an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
JB: You are one of the foremost experts on American election law. How did you get interested in the constitutional problems of emerging democracies?
Sam Issacharoff: Two events in the U.S. had the paradoxical effect of directing my attention abroad. The precipitating events were the debates over the trade-offs between liberty and security in the wake of 9/11 and the role of the Court in resolving the contested presidential election of 2000. Each struck me as a familiar point of crisis in democracies: a threat to the political openness of democratic politics, and a succession crisis and the risk of a vacuum of leadership. I realized that I did not have a good command of how these matters were dealt with in countries that faced real threats to security more regularly. And, I watched with some amazement as the Mexican Supreme Electoral Tribunal handled the 2006 presidential election contest (their equivalent of Bush v. Gore) with relative ease. The more I looked at newly minted democracies, as in Mexico and South Africa, the more I was struck by the generalizable pattern of courts serving as stabilizing institutions during periods of what I would term democratic fragility.
JB: A key claim of the book is that courts can play an important role in keeping emerging democracies from backsliding into authoritarianism and dictatorship. Why are courts able to do this?
Sam Issacharoff:The paradoxical claim of the book is that courts can help stabilize democracy at the moments when political power is most contested. Since courts notoriously lack the power of the purse or the sword, the paradox is why there should be any expectation that they can play this role. In many instances when courts have tried to intercede, they have failed catastrophically, with Peru and Russia as ready examples. But there are too many counterexamples of courts reining in political power and that demands some explanation.
The main one offered in the book is that courts help lower the stakes of what is up for grabs in any election. The problem of the post-colonial periods of state consolidation of the twentieth century, and particularly the third wave of democracy after the fall of the Soviet Union, is that most of the new countries were democracies without a well-established demos, to borrow from Joseph Weiler. An election in such circumstances risks becoming a one-shot referendum on who will hold state power to do in the rivals. An earlier effort to lower the risk was based on consociationalism, formalized power sharing. The new efforts at democracy try to lower the downside risk by imposing a strong set of constitutional constraints on what governments can do. Constitutionalism is then entrusted to courts that have strong powers of judicial review and offer an institutional ally to those that stand to lose in the electoral process. This is a strategy I call “democratic hedging.”
JB: Are courts able to help calm tensions based on ethnic or religious differences within a fledgling democracy? Or does their major contribution lie elsewhere?
Sam Issacharoff:I do not think that courts have a proven track record of lowering historic antagonisms based on race, religion, or ethnicity – at least not as such, and not in the short time frame of nascent democracies. They are able to do two things, however. First, they can improve the prospects of a second election in which a victorious party can be judged anew based on its results, and may be dislodged. This is critically important because it gives subgroups within even sectional parties an incentive to conform their platform to what the courts will permit to be permitted in the electoral arena. Turkey and India are leading examples of this phenomenon. Second, they can protect disfavored groups from exclusion through lustration, linguistic requirements, and the sheer power of an over-weaning executive, as exemplified by the Colombian Constitutional Court’s confrontation with President Uribe in 2010.
JB: What about situations in which a revolutionary party takes over and establishes a democracy for the first time? Is it realistic to think that courts can stand up to the leaders of these movements?
Sam Issacharoff:The consolidation of one-partyism, as I term it in the book, in the aftermath of an overthrow of autocracy is a genuine risk. One-party regimes begin to exhibit pathological cronyism, corruption and clientelism, each of which further diminishes the prospects for successful democratic governance. Further, courts have had the most success in shoring up democracy when there is a contest for power and the court becomes an ally of an out-group in resisting consolidation of power. And yet there are counterexamples where courts have successfully resisted, at least for a time, the pull of a dominant party. The best example is South Africa, but that was contingent on the political will of Nelson Mandela and the first generation of ANC leadership. But the Indian court resisted the Congress Party’s efforts to exploit emergency rule, and the Mexican courts were instrumental in breaking more than a half century of PRI hegemony. At the same time, most of the fledgling democracies do not have as clear a party with a mandate as did South Africa, India or Mexico.
JB: What keeps political leaders from just replacing judges with their political allies so that they can do what they want? Do courts need extra sources of support--for example from the army, business, or civil society--in order to keep democracy working?
Sam Issacharoff:The simplest answer is that in the long run, courts will succumb to consolidated political power. The issue is what institutional buffers will emerge in the period of the consolidation of power. Some of the institutional buffers are created internally in efforts to guarantee judicial independence in the appointment process. But the critical sources of support are likely to come from civil society, other domestic institutions, including the military, and from international sources of authority, both judicial and economic. The prospect of retaliating against courts too overtly may have serious repercussions in terms on international economic relations. It is only a quarter-century since most of these new democracies were created. They largely failed in central Asia, but courts have maintained strong independence in Poland and the Czech Republic. The simple answer to the question is that courts have proven highly vulnerable, as in Hungary, but have still shown surprising resilience.
JB: Critics of judicial review have long argued that it is inconsistent with democracy, and actually undermines it in the long run. How does your argument engage with those critics?
Sam Issacharoff:We have long debated the issue of judicial review and the countermajoritarian difficulty in the U.S. – perhaps too long. The new democracies of the 20th and 21st century uniformly created constitutional courts whose central function was to check the exercise of power by the political branches. In addition, most of these new democracies entrusted to these courts not only the power of judicial review, but the power to be the central administrative body over elections. The gamble is that democracy would be stabilized by guaranteeing limitations on government and repeat elections. We should be cautious about generalizing from the stable democracy of the U.S. to the deeply contested societies of the post-1989 world. I would prefer to see the question whether strong court constitutionalism can sustain democracy in fractured societies as an empirical one-- of "does it work?" If it does, we can indulge the theoretical question of the legitimacy of how judicial power is exercised, but down the road a ways. Posted
by JB [link]