–André L. Perovano, Undergraduate student, Faculty of Law of the Federal University of Paraná (UFPR)
It is no secret that, over the past decades, constitutional democracies have experienced a continuous process of tension and instability that challenges traditional categories of constitutional theory. This is not merely a matter of explicit ruptures, coups d’état, or formal suspensions of the constitutional order, but rather a multiplicity of phenomena – electoral, institutional, territorial, and economic – that, in different contexts, call into question the democratic promise inscribed in constitutions.
As Mark Graber, Sanford Levinson, and Mark Tushnet have observed, “constitutional democracies and constitutional democracy appear in trouble throughout the world.” From the United States to Israel, from Turkey to South Africa, and including Hungary, Poland, and Venezuela, one may add episodes such as the Catalan secession in Spain, Brexit in the United Kingdom, the rise of authoritarian constitutionalism in South Asia, the removal of the Morsi government in Egypt, and the persistent democratic fragility across vast regions of Africa and Latin America. The picture is unequivocal: “no earthly heaven is immune to whatever ailing regimes that purport to be constitutional and democratic.”
The diagnosis, however, remains deliberately open-ended. There are ample works describing the crisis, enumerating its symptoms, and mapping its national variations, yet there is hesitation in answering a more unsettling question: what exactly is lost when constitutional democracies enter into crisis without collapsing? In other words, to what extent can a regime continue to operate as a constitutional democracy while gradually draining the very democratic substance that gives it meaning?
Against this global backdrop of crisis, a significant strand of constitutional theory has begun to inquire not only into the causes of democratic collapse, but also into the conditions under which constitutions survive under stress. In Brazil, this effort took on a particular shape through the concept of constitutional resilience, initially developed within the context of a collective research project devoted to assessing the performance of the 1988 Constitution after its first twenty-five years in force (on this point, see the research published in 2013).
The question was not whether the Brazilian Constitution had changed, but whether, after dozens of amendments, it still preserved its normative identity and its capacity to guide democratic competition and the fulfillment of social promises. The working hypothesis of the research team was that the very design of the 1988 Constitution – marked by a maximization-oriented commitment, a relatively flexible amendment process, and the entrenched protection of an essential core – allowed for broad adaptation without adulterating the ethical-political nucleus of the text.
It was at this threshold that the expression constitutional resilience came to designate a peculiar mode of operation of the 1988 Constitution: highly permeable to contextual change, yet resistant to the corrosion of its “reserve of justice.”
In my view, the problem is that the contemporary generalization of the notion of resilience has disarticulated its once robust axis. Whereas in its original formulation resilience meant adaptation without loss of the Constitution’s democratic and moral substance, today the term often comes to signify something far more modest: the mere capacity of the constitutional system to continue operating, even as its democratic density is progressively reduced.
In contexts of prolonged crisis, the question shifts. No longer is it whether the Constitution preserves its “reserve of justice”, but simply whether it remains in operation. It is within this conceptual displacement that the need for another concept emerges – one concerned not with the survival of the system, but with the maximum threshold of democratic substance that may be drained without the regime formally ceasing to exist.
I propose to call this threshold the yield point of constitutional democracy.
The expression is borrowed from materials engineering, particularly from the analysis of the mechanical behavior of certain metals under stress. In the so-called stress-strain diagram, the yield point designates the region in which a material, after surpassing its elastic limit, begins to undergo significant deformation without a proportional increase in load. There is not yet a fracture, but rather a terminal moment of transition: the point at which the material ceases to respond elastically – that is, reversibly – and enters a regime of plastic, permanent deformation, albeit one that remains structurally stable.
In many contexts, constitutions remain formally in force, courts function regularly, elections continue to be held, and rights remain inscribed in the constitutional text. And yet, something is lost. We may not know precisely what it is, but we know how it occurs: not by explosion, but by drainage; not by exception, but by normalization.
As with the yield point in materials, substantial transformations begin to occur without the need for a proportional increase in load, dispensing with explicit authoritarian shocks or formal ruptures. The system absorbs pressures, yet does not return to its previous state. It is this coordinate – situated between democratic elasticity and authoritarian fracture – that the concept of the yield point seeks to name and render visible.
The yield point, therefore, does not designate the end of constitutional democracy, but the moment at which it stabilizes at a lower level of democratic demand. It marks a threshold below which the Constitution still organizes political power and legitimates decisions, yet can no longer substantively fulfill the democratic functions that justify its normative authority.
After the initial peak of crisis – when reforms, decisions, or shocks provoke visible social resistance – the system settles into a new plateau, in which resistance diminishes and the hollowing-out proceeds in a continuous and habitualized manner. The constitutional order remains standing, but impoverished; it functions, but promises less; it decides, but transforms little.
What is drained in this process is obviously not constitutional form, but democratic content. What drains away is the Constitution’s capacity to produce material equality as a binding political horizon. What drains away is the centrality of the people as active agents in the democratic process, progressively replaced by technocratic arrangements, counter-majoritarian decisions, and managed consensuses. What drains away is the structuring force of fundamental rights – the heart of constitutions – which persist as language and symbolic reference, yet lose practical efficacy in guiding public policy and redistributing power. Finally, what drains away is openness to the (absolute) future, insofar as the Constitution ceases to realize itself as promise and instead begins to operate as a machinery of containment.
The most unsettling aspect of this yield point is that it does not interrupt institutional functioning. On the contrary, it is fully compatible with highly judicialized democracies, with intense normative production, with repeated (and often empty) discourses in defense of the Constitution, and even with a certain degree of political stability.
It is precisely at this juncture that the notion of constitutional resilience reveals its ambiguity: in contexts of prolonged crisis, it may assume a different function – namely, that of administering democratic hollowing-out unreflectively. A highly resilient constitutional system may absorb successive shocks, accommodate authoritarian pressures, continuously reform itself, and yet allow the democratic content of the Constitution to drain to a minimal threshold.
The problem thus shifts once more: it is no longer a matter of asking whether the Constitution resists, but of identifying the point below which its survival ceases to be democratically acceptable to those in whose name it claims authority.
Perhaps the most urgent task of contemporary constitutional theory is not merely to strengthen the resilience of democracies, but to relearn how to recognize when such resilience has become a mechanism of drainage – when the Constitution remains in force, yet is no longer capable of sustaining a democratic project worthy of the name.
Suggested citation: André L. Perovano, Democracy in a Plastic Regime: Constitutional Resilience and the Yield Point, Int’l J. Const. L. Blog, Feb. 28, 2026, at: http://www.iconnectbog.com/democracy-in-a-plastic-regime-constitutional-resilience-and-the-yield-point/