Thursday, August 23, 2018

Constitutional Democracy in Crisis?

Mark Graber

Last fall, Sandy Levinson, Mark Tushnet and I asked thirty-five of the leading experts on constitutionalism to consider the state of constitutional democracy with respect to particular countries, regions and problems.  Thanks to amazing responses and even more amazing work by Oxford University Press, Constitutional Democracy in Crisis? ships today and is available for purchase at what we think is a more than reasonable price (39.99) for a more than 700 page volume.  The good news is that all essays are designed for a general reader.  If you are simply interested in what is going on in South America or Australia, want to know the impact of climate change on constitutional democracy, or wish to learn about both right-wing and left-wing populist movements, you can find an essay to your liking that does not presume three advanced degrees.

We were moved to produce this volume because constitutional democracies and constitutional democracy appear in trouble throughout the world.  The United States, Israel, Turkey, South Africa, Poland and Venezuela seem particular problem children, but the Catalonian secession in Spain, Brexit in the United Kingdom, the rise of authoritarian constitutionalism in South Asia, the overthrow of the Morsi government in Egypt, and the continued weakness of constitutional democracy throughout Africa and Latin American suggest that no earthly haven is immune to whatever is ailing regimes that purport to be constitutional and democratic.  Scholars speak of “Democracy in Retreat,” a “democratic recession,” “democratic backsliding,” “democratic deconsolidation,” “constitutional retrogression,” “constitutional failure,” and “constitutional rot.” 

This global concern with the health of constitutional democracy has many causes.  During the second decade of the twenty-first century, the global momentum towards constitutional democracy stalled and perhaps has begun to reverse.  Across the universe of constitutional democracies, such conventional foundations of constitutional democracy as a strong middle class are weakening.  Many past models of post-transition constitutional democracies, most notably Hungary and South Africa, are experiencing severe constitutional problems, with no new models of constitutional democracy emerging.  Globalization, the Great Recession, terrorism, and other global phenomena create common afflictions for constitutional democracies around the world.  Constitutional democracy has more difficult tasks than at any time in history and the costs of mistakes is higher, potentially catastrophic.  For the first time since the Great Depression, when proto-fascist movements gained some traction, if not the Civil War, constitutional democracy in the United States appears to be weakening.

The constitutional adventures of Donald Trump, the Trump administration and the Republican majority in the Congress of the United States may nevertheless suggest that perceptions of a global constitutional crisis reflect nothing more than American parochialism and the exaggerated role the United States plays in comparative constitutionalism.  Constitutional democracies are constantly in crisis.  The average constitution has a life span of less than twenty years.  Too obsessive a focus on the contemporary plight of such regimes as United States, Hungary, South Africa, Israel, Poland and Venezuela risks imagining a golden age in which the vast majority of the world’s constitutional democracies were stable.  What many liberals and progressives regard as weakening the constitutional foundations of constitutional democracy may merely be the success of political rivals who are making fair use of the levers of constitutional democracy to implement their notions of desirable religious, immigration and economic policies.  Even if we concede that the democratic processes in the United States and other regimes that facilitated the rise of right-wing populism are badly flawed, the success of such movements globally demonstrates that a substantial and increasingly number of people in constitutional democracies are rejecting the dominant version of liberal constitutional democracy and successfully using existing constitutional forms to secure anti-liberal visions.

Part I is devoted to background material on the nature of constitutional crises (Jack Balkin), general trends in constitutional democracy over the past decades (Tom Ginsburg/Aziz Huq, Zachary Elkins) and the fall of the Weimar Republic (Ellen Kennedy), the most important event during the last moment of perceived global constitutional crisis.  Part II focuses on the state of constitutional democracy in specific regimes or regions.  We have included essays on such contemporary problem children of constitutional democracy as the United States (Eric Posner; Jennifer Hochschild), Hungary (Gabor Halmai), Turkey (Ozan Varol), Venezuela (David Landau), Israel (Yaniv Roznai), Poland (Wojciech Sadursky). Spain (Victor Ferreres Comella), South Africa (Heniz Klug), and the European Union (Michaela Hailbronner; J.H.H. Weiler), constitutional democracies that appear to be stable such as Canada (Richard Albert/ Michael Pal) and Australia (Rosalind Dixon/Anika Gauja), and constitutional democracies that appear to be experiencing some turbulence that may or may not amount to a weakened commitment to constitutional democracy such as Mexico (Ana Micaela Alterio/Roberto Niembro), India (Manoj Mate), the United Kingdom (Erin Delaney), and France (Nicolas Roussellier).  Part II also includes essays on the state of constitutional democracy in Africa (James Thuo Gathii) and in South America (Roberto Gargarella), regions that suffer from chronic constitutional problems, as well as an essay on constitutional democracy in South Asia (David Law/ Chien-Chih Lin), where alternatives to constitutional democracy have long enjoyed public support.   Part III examines the influence on constitutional democracy of such global forces as climate change (Robert Percival), religious fundamentalism (Ran Hirschl and Ayelet Shachar), terrorism (Oren Gross), economic inequality (Ganesh Sitaraman), globalization (David Schneiderman), immigration (T. Alexander Aleinikoff), populism (Samuel Issacharoff) and racism/ethnocentrism  (Desmond King/Rogers Smith), as well as a studies on the increasing weaknesses of political parties across the universe of constitutional democracy (Kim Lane Scheppele) and the role of constitutional design in maintaining or subverting constitutional democracy (Sujit Choudhry).  Finally, in Part IV, we (the editors and Joseph Weiler) separately offer our thoughts on the contemporary state of constitutional democracy. 

This collection serves three purposes.  The essays provide a general guide to the state of constitutional democracy during the second decade of the twenty-first century that should be useful for scholars, students and general readers.  The essays provide frameworks and information for assessing the contemporary state of constitutional democracy.  Our concern is whether a global crisis of constitutional democracy is taking place, or whether the recent afflictions suffered by many constitutional democracies reflect only the success of constitutional democracy in the past, chronic problems with particular constitutional democracies, problems distinctive to particular democratic regimes or whether many commentators are confusing attacks on political liberalism or transformative constitutionalism with a weakening of constitutional democracy.  The essays diagnose the causes of the present afflictions of constitutional democracies in particular regimes, regions, and across the globe.  We do not, however, spent much energy offering cures, believing at this stage diagnosis is far more important and not having any ready-made cures to offer.  As Abraham Lincoln said in his “House Divided Speech,” “If we could first know where we are, and whither we are tending, we could then better judge what to do, and how to do it.”

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