How to Save a Constitutional Democracy

Liberal democracy seems to have declined in recent years in several countries around the world, including member states of the European Union,1 and public and scholarly discourse expresses the fear that it can happen elsewhere, also in established democracies.2 These developments have been cited as “illiberal” turn,3 “anti-constitutional populist backsliding,”4 “decline of liberal constitutionalism,”5 “de-democratization,”6 “erosion of democracy and constitutionalism,”7 “regression of democracy,”8 and “democratic deconsolidation.”9 A number of alarming concrete examples, such as the weakening of the separation of powers (most worryingly manifested in attacks on the independence of the judiciary),10 limitations placed on media freedom, or attacks on non-governmental organizations (NGOs), are being applied in well-functioning liberal democracies, sometimes gradually in a series of steps.11 Some measures involve legal changes; others are a matter of administrative and political practices. Sometimes the measures are (almost) entirely legal,12 and changes are disguised as reforms,13 thereby making it extremely difficult for external observers to identify what is actually happening.14 Taken together, and considering the social–political contexts in which they occur, these changes can have a significant detrimental effect on democracy.15 Tom Ginsburg and Aziz Z. Huq have written a formidable book in which they deal with these grim developments from the specific perspective of constitutional lawyers. Though both of them have previously authored (and co-authored) articles on the topic,16 the present book presents a genuinely new piece of scholarship. It is primarily aimed at a US audience, focusing on how to reform the US constitutional system in order to make it more resistant to democratic decline, but constitutional lawyers from all around the world will find it interesting—both for presenting the state-of-the-art based on comparative constitutional history and for offering original new proposals for constitutional reform.17 The volume is divided into seven chapters plus an introduction and a concluding chapter. After the conceptual clarification (Chapter 1, at 6–34), the book goes on to show how constitutional democracy can die (Chapters 2–5, at 35–163). It then offers some legal techniques for strengthening the resistance of constitutional democracies (Chapters 6, 7, and Conclusion, at 164–235). Chapter 1 defines liberal constitutional democracy, which, for the authors, consists of three definitional elements that are mutually supportive and entangled (at 10): (i) a democratic electoral system (that is, periodic free and fair elections in which the modal adults can vote and where the losing side concedes power to the winning side); (ii) liberal rights to speech and association that guarantee the public sphere necessary for the democratic process, and (iii) the integrity of law and legal institutions (meaning the rule of law in a formal sense, with reference to Lon Fuller). It is commonplace that certain liberal rights are a precondition for the democratic process,18 but the authors rightly draw our attention to another, sometimes forgotten, causal link: the rule of law and the protection of liberal rights are themselves “a product of democratic rotation,” because if there is no prospect that the governing parties will ever be in opposition, their incentive to respect the rule of law and the rights of speech and association inevitably diminishes (at 14). The set of the three definitional elements is, of course, just an ideal type; even the best democracies are likely to fall short in one or more of them (at 15). And their definition is also necessarily abstract, which will result in a “broad set of ambiguous cases” (at 21). The authors do not mean to apply their definition in a binary way either; theoretically, the most interesting cases will be precisely from the gray zone of competitive authoritarianism. The authors also recognize that authoritarian regimes are sometimes able to secure high levels of support from their citizens, either by appealing to economic success (as in China) or by invoking nationalist feelings (as in Russia) (at 22). Chapter 2 differentiates between the two ways in which a democracy can die: either through rapid, coup-like authoritarian collapse or through slow, gradual democratic erosion (at 39). Chapter 3 describes how the former case may occur in more detail, with numerous examples from the constitutional history of Weimar Germany, Pakistan, India, and Latin America. As the authors point out, a country that has experienced a coup once is much more likely to experience another one “again—and again, and again” (at 50–51); but in the last couple of decades, there have been fewer coups globally (at 66), with Thailand demonstrating a rare example of a successful coup and Turkey an example of an unsuccessful attempt. The reason for this is that coups are costly for those who lead them, because they are openly and obviously anti-democratic (even if they are often launched “at least notionally, to save democracy,” at 51), and therefore leaders with authoritarian ambitions nowadays prefer more sophisticated methods. Chapter 4, the longest chapter in the entire book, explains the new, sophisticated methods of today’s autocrats. Ginsburg and Huq argue that rather than coups, the main danger for democracies today is democratic decay or democratic erosion, understood as “a process of incremental, but ultimately still substantial, decay in the three basic predicates of democracy—collective elections, liberal rights to speech and association, and the rule of law” (at 43). Erosion is a handy substitute for authoritarian leaders, because it attracts less resistance (at 76), as it simply does not appear alarming (or, as the authors put it, it is not “dressed as a wolf,” at 77). Leaders with a democratic mandate turn democracy against itself and dismantle it from the inside out. The typical measures employed are (i) constitutional amendments to alter basic governance arrangements; (ii) the elimination of checks that operate between different branches; (iii) the centralization and politicization of executive power as exercised through the bureaucracy (which tends to be conservative and incrementalist, provides neutral information, and is based around stable and rule-bound operation, all of which are normally contradicting autocratic ambitions, at 104); (iv) the contraction or distortion of a shared public sphere (which is “a fragile ecosystem,” at 113) that serves as the epistemic and discursive foundation of democracy (at 109); and (v) the elimination or suppression of effective partisan political competition and the related prospect of rotation out of elected office (at 72–73). The authors identify two conceptually distinct ways in which democratic erosion occurs: through charismatic populism and partisan degradation, which may also combine. As to populism, they follow Jan-Werner Müller’s definition,19 according to which it rests on two tenets: moralized anti-pluralism (that is, only the populists represent people), and a non-institutionalized concept of the people (that is, populists know the will of the people even if it has not manifested through formal procedures). Populists present themselves as speaking directly for the people who can slice the Gordian knots that traditional elites cannot, which may legitimize the violation of established written or unwritten norms of politics (at 80–82). The second way in which democratic erosion can occur is by partisan degradation; that is, the deterioration of a competitive party system (at 83–85). This often follows from the collapse of the established party system, and can result in one party becoming functionally invulnerable to rotation. In light of the above, the authors even offer a handbook for future autocrats which is worth quoting for its concise sarcasm: A careful review of available case studies suggests how a rough playbook for would-be illiberal democrats works in practice. First, run a populist platform, in which the majority is portrayed as victimized and the old order elitist. Such was the strategy of, for example, Orbán in Hungary and Erdoğan in Turkey. Emphasize threats to national security or the purity of the homeland. Next, find ways to undermine opponents in state institutions, such as the judiciary or military, through a combination of appointments, purges, patronage, and even intimidation. Perhaps use the courts to repress criticism via libel suits or the like. Critically, do not forget to manipulate the electoral institutions so as to ensure that future competition is limited. Then, attack civil society as foreign-funded elite carriers of globalist ideas that do not comport with national values. Ensure that the free media are intimidated, or diluted, so as not to provide an independent check: This is particularly easy to do in an era of privatization in which the press can literally be bought. Finally, undermine academic authority through underfunding or outright politicization.20 (at 116) Ginsburg and Huq devote Chapter 5 specifically to the USA. The authors’ general opinion is that there is no reason to panic, but there is reason to worry (at 128–129). A coup-like collapse is very unlikely, but there are signs demonstrating democratic erosion in the USA (for example, voter registration issues, gerrymandering, disappearance of a shared universe of facts in the media, and presidential threats to law enforcement agencies).21 The authors also criticize the lack of detail in the US Constitution concerning presidential power, separation of powers, and judicial independence, as well as certain First Amendment doctrines (at 163). The authors are very careful and indeed almost apologetic when criticizing the US Constitution, which is by today’s standards an outdated piece of eighteenth-century legislation with waning influence all around the world. Chapter 6 offers some constitutional solutions. At the same time, the authors also recognize that constitutional design on its own cannot save constitutional democracies.22 As they put it (at 173): “Democracy demands from its participants a certain political morality. In the absence of that political morality, nothing in the toolkit of constitutional designers will save constitutional democracy.” Nevertheless, they go through different techniques which strengthen the resistance of constitutional systems, such as special constitutional amendment rules (at 174), or judicial safeguards which, unfortunately, according to the authors, can only buy time (at 189). They offer a balanced view on the pros and cons of presidential and parliamentary systems: “if the threat to democracy is from a charismatic populist, a parliamentary system may be better; if the threat is from partisan degradation, presidentialism might be a preferable option” (at 184). Instead of strict term limits which tend to be violated especially in those cases where they should work as a safeguard against autocracy (at 181), the authors suggest a system in which the vote share required to win high national office increases in successive terms (at 186), but the technical details remain somewhat unclear (especially how an incumbent winning the relative or even the absolute majority could be forced to concede to the second placed contender). They are skeptical about constitutional rules of intra-party democracy (which can easily be abused by incumbents against opposition parties, at 200). Instead, they suggest a network of new independent institutions (ombudsmen, courts of auditors, electoral commissions, counter-corruption agencies, judicial councils, civil service commissions etc., at 194–196). Chapter 7 offers some proposals about how the US Constitution could be reformed. As it is notoriously difficult to amend (and a constitutional convention is quite risky—see the story of the “amendments” to the Articles of Confederation in 1787), the authors instead suggest subconstitutional changes (at 206–207), or what you would refer to in continental European terminology as changes to the constitution in a material sense. The authors suggest that Congress create a nonpartisan center of excellence in poll management, capable of identifying and disseminating best practices (at 210), that the Supreme Court develop a more rigorous doctrine on redistricting (at 210), licensing members of the cabinet to serve in Congress in order to allow the president to align his or her administration more closely with Congress (at 217), mandatory retirement age for federal judges in order to lower the stakes, which would ideally result in less politicization (at 218), restoring the filibuster for all federal judges (at 220), introducing a federal statute that provides for a damages remedy when a federal official violates a person’s constitutional rights (at 221), establishing a remedy against government defamation (at 222), establishing specialized courts entrusted specifically with enforcing rights (at 222), introducing statutory protection for special counsels from termination (at 227), and, in general, protecting the prosecutorial function from the White House (at 229). The authors also suggest the creation of legal powers for the legislative opposition (at 212). However, it remains unclear what model (maybe the German?) the authors have in mind, and how far these suggestions can serve as guarantees if not embedded in the actual constitution. The authors also suggest a decoupling of the impeachment and the criminal process of high level-officials, resulting in impeachment also “on improper self-dealing that undermines principles of democratic rotation and choice” (at 216–217). The latter might sound appealing to American ears, but to me (coming from Hungary), the vagueness inherent in that proposal transforms it into an invitation for abuse; though hopefully US political culture could make it workable in practice if adopted. The final chapter summarizes the argument and cautions that only national political parties, an engaged and political public, and the courts together can save a constitutional democracy (at 240). The usual approach to democratic decline concentrates on the social and political environment in which it occurs,23 whereas Ginsburg and Huq focus on the effect of constitutional engineering on democratic decline. It has previously been argued that constitutional design is not the decisive factor in developing democracy, but that other informal social, political, and cultural factors play a much larger role in democratic consolidation.24 However, viewing these factors as given conditions, which are difficult to change in the short term, investigating the effects of constitutional design on democratic decline helps us to identify the weak spots of liberal democratic constitutions. Ginsburg and Huq deliver a splendid analysis from this perspective. The volume is extremely rich in historical examples, case studies, and quantitative data. Constitutional lawyers stemming from one of the countries affected by democratic decline (such as Hungary) can easily have feelings similar to a patient reading medical literature about his or her serious illness: the text is lucid, precise, emotionless, and scientific, nevertheless recognizing the symptoms yourself is still deeply saddening, and at times truly depressing. The underlying existential question for constitutional law scholarship, affecting also its very identity, is how effective constitutional rules can be in the face of democratic erosion. In other words, under what social and political circumstances, and with what rules or what combination of rules, is constitutional law able to shape politics, and to what extent is it just a reflection of a pre-existing political culture or a consequence of social changes. This volume will be a classic in this discourse, a constant reference point, inviting further research. It is not a happy tale, but probably the most important one in contemporary constitutional law.