Abusive Constitutionalism

David Landau 

Florida State University - College of Law
April 3, 2013

UC Davis Law Review, Fall 2013, Forthcoming 
Abstract:      
This paper identifies and grapples with an increasingly important phenomenon: the use of mechanisms of constitutional change to erode the democratic order. A rash of recent incidents in countries as diverse as Egypt, Venezuela, and Hungary has shown that the tools of constitutional amendment and replacement can be used by would-be autocrats to create quasi-authoritarian regimes with ease. Rather than using military coups to create authoritarianism, actors rework the constitutional order with often subtle changes in order to make themselves difficult to dislodge and to disable or pack courts and other accountability institutions. This piece makes three contributions to the literatures on constitutional theory and international and comparative constitutional design. First, I draw on interdisciplinary research from law and political science, as well as examples from around the world, to describe these abusive constitutional techniques and to argue that they represent the major current and future threat to democracies worldwide. Second, I show that the major democracy-protecting mechanisms in international law and comparative constitutional law are obsolete – most of these tools are still aimed at older threats like coups and totalitarian movements, and are unable to effectively detect and deal with modern instances of abusive constitutionalism. Third, I bring together recent scholarship and case-law to suggest an agenda that is more effective against this new threat. This work pushes towards making constitutional change selectively rigid, allowing many alterations to occur rather easily while identifying certain kinds of change that are especially harmful to the constitutional order and holding them to higher standards. A consideration of the problem of abusive constitutionalism helps to improve these developing practices and offers important and controversial insights, such as the need for a doctrine of substantively unconstitutional constitutional amendments and for restrictions on the process by which an existing constitution may be replaced. The goal is to reframe the conversation about how the fields of comparative constitutional law and international law might best be leveraged to protect new democracies.

Number of Pages in PDF File: 60

Keywords: constitutional amendment, constitution-making, unconstitutional constitutional amendment, basic structure doctrine, unamendable constitutional provisions, Venezuela, Hungary, democratic transition, authoritarian regimes, democracy clauses, party-banning, constitutional design

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2244629