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Global Public Law Scholarship and Democracy (I·CON Volume 16, Issue 4: Editorial)

We invited Rosalind Dixon, member of the I·CON Editorial Board and Co-President of ICON·S, to write a Guest Editorial.

Global public law scholarship and democracy

Democracy worldwide is under stress: most quantitative measures suggest a measurable decline in the number of countries identified as fully democratic in recent decades.[1] Qualitative studies likewise suggest a notable decline in liberal democratic norms and practices in key states, including swing or “bellwether” states such as India, the Philippines, and Turkey.[2] This form of democratic “erosion” has also occurred in a range of democracies previously seen as leading examples of successful constitutional democratic transition (e.g. Hungary, Poland, and South Africa).[3] Leading scholars and commentators identify the current moment as one of democratic “retrogression,” “decay,” “rot,” or “backsliding.”[4]

The challenge this poses for global public law and lawyers is considerable: How can constitutional, administrative, and international law effectively respond to these changes in ways that effectively protect and promote democracy? The importance and complexity of this question is one of the reasons ICON·S has chosen to put it at the center of its next meetings in Santiago, which will reflect on the theme of public law in times of change. But it is also a question to which leading public law scholars are already beginning to offer valuable answers, and in ways that build on the contributions of I·CON and ICON·S.

Two leading examples, from authors well-known to I·CON and ICON·S audiences, are the recent books How to Save a Constitutional Democracy[5] and Constitutional Democracy in Crisis?[6] (Drafts of both books were presented and workshopped at ICON·S Hong Kong). Huq and Ginsburg use comparative lessons to develop criteria for identifying democratic erosion. They also conduct an extensive survey of potential constitutional design responses to the current threats to democracy facing democracies worldwide, and especially the USA.

Constitutional Democracy in Crisis? likewise provides a wide-ranging exploration of the causes, indices, and potential design responses to current signs of democratic erosion worldwide.[7] Like Huq and Ginsburg, many contributors emphasize the incremental and “stealth” nature of current processes of democratic erosion.[8] Contributors also identify a range of factors as contributing to a potential crisis in democracy—including political, economic, demographic, religious, and sociocultural changes and pressures—in ways that parallel the broader literature on the topic.  At the same time, several contributors identify potential constitutional design responses or “solutions” to the challenges they and others note.[9]

I·CON itself has also already published—and will continue to publish—articles that contribute to this debate. In the Foreword to volume 16(2), Doreen Lustig and co-Editor-in-Chief Joseph Weiler explore different “waves” of global public law development, and how most constitutional courts in recent waves have sought to fill gaps in the “democratic and identitarian” dimensions to transnational governance.[10] This echoes Weiler’s argument in Constitutional Democracy in Crisis?—that global public law is itself a contributing factor to the current “crisis” in constitutional democracy.[11]

Volume 15(3) of I·CON featured a debate between Sujit Choudhry and David Landau and me about the scope of courts to engage in effective “hedging” against the threat of democratic erosion, or “abusive constitutionalism,”[12] through the enforcement of an “unconstitutional amendment” doctrine.[13] Next year, I·CON will publish a symposium on public law and populism, again drawing on both leading and upcoming scholars from around the world, and a symposium on the topic hosted at NYU in 2017. I·CONnect has also been a key site for scholarly debate in this area.[14]

For most of these scholarly responses to be effective, however, two things need to happen: first, we need to ensure our work reaches a broad public, not just a scholarly audience; and second, we need to engage in more overlapping, interlocking and interdisciplinary approaches to understanding the kinds of constitutional structures that can help prevent, as well as cabin, threats of democratic erosion.

Effectiveness is, of course, a question of degree; and it can involve multiple forms of indirect as well as direct influence, over a long as well as shorter time horizon. But at its core, it requires scholarly ideas to be (i) heard, and (ii) accepted by some relevant sets of actors with the capacity to influence democratic outcomes. In some cases, those actors may be lawyers and judges, in which case there is a strong case for continuing to express our ideas in quite detailed, technical terms. Other ideas, however, have broader potential reach and audience: they seek to identify what is fundamental to democracy, and how it might be preserved. To succeed in a constitutional democratic setting, such ideas must also command majority public support.[15] Whether reforms are directed at legislators or voters via a constitutional referendum, they must ultimately have broad public support to be plausible. This also implies that our ideas must be understandable to legislators and their constituents.

How can we ensure our ideas reach this broader audience? One simple but important step is to ensure that we work with publishers to make access to our ideas timely and affordable. Legal publishers are facing structural challenges, which make the economics of legal publishing more difficult. But many legal publishers are maintaining a commitment to affordable—paperback and online—access to key legal materials. Constitutional Democracy in Crisis?, for example, is being sold by Oxford University Press in paperback for only US$30—despite being 736 pages in length and only released last month. Oxford University Press India likewise recently published the Oxford Handbook of the Indian Constitution, edited by Pratap Mehta, Sujit Choudhry, and Madhav Khosla, in paperback, and the handbook is currently selling on Amazon India for about US$15. The book has also been reviewed in two prominent Indian papers, including one review by a former Indian cabinet minister.[16]

There are, however, important counter-examples, which suggest the need for authors and publishers to remain vigilant about the need to choose, or maintain, high-quality and accessible legal outputs. This is also a commitment that should transcend the academic–trade press divide. Hardback books archived by libraries, but unread by current audiences, are of limited value to the scholars who contribute—and even less to the promotion and maintenance of public law values in an era of widespread actual and threatened democratic erosion.

Another important step is for scholars to engage with a broad range of media—both traditional and new—and civil society actors in seeking to promote and disseminate our ideas.[17] Social media is arguably a prime front for attacks on democracy.[18] It is therefore also an important site of its defense. It may be harder to defend, rather than destroy, democracy in 140 characters. And not all countries allow free access to new or social media, in ways that may limit the global reach of such efforts. But where we can, we still need to make every effort to fight anti-democratic fire with democratic fire.  There are also promising signs of public law scholars—from every country and generation —taking up this challenge. Some of the contributors to Constitutional Democracy in Crisis? engaged with social media for the first time as part of this project: there was also a concerted effort by authors to promote it via blogs and Twitter, and you see similar efforts being made by the authors of other leading monographs in this area, including Huq and Ginsburg.[19]

Engagement with new media sources and NGOs will also often go together: academics can connect with NGOs by reaching out directly, but often social media can provide a platform for making many more indirect connections, which can then lead to a fruitful exchange of ideas between the academy and civil society.    Indeed, we are arguably entering an era in which the line between “publication” and “engagement” of this kind is increasingly blurred: academic blogs, for instance, are often some of the most effective places to publish topical and timely short pieces on democratic constitutional developments.

I·CON’s blog, I·CONnect, is perhaps one of the best examples of this—along with other leading examples such as UKCLA, Verfassungsblog, and increasingly the new IACL-IADC blog.[20] Blogs of this kind are also increasingly recognized by a range of traditional legal actors as scholarly resources.[21] Yet when assessing performance and promotion, many universities continue to maintain a line between publication and engagement that ignores this reality and makes these efforts more difficult.

Second, to effectively address the challenge of democratic erosion, we need to continue our efforts to understand the causal impact of different constitutional design choices. The causes of the current crisis in democracy are clearly multiple—and include political, economic, religious, and cultural changes and pressures. For instance, membership in and control over traditional political parties is weakening in many countries, thereby contributing to the rise of new right-wing parties and party outsiders willing to break the basic rules of the democratic game.[22]

Economic inequality is on the rise, while middle-class wages are stagnant or in decline in real terms,[23] in ways that have fuelled discontent with existing liberal democratic arrangements—and created a natural window of opportunity for a form of economic “authoritarian populism.”[24] These trends are themselves also deeply intertwined with broader economic and technological shifts—e.g. to increases in global free trade, and flows of capital, and to the rise of automation, robots, and artificial intelligence.[25]

In addition, many countries have witnessed broader cultural changes—in the domains of sex, gender, and racial equality and attitudes—that have profoundly altered the social and political power of previous democratic majorities and left many of them alienated from current liberal democratic arrangements. And as Pippa Norris and Ronald Englehart have argued, this alienation is itself a potentially important contributor to current patterns of democratic erosion.[26]

Global public law may itself also be a potential contributor, as well as a solution, to current democratic malaise in some contexts:  the fact that would-be authoritarians are investing so much energy in circumventing and subverting constitutional constraints suggests they do matter to the maintenance of liberal democracy in some circumstances.[27]  But there are also signs that public law has been co-opted and abused for anti-democratic ends; and that it has undermined confidence in democratic governments as an effective site of economic self-government, or expression of our diverse human character and dignity in others.[28]

There are also important questions about the extent to which these patterns are common, versus different, across countries, and the extent to which they provide general as opposed to more context-specific explanations for democratic erosion.[29] But our answers to this question remain limited, as they are to questions about the relationship between these various factors and global public law. 

The best work in this area explicitly notes the complex interaction between various social, political, and economic vectors in shaping patterns of democratic erosion versus resilience. Norris and Inglehart, for example, suggest that while cultural changes are the primary driver of the current authoritarian populist turn, its effects are amplified by economic change.[30] Jennifer Hochschild, in Constitutional Democracy in Crisis?, notes a similar interaction between economics, sociology, and electoral geography.[31] Karren Stenner and Jonathan Haidt have likewise emphasized the interaction between psychological and democratic factors—i.e. the prevalence of what Stenner calls individuals with an “authoritarian” mindset of predisposition—and broader socio-political conditions.[32]

Public law scholars have also highlighted the complex interaction between different constitutional norms and provisions and how democracies come to face or respond to threats of democratic erosion.[33] Yet there has been limited work to date on the relationship between various socio-political and economic drivers of democratic erosion and various fine-grained constitutional design choices.  For instance, how much of the current decline in traditional political parties is linked to a failure by public law to prevent the “hostile takeover” of those parties[34]—or to stabilize their membership and support by regulating their internal norms? Scheppele suggests that stronger internal regulation of political parties by constitutional norms and actors is one promising response to the current crisis in democracy.[35] Yet there is limited empirical work to date on the impact of constitutional party regulation on democratic outcomes.

Another question one might ask relates to the relationship between economic inequality and democratic erosion. How much, for example, is economic inequality driven by broad global trends (e.g. globalization and automation) versus shaped by specific legal–constitutional design choices about the operation of a democratic political system? Constitutions may in fact have limited impact on economic outcomes—and thus on the extent to which they translate into patterns of democratic erosion versus resilience. Or it may be that some constitutional design choices do matter—e.g. the choice of a voting or electoral system, rules about participatory budgeting or public participation in democracy more broadly, campaign finance rules, the role of legislative committees or independent institutions charged with promoting inequality, the nature and structure of federalism, or the constitutional entrenchment of non-discrimination and social rights guarantees.[36] My own view is that constitutions likely do matter in this context, and that we should be devoting significant time to understanding how, when, and why. To date, however, there has been limited scholarship on this question.

Economists have shown that the general design of a political system does have an impact on economic inequality.[37] But they have focused on “meta” design choices, not more fine-grained questions of constitutional design. Other studies by public lawyers go some way toward addressing this gap: Micaela Hailbronner and Joseph Weiler, for example, both note that faith in European democracy has faltered as its promise of economic redistribution has decreased.[38] Ran Hirschl and Michelle Wilde Anderson have begun to do important work on the relationship between federalism and economic and spatial inequality in Europe and the USA.[39] But ultimately, even the best current work on these questions provides only quite limited answers to the relevant causal question.[40]

Another question we might ask is whether public law—including the constitutional “rights revolution” and international refugee law—has contributed to the sociocultural pressures underpinning democratic erosion in certain countries. Do countries with greater freedom to shape democratic policies in the domain of rights and/or immigration, for example, tend to do better on measures of democratic erosion? Strong religious freedom or non-discrimination norms, for example, might make it more difficult for countries to adopt certain kinds of race, religious, or “culture”-conscious immigration policies. And while this may advance liberal constitutional norms, it may have risks for democracy: it may lead to perceptions of cultural threat that activate an authoritarian dynamic.  

Similarly, constitutional anti-establishment or non-discrimination norms might help preserve constitutional democracy against certain kinds of (religiously inflected) illiberal authoritarian threat[41] —but also make it more difficult for countries to preserve or adopt national holidays, symbols, and celebrations that invoke specific ethno-cultural traditions or memories. Non-discrimination norms of this kind again have clear benefits: they promote the chances that all citizens will feel fully included and respected in public life, in terms of equality. But they also carry risks for democracy: they reduce the space for the kinds of “common and unifying rituals” that Stenner and Haidt suggest are most likely to de-activate an authoritarian dynamic.[42]  Perhaps the best illustration of this, in recent years, has been the decision by of the Constitutional Court of Bosnia-Herzegovina (BiH) to invalidate various proposed Serbian national holidays and symbols. These decisions clearly further liberal constitutional commitments to equality and non-discrimination, and the Dayton Accord’s vision of a post-ethnic Bosnia-Herzegovina. In this sense, they also have a clear legal basis in the text of and context for the Constitution of BiH. But they have also led to a quite predictable backlash in Serbia against constitutional democratic institutions—including the Court and its international judges—and arguably to an increasingly authoritarian populist style of Serbian politics.[43]

These are uncomfortable questions for any liberal democratic constitutionalist, and especially an Australian constitutional liberal democrat. (Australia is one of the only constitutional democracies remaining without a comprehensive national bill of rights, and the Australian Parliament has arguably used this quite unusual degree of constitutional freedom to pursue a range of quasi-populist policies, including on immigration. This may also have helped shore up support for mainstream politician parties and the democratic system, in the face of a quite credible illiberal populist threat from Australia’s One Nation party.[44]) But they are also questions we must ultimately address if we wish to understand the full range of constitutional design choices that could help protect democracy; and whether the price they may involve is one we are willing to pay as liberal constitutionalists. Yet again, however, there are few qualitative studies, and no truly large-n study, of these questions.

My aim here is not to provide an exhaustive list of the kinds of question we should be asking in this context: the questions are many, and far beyond the scope of this short list. My point is simply that this is the kind of conversation we need to have if we are to respond effectively to the threat of democratic erosion, and that it is a conversation that will be far better if it involves both more overlapping or interlocking qualitative studies and true interdisciplinary engagement.

A comparative approach can itself go a significant way toward helping to answer these questions, if conducted in appropriately empirically oriented way—or if oriented to what Ran Hirschl has called “constitutional studies” as opposed to “concept formation through multiple description” (conceptual or archetypical comparison).[45] No small-n comparative study will ever be wholly reliable: there is too much evaluative judgment involved in applying principles such as the “most similar” or “most different” cases principle for a single study of this kind to be definitive on any important causal question.[46] But individual small-n studies can gradually be modified to include new control countries or country-pairings, in ways that generate progressively more and more robust results.

This, however, necessarily requires some overlap in the countries studied (i.e. interlocking not wholly “new” comparative pairings) and may require teams of authors with different regional and country expertise. This also means shifting our current disciplinary norms around “originality” and co-authorship in public law, so as to encourage a more inter-locking, collaborative approach to comparative constitutional studies.

Ideally, small-n studies of this kind should also be completed by, and cross-checked, against larger-n empirical studies produced by social scientists. Social scientists have become increasingly sophisticated about issues of causation over the last two decades and developed a range of techniques (e.g. regression discontinuity designs, natural experiments, “instruments,” and difference-in-difference approaches) that smaller-n methods, at best, only partially approximate.[47] As Hirschl himself noted, the best approach to comparative constitutional studies will therefore be one that combines small and large-n approaches. And this inevitably requires a global public law conversation that involves more political scientists, economists, sociologists and historians, as well as conversation among social scientists that involves more global public lawyers.

My own forays into this territory suggest that it is not always easy to step beyond our intellectual comfort zones—and write and opine on topics where the question cannot be answered by reference to any extant legal text.[48] But the rewards are high, and the dangers of not doing so even greater: without the right supporting public law structures, there can be no effective democratic response to the kinds of political, economic, and cultural pressures so many suggest are contributing to democracy’s demise.  And yet without those responses, democracy itself would seem in real peril in many countries. Determining what those structures are would thus seem an urgent task for democratically minded public lawyers in conversation with like-minded scholars from other disciplines.

One of the great strengths of I·CON as a journal, and ICON·S as a society is that both aim explicitly to encourage and nurture these kinds of interlocking small-n comparison and interdisciplinary conversation.  But we are also only part of the way toward success in this context, especially in the latter context: we do have a vibrant set of interdisciplinary conversations within the pages of I·CON and ICON·S, but often the voices are still public lawyers “importing” these insights, not truly interdisciplinary teams of authors, or authors from other disciplines engaging in debate about public law.  In this respect, the teams that received the 2017 and 2018 I·CON best article prizes, Daniel Brinks and Abby Blass and Nathan Brown and Julian Waller, were notable and important exceptions.[49] But there is still a lot more work to do in this context.

In introducing the many excellent articles in this issue of I·CON, I therefore especially note those with this same interdisciplinary focus—such as the article by Aylin Aydin-Cakir, The impact of Judicial Preferences and Political Context on Constitutional Court Decisions: Evidence from Turkey, which examines the interaction between judges’ own political preferences and a context of political party fragmentation on judicial decision-making.  And I encourage all scholars reading this and other issues of I·CON to continue to submit to the journal, and other journals, high-quality articles from truly interdisciplinary teams and perspectives—especially ones that address the interaction between public law and the potential political, economic, demographic, and cultural contributors to democratic erosion.

Rosalind Dixon*

Professor of Law, University of New South Wales, Sydney

Co-President International Society of Public Law

The European Dream Team

There will be a major “Changing of the Guards” next year with the departures of Juncker, Tusk and Draghi—each of them remarkable in their own —from the leadership team of the European Union. The incoming team will be facing a Europe that poses unprecedented challenges. Commissioner Oettinger went as far as characterizing Europe as facing “mortal danger” from both within and without. I don’t exactly share the doomsday predictions as regards the Union, but the international and internal challenges are truly immense and require leadership commensurate with such.

Here is my Dream Team to lead the Union in the face of these challenges:

President of the Commission: Frans Timmermans

President of the Council: Angela Merkel

President of the European Central Bank: Christine Lagarde

At this point many readers might be chortling. Not because they necessarily disagree that this would be a formidable team to face off the likes of Trump and Putin, Salvini and Orbán. Or to face the truly daunting socio-economic challenges of the Union. But rather because it seems to defy any realistic vision of the European politics of appointments. Does it really? Suspend your disbelief for just a while.

The Spitzenkandidaten process is already underway. And despite grumblings from here and there (notably Macron, who has no powerful presence in the internal organization of political groups in the European Parliament) the process is unlikely to be derailed. It will be in most likelihood Parliament that will decide from among the various Spitzenkandidaten who will be the next President of the Commission. Parliament will not allow otherwise, lest its already tenuous standing be in tatters.

Timmermans, it seems, may well end up as the candidate of the Progressive Alliance of Socialists and Democrats (SD). But it is unlikely that the SD will emerge as the largest parliamentary group in May 2019. It is still likely to be the European People’s Party (EPP). So how could Timmermans emerge from the Spitzenkandidaten exercise as President if the EPP is the “winner” of the elections?

Well, much of Europe is habituated to coalition politics—and eventual Prime Ministers are not necessarily those whose parties are the largest but those who can build a coalition and command a majority in Parliament. If the SD can coalesce with the Liberals (ALDE) they almost certainly would command a majority in the EP, and if they agreed to put forward Timmermans as their joint candidate there would be nothing undemocratic or violative of the Spitzenkandidaten process if he were elected.

I am aware that Mr Rutte has ambitions of his own and might end up as the candidate of ALDE. But it would certainly be more than odd if the candidate of neither of the two largest parties in Parliament ended up as President of the Commission. So, why would the Liberals be interested in such an arrangement? I might say “for the good of Europe” but then your chortle would turn into dismissive laughter. But what if he were offered the position of High Representative? Not without difficulty. Two Dutchmen in key positions? But then, right now there are two Italians in key positions (Draghi and Mogherini). Difficult but not impossible.

What about Merkel? She has announced her intention of soldiering on as Chancellor, even having resigned from leadership of her party. No one believes this is viable. Even if the German coalition does not fall apart (a big if), would the Christian Democratic Union (CDU) want to give up the option of going into the next elections with a candidate who has had the huge public exposure of serving for some time as Chancellor? And would they not want to distance themselves somewhat from Merkel?

Would Merkel be interested in moving to Europe, the obligatory protestation of retiring from politics notwithstanding? I think she would. First, she would understand the importance of having a German Christian Democrat in a key position, and if it is not to be Weber, why not her? Could there be a more noble and glorious way to end her historic chancellorship than by moving to become the President of the Council? If the offer were made in the wake of the EP elections in May 2019 I expect that she would hum and haw but then “for the good of Europe” accept.

But in this case, it is not the EP but the other Member States who would have to come on board. The key here would be Macron and France. But if he is serious about his ambitious reform plan for Europe, he too could not dream of a better partner (not hemmed by internal German politics) than Merkel as President of the Council, with her authority and gravitas. And if Lagarde, who would not be the darling of the French Left, but would be perceived by most as entirely compatible with Macron’s world view, were to be part of the package, it is not impossible that he would throw his weight behind Merkel. “For the good of Europe,” of course.

A partnership of Timmermans and Merkel would be even greater than the sum of its parts. There is no European politician who enjoys greater respect around the world and thus the President of the Council could emerge, as was once predicted, Ms Europe for the rest of the World (apart from chairing the Council). And Timmermans, as President of the Commission, with his vast experience and charisma, could focus more intensively on the internal agenda.

What of the other Member States? A German at the helm? Not everyone’s cup of tea. But Merkel is Merkel, and the esteem with which she is held even by her adversaries might just be sufficient to get the necessary support. Her migrant policy which got her into such deep trouble in Germany would actually put her in good stead among the European Centre Left, and there are few European politicians who are perceived to have sufficient gravitas to stand up to the Trumps of the world.

A Socialist as President of the Commission, a Christian Democrat as President of the Council, a Liberal as High Representative (I am not sure to which political family I would plug Lagarde—and maybe that is a good thing for someone who is to take over at the ECB). Dutch, German, French nationalities, two women two men, but most important of all, four politicians with huge experience and ability and all committed Europeans and democrats. My dream team.

JHHW

Nine Good Reads and One Viewing

[already published on the blog at this link.]

In this Issue

David McGrogan opens our final issue of the year by discussing the trend in the global governance of human rights towards a “culture of auditing” and its possible effect in drawing concern away from the individual towards monitoring, measuring, and manipulating the population for benign ends. Aylin Aydin-Cakir follows with a study focused on the Turkish Constitutional Court’s decisions made between 1984 and 2010. The results suggest that the effect of political fragmentation on judicial behavior decreases in cases where there is a weak political alignment between the government and the Court and that even under favorable conditions for judicial activism, the judges abstain from annulling laws that infringe individual rights. Finally, Donald Bello Hutt examines certain instruments designed to measure deliberation in judicial and non-judicial settings and concludes that there are some problems when attempting to translate ideal deliberative theory into empirical evaluative tools.

Our Symposium section features a collection of papers on the relations between law, polity, and the legacy of statehood. Neil Walker, Cormac Mac Amhlaigh, and Claudio Michelon introduce the symposium and explain its main aims: to identify and interrogate the fundamental assumptions that shape the debate over the relationship between legal normativity and political architecture at a time when the position of the state is changing in important ways. Martin Loughlin, Kaarlo Tuori, Nils Jansen, and Chris Thornhill focus on the endurance of the nexus between state, law, and polity, as well as on the question of whether states are a declining form of political organization. Olivier Beaud, Bardo Fassbender, and Nicole Roughan explore the idea that the state relates to other sites of law production as one layer in multilayered legal-political structures. Nico Krisch and Euan MacDonald investigate some of the consequences of the detachment of normative sites from the polity and, in particular, the issue of the legitimacy of non-state norm-setters. Finally, George Letsas, R.A. Duff, and Christiane Wendehorst focus on whether law need be embedded within any particular polity and on the connection—if any—between law and polity.

In our Critical Review of Governance section, Stéphane Mechoulan provides a legal articulation of the ban on wearing face-veils in public that does not need to be supported by the tenets of French republicanism.

This issue ends with our Critical Review of Jurisprudence section, which includes two articles. The first one, authored by Matthew Nelson and Dian Shah, uses the Malaysian case of Muslim-to-Christian convert, Lina Joy, to examine the operationalization of religious freedom as a fundamental right tied to administrative procedures underpinning state recognition. Finally, Marina Aksenova and Iryna Marchuk discuss recent interactions between the Constitutional Court of the Russian Federation and the European Court of Human Rights, and critically examine the evolving legal reasoning of the Russian Court regarding its interpretation of international law.

JHHW and GdeB


[1] Freedom House, Freedom in the World: 2016 (2016); Freedom House, Populists and Autocrats: The Dual Threat to Global Democracy, in Freedom in the World: 2017 (2017).

[2] See Aziz Z. Huq & Tom Ginsburg, How to Save a Constitutional Democracy 27 (forthcoming 2018). On the concept of swing states, see also Daniel Kliman & Richard Fontaine, Global Swing States: Brazil, India, Indonesia, Turkey, and the Future of International Order (GMF & CNAS, 2012); Larry Diamond, Facing Up to the Democratic Recession, 26 J. Democracy 141 (2015).   

[3] See Gabor Halmai, A Coup Against Constitutional Democracy: The Case of Hungary, in Constitutional Democracy in Crisis? 243 (Mark A. Graber, Sanford Levinson & Mark Tushnet eds., 2018); Wojciech Sadurski, Constitutional Crisis in Poland, in Constitutional Democracy in Crisis? 257 (Mark A. Graber, Sanford Levinson, & Mark Tushnet eds., 2018); Heinz Klug, State Capture or Institutional Resilience: Is There a Crisis of Constitutional Democracy in South Africa?, in Constitutional Democracy in Crisis? 295 (Mark A. Graber, Sanford Levinson, & Mark Tushnet eds., 2018).

[4] See Joshua Kurlantzick, Democracy in Retreat: The Revolt of the Middle Class and the Worldwide Decline of Representative Government (2014); Diamond, supra note 2; Nancy Bermeo, On Democratic Backsliding, 27 J. Democracy 5 (2016); Roberto Stefan Foa & Yascha Mounk, The Signs of Deconsolidation, 28 J. Democracy 5 (2017); Aziz Z. Huq & Tom Ginsburg, How to Lose a Constitutional Democracy, 65 UCLA L. Rev. 78 (2018); Sotirios A. Barber, Constitutional Failure (2014); Ellen Kennedy, Constitutional Failure: Carl Schmitt in Weimar (2004); Jack M. Balkin, Constitutional Crisis and Constitutional Rot, in Constitutional Democracy in Crisis? 13 (Mark A. Graber, Sanford Levinson, & Mark Tushnet eds., 2018).

[5] Huq & Ginsburg, supra note 2.

[6] Mark A. Graber, Sanford Levinson, & Mark Tushnet, eds. Constitutional Democracy in Crisis? (2018).

[7] On indices, see, e.g., Tom Ginsburg & Aziz Z. Huq, Defining and Tracking the Trajectory of Liberal Constitutional Democracy, in Constitutional Democracy in Crisis? 29 (Mark A. Graber, Sanford Levinson, & Mark Tushnet eds., 2018); Zachary Elkins, Is the Sky Falling? Constitutional Crisis in Historical Perspective, in Constitutional Democracy in Crisis? 49 (Mark A. Graber, Sanford Levinson, & Mark Tushnet eds., 2018). Elkins also usefully puts these levels in broader historical context–or the context of different “waves” of democratic retreat and advancement.

[8] See, e.g., Balkin, supra note 4; Ozan O. Varol, Stealth Authoritarianism in Turkey, in Constitutional Democracy in Crisis 339 (Mark A. Graber, Sanford Levinson, & Mark Tushnet eds., 2018); Yaniv Roznai, Israel: A Crisis of Liberal Democracy?, in Constitutional Democracy in Crisis? 355 (Mark A. Graber, Sanford Levinson, & Mark Tushnet eds., 2018); Sujit Choudhry, Will Democracy Die in Darkness? Calling Autocracy by Its Name, in Constitutional Democracy in Crisis 571, 579 (Mark A. Graber, Sanford Levinson, & Mark Tushnet eds., 2018).

[9] See, e.g., Rosalind Dixon & Anika Gauja, Australia’s Non-populist Democracy? The Role of Structure and Policy, in Constitutional Democracy in Crisis? 395 (Mark A. Graber, Sanford Levinson, & Mark Tushnet eds., 2018) (suggesting Australia’s model of compulsory and preferential voting as one promising structural constitutional solution, albeit one subject to severe “insider”/“outsider” problems at the level of implementation); Richard Albert & Michael Pal, The Democratic Resilience of the Canadian Constitution, in Constitutional Democracy in Crisis? 103 (Mark A. Graber, Sanford Levinson, & Mark Tushnet eds., 2018)  (noting Canada’s system of (constrained) parliamentary democracy, federalism, strong but independent courts, and independent integrity institutions (such as an independent electoral commission) as promising institutional responses); Ganesh Sitaraman, Economic Inequality and Constitutional Democracy, in Constitutional Democracy in Crisis? 533(Mark A. Graber, Sanford Levinson, & Mark Tushnet eds., 2018) (examining “anti-oligarchic” or active “middle class” constitutional models); David Schneiderman, Disabling Constitutional Capacity: Global Economic Law and Democratic Decline, in Constitutional Democracy in Crisis? 551 (Mark A. Graber, Sanford Levinson, & Mark Tushnet eds., 2018) (identifying entrenched limits on investment treaty arbitration); Choudhry, supra note 8 (highlighting the role of constitutional courts, based on a mix of written and unwritten constitutional norms);  Kim Lane Scheppele, The Party’s Over, in Constitutional Democracy in Crisis? 495, 513 (Mark A. Graber, Sanford Levinson, & Mark Tushnet eds., 2018) (focusing on constitutionally entrenched regulation of political parties); Erin F. Delaney, Brexit Optimism and British Constitutional Renewal, in ConstitutionalDemocracy in Crisis? 191 (Mark A. Graber, Sanford Levinson, & Mark Tushnet eds., 2018) (focusing on the role of written and entrenched procedural regulation of referenda); David Landau, Constitution-Making and Authoritarianism in Venezuela, in Constitutional Democracy in Crisis? 161 (Mark A. Graber, Sanford Levinson, & Mark Tushnet eds., 2018), citing Rosalind Dixon & David Landau, Tiered Constitutional Design, 86 Geo. Wash. L. Rev. 438 (2018) (focusing on entrenched, tiered forms of constitutional design). Compare also Sanford Levinson, The Continuing Specter of Popular Sovereignty and National Self-Determination in an Age of Political Uncertainty, in ConstitutionalDemocracy in Crisis? 651 (Mark A. Graber, Sanford Levinson, & Mark Tushnet eds., 2018) (pointing to a more popular, less constrained approach to formal constitutional change).

[10] Doreen Lustig & J. H. H. Weiler, Judicial Review in the Contemporary World—Retrospective and Prospective, 16(2) Int’l J. Const. L. 315 (2018).

[11] J. H. H. Weiler, The Crumbling of European Democracy, in Constitutional Democracy in Crisis? 629 (Mark A. Graber, Sanford Levinson, & Mark Tushnet eds., 2018).

[12] David Landau, Abusive Constitutionalism,47 U.C. Davis L. Rev. 189 (2013).

[13] Sujit Choudhry, Transnational Constitutionalism and a Limited Doctrine of Unconstitutional Constitutional Amendment: A Reply to Rosalind Dixon and David Landau, 15(3) Int’l J. Const. L. 826 (2017); Rosalind Dixon & David Landau, Transnational Constitutionalism and a Limited Doctrine of Unconstitutional Amendment: A Rejoinder to Sujit Choudhry, 15(3) Int’l J. Const. L. 833 (2017) [hereinafter Dixon & Landau, Rejoinder]. See also Rosalind Dixon & David Landau, Transnational Constitutionalism and a Limited Doctrine of Unconstitutional Constitutional Amendment, 13 Int’l J. Const. L. 606 (2015) [hereinafter Dixon & Landau, Transnational Constitutionalism].

[14] For I-CONnect posts in this area in the last year, see, e.g., Stefanus Hendrianto, The Indonesian Constitutional Court and the Crisis of the 2019 Presidential Election, I-CONnect, Sept. 19, 2018, at http://www.iconnectblog.com/2018/09/the-indonesian-constitutional-court-and-the-crisis-of-the-2019-presidential-election/; Mark Tushnet, Are Constitutional Democracies Really in Crisis?, I-CONnect, Sept. 10, 2018, at http://www.iconnectblog.com/2018/09/are-constitutional-democracies-really-in-crisis/; Asli Bali, Electoral Authoritarianism Revisited, I-CONnect, Nov. 1, 2017, at http://www.iconnectblog.com/2017/11/electoral-authoritarianism-revisited-i-connect-column/; Sergio Verdugo, How the Bolivian Constitutional Court Helped the Morales Regime to Break the Political Insurance of the Bolivian Constitution, I-CONnect, Dec. 10, 2017, at http://www.iconnectblog.com/2017/12/how-the-bolivian-constitutional-court-helped-the-morales-regime-to-break-the-political-insurance-of-the-bolivian-constitution/; Tom Gerald Daly, Can International Organisations Help to Stem Democratic Decay?, I-CONnect, Nov. 16, 2017, at http://www.iconnectblog.com/2017/11/can-international-organisations-help-to-stem-democratic-decay-i-connect-column/.

[15] Compare Mark A. Graber, What’s in Crisis? The Postwar Constitutional Paradigm, Transformative Constitutionalism, and the Fate of Constitutional Democracy, in Constitutional Democracy in Crisis? 665, 686– 687 (Mark A. Graber, Sanford Levinson, & Mark Tushnet eds., 2018) (emphasizing the need for greater political engagement by defenders of constitutional liberal democracy in part for these reasons).

[16] Prashant Jha, Understanding the Country’s Most Ambitious Project, the Indian Constitution, Hindustan Times, May 28, 2016, at https://www.hindustantimes.com/books/understanding-the-country-s-most-ambitious-project-the-indian-constitution/story-vklCvFf1ScFf1vAO8ka5oK.html; Shashi Tharoor, Don’t Burn the Book of Freedom, Open, Jun. 17, 2016, at http://www.openthemagazine.com/article/politics/dont-t-burn-the-book-of-freedom.

[17] For work on the importance of nongovernmental organizations (NGOs) in constitutional protection and enforcement, see, e.g., Siri Gloppen, Public Interest Litigation, Social Rights and Social Policy, in Inclusive States: Social Policy and Structural Inequalities 343 (Anis A. Dani & Arjan de Haan eds., 2008); Michael McCann, Law and Social Movements, 2 Ann. Rev. L. & Soc. Sci. 17 (2006); Charles R. EPp, The Rights Revolution, Lawyers, Activists and Supreme Courts in Comparative Perspective (1998).

[18] See, e.g.,Huq & Ginsburg, supra note 2, at 110ff. For broader twitter war, see, e.g., Nicole Ernst et al., Extreme Parties and Populism: An Analysis of Facebook and Twitter Across Six Counties, 20 Info., Comm. & Soc’y 1347 (2017); Kristof Jacobs & Niels Spierings, A Populist Paradise? Examining Populists’ Twitter Adoption and Use, 21 Info., Comm. & Soc’y 1 (2018); Silvio Waisbord, Why Populism Is Troubling for Democratic Communication, 11 Comm. Culture & Critique 21 (2018).

[19] See @aziz_huq, Twitter, https://twitter.com/aziz_huq?lang=en; @tomginsburg, Twitter,  https://twitter.com/tomginsburg?ref_src=twsrc%5Egoogle%7Ctwcamp%5Eserp%7Ctwgr%5Eauthor.  

[20] UK Constitutional Law Association, https://ukconstitutionallaw.org/blog/; Verfassungsblog, https://verfassungsblog.de/?lang=en; IACL-AIDC Blog, https://blog-iacl-aidc.org/.

[21] See, e.g., the engagement by the UK Supreme Court with the UKCLA blog in Miller: R (on the application of Miller) v. Secretary of State for Exiting the European Union [2017] UKSC 5. For discussion, see UCL Laws Academics Praised for the Argument that Led Gina Miller to Victory, UCL Faculty of Laws, Feb. 2, 2017, at https://www.ucl.ac.uk/laws/news/2017/feb/ucl-laws-academics-praised-argument-led-gina-miller-victory; Nicholas W. Barber, Tom Hickman, & Jeff King, Reflections on Miller, 8 UK Supreme Ct. Yearbook (2016–2017).  

[22] On the importance of respect for these rules to democracy, see, e.g., Steven Levitsky & Daniel Ziblatt, How Democracies Die (2018). For the hollowing out and hostile takeover of major parties as a cause, see, e.g.,Stephen Gardbaum & Richard H. Pildes, Populism and Institutional Design: Method of Selecting Candidates for Chief Executive, N.Y.U. L. Rev. (forthcoming 2018); Samuel Issacharoff, Private Parties with Public Purposes: Political Parties, Associational Freedoms, and Partisan Competition, 101 Colum. L. Rev. 274 (2001).

[23] See, e.g., The Squeezed Middle Class in OECD and Emerging Countries: Myth and Reality (OECD, Dec. 1, 2016), at http://perma.cc/C93R-59YY. See also Anthony B. Atkinson, Inequality; What Can Be Done (2015); Joseph E. Stiglitz, The Price of Inequality: How Today’s Divided Society Endangers Our Future (2012); Rosalind Dixon & Julie Suk, Liberal Constitutionalism and Economic Inequality, 85 U. Chi. L. Rev. 369 (2018).

[24] See Ronald F. Inglehart & Pippa Norris, Trump, Brexit and the Rise of Populism: Economic Have-Nots and Cultural Backlash (HWS Working Paper No. WP16-026, 2016), at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2818659. On the term “authoritarian populism,” see, e.g., Wojciech Sadurski, How Democracy Dies (in Poland): A Case Study of Anti-Constitutional Populist Backsliding (Sydney Law School Research Paper No. 18/01, 2018), at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3103491

[25] See, e.g., Dani Rodrik, Populism and the Economics of Globalization, 1 J. Int’l Bus. Pol’y 12 (2018); Lawrence Mishel, Causes of Wage Stagnation (EPI, Jan. 6, 2015), at https://www.issuelab.org/resources/20767/20767.pdf; Melanie Arntz, Terry Gregory & Ulrich Zierahn, The Risk of Automation for Jobs in OED Countries (OECD, 2016); Anton Korinek & J.E. Stiglitz, Artificial Intelligence, Worker-Replacing Technological Progress and Income Distribution(NBER Working Paper No. 24174, 2017).

[26] See Pippa Norris & Robert Inglehart, Cultural Backlash: Trump, Brexit and the Rise of Authoritarian Populism (forthcoming 2018).

[27] I am indebted to Ran Hirschl for pressing me on this point.

[28] Schneiderman, supra note 9; Weiler, supra note 11, at 633 (suggesting that the “essential balance of dignity—the universal and the unique—in our social context has been seriously skewed” in ways that have profound consequences).

[29] I am indebted to Mark Tushnet for pressing me on this point. As Tushnet notes, how we approach this question will itself also be affected by both the data and our intellectual predispositions as generalizers versus contextualizers or “lumpers” versus “splitters.” Compare J. Endersby, Lumpers and Splitters: Darwin, Hooker, and the Search for Order, 326 Science 1496 (2009).

[30] Norris & Inglehart, supra note 26.

[31] Jennifer Hochschild, What’s New? What’s Next? Threats to the American Constitutional Order, in Constitutional Democracy in Crisis? 85, 91 (Mark Graber, Sanford Levinson, & Mark Tushneteds. 2018). For another excellent exploration of nativist versus localist tensions, see Timur Kuran, Another Road to Serfdom: Cascading Intolerance, in Can It Happen Here? 233 (Cass R. Sunstein ed., 2018).

[32] Conservatives, she suggests can be divided into “laissez-faire conservatives,” “status quo conservatives,” and “authoritarian conservatives,” as measured by their different attitudes to parenting, and only the latter are susceptible to authoritarian triggers: Karen Stenner, The Authoritarian Dynamic (2006); Karen Stenner & Jonathan Haidt, Authoritarianism Is Not a Momentary Madness, But an Eternal Dynamic Within Liberal Democracies, in Can It Happen Here?  175 (Cass R. Sunstein ed., 2018). For another interesting account of the relationship between psychological and political factors, see also Jon Elster, The Resistible Rise of Louis Bonaparte, in Can It Happen Here?, supra note 11. See also Eric A. Posner, The Dictator’s Handbook, US Edition, in Can It Happen Here? 175 (Cass R. Sunstein ed., 2018), on how this suggests Trump as both symptom and cause of democratic erosion in the USA.

[33] See, e.g., Samuel Issacharoff, Populism versus Democratic Governance, in Constitutional Democracy in Crisis?, 445 453–56 (Mark Graber, Sanford Levinson, & Mark Tushnet eds. 2018) (highlighting legislative inaction as a key driver behind current actual and perceived crisis in constitutional democracy, and as encouraging support for and resort to broad executive power); Mark Tushnet, Comparing Right-Wing and Left-Wing Populism, in Constitutional Democracy in Crisis? 639, 641 (Mark Graber, Sanford Levinson, & Mark Tushnet eds. 2018) (noting that this could in part depend on its relationship to transnational norms, as Landau and I suggest in Dixon & Landau, Transnational, supra note 13); Ana Micaela Alterio & Roberto Niembro, Constitutonal Culture and Democracy in Mexico: A Critical View of the 100-Year-Old Mexican Constitution, in Constitutional Democracy in Crisis? 139 (Mark Graber, Sanford Levinson, & Mark Tushnet eds. 2018) (emphasizing the gap between formal constitutional design and a supportive constitutional culture as key to understanding the non-consolidation of democracy in Mexico). On the interaction of institutions and constitutional more generally, see also Noah Feldman, On “It Can’t Happen Here”, in Can It Happen Here? 157 (Cass R. Sunstein ed., 2018). On the interaction of rights and constitutional structures, see also Roberto Gargarella, Latin America: Constitutions in Trouble, in Constitutional Democracy in Crisis? 177 (Mark Graber, Sanford Levinson, & Mark Tushnet eds. 2018). See also Roberto Gargarella, Latin American Constitutionalism, 1810–2010: The Engine Room of the Constitution (2013); Rosalind Dixon, Constitutional Rights as Bribes, 50 Conn. L. Rev. (2018 forthcoming) (suggesting that rights are often used to induce democratic actors to support broader forms of anti-democratic structural constitutional change, including in Latin America); Delaney, supra note 9 (noting the prevalence of hybrid rights-structure claims and arguments as a potential challenge to Waldron’s objections to rights-based judicial review).

[34] See, e.g., Issacharoff, supra note 22; Gardbaum & Pildes, supra note 22.

[35] Scheppele, supra note 9, at 513.

[36] See, e.g., Dixon & Suk, supra note 23. See also Elliot W. Bulmer, Constitutional Responses to the Crisis of Representation and Oligarchic Democracy: Discussion Paper—Thematic Areas of Inquiry (2017) (unpublished manuscript) (on file with authors); Sitaraman, supra note 9; K. Sabeel Rahman, Policymaking as Power-Building, 27 S. Calif. Interdisciplinary L.J. 315 (2018) (emphasizing a more participatory view).

[37] Daron Acemoglu et al., Democracy, Redistribution, and Inequality, in 2BHandbook of income Distribution (2015).

[38] Michaela Haibronner, Beyond Legitimacy: Europe’s Crisis of Constitutional Democracy, in Constitutional Democracy in Crisis? 277 (Mark Graber, Sanford Levinson, & Mark Tushnet eds. 2018); Weiler, supra note 11, at 636.

[39] Ran Hirschl, Constitutional Law & Economic Inequality: Some Skeptical Thoughts. Paper presented to UNSW Conference on Constitutions & Inequality, August 2017; Michelle Wilde Anderson, The New Minimal Cites, 123 Yale L.J. 1118 (2014). See also William Franko & Christopher Witko, The New Economic Populism: How States Respond to Economic Inequality (2017).

[40] See, e.g., Adam S. Chilton & Mila Versteeg, Rights Without Resources: The Impact of Constitutional Social Rights on Social Spending (Virginia L. & Econ. Research Paper No. 2016-20, 2016), at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2857731 (using sophisticated “matching” techniques from political science to examine the impact of social rights guarantees on government spending). Even this impressive empirical work does not examine (i) different models of social rights protection and enforcement (e.g. strong versus weak judicial enforcement, or affirmative versus negative enforcement), or (ii) different allocations as opposed to amounts of government spending in key areas.

[41] For an analysis of the current Indian experience in these terms, see, e.g., Manoj Mate, Constitutional Erosion and the Challenge to Secular Democracy in India, in Constitutional Democracy in Crisis? 377 (Mark Graber, Sanford Levinson, & Mark Tushnet eds. 2018).

[42] See Stenner & Haidt, supra note 32, at 211.

[43] See, e.g., Josef Marko, Foreign Judges: A European Perspective, in Hong Kong’s Court of Final Appeal: The Development of the Law in China’s Hong Kong 637 (Simon N. M. Young & Yash Ghai eds., 2014); Rodolfo Toe, Bosnian Croats, Serbs United Against Foreign Judges, Balk Transitional Justice, Dec. 2, 2015, at http://www.balkaninsight.com/en/article/croat-and-serb-parties-call-for-reform-of-the-constitutional-court-of-bosnia-and-herzegovina-12-01-2015; Constance Grewe & Michael Riegner, Internationalized Constitutionalism in Ethnically Divided Societies: Bosnia-Herzegovina and Kosovo Compared, in 11 Max Planck Yearbook of United Nations Law 1 (A. Von Bogdandy & R. Wolfrum eds., 2011); Stefan Graziadei, The Unconstitutional Holiday: Bosnia Constitutional Court Annuls Serb Republic Day, Verfassungsblog, Dec. 1, 2015, at https://verfassungsblog.de/11971/.

[44] Dixon & Gauja, supra note 9.

[45] Ran Hirschl, Comparative Matters: The Renaissance of Comparative Constitutional Law (2014).

[46] For an excellent analysis of the limits and challenges in this kind of context, see, e.g.,David S. Law & Chien-Chih Lin, Constitutional Inertia and Regime Pluralism in Asia, in Constitutional Democracy in Crisis? 423,  424–437 (Mark Graber, Sanford Levinson, & Mark Tushnet eds. 2018) (commenting on the challenges of drawing causal lessons form relevant Asian cases).

[47] See, e.g., a 2013 study of the impacts of compulsory voting that exploits random variation in the date of introduction of compulsory voting in various Australian states: Anthony Fowler, Electoral and Policy Consequences of Voter Turnout: Evidence from Compulsory Voting in Australia, 8 Q. J. Pol. Sci. 159 (2013); and discussion in Sitaraman, supra note 9.

[48] For an amusing exchange between myself and a radio listener about the future direction of Uber hiring policies, for example, see The People Vs Work, ABC Radio, Sept. 9, 2018; The People vs Leadership Spills,ABC Radio, Aug. 26, 2018. Contrast this with the greater comfort of being asked about procedural reforms to address the current instability in Australian constitutional politics: see The People Vs. This is in the context of my current role as co-lead of a truly interdisciplinary, university-wide Initiative on Inequality at UNSW Sydney: see Grand Challenges, UNSW, at http://www.grandchallenges.unsw.edu.au/

[49] The 2018 Best Paper Prize was awarded to Daniel M. Brinks & Abby Blass, Rethinking Judicial Empowerment: The New Foundations of Constitutional Justice, 15 Int’l J. Const. L. 296 (2017); the 2017 Best Paper Prize was awarded to Nathan J. Brown & Julian G. Waller, Constitutional Courts and Political Uncertainty: Constitutional Ruptures and the Rule of Judges, 14 Int’l J. Const. L. 817 (2016). Brinks holds joint appointments in law and political science: see Daniel M. Brinks, U. Texas at Austin School of Law, at https://law.utexas.edu/faculty/daniel-m-brinks/. Blass, Brown, and Waller are political scientists: Nathan J. Brown, Carnegie Endowment for International Peace, at http://carnegieendowment.org/experts/238; Julian G. Walker, G.W. Columbian College of Arts & Sciences, at https://politicalscience.columbian.gwu.edu/julian-g-waller; Abby Blass, at http://www.abbyblass.com.

* My thanks to Michaela Hailbronner, Ran Hirschl, Richard Holden, Mark Tushnet, and Sergio Verdugo for helpful comments, and to Melissa Vogt for excellent research assistance.

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Published on January 30, 2019
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