal was made to have a census at

regular intervals for the purposes of adjusting representation. According to Madison's notes,

"Mr.Govr. Morris opposed it as fettering the legislature too much. Advantage might be taken of in

time of war or the apprehension of it, by new states to extort particular favors."67 This argumentalso seems implausible, for similar reasons.


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Note, however, the difference between Wilson and Morris. Wilson, when reminding the smaller

states that the circumstances which lent them bargaining power have changed, is himself engaged in

bargaining. Morris is engaged in rational discussion, arguing that since certain future parties may

use their bargaining power to obtain unfair concessions, they ought not to be given the rights from

which that bargaining power would be derived. In fact, Morris explicitly asserts that he does not

want to bargain. According to Madison's notes, "He wished gentlemen to extend their views beyondthe present moment of time; beyond the narrow limits of place from which they derive their

political origin. If he were to believe some things which he had heard, he should suppose that we

were assembled to truck and bargain for our particular states. He cannot descend to think that any

gentlemen are really actuated by these views. We must look forward to the effects of what we

do."68 Yet in the very same intervention Morris shows himself to be very much engaged in

bargaining, brandishing the threat that "if persuasion does not unite [the country], the sword

will".69

Early in the convention Wilson made a brief observation ("ad terrorem", as Madison says in his

notes) "to the idea of not suffering a disposition in the plurality of states to confederate anew on

better principles, to be defeated by the inconsiderate or selfish opposition of a few states. He hopedthe provision for ratifying would be put on such a footing as to admit of such a partial union, with a

door open for the accession of the rest."70 The remark, which opens for the formation of

subcoalitions, is left dangling. The next major intervention along similar lines is by Madison.

Addressing himself to the smaller states who want equal representation,

He begged them to consider the situation in which they would remain in case their pertinacious

adherence to an inadmissible plan should prevent the adoption of any plan. The contemplation of

such an event was painful; but it would be prudent to submit to the task of examining it at a

distance, that the means of escaping it might be the more readily embraced. Let the union of the

States be dissolved and one of two consequences must happen. Either the states must remain

individually independent and sovereign; or two or more confederacies must be formed among them.

In the first event would the small states be more secure against the ambition and power of their

larger neighbours, than they would be under a general Government pervading with equal energy

every part of the empire, and having an equal interest in protecting every part against every other

part? In the second, can the smaller expect that their larger neighbours would confederate with them

on the principle of the present confederacy, which gives to each member an equal suffrage; or that

they would exact less severe concessions from the smaller states than are proposed in the scheme

[of proportional representation]?71

Here Madison is characterizing various outside options of the small states, without explicitly saying

anything about those of the larger states. Nathaniel Gorham supplemented the argument in this

respect:

The states as now confederated have no doubt a right to refuse to be consolidated, or to be formedinto any new system. But he wished the small states which seemed most ready to object, to consider

which are to give up most, they or the larger ones. He conceived that a rupture of the Union would

be an event unhappy for all, but surely the large states would be least unable to take care of

themselves, and to make connections with one another. The weak therefore were most interested in

establishing some general system for maintaining order.72

Taken together, these passages claim that the small states are in a weak bargaining position because

their outside options are much worse than those of the large states. This view corresponds to the

theories of bargaining that were prevalent from 1950 until 1980.73 According to these theories, the

bargaining agreement that will be reached is not simply constrained by the disagreement outcomes

(the outside options), but actually determined by those outcomes, in a sense to be explained.

Consider, for instance, the particular theory which says that the outcome of two-party bargainingwill be one in which the gains to each party compared to the disagreement outcome are proportional

to the maximal gains it could have obtained had the other party only received its disagreement


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payoff.

[diagram]

In the diagram, the area enclosed by the two axes and the curve are the feasible outcomes. Suppose

that A is the outside option or disagreement outcome. The theory just stated predicts that theagreement will be C. If the disagreement outcome moves to B, making the second party's outside

option worse, the agreement changes to D, also making the second party worse off. Other theories,

which predict different outcomes, are also responsive to changes in the outside options, over and

above their constraining e ffect. The passages from Madison and Gorham can similarly be

understood as saying that because of their inferior disagreement outcomes the small states lack the

bargaining power to get equal representation.

The argument sounds persuasive; yet the small states got their way. Could it be because Madison

and Gorham were using the wrong bargaining theory, which places all emphasis on outside options

and none at all on inside options? Wilson, as we saw, invokes inside options in his reference to

urgency and necessity. From this line of reasoning we might conclude that the large states had anedge in 1787 because they could afford to hold out longer than the small states. Yet this argument

was never explicitly made

Nor are there any signs that the delegates from the small states were more impatient to reach a

conclusion than the large states. In fact, the duration of the Convention would hardly matter for

bargaining strength unless the parties expected that it might go on for years, which they did not.

Thus Wilson's argument, although correct in principle, had no bite in practice.

An alternative explanation of the victory of the small states could be that their representatives

believed so strongly in their cause that they would rather suffer a loss than being treated unfairly;

or, more realistically perhaps, that they were able to convey a belief of this kind to the

representatives of the larger states.

We might ask, however, whether equal and proportional representation were the only two

possibilities. Could not the large states have forced the small states to agree to an intermediary

solution, in which they would have more senators than proportionality would give them, yet less

than full equality would provide? Proposals of this kind were actually discussed at various times,

although never in a very serious way. I can think of two reasons why they did not succeed.

First, equal representation and proportional representation are the only obvious focal points, with a

natural salience that singles them out for special attention. Once proportional representation wasruled out, equality held out the best hope for agreement. Second, equal representation was also

advanced on grounds of justice. To the extent that states - not only individuals - were seen to have

rights, equality of representation was the inescapable conclusion. Bargaining power, psychological

salience and conceptions of justice all enter into the explanation of the compromise in Philadelphia.

The effects of publicity

A crucial procedural difference between the two assemblies was, as noted, that one was open and

the other closed. In this perspective, we may consider two different effects of public proceedings.

On the one hand, publicity, if properly structured, can have the desirable effects mentioned earlier.By forcing the speakers to argue in terms of the common good, it can "launder" preferences of their

self-interested components.74 By contrast, closed proceedings tend to foster bargaining and explicit


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recognition of self-interest. The agreement that is eventually reached may reflect bargaining power,

not the force of argument. In a constitution that is to last for centuries, a bias of this kind can do a

great deal of harm.

On the other hand, publicity makes it difficult for speakers to back down from their positions.

Mason noted that "a record of the opinions of members would be an obstacle to a change of them onconviction".75 A fortiori, the same would be true of public proceedings. This effect in turn induces

another: people may use publicity as a precommitment device. This is well known from wage

bargaining: both employers' associations and unions tend to make public demands so as to raise the

stakes and make it more credible that they will not back down. This is the polarization effect

referred to earlier. Also, speakers may use the public as a resonance board to terrorize their

opponents into submission. This is the false consensus effect. These effects may prevent agreement

from ever being reached, or, if an agreement is reached, cause it to have a bias in favor of the party

who can command greater support in the audience. These considerations point to the need for very

careful design of the constitutional setting itself. To design good institutions, the constituent

assembly must itself be well designed.

Conclusion: Implications for Eastern Europe?

Although the paper so far has been concerned partly with general arguments, partly with the late

eighteenth century, it was written very much with the late twentieth century in mind. The political

transitions and constitutional debates that are currently taking place in Eastern Europe and the

Soviet Union have a number of features in common with the American and French experiences. Let

me suggest, very briefly, some of these similarities.

In Paris, as I said earlier (citing Clermont-Tonnerre), the constitutional debates took place under the

double extra- constitutional pressures of the King and the Parisian mob. In Eastern Europe, the

transitions to democracy, notably the Round Table Talks in East Germany, Poland and Hungary,

took place under the double threat of Russian intervention and mass demonstrations. The more

recent constitutional debates are also taking place under extra-parliamentary constraints, but not the

same ones. On the one hand, authorities in the former Communist countries are constrained by their

need for Western credit. On the other hand, they do not want to take measures that might provoke

mass demonstrations or street violence. Some leaders will issue warnings that unless their motions

are adopted, credits will not be forthcoming. (But the warning may actually be a threat, if these

leaders can influence the policy of the lending countries.) Others will issue threats that unless their

proposals are voted, mass strikes will paralyze the country. (But the threat may actually be a

warning, if the masses are genuinely uncontrolable.)

In Philadelphia, the threat of extra-constitutional force came from the possibility of secession.

Spokesmen of both small and large states at various times threatened to break out of the

confederacy. This situation has close parallels in several countries in Eastern Europe, not to speak

of the Soviet Union. In Yugoslavia, the issue of secession looms increasingly large. Note, however,

that six republics can form coalitions in several hundred ways. Although some of these can be

excluded a priori, because of traditional hostility, the number of remaining possibilities is

dauntingly large. It is possible that bargaining theory might serve to exclude some of the remaining

combinations; and to predict, at least in a qualitative manner, the terms on which coalitions will be

formed. In the Czech and Slovak Republic, the issue of proportional versus equal representation of

the republics - the issue over which the Federal Convention was almost torn apart - is highly salient.

Although the Czechs outnumber the Slovaks two to one, the Slovaks demand and may well succeedin obtaining parity of power in many important federal organs. At the moment of writing, however,

the possibility that there will not be any the Czech and Slovak federation at all, at most a loose


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confederacy, is widely discussed.

The question of the legitimacy and legitimacy-conferring capacity of the constituent assemblies

arose both in the French and the American context, as we saw earlier. These issues, too, are present

in Eastern Europe, most acutely perhaps in Poland. Here, the parliament that is also serving as

constituent assembly was not the result of free elections, but of the hybrid electoral system thatemerged from the Round Table Talks between Solidarity and the Communist Party. In Bulgaria the

legitimacy of the Communist-dominated parliament is highly contested. In many countries, the

tendency is for parliament also to be the constituent assembly. As I mentioned earlier, this duality

creates an unfortunate, but perhaps unavoidable, tendency to reinforce the place of the legislative

branch of government. A variant of the same problem exists in Hungary. Here, recognition of the

fact that the governmental apparatus is too contaminated by the past to be trustworthy has led to a

constitutional bias in favor of the legislative. But this creates another dilemma. Either the

constitution is supposed to last indefinitely; and in that case future generations will be saddled with

a system designed for the period of transition. Or the constitution is supposed to be merely

transitory; and in that case it will not have its intended beneficial effects on private long-term

planning, for which stability and predictability are main desiderata.

The two eighteenth century experiences suggest an uncomfortable choice between having the

constitution drafted by constitutional subcommittees of parliament meeting in closed sessions, and

having it drafted by constitutional assemblies meeting in plenary sessions. The goal would be to

design a mixed procedure, which would prevent both horsetrading and demagoguery from

dominating the debates.

A final, very tentative lesson from the late eighteenth century might be the following. The

Americans designed their constitution on the worst-case assumption that human motivations will

remain self-interested. The French believed that they could design a constitution that would change

human motivations for the better. These two ideas need not be incompatible. But to design a

constitution that will work only if it succeeds in changing motivations, is to court disaster.

* I thank Carlos Waisman and other seminar participants in the Center for Iberian and Latin

American Studies at the University of California (San Diego) for valuable comments after a talk

that eventually turned into this paper. I am also grateful to Bernard Manin, Russell Hardin, Stephen

Holmes, Raino Malnes, Adam Przeworski and Cass Sunstein for their comments on an earlier draft.

NOTES1 The paper is based on M.Farrand (ed.), The Records of the Federal Convention, vols. I and II,

New Haven: Yale University Press 1966. and on the speeches collected in F.Furet et R.Halvi

(eds.), Orateurs de la Rvolution fran aise, vol.I: Les constituants, Paris Gallimard 1989,occasionally supplemented by the Archives Parlementaires.

2 Cp. Ch.I.5 of my Sour Grapes, Cambridge University Press 1983.

3 In the following I single out threats rather than promises as the main form of communication in

bargaining contexts. For a discussion of the difference between these two ways of influencing theopponent see pp.272 ff. of my The Cement of Society, Cambridge University Press 1989.


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4 The locus classicus is T.C.Schelling, The Strategy of Conflict, Cambridge, Mass.: Harvard

University Press 1963.

5 See Ch.6 of The Cement of Society.

6 I owe this view of deliberation to Bernard Manin.

7 Farrand, vol.I, pp.179, 343. William Paterson (ibid., p.251) retorted that even granting that the

original agreement was unfair, it is not clear that "the donor [can] resume his gift without the

consent of the donee".

8 See notably the speak by Clermont-Tonnerre of 31.8.1789 (Les constituants, p.251-52 ) in which

he urges the assembly to resist the pressure of the people as they had withstood that of the king.

9 In actual cases, wholly new constitutions are rarely made within a pre-existing constitutional

framework. In theory, however, this might happen. Thus in the Constituent Assembly one delegate

distinguished between the the need to create "un moyen de rformer partiellement la Constitution"and the need to have "un moyen lgal de changer entirement la Constitution" (Archives

Parlementaires, vol.XXX, p.97). The recent rewriting of the Hungarian constitution was a case of

complete change through patchwork incrementalism.

10 Paterson at one point asks rhetorically, "If a proportional representation be right, why do we not

vote so here?" (Farrand, vol.I, p.250).

11 Farrand, vol.I, p.515.

12 E.g.Farrand, vol.I, pp.34, 249, 250.

13 Ibid., p.253.

14 Ibid., pp. 346, 255.

15 1.9.1789 (Les constituants, p.881).

16 1.9.1789 Les constituants, p.676).

17 4.9.1789 (Archives Parlementaires, vol.VIII, p.574).



20 Farrand, vol.II, p.309. The argument provides a perfect illustration of the idea that self-binding

has dangers as well as advantages. For discussion, see my Solomonic Judgements, Cambridge

University Press 1989, p.198-99.

21 Farrand, vol., p.49.

22 The arguments invoke a real veil of ignorance, not the hypothetical veil that is used to define"the original position" in Rawls's Theory of Justice. Rawls's argument is much closer to what I here

call impartiality.


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24 Farrand, vol.II, p.3.

25 Ibid. Gouverneur Morris did not apply veil-of-ignorance reasoning to the new states. "Provisionought..to be made to prevent the maritime states from being hereafter outvoted by [the new states].

He thought this might easily be done by irrevocably fixing the number of representatives which the

Atlantic states should respectively have, and the number which each new state will have. This

would not be unjust, as the Western settlers would previously know the conditions on which they

were to possess their l ands." (Farrand, vol.I, p.533.)


27 Hence I shall disregard most of the issues raised in Charles Beard, An Economic Interpretation

of the Constitution of the United States, reprinted with a new Introduction by Forrest McDonald,

New York: The Free Press 1986.

28 I am indebted to Serge Kolm for this formulation.




32 Farrand, vol.I, p.132. Similar fears were expressed by Ellsworth (ibid., p.374).

33 This responds to an argument made by Gary Jacobson.



36 Ibid.


38 Farrand, vol.I, p.512; vol.II, p.202.

39 20-21 7. 1789 (Les constituants, p.1014).

40 Farrand, vol.II, p.p.210.

41 23.12,1789 (Les constituants, p.244).

42 See the speak by Barnave cited above, as well as the editorial comments in Les constituants,

p.1194.

43 Farrand, vol.II, p.123.


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69 Farrand, vol.I, p.530. Later (ibid., p.532) Hugh Williamson asserted that Morris's threat was only

intended as a warning. Similarly, Gunning Bedford first issued a threat on behalf of the small states(ibid.,p.492) and later restated it as a mere warning (ibid., p.531).


71 Farrand, vol.I, p.320-21.


73 For brief descriptions of this theory and the theory that replaced it, see again Ch.2 of The

Cement of Society.

74 Se R.Goodin, "Laundering preferences", in Elster and Hylland (eds.), op.cit.


[Elster, Jon (1991), Arguing and bargaining in the Federal Convention and the Assemble

Constituante, Working Paper - University of Chicago, August 1991]

[This text was found on the Net. Since I have not seen the original document I cannot guarantee the

correct reproduction of pargraphs, French letters and italics. There were no page numbers.]

elster arguing and bargaining

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