How to Lose a Constitutional Democracy

Abstract

Is the United States at risk of democratic backsliding? And would the Constitution prevent such decay? To many, the 2016 election campaign and the conduct of newly installed President Donald Trump may be the immediate catalyst for these questions. But structural changes to the socioeconomic environment and geopolitical shifts are what make the question a truly pressing one. Eschewing a focus on current events, this Article develops a taxonomy of different threats of democratic backsliding, the mechanisms whereby they unfold, and the comparative risk of each threat in the contemporary moment. By drawing on comparative law and politics experience, we demonstrate that there are two modal paths of democratic decay. We call these authoritarian reversion and constitutional retrogression. A reversion is a rapid and near-complete collapse of democratic institutions. Retrogression is a more subtle, incremental erosion to three institutional predicates of democracy occurring simultaneously: competitive elections; rights of political speech and association; and the administrative and adjudicative rule of law. We show that over the past quarter-century, the risk of reversion in democracies around the world has declined, whereas the risk of retrogression has spiked. The United States is neither exceptional nor immune from these changes. We evaluate the danger of retrogression as clear and present here (and elsewhere), whereas we think reversion is much less likely. We further demonstrate that the constitutional safeguards against retrogression are weak. The nearterm prospects of constitutional liberal democracy hence depend less on our institutions than on the qualities of political leadership, popular resistance, and the quiddities of partisan coalitional politics.

Como normas constitucionais colapsam | How Constitutional Norms Break Down

“…Isso é consistente com a conclusão de Aziz Huq e Tom Ginsburg de que os Estados Unidos têm salvaguardas jurídicas e institucionais relativamente fortes contra o que chamam de "reversão Rio de Janeiro, v. 4, n. 2, 2018, p. 281-317 http://www.e-publicacoes.uerj.br/index.php/publicum DOI: 10.12957/publicum. 2018.38772 autoritária", envolvendo "um colapso rápido e grosseiro ao autoritarismo" 71 . Em vez disso, Huq e Ginsburg afirmam, o risco mais plausível nos Estados Unidos é o "retrocesso constitucional", envolvendo uma progressiva "decadência dos predicados básicos da democracia", tais como "capacidade burocrática autônoma" e uma "fundação epistêmica compartilhada" 72 .…”

Towards a Political Theory of Democratic Backsliding? Generalising the East Central European Experience

“…However, similar developments, even though without the same degree of institutional change or the similar context of postcommunism, have been taking place in a number of other countries, both in Europe and beyond. Particularly striking are the cases of the US and the UK, that is, advanced and long-established democracies experiencing democratic backsliding themselves (Porritt 2019;Przeworski 2019;Dunleavy 2018;Huq and Ginsburg 2018). In both countries, populist post-truth rhetoric and disregard for liberal-democratic norms and institutions go hand in hand with attacks on checks and balances (Kaufman and Haggard 2019).…”

“…In both countries, populist post-truth rhetoric and disregard for liberal-democratic norms and institutions go hand in hand with attacks on checks and balances (Kaufman and Haggard 2019). Also, in the UK and the US, the once catch-all parties-the hitherto bearers of representative democracy-the Tories and the Republicans were able to secure majoritarian electoral support by embracing divisive and exclusionary policies (Huq and Ginsburg 2018).…”

Populism and the Politics of Resentment

“…Researchers also analyze the role of party political elites in preventing authoritarian populists from gaining governmental power. 7 The first approach, using a comparative perspective, appraises the institutional design of liberal democratic constitutions with respect to the pathways they provide for the democratic backsliding pursued by authoritarian populists Huq and Ginsburg (2018). At issue is not an Bauthoritarian reversion,^8i.e., a military coup or the use of emergency powers to make rapid wholesale institutional shifts from democracy to autocracy.…”