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Yaniv Roznai & Tamar Hostovsky Brandes Constitutional Unamendability in the Age of Populism

The recent phenomenon of democratic backsliding is characterized, among other things, by what has been referred to in the literature as “constitutional capture” [1], “constitutional retrogression”[2], “abusive constitutionalism”[3] or “populist constitutionalism”.[4] These terms describe the practices by which populist politicians, once in power, employ constitutional law to promote their goals and weaken the state’s democratic values, mechanisms and institutions.

We examine the applicability of the Unconstitutional Constitutional Amendment doctrine[5] (“the Doctrine”) in the context of democratic backsliding. We argue that the Doctrine has the potential of guarding against the use of constitutional change tools to undermine democracy. However, we also argue that the characteristics of democratic backsliding present special challenges for the application of the Doctrine.

The first challenge regards the practice of enacting new constitutions by populist parties, and the shortcomings of the Doctrine in responding to constitutional replacement.[6] The second challenge is the risk of curtailment of the court’s powers by the political branch, in response to application of the Doctrine. This risk is increased, we argue, in a populist public atmosphere, where the legitimacy of courts is often undermined. The third challenge is the incremental nature of democratic backsliding, which renders it difficult to identify the benchmark for applying the Doctrine. There is no ‘fundamental abandonment’ of basic constitutional values but rather a subtle subversion of the democratic institutions; the erosion is virtually unnoticeable.[7]

We outline and analyse these challenges and offer guiding principles and adjustments for applying the Doctrine in response to democratic backsliding. In particular, we argue that due to the incremental nature of democratic backsliding, the standard for applying the Doctrine cannot be based on assessing the effect of a single constitutional amendment. In evaluating the justifications for applying the Doctrine in the context of democratic backsliding, we argue, Courts should consider the accumulative or aggregated effects of a series of constitutional amendments.[8]

[1] Paul Blokker, New Democracies in a Crisis? A Comparative Constitutional Study of the Czech Republic, Hungary, Poland, Romania and Slovakia (2013); Jan Werner Muller, Rising to the Challenge of Constitutional Capture, Eurozie, March 21, 2017 https://www.eurozine.com/rising-to-the-challenge-of-constitutional-capture/

[2] Aziz Z. Huq & Tom Ginsburg, How to Loose a Constitutional Democracy, 65 UCLA L. Rev. (2018), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2901776

[3] David Landau, Abusive Constitutionalism, 47 U.C. Davis L. Rev. 189 (2013).

[4] Paul Blokker, Populist Constitutionalism, Int’l J. Const. L. Blog, May 4, 2017 https://www.iconnectblog.com/2017/05/populist-constitutionalism/

[5] For an overview of the Doctrine, see: Yaniv Roznai, Unconstitutional Constitutional Amendments: The Limits of Amendment Powers (2017).

[6]  See David Landau & Rosalind Dixon, Constraining Constitutional Change 50(4) Wake Forest L. Rev. 856 (2015); Halmai, Gábor, Judicial Review of Constitutional Amendments and New Constitutions in Comparative Perspective, 50(4) Wake Forest L. Rev. 951 (2015).

[7] See e.g. Kim Lane Scheppele, Autocratic Legalism, 85 Uni. Chic. L. Rev. 545 (2018); Steven Levitsky & Daniel Ziblatt, How Democracies Die (2018).

[8]  Compare with Zemer Blondheim & Nadiv Mordechay, Towards a Cumulative Effect Doctrine: Aggregation in Constitutional Judicial Review, 44(2) Mishpatim 596 (2014) (Hebrew).

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