//  10/22/18  //  In-Depth Analysis

Take Care is pleased to host a symposium on How To Save A Constitutional Democracy, an important new book by Aziz Huq and Tom Ginsburg.  

In our book that came out this week, we frame and answer one question: How does one “save” a constitutional democracy? Of course, that question is not really a simple one. Indeed, it’s not really one question.  If you are asking the question as an American voter at the end of October 2018, it has one clear and simple answer—i.e., vote and support candidates who will defend democratic norms!  There’s no need to read a book to figure that out.  But if you are asking the question in the medium term, and if you are committed to preserving democracy as a going concern in a global era of constitutional back-sliding and democratic erosion, we think the question needs more attention and careful reflection.

How to Save a Constitutional Democracy focuses on that medium-term question. It offers a distinctive diagnosis of how democracy is lost, and then roadmaps various pathways along which a reform agenda might proceed. Our aim is thus to map the landscape of democratic prophylaxis with a clear understanding of antidemocratic pathologies  as a guide. In that enterprise, we have already learned a lot from the ongoing efforts of Take Care and Joshua Matz, as well as the academic work of participants in this symposium. Democracy’s defense is a collective enterprise, and this is just as true for its analytic and intellectual side as for the practical labor of organizing. Hence, we are already grateful for what we have learned from participants in this symposium—and anticipate learning more in the days to come.

To contextualize the symposium, here are two core ideas from How to Save a Constitutional Democracy.

First, a lot of attention has been paid to the cultural and socioeconomic predicates of democratic failure. Less attention, however, has gone to the question of how, mechanically, such failures happen.  But the “how” of democratic backsliding matters as much as the “why.”  By examining a wide array of recent cases of democratic failure, we show that law and constitutions now play a crucial role in democratic backsliding.  It is thus important for lawyers to engage in understanding the phenomenon.

The canonical form of democratic failure involves a coup, a revolution, or the misuse of emergency powers. But these forms of rapid democratic collapse have largely fallen out of favor. Coups today are rare (although Thailand and the unusual case of Zimbabwe provide recent counter-examples). Especially in the North American and European contexts, we think that they are unlikely to occur.

Instead, democracy today fails by inches. Since the early 2000s, the globe has experienced a tangible downturn in democracy’s fortunes. Starting in Latin America, and then moving to the Turkey, Eastern Europe, and parts of Asia, populist leaders and parties have seized power by campaigning on an anti-elite and anti-globalization agenda. Upon securing power through the ballot box, these leaders have then pursued an antidemocratic agenda in rough lockstep. To that end, they have exploited legal and constitutional instruments against democracy. They have, in other words, weaponized the law, turning it into a means of hollowing out democracy.

The resulting backsliding is extremely hard to fight in part because it largely occurs through legal and technocratic tools, and in part because it happens incrementally and not suddenly. Each individual step may seem minor, but collectively they can add up to significant harm.  Erosion hence lacks precipitating crises, such as an emergency declaration, that provide mobilization points for pro-democratic opposition. To the contrary, like the proverbial frog in boiling water, that opposition perishes by slow degrees.   

We show in How to Save a Constitutional Democracy that there is a common legal toolkit of antidemocracy. This toolkit involves constitutional amendments and statutory changes to the way that checking institutions such as courts and ombudsmen.  It entails the use of regulatory authorities to narrow the public space.  It means mobilizing the law as an instrument to exclude political opponents and their supporters. And it means changing the kind of information the public has about the state’s activities, and their costs. None of these measures is either necessary or sufficient on its own. But enough of them, when aggregated and impelled against a democratic order, can meaningfully damage that order.

The second point that is central to the book is that there are many steps that can be taken to shore up institutions against democratic backsliding. Again, we do not think there is a single magic bullet that will work in all contexts. No reform is necessary and sufficient in and of itself to provide effectual insulation for democracy.  Judgment must be exercised about what is possible, and most likely to be effective, against specific backsliding threats.

Not all of these steps are intuitive. Here is one example, which we select because it draws on the work of a symposium participant:  David Fontana has argued that one way to create a richer and more competitive environment for democracy is to create rights for the political opposition in a legislative chamber. Following David’s lead, we think that new constitutions should provide that the opposition can chair certain committees in the legislature, or perhaps have a certain number of cabinet posts, as a way to encourage political moderation.  Giving minority legislators a power to demand information from the government would be an especially useful check in presidential systems that are susceptible to one-party rule. Super-majority rules for appointments to the highest court, as is found in Germany and as recently abolished in the United States (through the elimination of the filibuster), also encourage the selection of moderate candidates to the judiciary, and may decouple courts from concurrent partisan configurations.  We also think there is merit in formalizing the position of leader of the opposition, as a way of recognizing the constitutional value of a loyal opposition in service of democracy.

How might this work in the United States?  Consider the following possibility, which h is quite partial but also can be quickly implemented:  If Democrats win control of one of the two Houses, one of the first things they should do is give more power to Republicans.  That is, they should amend the chamber’s rules (as they are able to under the Constitution’s rules of procedure clause) to permit the minority chairs of legislative committees to demand information from the executive branch.  Of course, such a power can be undone when a new majority is in power. But the gesture of bipartisan faith in the democratic value in disclosure is important (and perhaps costly to unwind) in itself: It is a way of showing that loyalty to party should not be prioritized over loyalty to the Constitution’s democratic system as a going concern.

Another idea for a party that controlled the Senate and Presidency would be to pack the judiciary with moderates appointed with supermajoritarian support in the Senate as a way of restoring bipartisanship after a period of great strain in respect to judicial appointments. The fact is that the federal judiciary is woefully understaffed, and adding a significant number of judges, agreed to by a supermajority and the ranking minority member of the judiciary committee, would encourage moderation in appointments, while also addressing a genuine need for enhanced judicial capacity. We recognize that the politics for this reform are far from present in our current polarized environment, but the mid-term goal of restoring centrism and decoupling judicial selection from partisanship is crucial.

Of course, these are just a  couple of the ideas pursued in How to Save a Constitutional Democracy: We hope, and expect, the symposium to cover and to challenge, others as part of a collective scholarly investigation into how democracy is best preserved. The key point is that constitutions and institutional design do matter, both to prevent and slow erosion at home and around the world.

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