1 Introduction A Dark Side of Comparative Constitutional Law
We live in an age of comparative constitutionalism.1 Constitution-making itself, long theorized to be a quintessentially domestic act of self-government, in fact increasingly emphasizes transnational and international actors, as well as borrowing from other constitutional orders.2 Certain core features, such as judicial review3 and many constitutional rights,4 are now virtually universal features of constitutions, and there is evidence of textual convergence even outside of this core.5 Comparativism also permeates the application and interpretation of constitutional law. For example, there is a robust transnational network among judges.6 Many doctrinal ideas, such as proportionality, are also success stories in transnational migration.7 is thick comparativism o en forms the backbone of an optimistic story. A transnational consensus about liberal democracy has seemingly emerged both in the design of constitutions and (to a lesser degree) in their application. To be sure, the constitutional story has long been acknowledged to be imperfect. ere are holdouts, or alternative models, such as China and Singapore.8 Still, the prevalence of transnational borrowing by constitutional actors such as designers, scholars, and judges ts with evidence, in many regions, that there is now a transnational legal order with a liberal democratic shape.9 is in turn is consistent with Francis Fukuyama’s famous (and
1 See David Fontana, ‘ e Rise and Fall of Comparative Constitutional Law in the Postwar Era’ (2011) 36 Y Int’l LJ 1.
2 See Tom Ginsburg, ‘Constitutional Advice and Transnational Legal Order’ (2017) 2 UC Irvine J Intl Trans & Comp L 5; Vijayashri Sripati, Constitution-Making under UN Auspices: Fostering Dependency in Sovereign Lands (OUP 2020).
3 See Tom Ginsburg and Mila Versteeg, ‘Why Do Countries Adopt Judicial Review?’ (2014) 30 J L Econ & Org 587.
4 See David S Law and Mila Versteeg, ‘ e Evolution and Ideology of Global Constitutionalism’ (2011) 99 Cal L Rev 1163.
5 See David S Law, ‘Constitutional Archetypes’ (2016) 95 Tex L Rev 153.
6 See Anne Marie Slaughter, ‘A Typology of Transjudicial Communication’ (1994) 29 U Richmond L Rev 99.
7 See, eg, Carlos Bernal-Pulido, ‘ e Migration of Proportionality Across Europe’ (2013) 11 New Zealand J Pub & Int’l L 483; Joao Andrade Neto, Borrowing Justi cation for Proportionality: On the In uence of the Principles eory in Brazil (Springer 2018); Alec Stone Sweet and Jud Mathews, ‘Proportionality Balancing and Global Constitutionalism’ (2008) 47 Colum J Transnat’l L 72; Moshe Cohen-Eliya and Iddo Porat, Proportionality and Constitutional Culture (CUP 2013).
8 See, eg, omas E Kellogg, ‘Arguing Chinese Constitutionalism: e 2013 Constitutionalism Debate and the “Urgency” of Political Reform’ (2015) 11 U Pa Asian L Rev 338; Mark Tushnet, ‘Authoritarian Constitutionalism’ (2015) 100 Cornell L Rev 391.
9 See, eg, Kim Lane Scheppele, ‘Autocracy under Cover of the Transnational Legal Order’ in Gregory Sha er, Tom Ginsburg, and Terrence C Halliday (eds), Constitution-Making and Transnational Legal Order (CUP 2019) 188, 190–6; David Landau, ‘Democratic Erosion and Constitution-Making Moments: e Role of Transnational Legal Norms’ in Gregory Sha er, Tom Ginsburg, and Terrence C Halliday (eds), Constitution-Making and Transnational Legal Order (CUP 2019) 234, 234–5.
Abusive Constitutional Borrowing. Rosalind Dixon and David Landau, Oxford University Press. © Rosalind Dixon and David Landau 2021. DOI: 10.1093/oso/9780192893765.003.0001
now much critiqued) thesis at the end of the Cold War of the ‘end of history’—that the world was more or less converging toward liberal democracy, with alternative models falling away.10
Recent experience, however, has shown that Fukuyama’s account was far too optimistic, and authors are now much more prone to speak of the crisis of liberal democracy than its hegemony.11 First, authoritarian regimes have not gone away; indeed, ‘authoritarian constitutionalism’ itself may be a durable and distinct variety of constitutionalism.12 Second, many countries that transitioned out of authoritarian regimes did not become full- edged democracies, but instead remained stuck somewhere between democracy and authoritarianism, for example in the regime type that Levitsky and Way have called ‘competitive authoritarianism’.13 ird, and perhaps most alarmingly, some countries around the world have recently backslid from liberal democracy toward authoritarianism.14
Some recent evidence from Freedom House is indicative of these patterns.15 ey note a sharp increase in liberal freedoms between 1988 and 2005—during that period, the percentage of countries rated ‘not free’ dropped from 37 to 23 percent, while the percentage of those rated ‘free’ increased from 36 to 46 percent. Since then, they have measured thirteen consecutive years of decline, albeit at a less marked clip than the increases of the prior seventeen years. Overall, the percentage of countries rated free has decreased since 2005 to only 44 percent, while those rated not free have increased to 26 percent (the remaining 30 percent are rated ‘partly free’). us, the picture painted by Freedom House is one suggesting that the gains made since the end of the Cold War have stagnated, and indeed been partly rolled back.
Other measures of democracy, and works by prominent academics, support a similar conclusion.16 ere has been stress on democracy in recent years across essentially every region: in Latin America in Brazil, Venezuela, Ecuador, and Bolivia; in Europe in Hungary and Poland; in the Middle-East in Turkey and Israel; and in Asia in India, Sri Lanka, Bangladesh, Cambodia, and ailand, to name only a few examples of a very long list of potential candidates. Africa has also seen a continued history of democratic regression, as well as progress, and the Paci c has experienced fresh coups as well as moments of apparent democratic transition and consolidation.
10 See Francis Fukuyama, e End of History and the Last Man (Hamish Hamilton 1992).
11 See, eg, Wojciech Sadurski, Poland’s Constitutional Breakdown (OUP 2019); Tom Ginsburg and Aziz Z Huq, How to Save a Constitutional Democracy (UCP 2018); Pippa Norris and Ronald Inglehart, Cultural Backlash: Trump, Brexit, and Authoritarian Populism (CUP 2019).
12 See, eg, Tom Ginsburg and Alberto Simpser (eds), Constitutions in Authoritarian Regimes (CUP 2014) (giving examples of the functions played by authoritarian constitutions around the world); Tushnet (n 8) (using the example of Singapore to argue that authoritarian constitutionalism is a distinct normative type).
13 See Steven Levitsky and Lucan A Way, Competitive Authoritarianism: Hybrid Regimes a er the Cold War (CUP 2010).
14 See, eg, David Landau, ‘Abusive Constitutionalism’ (2013) 47 UCDL Rev 189, 203–11; Kim Lane Scheppele, ‘Autocratic Legalism’ (2018) 85 U Chi L Rev 545.
15 See Freedom House, ‘Freedom in the World 2019: Democracy in Retreat’ (2019) <https://freedomhouse.org/report/freedom-world/freedom-world-2019/democracy-in-retreat>.
16 See Steven Levitsky and Daniel Ziblatt, How Democracies Die (Broadway Books 2018); Ginsburg and Huq (n 11); Joshua Kurlantzick, Democracy in Retreat: e Revolt of the Middle Class and the Worldwide Decline of Representative Government (YUP 2013); Philip Kotler, Democracy in Decline (SAGE 2016); Larry Diamond, ‘Facing Up to the Democratic Recession’ (2015) 26 J Democracy 141.
Our thesis is that these two trends—an increasingly dense age of constitutional globalization, on the one hand, and stagnation and backsliding in democratization, on the other—are fully consistent. e key link between them is the rise of what we call ‘abusive constitutional borrowing’. By abusive constitutional borrowing, we mean the appropriation of liberal democratic constitutional designs, concepts, and doctrines in order to advance authoritarian projects. Indeed, we will show that some of the most important hallmarks of liberal democratic constitutionalism—constitutional rights and judicial review, for example—can be subverted into powerful instruments to demolish rather than defend democracy. is in turn holds both warnings and lessons for those invested in promoting and defending liberal democratic constitutionalism. And it highlights an underappreciated dark side to the project of comparative constitutional law.17
A. e Rhetorical Triumph of Liberal Democratic Constitutionalism
e twentieth century saw a series of waves of constitution-making a er the Second World War: defeated Axis powers under occupation, decolonization, the fall of dictatorships across Southern Europe and Latin America, and the fall of the Soviet Union.18 Each of these waves helped to fortify the dominance of liberal democratic constitutional ideas. e new constitutions written during these waves (and between them), although o en romanticized as products of a domestic will of the people, were also written in a context of an increasingly dense interchange of liberal democratic ideas.19
e precise pressures varied from time and place: the ‘occupation’ constitutionmaking occurring in Germany and Japan a er the Second World War was quite different from post-authoritarian constitution-making in Eastern Europe a er 1989, but pressures toward convergence existed across many di erent times and places.
A growing body of empirical research has shown that these pressures in uenced the content of constitutional texts. One notable nding, for example, has been that when a constitution was written exercises a major in uence on design, sometimes greater than where or why it was written: this suggests the great importance of transnational borrowing of constitutional ideas.20 Constitutions written around the same time period thus tend, for example, to include similar types and quantities of rights.
17 Compare David Kenny, ‘A Review of Neil Walker’s Imitation of Global Law, by Neil Walker’ (2015) 63 Am J Comp L 1053.
18 Jon Elster, ‘Forces and Mechanisms in the Constitution-Making Process’ (1995) 45 Duke LJ 374, 368–9.
19 See, eg, Hanna Lerner, David Futscher, and Nina S Schlager, ‘International Constitutional Advising: Mapping the Field and Assessing Impact’ (paper presented at American Political Science Association Conference 2020, 10 September 2020); Ginsburg (n 2); ; Sujit Choudhry, ‘Migration as a New Metaphor in Comparative Constitutional Law’ in Sujit Choudhry (ed), e Migration of Constitutional Ideas (CUP 2006) 1.
20 See Zachary Elkins, Tom Ginsburg, and James Melton, e Endurance of National Constitutions (CUP 2009) 25–6; Jose A Cheibub, Zachary Elkins, and Tom Ginsburg, ‘Latin American Presidentialism in Comparative and Historical Perspective’ (2011) 89 Tex L Rev 1707, 1708; Tom Ginsburg, Zachary Elkins, and James Melton, ‘Comments on Law and Versteeg’s “ e Declining In uence of the United States Constitution” ’ (2012) 87 NYU L Rev 2088, 2094.
It would be too strong, of course, to argue that there is now a single ‘standard model’ of constitutions around the world. Local pressures matter, and along some key dimensions there is still global contestation. David Law, for example, nds evidence drawn from the texts of constitutional preambles of three di erent global models of constitutionalism.21 But there is also considerable evidence of convergence around key aspects of design.22
We focus here on two aspects that have become virtually canonical in liberal democratic constitutionalism: rights and judicial review. Virtually all constitutions around the world now contain a bill of rights. Australia is arguably one of the few exceptions among liberal democracies, and even it has a very narrow, ‘partial’ bill of rights.23
Furthermore, empirical work shows a generic core to those provisions: there are a series of rights, such as freedom of speech, due process, and freedom of religion, that are essentially universal in scope. Outside of the core, there is more contestation.24 And some empirical work shows that rights can drop out of the core if they lose favor internationally and transnationally, as well as join it. For example, the right to petition, which was once prominent in constitutions, became increasingly uncommon a er it was le out of the Universal Declaration of Human Rights and similar instruments in the emerging human rights community.25
ere is a strong trend toward ‘rights in ation’: the average number of rights included in constitutions has increased signi cantly over time.26 us, newer constitutions tend to contain many more rights than older ones. Furthermore, many rights that have been introduced more recently have achieved levels of success comparable to those of classical, older rights. e best example are socioeconomic rights. While there are some constitutions around the world (most famously, the US Constitution)27 that still do not include them, they are now very common. Chilton and Versteeg, for example, nd that 81 percent of all constitutions include the right to education, 71 percent the right to health, and 63 percent the right to social security.28 us, even many ‘newer’ rights are rapidly becoming part of the core.
21 Law (n 5).
22 ere are of course a few countries around the world that lack a written constitution at all—these include the United Kingdom and Israel, for example. But even these exceptions to written constitutionalism have shown signs of convergence. e United Kingdom’s Human Rights Act 1998 requires the courts to apply the European Convention of Human Rights and to carry out a ‘weak’ form of judicial review on its behalf; the Israeli Knesset has written a series of ‘Basic Laws’ that have played a quasi-constitutional function and been used as a basis for judicial review. See Stephen Gardbaum, ‘How Successful and Distinctive is the Human Rights Act? An Expatriate Comparatist’s Assessment’ (2011) 74 Mod L Rev 195; Hanna Lerner, ‘Democracy, Constitutionalism, and Identity: e Anomaly of the Israeli Case’ (2004) 11 Constellations 237.
23 Rosalind Dixon, ‘An Australian (Partial) Bill of Rights’ (2016) 14 Int’l J Con L 80; Rosalind Dixon, ‘Partial Bills of Rights’ (2015) 63 Am J Comp L 403.
24 David S Law and Mila Versteeg, ‘ e Evolution and Ideology of Global Constitutionalism’ (2011) 99 Calif L Rev 1163.
25 Zachary Elkins, Tom Ginsburg, and Beth Simmons, ‘Getting to Rights: Treaty Rati cation, Constitutional Convergence, and Human Rights Practice’ (2013) 54 Harv Int’l LJ 61.
26 Ibid.
27 Although only at the federal level; state constitutions contain a number of socioeconomic rights. See Emily Zackin, Looking for Rights in All the Wrong Places: Why State Constitutions Contain America’s Positive Rights (PUP 2013).
28 Adam Chilton and Mila Versteeg, ‘Rights Without Resources: e Impact of Constitutional Social Rights on Social Spending’ (2017) 60 JL & Econ 713.
e key point, for our purposes, is that there is considerable agreement across countries as to the kinds of rights constitutions should include, and even more fundamentally, that constitutions should include a robust battery of rights to restrain and channel state power.
ere is a similar empirical consensus about the practice of judicial review. Ginsburg and Versteeg have shown that the percentage of constitutions explicitly giving courts power of judicial review has risen steadily over the past century (indeed, over the past several hundred years), and as of 2014, 83 percent of constitutions now explicitly authorize constitutional review by courts.29 is near-consensus, of course, masks signi cant variation.
ere are some notable holdouts. e Netherlands, for example, prohibits constitutional review, and some Nordic countries have historically practiced it very rarely or not at all.30 But even in these countries, the gap has closed recently, particularly with increased reliance at the domestic level on rights review under the European Convention of Human Rights.31
e most notable exception to this trend has in fact occurred within the realm of constitutional theory, rather than practice. In the last two decades, constitutional scholars such as Jeremy Waldron and Richard Bellamy have drawn a distinction between ‘legal’ and ‘political’ theories of constitutionalism, or judicial versus legislative approaches to rights protection. ey have sought to defend political theories of constitutionalism by drawing on a range of liberal democratic arguments—or by suggesting that political constitutionalism is in fact more consistent than legal constitutionalism with both liberal and democratic ideals of equality among citizens. is is a theory that has gained increasing traction among liberal democratic constitutional scholars and has arguably informed the design of some new Commonwealth constitutional models. But in most countries, it is judicial rather than political rights protection that remains the dominant liberal democratic model. As we show in Chapter 7, some authoritarian actors around the world have abused arguments about political constitutionalism to legitimize practices that allow them to carry out anti-democratic projects.
ere are a number of di erent models of judicial review. e dominant model of judicial review in Europe for much of the twentieth century was based on specialized constitutional courts reviewing bills, usually at the request of political actors, before they were enacted. is was the so-called ‘Kelsenian’ model proposed by Austrian jurist Hans Kelsen.32 In the Anglo-American world, in contrast, the dominant model has been one of concrete review of laws a er their enactment by a range of trial courts
29 Tom Ginsburg and Mila Versteeg, ‘Why Do Countries Adopt Constitutional Review?’ (2014) 30 J Econ & Org 587.
30 Ran Hirschl, ‘ e Nordic Counternarrative: Democracy, Human Development, and Judicial Review’ (2011) 9 Int’l J Const L 449.
31 See Alyssa S King, ‘New Judicial Review in Old Europe’ (2015) 44 Georgia J Int’l & Comp L 1; Richard Ekins and Graham Gee, ‘Putting Judicial Power in Its Place’ (2017) 36 U Qld LJ 375.
32 See, eg, John W Boyer, ‘Silent War and Bitter Peace: e Revolution of 1918 in Austria’ (2003) 34 Austrian Hist YB 1; Leo Gross, ‘Hans Kelsen: October 11, 1881–April 15, 1973’ (1973) 67 Am J Int’l L 491, 492; eo Öhlinger, ‘ e Genesis of the Austrian Model of Constitutional Review of Legislation’ (2003) 16 Ratio Juris 206, 214; Georg Schmitz, ‘ e Constitutional Court of the Republic of Austria 1918–1920’ (2003) 16 Ratio Juris 240.
and generalized courts of appeal, in cases involving aggrieved individuals. ere have thus been important di erences in the timing, nature, and di usion of constitutional review across the judiciary. At the same time, there has been an increasing willingness to combine these di erent models: specialized constitutional courts have increased in popularity over time and are now roughly as common as generalized supreme courts for exercising judicial review,33 but so too has the exercise of concrete forms of review.34
Recent decades have also seen the development of new models, such as the ‘new Commonwealth model’ that Stephen Gardbaum associates with judicial review in a range of Commonwealth countries including the United Kingdom, New Zealand, Canada, and some Australian states.35 Courts in these countries can exercise forms of constitutional review, but lack the proverbial ‘last word’ in constitutional interpretation—in Canada, for example, the federal and provincial legislatures can override judicial decisions by majority vote; in the United Kingdom, courts can merely interpret laws to conform, or declare them non-conforming if they do not, but they cannot actually strike down the law.36 And the rise of this new Commonwealth model highlights enduring divergence in the manner and strength of judicial review. We return to this divergence, and its exploitation by authoritarian actors, in Chapter 7. At the same time, this divergence itself can be seen as evidence of strong convergence toward including at least some form of judicial review.37
We have focused on rights and judicial review because these appear to be at the core of the canon of liberal democratic constitutionalism. But of course, there is ample evidence of the migration of other liberal democratic ideas as well. One of these, recently analyzed by Mark Tushnet, is the addition of independent accountability institutions, beyond courts, intended to protect sensitive areas necessary for democracy.38 A rapidly increasing number of constitutional orders now include institutions such as independent electoral commissions, anti-corruption commissions, human rights commissions or ombudspersons, and media commissions. As Tushnet points out, the argument for these institutions is that they supplement courts by protecting weak points of democracy—elections, self-policing by politicians, and protection of minority rights, for example.39 According to data from the Comparative Constitutions
33 Ginsburg and Versteeg (n 29).
34 See, eg, recent French adoption of concrete review: King (n 31).
35 Stephen Gardbaum, e New Commonwealth Model of Constitutionalism: eory and Practice (CUP 2013); Stephen Gardbaum, ‘ e New Commonwealth Model of Constitutionalism’ (2001) 49 Am J Comp L 707; Stephen Gardbaum, ‘Reassessing the New Commonwealth Model of Constitutionalism’ (2010) 8 Int’l J Const L 167.
36 Stephen Gardbaum, e New Commonwealth Model of Constitutionalism: eory and Practice (CUP 2013); Rosalind Dixon, ‘ e Forms, Functions, and Varieties of Weak(ened) Judicial Review’ (2019) 17 Int’l J Const L 904.
37 Ginsburg and Versteeg (n 29) nd that domestic political factors (particularly levels of political competition) are a better predictor of adoption of judicial review than international patterns of di usion, contrary to the standard nding for inclusion of constitutional rights. Nonetheless, judicial review is now nearly universal, and appears to be ‘sticky’ once adopted.
38 Mark Tushnet, ‘Institutions Protecting Democracy: A Preliminary Inquiry’ (2018) 12 L & Ethics Hum Rts 181. See also Michael Pal, ‘Electoral Management Bodies as a Fourth Branch of Government’ (2016) 21 Rev Const Stud 85.
39 Tushnet (n 38).
Project, 43 percent of constitutions now make explicit reference to an independent electoral authority, 38 percent to an ombudsperson, 20 percent to a human rights commission, 19 percent to a media commission, and 10 percent to an anticorruption commission.40
is suggests a growing dominance of liberal democratic constitutional design, even across a number of countries that are not constitutional democracies. Indeed, several commentators have noted that hybrid regimes, and even many authoritarian regimes, include these same basic constitutional elements—rights, courts, and other forms of independent accountability institutions.41 At the level of design, at least, there is real truth to Fukuyama’s argument. And the evidence for convergence around a liberal democratic model extends beyond design and into the realm of practice.
Both of us have expressed some skepticism about arguments that constitutional practice is inevitably converging around a single model.42 Convergence o en seems less likely the closer down to ground level one gets—it is one thing for constitutions to include similar textual features, a claim that now has ample empirical support, but another for constitutional practitioners such as judges and politicians to actually be doing the same things across countries. Di erences in judicial role and political incentives seem to place natural limits on ground level varieties of convergence.43 It is also not evident why pressures for policy convergence should always translate into pressures for constitutional rather than legislative convergence, or continue a er appropriate exceptions or policy ‘enclaves’ are adopted.44
Nonetheless, ideas associated with liberal democratic constitutionalism have had great in uence on constitutional practice in recent years. Consider two brief examples. One is the doctrine of proportionality, which lays out a general and structured method for courts to review constitutional claims.45 Under the doctrine, once a court has determined that the government has violated a constitutional right, it asks three sequential questions: (1) whether the means chosen further a legitimate governmental end; (2) whether the means chosen are the least restrictive ones to carry out that end; and (3) whether the bene ts gained by the government are proportional to the harms to the right.46 e doctrine has origins both in German legal science (as expressed by that country’s Constitutional Court a er the Second World War) and international human rights law, as shown by the jurisprudence of the European Court of Human
40 Data from Comparative Constitutions Project <https://comparativeconstitutionsproject.org/>.
41 Tom Ginsburg and Alberto Simpser, ‘Introduction; Constitutions in Authoritarian Regimes’ in Tom Ginsburg and Alberto Simpser (eds), Constitutions in Authoritarian Regimes (CUP 2014) 1; Kim Lane Scheppele, ‘Autocratic Legalism’ (2018) 85 U Chi L Rev 545; Tom Ginsburg and Tamir Moustafa, ‘Introduction: e Functions of Courts in Authoritarian Politics’ in Tom Ginsburg and Tamir Moustafa (eds), Rule of Law: e Politics of Courts in Authoritarian Regimes (CUP 2012) 1.
42 Rosalind Dixon and Eric A Posner, ‘ e Limits of Constitutional Convergence’ (2010) 11 Chi J Int’l L 399; David Landau, ‘Judicial Role and the Limits of Constitutional Convergence in Latin America’ in Rosalind Dixon and Tom Ginsburg (eds), Comparative Constitutional Law in Latin America (Edward Elgar 2017) 227.
43 Landau (n 42).
44 Dixon and Posner (n 42).
45 Vicki C Jackson, ‘Constitutional Law in an Age of Proportionality’ (2014) 123 YLJ 3094; Cohen-Eliya and Porat (n 7); Robert Alexy, ‘Constitutional Rights and Proportionality’ (2014) 22 Revus 51.
46 Moshe Cohen-Eliya and Iddo Porat, ‘Proportionality and the Culture of Justi cation’ (2011) 59 Am J Comp L 463; Stone Sweet and Mathews (n 7).
Rights (ECHR).47 But it spread around the world with extraordinary rapidity, becoming embraced by courts in civil law and common law countries, as well as those in developed and developing contexts.48 In Latin America, for example, proportionality has become a near universal technique.49 e United States is perhaps the world’s most prominent outlier, although there may be intimations of or a nascent proportionalitystyle jurisprudence within the Supreme Court’s approach to various tiers of scrutiny.50
A second, more surprising example is the unconstitutional constitutional amendment doctrine, which holds that courts can strike down not just legislation, but also constitutional amendments that clash with core constitutional principles. e doctrine again has roots in German legal scholarship and design. However, it was developed by the Indian Supreme Court, which initially held that the rights provisions of the constitution were unamendable, but later modi ed its position to hold that constitutional changes at variance with the ‘basic structure’ could not be carried out.51 e doctrine obviously poses risks to democracy, because it allows courts to block constitutional amendments that may be intended as popular responses to judicial decisions. In this sense, it threatens to work an extremely strong form of the familiar countermajoritarian di culty.52 Nonetheless, as Roznai demonstrates, it has spread around the world with stunning success, being adopted by a wide range of countries, again across di erent legal traditions, regions, and contexts.53 e standard justi cation is that the doctrine, although strong medicine, actually protects the popular will by preventing political actors from subverting the original constituent power of the people.54 We return to the doctrine and its susceptibility to abuse in Chapter 6, when we study constituent power in more depth.
Liberal democratic constitutional ideas have in large part triumphed not only at the level of constitutional design, but also closer to practice, in areas such as judicial doctrine. What explains this success? A full explanation would take us well beyond the topic of this book. But one important reason is the powerful support structure of actors promoting these ideas, at di erent moments.
Constitution-making is sometimes conceptualized as the ultimate manifestation of national sovereignty. But increasingly, it is permeated by international and transnational in uences. Transnational in uences on constitution-making have long existed, for example in the British in uence on post-colonial constitutions,55 but they seem to
47 Cohen-Eliya and Porat (n 47).
48 Ibid.
49 Carlos Bernal, ‘ e Constitutional Protection of Economic and Social Rights in Latin America’ in Rosalind Dixon and Tom Ginsburg (eds), Comparative Constitutional Law in Latin America (Edward Elgar 2017) 325.
50 Compare Jackson (n 45); Jamal Greene, ‘Rights as Trumps’ (2018) 132 HLR 28.
51 IC Golaknath v State of Punjab (1967) SCR 762; Kesavananda Bharati v State of Kerala (1973) 4 SCC 225.
52 Garry J Jacobsohn, ‘An Unconstitutional Constitution? A Comparative Perspective’ (2006) 4 Int’l J Const L 460; Rosalind Dixon and David Landau, ‘Transnational Constitutionalism and a Limited Doctrine of Unconstitutional Constitutional Amendment’ (2015) 13 Int’l J Const L 606.
53 Yaniv Roznai, ‘Unconstitutional Constitutional Amendments: e Migration and Success of a Constitutional Idea’ (2013) 61 Am J Comp L 657.
54 Yaniv Roznai, Unconstitutional Constitutional Amendments: e Limits of Amendment Powers (OUP 2017); Joel Colon Rios, ‘Enforcing the Decisions of “ e People” ’ (2018) 33 Const Commentary 1.
55 H Kumarasingham, ‘A Transnational Actor on a Dramatic Stage: Sir Ivor Jennings and the Manipulation of Westminster Style Democracy: e Case of Pakistan’ (2017) 2 UC Irvine J Int’l Trans & Comp L 33.
have gained density and importance in recent years. Of course, domestic actors have plenty of access and motive to borrow liberal democratic models on their own during constitution-making moments. A network of transnational actors has also emerged to promote a certain set of both procedural choices, such as models for dra ing bodies and modes of popular participation, as well as design choices such as the inclusion of rights, constitutional courts, and other independent bodies.56
e United Nations (UN), for example, has become a major voice shaping constitution-making processes and texts. A substantial (and constantly growing) number of constitutions, many but by no means all in post-con ict environments, have been written under UN auspices since the end of the Cold War.57 e actors staing these o ces advise local constitution-makers on transnational models for both the process of constitution-making and the substance of constitutional design. More broadly, even when the UN is not directly involved, there is an increasingly thick network of transnational institutions and advisors ready to give local constitution-makers similar advice on both the process and substance of constitution-making.58 is kind of support structure also exists at other times and levels. Scholars have noted a transnational dialogue of judges.59 is dialogue encompasses citation and cross-in uence in opinion writing, but it also includes a series of meetings, facilitated through more or less formal global or regional institutions. e annual Global Constitutionalism Seminar at Yale, which includes a number of prominent judges from around the world as well as academics, is one important and intellectually serious example, but there are also a growing number of others.60 e burgeoning and increasingly globalized community of comparative constitutional law academics is another source of in uence. e most prominent members of this community have played a role as foreign advisers during constitution-making moments and other periods of reform, whether through international organizations, NGOs, local universities, or other, less formal channels.61 ese transnational sources of in uence are matched by equally signi cant international pathways. We have already noted the role of the UN in constitutionmaking. Regional human rights bodies, as well as other regional institutions, have also emerged as a key source of in uence. In Europe, of course, the in uence of the ECHR
56 See, eg, Elisabeth Perham, Models of External Constitutional Advice (unpublished PhD manuscript); Lerner, Futscher, and Schlager (n 19); Cheryl Saunders, ‘International Involvement in Constitution Making’ in David Landau and Hanna Lerner (eds), Comparative Constitution Making (Edward Elgar 2019) 69; Tom Ginsburg, ‘Constitutional Advice and Transnational Legal Order’ (2017) 2 UC Irvine J Int’l, Transn’l, & Comp L 5; Sara Kendall, ‘Constitutional Technicity: Displacing Politics rough Expert Knowledge’ (2015) 11 L, Culture & Humanities 363; Zaid Al-Ali, ‘Constitutional Dra ing and External Experience’ in Tom Ginsburg and Rosalind Dixon (eds), Comparative Constitutional Law (Edward Elgar 2011) 78; Guenter Frankenberg, ‘Constitutional Transfer: e IKEA eory Revisited’ (2010) 8 Int’l J Con L 563.
57 Sripati (n 2); Vijayahshri Sripati, ‘UN Constitutional Assistance Projects in Comprehensive Peace Missions: An Inventory 1989–2011’ (2012) 19 Int’l Peacekeeping 93.
58 See (n 56). See also ‘Constitution-Building’, International Idea <https://www.idea.int/our-work/whatwe-do/constitution-building>.
59 Anne-Marie Slaughter, ‘Judicial Globalization’ (1999) 40 Va J Int’l L 1103.
60 Yale Law School, ‘Global Constitutionalism Seminar’ <https://law.yale.edu/centers-workshops/ gruber-program-global-justice-and-womens-rights/global-constitutionalism-seminar>.
61 See, eg, International Association of Constitutional Law <https://iacl-aidc.org/index.php/en/>; International Society of Public Law < https://www.icon-society.org/>.
on domestic constitutional doctrine has been mapped in detail.62 e ECHR, for example, played a key role in spreading proportionality throughout Europe;63 it has also caused a broader convergence in constitutional doctrine across many di erent rights.64 Other European institutions have also played a role, including the European Union (through its Copenhagen criteria, via the European Court of Justice, and other channels), and the ECHR’s fellow traveler in the Council of Europe, the Venice Commission. e Venice Commission is an advisory body, sta ed by national constitutionalists, that gives advice on constitutional reforms and legislation in light of ‘European constitutional heritage’. e Commission has emerged as a major player in promulgating standards for liberal democratic constitutionalism, and as such has played a protagonist’s role in disputes about democratic erosion in Hungary, Poland, and other countries.65
Europe has the thickest set of international institutions promoting and enforcing liberal democratic constitutionalism, but signi cant institutions also exist in other regions, especially Latin America and Africa. e Inter-American Commission and Court of Human Rights, for example, have become major voices promoting harmonization of rights interpretation in Latin America. Some of the decisions by the InterAmerican Court have provoked backlash from domestic high courts,66 but it has also played a major role in shaping domestic constitutional law. Indeed, commentators have argued that the Court has helped to move toward a regional ius commune. 67 us, there are a range of both transnational and international institutions and actors helping to di use norms of liberal democratic constitutionalism. is network has been critiqued on several di erent grounds. Some scholars, for example, argue that it re ects a form of Western imperialism, with core states pressuring the periphery into becoming carbon copies of liberal democratic constitutionalism for a mix of political and economic motives.68 Some work has noted, for example, that the inter-judicial dialogue referenced above is not even-handed.69 Certain courts construct ‘prestige jurisprudence’ that is widely cited by other courts; justices on these same courts are likely to be invited as the stars at international conferences. Other courts and justices have far less in uence.
ese arguments raise important concerns, even if they are in some respects overstated. e ‘club’ of high-pro le courts and justices, for example, has been expanded
62 Helen Keller and Alex Stone Sweet (eds), A Europe of Rights: e Impact of the ECHR on National Legal Systems (OUP 2008); Anne-Marie Slaughter, Alec Stone Sweet, and JHH Weiler (eds), e European Court and National Courts: Doctrine & Jurisprudence: Legal Change in Its Social Context (Bloomsbury 1998).
63 Cohen-Eliya and Porat (n 7).
64 Alec Stone Sweet, ‘ e European Convention on Human Rights and National Constitutional Reordering’ (2012) 33 Cardozo L Rev 1859.
65 Armin von Bogdandy and Pal Sonnevend (eds), Constitutional Crisis in the European Constitutional Area: eory, Law and Politics in Hungary and Romania (Hart 2015); Maartje de Visser, ‘A Critical Assessment of the Role of the Venice Commission in Processes of Domestic Constitutional Reform’ (2015) 63 Am J Comp L 963.
66 Alexandra Huneeus, ‘Courts Resisting Courts: Lessons From the Inter-American Court’s Struggle to Enforce Human Rights’ (2011) 44 Cornell Int’l LJ 493.
67 Armin von Bogdandy and others (eds), Transformative Constitutionalism in Latin America: e Emergence of a New Ius Commune (OUP 2017).
68 Sripati (n 2).
69 Ran Hirschl, Comparative Matters: e Renaissance of Comparative Constitutional Law (OUP 2014).
in recent years and now includes actors from some countries in the ‘global south’.70 Indeed, countries such as India, Colombia, and South Africa have become major producers of liberal democratic doctrines and concepts on such issues as socioeconomic rights, the role of constitutional courts, the shape of constitution-making processes, and the unconstitutional constitutional amendment doctrine. Many global south countries have become key participants in the evolving meaning of liberal democratic constitutionalism.
Our critique of this network, at any rate, is quite di erent. Our point is not that these networks are so strong as to be hegemonic. ey may be in some cases. But the larger problem is that they are o en unduly weak or limited in their in uence, such that the seeming triumph of liberal democratic ideas is in some sense more rhetorical and apparent rather than real. e main building blocks of liberal democratic constitutionalism are commonly turned instead into instruments to undermine it. In this sense, the dominance of liberal democratic models has created space for new forms of authoritarianism, which in some ways are more durable and better adapted to the international community than the old ones.
Our argument is a warning to the promoters of liberal democracy; more ambitiously, it may suggest ways in which future e orts can be better insulated against the very real risks of abuse.
B. e New Authoritarianism and Shi ing Patterns of Constitutional Borrowing
Liberal democratic constitutional designs, doctrines, and concepts dominate the comparative constitutional landscape. But this has not led to the disappearance of authoritarianism. On the contrary, authoritarians have adapted by borrowing liberal democracy to advance their own ends. Patterns of constitutional borrowing have thus shi ed in subtle ways over the past several decades.
Immediately a er the Cold War, the new democracies of Eastern Europe and the post-Soviet world tended to look ‘west’, relying heavily on the established democracies of Western Europe and the United States as their models for constitutional design.71 Western democracies, in turn, became con dent exporters of the model of liberal democratic constitutionalism. Advisers from the United States and elsewhere became key advisers as countries underwent both political transitions to democratic states and economic transitions to market economies.72
70 On the global south critique, see, eg, Daniel B Maldonado (ed), Constitutionalism of the Global South: e Activist Tribunals of India, South Africa and Colombia (CUP 2013); Zoran Oklopcic, ‘ e South of Western Constitutionalism: A Map Ahead of a Journey’ (2016) 37 ird World Q 2080; Philipp Dann, Michael Riegner, and Maxim Bönnemann, e Global South and Comparative Constitutional Law (OUP 2020).
71 Rosalind Dixon and David Landau, ‘1989–2019: From Democratic to Abusive Constitutional Borrowing’ (2019) 17 Int’l J Const L 489.
72 See, eg, Ginsburg (n 56); David M Trubek and Alvaro Santos (eds), e New Law and Economic Development: A Critical Appraisal (CUP 2006); Zaid Al-Ali, ‘Constitutional Dra ing and External Experience’ in Tom Ginsburg and Rosalind Dixon (eds), Comparative Constitutional Law (Edward Elgar
As Krastev and Holmes argue, ‘1989 heralded the onset of a thirty-year Age of Imitation’.73
is was the period in which Fukuyama could con dently assert the ‘end of history’: liberal democracy appeared to be the only game in town. ere were problems with the claim from the beginning. Many of the democratic transitions, especially in the post-Soviet world, never actually took.74 Transitions from authoritarianism to democracy are extremely di cult, and the process can easily get derailed at a number of points along the way. Sometimes gains were reversed, and states reverted to a pure form of authoritarianism; in other cases, they got stuck halfway, for example in what Levitsky and Way call a ‘competitive authoritarian’ state.75 ese states essentially exploited the gaps in the new transnational order: they looked like liberal democracies—they had elections, courts, rights, and all the other trappings, but they used a mix of formal and informal methods to tilt those elections heavily in favor of incumbents.
Furthermore, since the halcyon days of the 1990s, the model of liberal democracy has come under considerable stress. Much of this stress stems from doubts about its performance. In developing and developed countries alike, political and academic critics have argued that liberal democratic constitutionalism has failed to address, or has even worsened, key aws in market-based economies—including a persistent decline in work, wages, and bene ts for many ordinary citizens; problems of increasing economic inequality and corporate power; and large-scale environmental challenges, such as climate change.76 Newer aspects of constitutional design intended to address these issues, such as socioeconomic rights, o en do not seem to be up to the task.77 Another critique, which goes back at least to Schmitt, argues that liberal democracy unwisely fragments and restrains democratic popular will, by empowering unelected domestic institutions such as courts, as well as international bodies like the EU and the ECHR.78
ere is little question that these factors have created a backlash. Lately, much of this backlash has been analyzed through the lens of populism (although we note that populists are far from the only threats to liberal democracy). Populist politicians use a discourse that pits the ‘pure people’ against a ‘corrupt elite’.79 e dominant current view is that populists of both the le and the right are o en (although not inevitably)
2011) 78; Frankenberg (n 56); Jacques deLisle, ‘Lex Americana?: United States Legal Assistance, American Legal Models, and Legal Change in the Post-Communist World and Beyond’ (1999) 20 U Pa J Int’l Econ L 179.
73 Ivan Krastev and Stephen Holmes, e Light that Failed: Why the West Is Losing the Fight for Democracy (Pegasus 2020) 5.
74 Martin Krygier, ‘Marxism and the Rule of Law: Re ections A er the Collapse of Communism’ (1990) 15 L & Soc Inq 633; Wojciech Sadurski, Poland’s Constitutional Breakdown (OUP 2019).
75 Levitsky and Way (n 13).
76 Rosalind Dixon and David Holden, ‘Fair Markets: Liberalism A er COVID’ (unpublished manuscript 2020) (on le with authors).
77 For both the promise and limits, see, eg, Rosalind Dixon and Julie Suk, ‘Liberal Constitutionalism and Economic Inequality’ (2018) 85 U Chi L Rev 369; Rosalind Dixon, ‘On Law and Economic Inequality: A Response to Philip Alston’ (2018) 24 Austl J Hum Rts 276.
78 Carl Schmitt, e Concept of the Political (UCP 2008).
79 See discussion in Jan-Werner Müller, What Is Populism (Pennsylvania 2016) 44–8.
a threat to democracy once they take power: because they tend to view themselves as the exclusive representative of the people, they delegitimate all other political forces as manifestations of the corrupt elite. ey also tend to rail against the existing constitutional and legal order as an instantiation of the old order, and as an illegitimate check on popular will. us, populists may change or rewrite constitutions and laws in an attempt to entrench electoral advantages and weaken the opposition. e result, as shown in populist regimes as diverse as Venezuela, Turkey, and Hungary, may be the erosion or even destruction of democracy.
e discourse by incumbents in many of these new authoritarian states suggests that the dominance of liberal democracy is eroding. One emerging theme involves blatantly anti-democratic borrowing between authoritarian regimes. Viktor Orbán, the Prime Minister who has presided over Hungary during a sustained period of democratic decline, o ers a striking example.80 Orbán has forged close economic and political ties with Russia, a striking departure from his predecessors and a shocking turn-about even from Orbán’s own position in 1989, when he expressed hostility toward the Soviet regime.81 For example, Orbán signed the ‘Paks II’ agreement for a $10 billion nuclear power facility, as well as the contract for Budapest’s third rail line, with Russia.82 A Hungarian state university also awarded Putin an honorary degree in 2017.83
And Orbán has at times expressed open disdain for liberal democratic models. In a now infamous 2014 speech, he announced that the new Hungarian regime would be an ‘illiberal’ democracy.84 He cited China, Singapore, Russia, and Turkey as examples of the type of regime he wanted to construct.85 He argued that liberal democracy had failed as a model both economically and politically, both in Hungary and abroad, and he called for reconstituting the state on more explicitly nationalist foundations.86 He also denounced NGOs as foreign imposters who did not represent the authentic will of the Hungarian people, and suggested more restrictions and oversight over them, a plan which he has since carried out through new legislation.87
Orbán’s discourse is illustrative of the ways in which some new regimes, led by populist leaders with authoritarian leanings, have launched incipient challenges to the practice of liberal democracy in their countries. In the Andean region of Latin
80 Andras L Pap, Democratic Decline in Hungary: Law and Society in an Illiberal Democracy (Routledge 2017).
81 See Daniel Hegedus, ‘ e Kremlin’s In uence in Hungary: Are Russian Vested Interests Wearing Hungarian National Colors?’ (February 2016) 8 DGAPkompakt 1; Dariusz Kalem, ‘Hungary in the Grip of a Bear Hug, Eur. Council on Foreign Relations’ (5 May 2016) <ecfr.eu>; Peter Kreko and Lorant Gyori, ‘Hungary: A State Captured by Russia’ (Heinrich Boll Sti ung, 11 October 2017); Angela Dewan and Boglarka Kosztolanyi, ‘Hungary Is Starting to Look a Bit Like Russia: Here’s Why’ (CNN, 6 April 2018); Zsuzsanna Vegh, ‘Hungary’s “Eastern Opening” Policy Toward Russia: Ties that Bind?’ (2015) 24 Int’l Issues & Slovak Foreign Pol’y A 47.
82 See Hegedus (n 81).
83 See Kreko and Gyori (n 81).
84 See Csaba Toth, ‘Full Text of Viktor Orbán’s Speech at Baile Tusnad (Tusnadfurdo) of 26 July 2014’ ( e Budapest Beacon, 29 July 2014) https://budapestbeacon.com/full-text-of-viktor-Orbáns-speech-at-bailetusnadtusnadfurdo-of-26-july-2014/
85 See ibid.
86 See ibid.
87 See ibid.
America, for example, leaders such as Hugo Chavez (Venezuela), Rafael Correa (Ecuador), and Evo Morales (Bolivia) all replaced their constitutions immediately upon winning power. In each case, the leaders argued in favor of a ‘neo-Bolivarian’ over liberal democratic approach, and that the past failures of liberal democracy in their respective countries necessitated a ‘refounding’.88 Orbán himself, at the head of the Fidesz party that swept into power into 2010, did something similar, replacing the existing Hungarian Constitution with a new text that had a far more nationalist tone. Orbán, once a young Liberal at the fall of the Soviet Union, has adopted a discourse that is consistently disillusioned and contemptuous of the ‘West’ and of the practice of liberal democratic constitutionalism.89
But these challenges to liberal democratic constitutionalism, although o en dripping with disdain for the ‘West’, are only incipient. ey are not fully thought out and they do not o er a clear alternative to liberal democracy. Orbán’s strange concept of ‘illiberal democracy’, which lumps together a hodgepodge of illiberal and undemocratic states such as Russia, Singapore, Turkey, and China—is an example of this sort of confusion. Would-be authoritarians are playing o popular discontent with existing strains of liberal democratic constitutionalism, but they have yet to o er a fully formed alternative.
Instead, for the most part, would-be authoritarians around the world continue to pretend that they are liberal democrats, at least much of the time.90 First, the new authoritarian or hybrid regimes o en maintain all the building blocks of liberal democracy. ey still have rights, courts, electoral commissions, and anti-corruption bodies. ey look like liberal democratic states, with all their bells and whistles, but they do not act like them. Several scholars have coined terms—‘stealth authoritarianism’ and ‘autocratic legalism’, for example—for the disguised and law-based nature of many modern authoritarian states.91
Second, many attacks on liberal democracy, oddly enough, are themselves carried out by using liberal democratic constitutional norms. Scholars have noted the decline of the military coup, which has steadily decreased in popularity in recent decades.92 Instead, today’s democracies tend to regress into authoritarianism through a combination of formal and informal legal and constitutional changes, such as constitutional replacement and amendment, judicial reinterpretation, and new legislation. Constitutional amendments and new constitutions have been used, for example, to extend or to eliminate presidential term limits and to reorganize the composition and powers of key institutions such as constitutional courts.93 Blatant breaches of the constitutional order such as military coups are out, while the use of law to undermine
88 Mark Tushnet, ‘ e New “Bolivarian” Constitutions: A Textual Analysis’ in Rosalind Dixon and Tom Ginsburg (eds), Comparative Constitutional Law in Latin America (Edward Elgar 2011) 126.
89 See Krastev and Holmes (n 73) 63–6.
90 See Scheppele (n 41).
91 See Ozan O Varol, ‘Stealth Authoritarianism’ (2014) 100 Iowa L Rev 1673, 1677; Scheppele (n 14); Javier Corrales, ‘ e Authoritarian Resurgence: Autocratic Legalism in Venezuela’ (2015) 26 J Democracy 37.
92 See, eg, Nicolay Marinov and Hein Goemans, ‘Coups and Democracy’ (2014) 44 Brit J Pol Sci 799 ( nding that the frequency of coups has declined and that their signi cance for democracy has become more ambiguous); Ozan O Varol, ‘ e Democratic Coup d’ Etat’ (2012) 53 Harv Int’l LJ 291 (arguing that some coups have pro-democratic impacts).
93 See Landau (n 14) 200–11 (giving examples).
democracy or maintain authoritarianism is in.94 One of us has called this antidemocratic use of the tools of constitutional change ‘abusive constitutionalism’.95 ird, would-be authoritarians are turning to similar practices found in true liberal democracies, or the liberal international order, in order to justify their erosion of the substance of liberal democracy. Orbán, for example, has begun attempts to justify moves that undermine democracy by pointing to examples of similar practices found in ‘western democracies’. He justi ed extensive gerrymandering by pointing to similar practices in Germany and the United States, and he made similar statements when changes were made to the appointment procedures and powers of the judiciary and other independent accountability institutions.96 A 2014 media law gave a new governmental body extensive power to regulate television, print, and online media, which has been a key strategy for the undermining of democracy in Hungary. Orbán again justi ed the law via comparison: he noted that there is not ‘one single paragraph in the media act that you cannot nd in the law of another European country’ and further argued that any attempts by European institutions to block or amend the law would be ‘discriminatory’.97
And Orbán’s regime undertook a series of formal and informal moves both to weaken and to establish control over the judiciary. Conceptually, these changes were justi ed by his regime with reference to political constitutionalism, the theory developed by liberal democratic scholars which argues that constitutional commitments are best protected via more political, and less judicial, forms of constitutional enforcement. But Orbán’s advisers used these ideas without reference to the kinds of underlying political conditions, such as political competition and legislative commitment to constitutionalism, that would make them work e ectively as protections of rights. Once captured, the court became a tool of the regime’s goals, rubberstamping its initiatives to consolidate control over the media, close down universities, and limit immigration in contravention of EU directives.98 e Orbán regime used political constitutionalism—a key concept within modern liberal democratic constitutionalism—to legitimate attack on the courts. And once that e ort was successful, it has used the practice of judicial review itself for anti-democratic goals. We will return to the abuse of judicial review and political constitutionalism, respectively, in Chapters 5 and 7.
We will in fact analyze many other examples of abusive borrowing in the coming chapters. One thing worth noting is how many of these practices draw not only on the discourse of liberal democratic constitutionalism, but also on international human rights law and related branches of international law. is ought to be unsurprising, given how intertwined the two communities have become. Across parts of Latin
94 See Varol (n 91) 1677; Alvin YH Cheung, ‘For My Enemies, the Law’: Abusive Legalism (JSD esis, New York University School of Law, 2018) (on le with authors).
95 See Landau (n 14) 195.
96 See Kim Lane Scheppele, ‘Worst Practices and the Transnational Legal Order (or How to Build a Constitutional ‘Democratorship’ in Plain Sight)’ Lecture at the University of Toronto (November 2016).
97 Jennifer Rankin, ‘Orbán Defends Media Law’ (Politico, 1 January 2011) <https://www.politico.eu/article/Orbán-defends-media-law/>.
98 Gabor Halmai, ‘ e Hungarian Constitutional Court and Constitutional Identity’ (Verfassungsblog, 10 January 2017) <https://verfassungsblog.de/the-hungarian-constitutional-court-and-constitutionalidentity/>.
America, for example, courts have drawn heavily on international and regional norms governing the right to political participation to strike down limits on presidential reelection. ese decisions were issued at the behest of powerful leaders seeking to remain in o ce inde nitely, generally under conditions where observers have raised signi cant doubts about the quality of democracy. Yet the nature of Latin American caudillismo has changed: instead of the old school strongman refusing to leave ofce in de ance of constitutional norms and with the backing of the military; the new would-be dictator secures the backing of a favorable judicial decision by a packed constitutional court, wielding arguments bearing the imprimatur of constitutional and international law.
C. e Signi cance of Abusive Constitutional Borrowing
In an ironic sense, the prevalence of abusive borrowing of liberal democratic constitutionalism for authoritarian ends is a testament to the success of the pro-democracy network identi ed above. While analysts at the end of the Cold War were wildly optimistic about the extent to which the world would actually become liberal democratic, they were correct that the forms of liberal democratic constitutionalism would become hegemonic over at least many regions of the world. Put another way, the grammar of liberal democratic constitutionalism—various forms of rights, now normally including both second generation socioeconomic rights and third generation rights such as environmental rights, the architecture of the separation of powers, judicial review, and increasingly other ‘independent accountability institutions’ such as ombudspersons and anti-corruption commissions as well—is now dominant and expected in most contexts where new constitutions are being written.
Both international and transnational actors have succeeded not only in spreading liberal democratic norms, but also in crowding out open forms of authoritarianism in many regions. Consider, for example, the decline of military coups noted above. Many parts of the world, including Latin America and Africa, now have regional bodies armed with ‘democracy’ clauses.99 ese clauses allow for suspension, sanctions, or other consequences for certain kinds of openly anti-democratic actions, such as (to use the Latin American phraseology of the Organization of American States), ‘an unconstitutional interruption of the democratic order’.100 ese clauses are o en called ‘anti-coup’ clauses, and they have indeed had some success in curbing military takeovers of the state. In Latin America, for example, the clause was activated a er the 2009 military removal of President Manuel Zelaya;101
99 See, eg, Antonio Perez, ‘Democracy Clauses in the Americas: e Challenge of Venezuela’s Withdrawal from the OAS’ (2017) 33 Am U Int’l L Rev 391; Gaspare Genna and Hiroi Taeko, ‘Do Democracy Clauses Matter? e E ects of Regional Integration Associations on Political Stability and Democratic Consolidation’ (RSCAS Working Paper 2015).
100 Inter-American Democratic Charter (2001), art 19 (allowing suspension in the case of an ‘unconstitutional interruption of the democratic order or an unconstitutional alteration of the constitutional regime that seriously impairs the democratic order in a member state’).
101 ‘Press Release: OAS Suspends Membership of Honduras’ (OAS, 5 July 2009) <https://www.oas.org/ en/media_center/press_release.asp?sCodigo=e-219/09>.
