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I·CONnect

Blog of the International Journal of Constitutional Law

Undemocratic Legislation to Undermine Freedom of Speech in Brazil

—Ulisses Levy Silvério dos Reis, The Federal University of the Semi-Arid Region – UFERSA, and Emilio Peluso Neder Meyer, The Federal University of Minas Gerais

The 2018 general elections put the Brazilian political scenario in the center of the global debate on illiberal governments and democratic erosion. Jair Bolsonaro, a former Army officer who was a legislator for almost thirty years, won the election with a political platform based on, amongst other radical viewpoints, the glorification of the 1964-1985 dictatorship. The regime was responsible for numerous illegal actions against the opposition, such as extrajudicial killings, enforced disappearances and torture. A wide range of fundamental rights were ignored or breached in that period of time. The crimes against humanity that were committed are well documented in the files of the National Truth Commission. In addition, the regime enacted laws that facilitated its objectives of persecuting political opponents.[1]

The absence of true efforts on institutional reforms, an aspect of transitional justice, is a hallmark of the Brazilian transition.[2] Even with the Brazilian redemocratization in 1985 and the enactment of the 1988 Constitution, legislation previously adopted remained in force. The problem is that part of this array of acts and decrees is embedded in authoritarianism. The totality of the pre-1988 legislation, however, does not share those features. The National Tax Code and the Criminal Code, for example, are acts that were enacted long before 1988 and are generally in accordance with the current constitution. The situation is different, though, for other provisions, such as part of the Administrative Law statutes, the 1979 Amnesty Law, and provisions dealing with the Military Justice system. Yet, one of the main examples of a discrepancy is the National Security Law, approved by Act 7.170 of 1983.

From the beginning of Bolsonaro’s government, his aides initiated a process of persecuting critics using the National Security Law. The first Minister of Justice of the current government, Sergio Moro, the former federal judge that imprisoned ex-President Lula da Silva, was responsible for using this legislation in an unprecedented way, prompting 28 investigations. In 2020, with his replacement by André Mendonça, this metric increased and 51 investigations were launched on the basis of the National Security Law. When compared to the few uses of that legislation in the years before Bolsonaro’s administration, the numbers demonstrate a paradigm shift in Brazil.

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Published on February 3, 2021
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The Tatmadaw’s 1 February Actions are not an Emergency but a Coup

—Andrew Harding, Centre for Asian Legal Studies, Faculty of Law, National University of Singapore

In the early morning of 1 February 2021 the Myanmar military, the Tatmadaw, fulfilled what had been threatened for several days, by arresting the President and other leading civilian officials, and declaring an emergency and their taking over of the country. This was a response to refusal by the Election Commission and the NLD government to countenance an attempt to overturn the November 2020 election results, which the Tatmadaw said were fraudulent. While the voters’ list can be impeached, there is no evidence that the result could possibly be affected even if the allegations are true, given the overwhelming support shown for the NLD .

Despite the Tatmadaw’s invocation of s.417 of the 2008 Constitution, this coup is in fact unconstitutional, even by the terms of that Constitution, designed as it was to provide the Tatmadaw with powers unequaled in any ‘constitutional’ system of government.

Specifically, the all-important s.417, which has always been mentioned as a controversial section justifying the ‘praetorian’ description of the Constitution, states as follows.

If there arises or if there is sufficient reason for a state of emergency to arise that may disintegrate the Union or disintegrate national solidarity or that may cause the loss of sovereignty, due to acts or attempts to take over the sovereignty of the Union by insurgency, violence and wrongful forcible means, the President may, after co-ordinating with the National Defence and Security Council, promulgate an ordinance and declare a state of emergency. In the said ordinance, it shall be stated that the area where the state of emergency in operation is the entire Nation and the specified duration is one year from the day of promulgation.

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Published on February 1, 2021
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What’s New in Public Law

—Matteo Mastracci, PhD Researcher, Koç University, Istanbul

In this weekly feature, I-CONnect publishes a curated reading list of developments in public law. “Developments” may include a selection of links to news, high court decisions, new or recent scholarly books and articles, and blog posts from around the public law blogosphere. To submit relevant developments for our weekly feature on “What’s New in Public Law,” please email iconnecteditors@gmail.com.

Developments in Constitutional Courts

  1. Kosovo’s Supreme Court barred a former prime minister Friday from running in the country’s early parliamentary election next month because he was sentenced for a crime in the last three years.
  2. Romania’s Constitutional Court rejected as breaching the Constitution a law promoted by the Social Democratic Party (PSD) aimed at capping the interest rates charged by banks and non-bank financial institutions for retail (mortgage and consumer) loans.
  3. The Constitutional Court of Malta has ordered that drug proceedings against a vulnerable teenager start afresh after ruling that a guilty plea he filed was vitiated by a potential human rights breach.
  4. The South African Constitutional Court ordered former president Jacob Zuma to appear and testify before the state capture inquiry set up to probe corruption during his administration.
  5. The South Korean Court has ruled on the constitutionality of the Corruption Investigation Office for High-ranking Officials (CIO) confirming that its establishment is in accordance with the Constitution.

In the News

  1. Constitutional crisis blocks new Tunisian ministers from oath of office.
  2. Portugal’s parliament voted on Friday to legalise euthanasia, setting the country up to become the seventh in the world to allow terminally ill patients to seek assistance from a doctor to end their life.
  3. The Constitutional Court of Albania has reviewed on Tuesday the first case since 2018, when it was made dysfunctional due to the vetting in the justice system resulting in its judges being fired or resigning.
  4. The General Elections Commission (KPU) is preparing to face more than a hundred regional election disputes filled at the Constitutional Court of Indonesia for election disputes.
  5. The UN Human Rights Committee has found that Italy failed to protect the right to life of more than 200 migrants who were on board a vessel that sank in the Mediterranean Sea in 2013.
  6. Ukraine requests Venice Commission’s opinion on the draft Law “On Constitutional Procedure” and on the draft Law “On the Procedure for Consideration of Cases and Execution of Decisions of the Constitutional Court of Ukraine” (CCU).

New Scholarship

  1. András Sajó, Ruling by Cheating. Governance in Illiberal Democracy (2021) (showing the deceptiveness of illiberal claims in a comparative set of illiberal democracies from Venezuela to Poland)
  2. Brian Christopher Jones, Democracy and Rule of Law in China’s Shadow (2021) (delivering a contemporary understanding of how democracy and the rule of law converge in China)
  3. Eugénie Mérieau, Constitutional Bricolage. Thailand’s Sacred Monarchy vs. The Rule of Law (2021) (exploring the intricacies of the constitutional model in operation in Thailand)
  4. James E. Pfander, Cases Without Controversies. Uncontested Adjudication in Article III Courts (2021) (providing a new synthesis of the case-or-controversy rule in U.S. courts)
  5. Margit Cohn, A Theory of the Executive Branch: Tension and Legality (2021) (exploring the executive branch and executive powers in Western democracies in a comparative perspective and providing detailed analysis of the ways law enables executives)
  6. Victoria Miyandazi, Equality in Kenya’s 2010 Constitution. Understanding the Competing and Interrelated Conceptions (2021) (offering a principled and comparative approach on inequalities in Kenya’s Constitution)

Calls for Papers and Announcements

  1. Scuola Normale Superiore di Pisa (SNS) invites applications for 14 PhDs positions in the Political Science and Sociology department. Deadline for submission is March 1, 2021.
  2. The Faculty of Law at the University of Helsinki invites applications for three post-doctoral researchers in international organizations law for a fixed term of 4 years. Deadline for submission is February 17, 2021.
  3. The Forced Migration Review is inviting submissions for its 67th Issue’s feature on public health and WASH (water, sanitation and hygiene). Deadline for submissions is March 1, 2021.
  4. The Vienna Journal of International Constitutional Law (ICL Journal) is accepting submissions for its special issue on “Hegel’s Legal Philosophy and International Constitutional Law.” Deadline for submissions is February 28, 2021.
  5. Women & Criminal Justice, the only periodical devoted to scholarly interdisciplinary, global research on all concerns related to women and criminal justice, is now accepting manuscripts for a special issue on LBGTQ+ Crime and Victimization.  This special issue will be published in 2022.

Elsewhere Online

  1. Asylai Akisheva, “Kelinism” in Kyrgyzstan: Women’s Rights Versus Traditional Values, The Oxus Society for Central Asian Affairs
  2. Brian Christopher Jones and Maartje De Visser, The Complex Relationship between Constitutional Idolatry, Literacy and Identity, IACL-IADC Blog
  3. Campbell MacGillivray, A Bolsonarist Cat Among the Pigeons, Verfassungsblog
  4. Elif Erken and Claire Loven, The Recent Rise in ECtHR Inter-State Cases in Perspective, ECHR Blog
  5. Elnura Omurkulova-Ozierska, Kyrgyzstan’s ‘Third Revolution’ and the Road to Another Victor’s Constitution, ConstitutionNet
  6. Emma Várnagy, X and Y v North Macedonia: A missed opportunity to improve the case law on anti-Roma custodial violence, Strasbourg Observers
  7. Joe Tomlinson and Lewis Graham, How do you solve a problem like judicial review reform?, Constitution Unit
  8. Lina Schmitz-Buhl, Enforced disappearances in Syria and the Al Khatib trial in Germany, Vöelkerrechtsblog
  9. Marko Milanovic, Amicus Curiae Brief re MH17; Human Rights Committee on Search and Rescue at Sea, EJIL: Talk!
  10. Veronica Anghel, Joe Biden will balance security interests and the rule of law in Central and Eastern Europe, The Loop
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Published on February 1, 2021
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Book Review: Stefanus Hendrianto on Joshua Neoh’s “Law, Love and Freedom: From the Sacred to the Secular”

Editor’s Note: In this installment of I•CONnect’s Book Review Series, Stefanus Hendrianto reviews Joshua Neoh’s book on Law, Love and Freedom: From the Sacred to the Secular (Cambridge University Press, 2019)

–Stefanus Hendrianto, SJ, PhD, University of San Francisco

When Joe Biden entered the campaign of the 2020 election, he adopted a catchphrase to describe the election as the “battle for the soul” of a nation. Indeed, the phrase has aptly framed the contest, even with no standard definition or universal concept of the “soul of a nation,” a term for which numerous scholars have offered their own interpretations.[1] An excellent book by Joshua Neoh, Law, Love and Freedom: From the Sacred to the Secular, proves a missing piece of the puzzle in the debate over the “battle for the soul” of a nation.

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Published on January 31, 2021
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Ethiopia’s Continuing Constitutional Crisis

—Berihun Adugna Gebeye, Humboldt Postdoctoral Research Fellow, Max Planck Institute for Comparative Public Law and International Law, Heidelberg

[Editors’ Note: This is one of our biweekly ICONnect columns. For more information on our four columnists for 2021, please see here.]

On April 2, 2018 the Ethiopian parliament elected Abiy Ahmed as prime minister. This was not a regular appointment of a prime minister that we see in parliamentary systems. It was an appointment for a new beginning for Ethiopia after almost three decades of authoritarian rule. This is what prime minister Abiy Ahmed said in his first speech in parliament, what the people expected at home, and why the international community was enthusiastic about the political developments in the country.

In the early days of Abiy Ahmed’s premiership, it looked like Ethiopia was on the right path towards democracy. Political prisoners were released. Exiled politicians and political parties returned home. Several legal and political reform processes were started. Ethiopia seemed to give some hope for democracy amidst its global backsliding.               

In a dramatic turn of events, however, much of the enthusiasm about Ethiopia’s possible democratic transition changed to insecurity, violence, and even war that brought anxiety and desperation at home and huge concern abroad. In the past two and half years or so, many troubling things happened in the country: ranging from the displacement of millions of people from their villages, to the massacre of ethnic and religious minorities, to the destruction of property, to the crackdown of key opposition politicians, to a full-fledged war in the Northern region of Tigray.  

Now Ethiopia is in a full-blown constitutional crisis. Force, or the threat of use of force, is the new rule that solves or tries to solve political disagreements or disputes in the country. State institutions and their officials are unable and/or unwilling to perform their basic constitutional duties. The Constitution is no longer able to resolve disputes among political actors and, therefore, has failed in its primary task of keeping political disagreements within the boundaries of ordinary politics.  

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Published on January 27, 2021
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What’s New in Public Law

—Claudia Marchese, Research Fellow in Comparative Public Law at the University of Florence (Italy)

In this weekly feature, I-CONnect publishes a curated reading list of developments in public law. “Developments” may include a selection of links to news, high court decisions, new or recent scholarly books and articles, and blog posts from around the public law blogosphere.

To submit relevant developments for our weekly feature on “What’s New in Public Law,” please email iconnecteditors@gmail.com.

Development in Constitutional Courts

  1. On 14 January 2021, the Belgian Constitutional Court delivered a judgment on the legality of the integration of the digital format of two fingerprints in ID cards, introduced through art. 27 of the Belgian law of 25 November 2018. The Court ruled that the inclusion of digital fingerprints on ID cards does not violate the fundamental right to respect for private life.
  2. At the beginning of January 2021 the Advocate General of the Court of Justice of the European Union expressed his opinion on the case Facebook Ireland Limited, Facebook INC, Facebook Belgium BVBA v Gegevensbeschermingsautoriteit (case C-645/19) according to which the lead data protection authority has a general competence over cross-border data processing, including the commencement of judicial proceedings for the breach of the GDPR, and, by implication, the other data protection authorities concerned enjoy a more limited power to act in that regard.
  3. Kosovo is preparing for early elections on 14 February 2021 after the Constitutional Court declared unconstitutional the election of Prime Minister Avdullah Hoti. The Court annulled the vote because one of the participating MPs had been convicted for fraud and embezzlement.
  4. On 14 January 2021, the Italian Constitutional Court, before examining the constitutional legitimacy of the art. 262 of the Civil Code that does not allow parents to assign to the child born outside of marriage the only maternal surname, decided to examine as a preliminary question the constitutional legitimacy of the general provision that establishes in the Italian legislation the assignment of the paternal surname.
  5. The Spanish Constitutional Court ruled that the incitement to burn the national flag during a protest does not constitute a manifestation of freedom of expression, thus contradicting the jurisprudence of the ECHR.

In the News

  1. On 20 January 2021, Joe Biden took the oath of office to become the 46th president of the United States.
  2. On  13 January 2021, the U.S. House of Representatives impeached President Trump for abuse of power and obstruction of Congress.
  3. On 21 January 2021, the members of the European Council discussed the response to the COVID-19 pandemic by videoconference. The EU heads of state or government shared best practices and exchanged views on testing, vaccinations and detecting new variants of the virus.
  4. Armin Laschet has been elected leader of Germany’s Christian Democrats (CDU), the party of Chancellor Angela Merkel. This succession is relevant in view of the elections to be held in September 2021.
  5. The House of Commons cross-party Committee on the Future Relationship with the European Union presented its final report. The Committee stated that, with the UK and the European Union having signed the Trade and Cooperation Agreement (TCA), British Parliament needs to ensure effective future scrutiny of the UK-EU relationship.

New Scholarship

  1. M. Belov (ed.), About the IT Revolution and its Impact on State, Constitutionalism and Public Law (forthcoming 2021) (exploring different aspects of the impact of information and technology revolution on state, constitutionalism and public law).
  2. M. Poiares Maduro, P.W. Kajn (eds.), Democracy in times of pandemic (2020) (offering a variety of inquiries into democracy during the global pandemic with a view to imagining post-crisis political conditions).
  3. A. Singhvi, K. Gautam, The Law of Emergency Powers (2020) (presenting a comprehensive constitutional study of emergency powers from a comparative common law perspective, with particular regard to the UK, the USA and India).
  4. J. Gomez, R. Ramcharan (eds.), National Human Rights Institutions in Southeast Asia (2020) (reviewing Southeast Asia’s National Human Rights Institutions as part of an emerging assessment of a nascent regional human rights architecture).
  5. R. Hazell, B. Morris (eds.), The role of monarchy in modern democracy. European monarchies compared (2020) (examining the constitutional and political role of the monarchy in a comparative perspective).
  6. Alan Renwick et al, Interim Report of the Working Group on Unification Referendums on the Island of Ireland (2020) (examining how any future referendums on the constitutional status of Northern Ireland would best be designed and conducted).
  7. Konrad-Adenauer-Stiftung – Foundation Office Romania – 900 days of uninterrupted siege upon the Romanian Judiciary (offering an overview of the recent circumstances of the Romanian Judiciary).
  8. Waldemar Walczak, Instrumental Use of Judicial Power after the Judgment of the TSUE (presenting considerations and multifaceted analysis of the conditions and motives of judicial decisions taken after the judgment of the TSUE 19 November 2019).
  9. Justin Lindeboom, The Autonomy of EU Law: A Hartian View (analyzing the foundations of EU constitutionalism from the perspective of HLA Hart’s theory of law).

Calls for Papers and Announcements

  1. The University of Milan, Department of Italian and Supranational Law, invites applications for a postdoctoral fellowship on the project “The transformation(s) of Public Power: the Use of Conditionality in the Global Governance”. The deadline for applications is 4 February 2021.
  2. The University of Amsterdam’s interdisciplinary Research Priority Area Human(e) AI is looking for three postdoctoral researchers in the areas of law, social sciences and humanities. The goal of these positions is to develop insights and principles for responsible and human-centric AI from a Social Science-Humanities (SSH) perspective. The closing date for applications is 28 February 2021.
  3. The 18th International Conference on Artificial Intelligence and Law (ICAIL 2021) will be held online, organized by the University of São Paulo, from 21 to 25 June 2021. The conference is organized biennially under the auspices of the International Association for Artificial Intelligence and Law (IAAIL), and in cooperation with the Association for the Advancement of Artificial Intelligence (AAAI). The deadline to submit papers is 1 March 2021.
  4. The Graduate Law Students Association (GLSA) of McGill University’s Faculty of Law announced the 14th edition of the annual McGill Graduate Law Conference on the theme “Law and the City”. The conference will take place on 6-7 May 2021. Students, PhD candidates and young researchers are invited to send their abstracts by 31 January 2021.
  5. KU Leuven CiTiP, a research unit of the Faculty of Law responsible for the legal research activities in the area of network, information and service security, invites applications for fellowships on Technology (security/privacy) and Law. The deadline for applications is 1 February 2021.
  6. Supported and co-funded by the Marie Skłodowska-Curie programme of the European Commission and over 40 partners, the University of Deusto (Spain) opens the second call of the 6i Dirs project to select PhD researchers on the topic “Impact of Technologies on Gender Equality and Human Rights”. Through this second call, the University of Deusto will recruit nine early-stage researchers. The deadline for applications is 5 March 2021.
  7. The European Joint Doctorate ADAPTED, a consortium of European Universities, internationally active European development organisations, think tanks and six African partner universities, opens the call for 15 PhD positions on the project “Eradicating Poverty: Pathways towards Achieving the Sustainable Development Goals”. The ADAPTED research and training programme will focus on validating poverty eradication pathways, analysing interactions between poverty reduction and other policy areas and optimising the impact of poverty reduction policies. The deadline for application is 31 March 2021.

Elsewhere Online

  1. Tom Barnico, Nathaniel Hawthorne’s Take on the Spoils System, CommonWealth Magazine
  2. H. Birkenkötter, N. Krisch, Multiple Legalities: Conflict and Entanglement in the Global Legal Order, Verfassungsblog.
  3. J. Urías, The honor of the Spanish flag, Verfassungsblog.
  4. D. Jancic, The UK-EU Trade Deal: Five Important Implications for the UK Parliament, UK Constitutional Law blog.
  5. G. Baldwin, The pandemic and the First Amendment, UK Constitutional Law blog.
  6. S. Pettey, What Happened?: In 2020, women continued to make strides in representation in Congress and State Legislatures, LSE blog.
  7. L. Cooper, S. Fowles, Parliament should have had a meaningful vote on the EU trade deal. But it did not, LSE blog.
  8. Or Bassok and Menachem Mautner, On Thorny Nation-state Issue, Israel’s High Court Faces a Tragic Dilemma, Haaretz
  9. Tarik Olcay, The Turkish Constitution as a Disrespected Idol, IACL Blog
  10. Chien-Chih Lin, Believe in the Ideal, not the Idol: Is Constitutional Idolatry Happening in Taiwan?, IACL Blog 
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Published on January 25, 2021
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Symposium on The Legacies of Trumpism and Constitutional Democracy in the United States | Part V | Can “Leadership” Surmount the Obstacles Presented by the U.S. Constitution to Effective Governance? Reflections on our Present Discontents

[Editor’s Note: In light of this week’s inauguration, I-CONnect is pleased to feature a five-part symposium on the state of US constitutionalism after Trump. The introduction to the symposium can be found here.]

—Sanford V. Levinson, The University of Texas School of Law

Changes in administration inevitably present another test case for determining the extent to which, at bottom, we are structuralists or believers in one version or another of “great man (or woman)” theory.  That is, if one views politics as a tale of personal heroes and villains, then the central task is to get rid of the latter and replace them with the former.  Certainly we have not had a shortage of candidates for villainy over the past four years, led, for many of us, by President Donald J. Trump and Senate Majority Leader Mitch McConnell.  In the first week of January, certainly, Trump has taken unequivocal pride of place as the villain-in-chief, given his role as the chief instigator of the insurrection at the Capitol on January 6. Even the Wall Street Journal now pleaded for his resignation, and even pundits like former Reagan speechwriter and longtime Wall Street Journal columnist Peggy Noonan confessed in her column of January 9 that she is terrified of what Trump might do in his last ten days in office.  Noting that she resisted any comparisons of Trump to Hitler, she nonetheless compared the present moment to Hitler’s retreat to his bunker after Germany’s clear defeat and his temptation to destroy as much as he could before taking his own life.  Even some (few) Republicans openly suggested that the 25th Amendment be invoked to make Mike Pence the president for the remaining days before Joe Biden is sworn in on the 20th, though that would require Pence himself to take the lead, which he seemingly has no interest in doing.

As terrible as Trump’s recent actions have been, it should also be remembered that his own toxic mixture of malevolence and incompetence—captured simply by his failure to wear a mask and to encourage his followers to do likewise–has contributed quite literally to the death of thousands of Americans and a level of anxiety by millions more who do not have the advantage of class privilege that is possessed by a tenured law professor (whose nest has long since been empty of children to take care of).  So it is easy to rejoice that January 20 will bring (though not soon enough) Joseph R. Biden to the White House and, one might hope, Donald J. Trump to endless depositions with the New York District Attorney and, perhaps, even residence in a jail cell.

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Published on January 24, 2021
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Symposium on The Legacies of Trumpism and Constitutional Democracy in the United States | Part IV | The Life of the Party

[Editor’s Note: In light of this week’s inauguration, I-CONnect is pleased to feature a five-part symposium on the state of US constitutionalism after Trump. The introduction to the symposium can be found here.]

—Kim Lane Scheppele, Princeton University

American democracy looked strong in the 2020 election.  Record numbers of Americans turned out to vote.  Election security remained intact, even in the face of foreign threats and a pandemic.   Public engagement in politics reached an all-time high.   America’s election administration system is creaky, decentralized and altogether too partisan.  But election administrators played it straight, counted the votes, certified the results, and held strong against record attempts at intimidation.

The outcome was mixed.   The reality-based candidate won the presidency, though the candidate who lives in a fake news world of his own creation garnered more votes than any other presidential candidate in history, save for 2020’s winner.   The fact that so many Republican candidates “down ticket” did well showed that many voters split their vote across parties, something unexpected when party affiliation is now widely seen as a marker of personal identity.   But the unexpectedly rosy result for Republicans means that they did not pay a steep price for four years of norm-breaking and assaults on the Constitution.   They were not forced to reckon with the consequences of what they have wrought. 

In the end, the Democrats (just barely) pulled off a “hat trick” of electoral victories at national level – winning the White House, the House of Representatives and the Senate despite the structural bias in the rules that favor Republicans.   Because of that bias, substantial victories for Democrats in the polls turned into small margins in the halls of Congress, which means that Democrats will have to tack to the center and give up hope of a major structural fix to America’s broken politics.    That said, prospects of government gridlock and shutdown are reduced.   Government may actually function.  And there are grown-ups in charge who believe that they have a responsibility to govern and to govern for all, and not just play to the cameras from the Oval Office.    The incoming administration promises restore dignity and decency in the place of hatred and lies.   This is cause for major celebration, however narrow and fragile – and still contested – the victory.

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Published on January 23, 2021
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Symposium on The Legacies of Trumpism and Constitutional Democracy in the United States | Part III | Decentralization and Resistance to Authoritarianism

[Editor’s Note: In light of this week’s inauguration, I-CONnect is pleased to feature a five-part symposium on the state of US constitutionalism after Trump. The introduction to the symposium can be found here.]

—James A. Gardner, University at Buffalo School of Law

We are in the midst of a global pandemic not just of coronavirus, but of populist authoritarianism. Diseases often prey mainly on the young and the weak, and many victims of the current wave of autocratization have been new, recently established democracies, or older ones with a long history of underlying conditions. But this pandemic has also attacked the strongest, including of course the United States. Does the recent US election suggest a recovery of some kind? If so, to what degree, and with what prognosis? 

As with physical disease, the critical question in cases of political pathology seems to be one of resilience. During the late twentieth century, a robust proliferation of liberal democracies seemed to provide a kind of global herd immunity that inoculated newer and weaker states against more serious forms of democratic backsliding. Any such immunity, however, has been of no help in fighting off the most recent mutation, launched following the 2008 global recession. Consequently, any assessment of resilience must look to the characteristics of individual states.  In this enterprise, Machiavelli, who perhaps alone among political theorists thought deeply about the conditions in which authoritarianism can be successfully imposed, may be of some use.

In Machiavelli’s framework, a state’s resilience against authoritarianism comes in two varieties, short-term and long-term, which he often expressed in terms of the initial difficulty of “taking” a state and the subsequent difficulty of “holding” it. Experience shows, according to Machiavelli, that highly centralized states tend to possess short-term resilience, but not long-term – they are hard to take, but easy to hold – and this is especially true if the people are unaccustomed to freedom. Thus, for example, “the difficulty is in taking possession of the Turkish state, but once it has been conquered it is very easy to hold on to.”[1] Highly decentralized states, in contrast — especially if accustomed to freedom — generally display little resilience in the short term, but considerable resilience over the long haul. “[K]ingdoms governed like France,” Machiavelli claimed, can be “enter[ed] with ease, once you have won over some baron of the kingdom; for one always finds some unhappy people.” Subsequently, however, “to hold on to it is accompanied by endless difficulties.”[2]

How resilient, on this model, is the United States? Its high degree of decentralization, and the longstanding freedom of its people, seem to put it into Machiavelli’s category of low short-term but high long-term resilience: vulnerable to authoritarian infiltration, even to takeover, but strongly resistant over the longer term.

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Published on January 22, 2021
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Symposium on The Legacies of Trumpism and Constitutional Democracy in the United States | Part II | The Dilemma of Democratic Disqualification: The New Trump Impeachment Process in Comparative Perspective

[Editor’s Note: In light of this week’s inauguration, I-CONnect is pleased to feature a five-part symposium on the state of US constitutionalism after Trump. The introduction to the symposium can be found here.]

—Aziz Huq, University of Chicago Law School; David Landau, Florida State University College of Law; and Tom Ginsburg, University of Chicago Law School

What role should disqualification from public office play in a democracy? The question is as old as democracy itself. The Cleisthenic democracy of fifth-century Athens had a procedure called ostraka. Once a year, the Assembly was asked whether it wished to conduct an ostracism. If the Assembly assented, votes would be cast by placing an ostraka, or potsherd, scratched with the name of one citizen who would be exiled from the polis for ten years (although not deprived of his property or his name). No less democratic a solution to the problem of toxic leadership might be imagined—perhaps. But consider the case of statesman and general Aristidies the Just. Having commanded navies against the Persian host, he was stopped by an illiterate fellow citizen, and asked for help spelling the name “Aristides” for an ostraka. On being asked why by the puzzled general, the ignorant citizen explained: “I’m sick of hearing him called the just.”    

The obvious place to begin thinking about disqualification in a contemporary context is, of course, impeachment. In an earlier article, we indeed explored the problem of impeachment from a comparative perspective. In that piece, we found that impeachment processes often have pro-democratic effects (or at least tend to avoid anti-democratic ones), although there may be democratic risks posed for countries that rely on the process too frequently. We also found that impeachment serves a fundamentally political role as an exit from severe political crises. Further, we suggested that politics is a hard constraint on the process regardless of sanctionable conduct by chief executives. Impeachment processes tend to succeed only in cases where the members of a president’s own party or coalition turn against him or her.

Unlike last year’s impeachment over the Ukraine call, where Trump enjoyed nearly monolithic support from his own party, this time it seems that the political calculus for Republicans have shifted, at least to a degree. Ten Republican members of Congress defected in the impeachment vote in the House, making it the most bipartisan presidential impeachment in history. Senate Republican leader Mitch McConnell seems to be openly weighing conviction as a weigh to lessen Trump’s future influence over the party. The result of the changing calculus is a possibility (even if a slight one) that a second trial may succeed at obtaining the two-thirds vote required for conviction; a possibility that was entirely absent from the first trial held last year.

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Published on January 21, 2021
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