—Shubha Ghosh, Crandall Melvin Professor of Law, Syracuse University
Comparativists, constitutional law aficionados, and global citizens were the perfect audience for the conference on “The Future of Liberal Democracy,” held at The University of Texas at Austin on February 21-23, 2019. Professors Richard Albert and Sanford Levinson assembled leading scholars from across the globe for a two-and-a-half day symposium exploring whether the current emergence of authoritarian regimes, here and abroad, is a sign of a dark future or the strident cries of an imploding conservatism. What follows is a distillation of the dialogue at this conference, with brief mentions of some of the many scholars who participated. Apologies to those not mentioned.
Part-festschrift, part-book talk, part-panel discussion, the Texas symposium placed Trumpism in the broader context of European authoritarianism, as playing out in Hungary and Poland. A forum on the forthcoming “Democracy and Dysfunction,” by Sanford Levinson and Jack Balkin opened the proceedings. This unique book brings together letters between Levinson and Balkin written from 2016 and 2018, tracing the events leading up to the surprising results of November 2016 and the aftermath. Panels on “Illiberal Constitutionalism,” “The Erosion of Constraints on Executive Power,” Managing Difference and Diversity,” “The Trump Phenomenon: American Exceptionalism or Global Trend?,” and “Constitutional Replacement by Constitutional Amendment” followed. In the midst of these heated discussions was a festschrift to political scientist Gary Jacobsohn and his 2010 book Constitutional Identity. Four critical themes emerged from the symposium which this blog space allows for exploration.
First is the theme of the current upheaval as a transition from one political regime to another. This sense of transition is apparent in the rise of Trump, who identified and capitalized on weaknesses in the Republican Party to win the presidency. His success also signals weaknesses in the Democratic Party, the electoral process, and the constitutional structure, all of which created a perfect storm for the 2016 vote. Within the United States, Trumpism may be a transition to a new regime from the order created by the Reagan election in 1980. What we cannot predict is the shape of this new order. Some, like Professor Balkin, suggested a possible new progressive era, where government takes a more active role in curing the ills of a free market. Others, like Professor Sam Issacharoff, suggested the possibility of darker times with the repressive policies we have witnessed just being the beginning. Others still, like Professor Mark Tushnet, expressed doubt on predicting where the political process will land, emphasizing a basic indeterminacy in government, a theme I return to at the end of this post.
The second theme of constitutionalism, law, and norms highlight the differences of Trumpism from the deceptively similar movements of Brexit in the UK and the authoritarian regimes of Orban in Hungary, Duda in Poland, and Erdogan in Turkey. While challenges to principles of separation of powers, federalism, and the free press appear in varying degrees across these cases, there are particular differences that reflect national and regional differences. In Europe, including the UK and Turkey, the tension is between the centralization of power in European institutions and regional political power grounded in national institutions and culture. While Trump beats the anti-federal government drum and plays loudly nationalist dog whistles, his attack on the judiciary, the press, and established political figures is a means for concentration of federal executive power.
Against these regional differences, the challenge is to identify the core principles of constitutionalism and liberalism as bulwarks for resistance. Professor Kim Lane Scheppele decried the autocratic legalism of regimes like Hungary and Poland that appeal to “rule of law” formalistically to consolidate state power. Professor Wojciech Sadjurski embraced the concept of “illiberal constitutionalism” as an analytic tool to identify aberrant forms of constitutionalism that counter norms of democracy. Professor Vlad Perju contrasted nationalism with liberalism in favor of liberal democracy that captures the deliberative process described by Habermas and Rawls. “Illiberal constitutionalism,” argues Professor Sadjurski is not an oxymoron but a valuable analytic tool for identifying aberrant constitutional orders. What current authoritarian moves demand, Professor Sujit Choudhry suggested, is a re-understanding of the fundamental values of constitutionalism, much as the Hart-Dworkin debate asked us to examine what constitutes law. “Constitutional identity,” as Professor Jacobsohn coined, captures this foundational inquiry even as “identity” is a fluid, dynamic concept.
The third theme of populism refocuses debates over the meaning of liberal constitutionalism. Populism entails direct engagement in politics, whether the post-apartheid activism in South Africa described by Professor Heinz Klug, the demonstrations against the evisceration of judicial review in Poland as described by Professor Sadjurski, judicial checks in Colombia recounted by Justice Carlos Bernal, or the movement for constitutional reform in the United States as described by Professor John Dinan (at the state level) and Professor Levinson (at the federal). Authoritarians exploit populism much as they engage in “autocratic legalism,” as means to consolidate power. But populism should offer resistance to authoritarian movements from the basic act of voting to organized expressions of protest. Scholars can invigorate our understanding of populism through addressing questions of the meaning of citizenship, as approached by Professor Ayelet Shachar; through revealing the politics of rights talk, as exposed by Professor Kristen Stilt in her paper on legal prohibitions of animal sacrifice; through connecting the definition of peoples to territories and the movement for integration, as discussed by Professor Choudhry. What populism captures is the day to day activism of people as they persuade through deliberation, work within existing norms, and strive to create institutions that are responsive to their needs and wants.
Which brings us to the fourth, and final, theme of the symposium: indeterminacy. To define democracy as “institutionalized uncertainty,” as Professor Jan-Werner Mueller reminded us, is to recognize that the face of authoritarianism is homogeneity and predictability. Democratic institutions are ones that are unpredictable, echoing Professor Jacobsohn’s representation of constitutional identity as fluid and dynamic. But indeterminacy is troubling for reformers who seek to resist current authoritarian tendencies. Just as the results of the 2016 US election were a surprise to many, so liberal constitutional politics can produce illiberal results that threaten constitutionalism itself. What provides some hope is the freedom to continue acting, to move on to the next election, to the next legal battle. Reformers must remember that legal determinacy would obviate the need for action, and action is the fuel for liberal constitutionalism. One would have missed the point of the Texas symposium if one left it feeling either optimistic or pessimistic about the future of liberal constitutionalism. Instead, one can speak to the need for continued action, deliberate and reflective, such as the engaged scholarship demonstrated at this robust conference.