Domesticating Constitutionalism

Guest Blogger

For the Balkinization symposium on Rosalind Dixon and David Landau, Abusive Constitutional Borrowing: Legal globalization and the subversion of liberal democracy (Oxford University Press, 2021).

Samuel Issacharoff

At first glance, the work of Ros Dixon and David Landau on constitutional borrowing appears to be centered on the role of constitutions and courts in securing or compromising democratic governance.  As such, it is an invaluable contribution to the growing literature on comparative constitutional law, one whose institutional sophistication and deft international scale rewards the reader with nuance and insight.  At another level, however, Abusive Constitutional Borrowing bears witness to the breaching of what Madison termed “parchment barriers,” the aspirational commands of constitutional law that translate imperfectly into the realities of power and politics. 

The contemporary inquiry into comparative constitutional law takes shape after the fall of the Soviet bloc and transformative events in South Africa, Colombia, the Pacific Rim, and the list goes on.  In each case, a heady if unstable mix emerged featuring a new constitutional order, suddenly assertive constitutional courts, uncertain political power based loosely on an electoral mandate, and a felt need to at least gesture in the direction of the prevailing world consensus of rights and tolerance.  Constitutionalism defined the boundaries of what Dixon and Landau call the “democratic minimum core,” as well as the contested terrain of social rights.  In the face of unsettled political power, courts acting with a constitutional mandate took on an outsized role in defining the new world order.  The democratic core could serve as the lower bound of permissible regulation of politics, while rights claims provided the contested upper bound. 

In the upswing period of constitutionalism, borrowing lent legitimacy to the assertion of exacting judicial review in countries bereft of any tradition of powerful courts.  In the heyday of this borrowing, courts around the world could learn from the basic structures doctrine of the Indian Supreme Court, from the wise preservation of political accountability by the Colombian Constitutional Court, from the sophisticated proportionality analysis of the South African Constitutional Court, and from the overall judicial stewardship over the transition from authoritarianism to democracy in countries around the world. 

Dixon and Landau chronicle the ebbing of the constitutional tide.  This is the moment in which, as they introduce the study, “increasingly dense” global constitutionalism coexists “with stagnation and backsliding in democratization …”  Although their focus is largely on the selective and acontextual use of doctrine in the service of illiberal aims, their book memorializes the fading of constitutionalism in the face of consolidated political power.  For all that comparative constitutionalists hail the 2010 decision of the Colombian Court denying President Uribe a chance at a third term in office, the intervening decade shows just what a momentary outlier that was.  The Colombian decision remains the only judicial intervention in Latin America denying an incumbent continued tenure, and has been followed by noteworthy decisions striking down any term limits on incumbents.  The “rhetorical triumph” of constitutionalism, their term, has repeatedly allowed a new form of anti-liberal electoral politics to claim the mantle not only of majority support but the authority of transnational fundamental principles of governance.

How was this done?  A simple answer might be that courts are compromised institutionally by direct intimidation as in Russia, by forced retirements as in Poland or Hungary, by vilification as in India, or by the capture of the appointment process, as in virtually the entire bloc of elected illiberal regimes stretching from the Philippines to Eastern Europe to South and Central America.  But Dixon and Landau push further and in one of the most interesting chapters of the book address the way in which the exalted status of democracy comes to be a cudgel against constitutional boundaries.  Democracy, in the hands of populist leaders, becomes a trump in which the people’s will must be supreme.  Dixon and Landau invoke the concept of the constituent power, the wellspring of sovereignty going back to the writings of Abbe Sieyes, to ground the argument that, under a menacing view of democracy, the decisionmaking power of the people cannot be constrained.  Constituent power arguments underlay the restructuring of the Venezuelan and Ecuadorean constitutional orders by hastily convened constituent assemblies dominated by followers of the incumbent administrations.  In turn, in Bolivia and Nicaragua, the same concepts allowed captive constitutional courts to decree that any term limits on incumbents necessarily violated the people’s will to elect whomever they wished.  The examples continue across Eastern Europe, Fiji, and the entire bloc of aspiring autocrats seeking to leverage an electoral mandate beyond its institutional boundaries. 

There is no better synthetic discussion of these developments than that offered in this book.  The notion of constituent power is of increasing concern in comparative constitutional law, with some, such as Roberto Gargarella, arguing that its boundaries should be limited to the initial creation of sovereign power as opposed to the ordering of democratic processes.  This is an ongoing debate that will likely not be resolved in the world of theory.  As Dixon and Landau well conclude, “Domestic and international law doctrines related to constituent power are foundational to modern democratic systems.  Unfortunately, their pervasiveness, power, and ambiguity also make them ready targets for abuse….”

Beyond the book’s inquiry is the lingering question of the conditions under which constitutionalism is likely to promote core democratic values or rather to foster illiberal retreat.  The authors discuss Freedom House indicators that show that democratic freedoms were on a steady rise from 1989 until about 2004, and then in a process of slow decline thereafter.  Mapping that observation onto the many case studies indicates that abusive constitutionalism emerges as an important concern at about the same time that democracy seemed to begin the process of retrocession.  But here I want to suggest that what may be in decline is the significance of constitutionalism overall, even as that remains the focus of political dispute in some countries, like Chile. 

Compare Poland and Hungary, for example.  In Poland, the PiS government never had sufficient parliamentary representation to amend the constitution of its own accord whereas in Hungary the ruling Fidesz party was able to concentrate its early power through a series of constitutional alterations.  Further, Poland is a presidential regime while Hungary is parliamentary.  Yet for all significant purposes, the illiberal trajectories of the two countries are the same, as is the exercise of governmental authority, even if Orbán rules as Prime Minister and Kaczynski formally sits only as a parliamentary backbencher.  Constitutionalism was deeply contested terrain in each country until political power consolidated, with the subordination of the constitutional court as but one manifestation. 

In each country, the formalities of constitutional design and doctrine proved only a temporary barrier, parchment if you will, as the regimes learned to exercise power through the capture of all relevant state institutions.  The new illiberalism overwhelms dissent intralegally, not extralegally as with the military dictatorships of the 20^th century.  The tools of oppression, what I refer to in my writings as the “Chávez playbook” in honor of its initial perfection in Venezuela, turn on state harassment through tax audits, subsidies of political subordinates, constant personal harassment of opponents, defamation actions and other grinding legal proceedings against the opposition, and the capture of the judiciary and other elements of the civil service.  I once asked a wise observer of Hungarian politics whether Orbán, if he lost an election (still an important limit on power for regimes that depend on electoral approbation), would indeed step down as prime minister and not try to retake office by fiat.  The response well captured the moment:  Orbán would likely indeed yield to the electoral result, but that might no longer make that much difference.  The institutional capture of the Hungarian state and the important sectors of Hungarian society might be too far gone by then. 

Constitutionalism reflects an early effort to use law to construct a contested political vision of society as either a liberal democracy or an illiberal semi-autocracy.  The sense of dismay that comes across from Dixon and Landau is that for them, as for me, our entry into this arena came at a time when the arc of progress seemed to bend toward a universalizing conception of tolerant democratic governance.  By now, that optimism has been lost and the “abuse” identified in the book is a reflection of how quickly the same tools could be wielded in the service of the democratic backslide. 

During the period of constitutional ascendency after 1989, the various doctrines that coalesced around the “basic structures” command all took their claim to transcendent authority from the concept of democracy.  In the 20^th century context in which democracy outfought and outlived its ideological rivals of fascism and communism, the claim that power ultimately must reside in the will of the people was a high moral command.  But in the modern populist era, many of the most extreme challenges to the liberal constitutional vision claim a more immediate democratic pedigree as the expression of the electoral victory by a majority.  It is not only constitutional borrowing that is abused, but the very democratic foundation on which an earlier constitutional vision was forged. 

Dixon and Landau begin their book with the claim that we live in the era of comparative constitutionalism.  This echoes the observation in Rick Pildes’s 2004 Harvard Foreword that “this is the age of democracy” – an observation that coincided with the beginning of the period of democratic retreat.  Then as now, history has a funny way of challenging the epochal judgment.  What Dixon and Landau describe is the terrifying process by which the transcendent and global vision of constitutionalism is now becoming domesticated, both in the sense of becoming more local and more servile.  

Samuel Issacharoff is Reiss Professor of Constitutional Law, New York University School of Law. You can reach him by e-mail at si13@nyu.edu.