The Thickness of the Veil of Uncertainty and Its Effects on Constitution-Making in Post-communist Transition: The 1992 Constitution of Estonia

Studying constitution-making during post-communist transition can be regarded as particularly insightful for testing the veil of ignorance hypothesis proposed by Buchanan and Tullock (1962) because of the manifold transition that took place in these countries. These countries were simultaneously moving from one-party system to multi-party system, from command to market economy, and from government unconstrained by laws to the rule of law (see Sunstein 1991: 371). Hence, one would expect constitution-makers in these countries to have been facing extreme uncertainties with regard to their future power positions. This chapter examines constitution-making in one particular transition country—Estonia. After the declaration of independence (from the Soviet Union) in 1991, the constitutional assembly (CA) drafted a new constitution for the restored republic. What makes the Estonian case special compared with other instances of constitution-making in Central and Eastern Europe during the transition period is that the 1992 Constitution of Estonia was prepared by a separate CA (rather than by an existing legislature) and the resulting constitution was approved by means of a referendum, implying that it could be viewed almost an “ideal” case if viewed in the light of normative propositions for constitution-making brought out in the literature on constitutional political economy. Therefore, the Estonian constitution-making can be considered to be a particularly interesting case for constitutional political economy in general and for exploring the opaqueness of the veil and its effects on the content of the constitution in particular.