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Adam Shinar, Interdisciplinary Center, Herzliya Developing mixed constitutions

Much of the study of mixed constitutions involves analyzing how various parts of the constitution, each with a different political and ideological orientation, hang together. Such studies take mixed constitutions as a given. Less discussed, however, is the process through which constitutions become more or less mixed, incorporating more or less liberal features. Mixed constitutions can be the result of a deliberate, deliberative, and intentional process, but could also end up as mixed because of contingent political circumstances that drive constitutional development in a particular direction. This article investigates such fluctuations, for example by incorporating authoritarian or nationalistic characteristics that threaten the viability of liberal commitments. This process, which can also be called regressive constitutionalism, is becoming more commonplace in recent years, with the constitutional overhaul in Hungary, changes to the separation of powers scheme in Poland, and the erosion of democracy in Brazil, Israel, and India, to name five prominent examples.

To be sure, some of these changes can be explained by shifting political preferences channeled through a majoritarian process. Legally, however, one possible argument is that they are rendered possible through the ease of constitutional amendments. The easier the constitution is to amend, the more susceptible it is to regressive constitutionalism. However, my argument is that regressive constitutionalism, and indeed a greater or less degree of mixedness, can come about even if the constitution is left intact, simply by changing other sub-constitutional rules that affect the way the constitution is construed or by channeling the political zeitgeist to interpret extant constitutional provisions. The larger lesson is that given that all constitutions are mixed, and hence the normative utility of a such a concept is questionable, nevertheless when examining mixed constitutions, one must pay close attention to constitutional amendment rules and to statutory and interpretative changes that affect the constitutional framework, both of which are dependent on the fixedness of constitutional arrangements and understandings.

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