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.

Rosalind Dixon is a Professor of Law at UNSW Sydney, and Co-President of the International Society of Public Law.

The stakes of this November’s mid-term elections are as high as they have been for any mid-term election in recent memory: they are arguably a referendum on the policies and practices of the Trump administration, and the future direction of the Republican Party. They are also bound to have a large impact on the trajectory of American democracy.

If the Democrats win back control of the House, we are quite likely to see the commencement of impeachment proceedings against President Trump. Whether will this help, or hurt, democracy in the long-run is an open question: President Trump claims that impeachment by a Democratic-controlled House will strengthen the support of many Republican voters, and mobilise the Republican base to come out in large numbers in the 2020 House and Presidential elections.  

Others believe that a House vote to impeach the President could be a crucial first step toward stopping the current ‘democratic erosion’ happening in the US. In their important new book, How to Save a Constitutional Democracy, Aziz Huq and Tom Ginsburg identify a number of current markers of democratic erosion in the US – including the charismatic populist leadership style of President Trump, and broader patterns of partisan degradation (such as increasing party extremism, gerrymandering and attempts to hamstring partisan opponents) that predate and extend beyond the administration.

They further suggest that a range of reforms —such as reducing the threshold for impeachment, or raising the threshold for removal of special counsel – could help prevent future erosion of this kind.^[1] This also need not require the actual use of the impeachment process: if understood more broadly, to cover conduct such as a president ‘deploy[ing] prosecutorial or regulatory discretion to target political enemies or to shield their friends’, impeachment powers could effectively deter conduct of this kind.^[2]

While intuitively appealing, my concern with these reform proposals is that they should themselves be designed to minimise the risk of future anti-democratic ‘abuse’. As David Landau and I have shown in our work on ‘abusive constitutional borrowing’, ideas designed to protect democracy may equally be picked up and re-applied (or more accurately, misapplied) to erode democracy.^[3] We therefore need to design democratic protection mechanisms that are at least somewhat robust to avoid this risk of abusive borrowing.

Low thresholds for impeachment, and high thresholds for removing politically motivated special counsel, in my view also fail to meet this ‘robustness’ test: it is relatively easy to imagine how they could be picked up and applied to undermine a democratic opponent in ways that end up damaging rather than strengthening democracy.

It is useful in thinking through this danger to imagine the counter-factual to this scenario – i.e., that Hillary Clinton had won the 2016 presidential election, and that instead of being installed in the White House, President Trump had been forced to move his campaign to nearby corporate or media headquarters. 

It seems quite likely, in this scenario, that President Trump would have continued his deeply personal campaign against Secretary Clinton using a range of anti-democratic tactics – i.e., continuing to question the integrity of the electoral results, condoning violent protests and threats against the President and her administration, and calling for the investigation and criminal prosecution of Clinton and her allies.^[4] With sufficient support in Congress, efforts of this kind could also quite easily have led to the appointment of a(nother) special counsel to investigate the Clintons, and efforts to impeach a second President Clinton, even in the absence of a sound legal or evidentiary basis.^[5]

Actions of this kind also amount to the very form of partisan degradation that Huq and Ginsburg identify as threatening democracy. They would also almost certainly have led to a major loss of faith, amongst Democrats, in the democratic process: While Tim Kaine might then have been counted on to uphold constitutional democracy and the rule of law, Democratic voters could quite easily have concluded from these events that the democratic system in the US was thoroughly broken. As Huq and Ginsburg again note, disenchantment of this kind can also be both a sign of and cause of democratic erosion.

Comparative constitutional experience further suggests that the risk of abusive action of this kind is far from hypothetical. While there are clearly arguments for as well as against the recent impeachment of President Rousseff in Brazil, there is a respectable view that impeachment was used as a distinctly partisan tool – and not as a tool for protecting constitutional democracy against a clear and present danger of erosion.^[6]

In areas like impeachment, therefore, my current view is that Huq and Ginsburg have got it exactly right in diagnosing the problem – and only half right in suggesting solutions. Whether there is in fact a better, more robust solution is a question that only time, and forums like this, can determine.^[7] But is one of the questions that I hope this wonderful new book by Ginsburg and Huq will help draw attention towards.

[1] Aziz Huq & Tom Ginsburg, How to Save a Constitutional Democracy 215-16, 227-28 (forthcoming 2018).

[2] Id. at 215-16.

[3] Rosalind Dixon & David Landau, Abusive Constitutional Borrowing (Unpublished manuscript, 2018); Rosalind Dixon & David Landau, Against Abusive Constitutionalism (Unpublished manuscript 2018); Rosalind Dixon & David Landau, Transnational Constitutionalism and a Limited Doctrine of Unconstitutional Constitutional Amendment, 13 Int’l J. Const. L. 606 (2015).

[4] For similar behaviours during the 2016 election campaign, see, e.g., Daniel Ziblatt & Steven Levitsky, How Democracies Die ch 8 (2018); Anthony J. Guaghan, Illiberal Democracy: The Toxic Mix of Fake News, Hyperpolarization, and Partisan Election Administration, 12 Duke J. Const. L. & Pub. Pol’y 57 (2016-2017).  

[5] On earlier special counsel and impeachment proceedings against President Bill Clinton, see Richard A. Posner, An Affair of State: The Investigation, Impeachment, and Trial of President Clinton (1999); Susan Low Bloch, A Report Card on the Impeachment: Judging the Institutions that Judged President Clinton, 63 L. & Contemp. Problems 143 (2000). This is not to say that it is impossible to imagine such a basis existing, just that it would not be required for actions of this kind.

[6] See, e.g. Juliano Zaiden Benvindo, Abusive Impeachment? Brazilian Political Turmoil and the Judicialization of Mega-Politics, I-CONnect, Apr. 23, 2016, at http://www.iconnectblog.com/2016/04/abusive-impeachment-brazilian-political-turmoil-and-the-judicialization-of-mega-politics/; Amanda Taub, All Impeachments are Political. But Was Brazil’s Something More Sinister?, N.Y. Times, Aug. 31, 2016, at https://www.nytimes.com/2016/09/01/world/americas/brazil-impeachment-coup.html; Felipe Nunes & Carlos Ranulfo Melo, Impeachment, Political Crisis and Democracy in Brazil, 37 Revista de Ciencia Politica 281 (2017); Leonardo Avritzer, The Rousseff Impeachment and the Crisis of Democracy in Brazil, 11 Crit. Pol’y Stud. 352 (2017).

[7] Sujit Choudhry has drawn attention to the procedural limits on impeachment developed by the Constitutional Court of South Africa, but again, we have limited evidence and scholarship analysing the effectiveness and robustness of restrictions of this kind. See Sujit Choudhry, Will Democracy Die in Darkness? Calling Autocracy by its Name, in Constitutional Democracy in Crisis? at 580-82 (Mark A. Graber, Sanford Levinson & Mark Tushnet eds., 2018).

Tags: