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Abusive Constitutional BorrowingLegal globalization and the subversion of liberal democracy$

Rosalind Dixon and David Landau

Print publication date: 2021

Print ISBN-13: 9780192893765

Published to Oxford Scholarship Online: August 2021

DOI: 10.1093/oso/9780192893765.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2021. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 04 December 2021

Introduction

Introduction

A Dark Side of Comparative Constitutional Law

Chapter:
(p.1) 1 Introduction
Source:
Abusive Constitutional Borrowing
Author(s):

Rosalind Dixon

David Landau

Publisher:
Oxford University Press
DOI:10.1093/oso/9780192893765.003.0001

Abstract and Keywords

This introduction frames the two trends that are at the core of this book: the triumph of liberal democratic constitutional discourse and the erosion of democracy. Liberal democratic designs, doctrines, and concepts have diffused easily around the world. These norms are promoted by a thick network of actors, and link to other thriving communities such as international human rights. But the rhetorical triumph of liberal democracy has not resulted in a steady increase in democracy—instead, recent years have seen stagnation and backsliding. This seeming paradox is explained by the ease with which liberal democratic ideas can be repurposed to serve anti-democratic ends. Reliance on liberal democratic institutions for anti-democratic moves may conceal their true purpose and make both domestic and international audiences less willing or able to formulate a critique. Furthermore, many liberal democratic norms are double-edged swords that can readily be used to attack rather than protect democracy.

Keywords:   comparative constitutional law, democratic erosion, authoritarianism, human rights, constitution-making, judicial review, rights

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

This thick comparativism often 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. There 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 fits with evidence, in many regions, that there is now a transnational legal order with a liberal democratic shape.9 This in turn is consistent with Francis Fukuyama’s famous (and (p.2) 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-fledged 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 Third, 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 They 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’). Thus, 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 There 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 Thailand, 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 Pacific has experienced fresh coups as well as moments of apparent democratic transition and consolidation.

(p.3) 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. The 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. This 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. The Rhetorical Triumph of Liberal Democratic Constitutionalism

The twentieth century saw a series of waves of constitution-making after 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. The new constitutions written during these waves (and between them), although often 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 The precise pressures varied from time and place: the ‘occupation’ constitution-making occurring in Germany and Japan after the Second World War was quite different from post-authoritarian constitution-making in Eastern Europe after 1989, but pressures toward convergence existed across many different times and places.

A growing body of empirical research has shown that these pressures influenced the content of constitutional texts. One notable finding, for example, has been that when a constitution was written exercises a major influence 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.

(p.4) 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, finds evidence drawn from the texts of constitutional preambles of three different 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 after it was left out of the Universal Declaration of Human Rights and similar instruments in the emerging human rights community.25

There is a strong trend toward ‘rights inflation’: the average number of rights included in constitutions has increased significantly over time.26 Thus, 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. The 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, find 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 Thus, even many ‘newer’ rights are rapidly becoming part of the core.

(p.5) The 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.

There 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 This near-consensus, of course, masks significant variation.

There are some notable holdouts. The 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

The 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. They 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. This 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.

There are a number of different models of judicial review. The 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. This 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 after their enactment by a range of trial courts (p.6) and generalized courts of appeal, in cases involving aggrieved individuals. There have thus been important differences in the timing, nature, and diffusion of constitutional review across the judiciary. At the same time, there has been an increasing willingness to combine these different 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 (p.7) 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

This 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 often 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. Differences 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 after appropriate exceptions or policy ‘enclaves’ are adopted.44

Nonetheless, ideas associated with liberal democratic constitutionalism have had great influence 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 benefits gained by the government are proportional to the harms to the right.46 The doctrine has origins both in German legal science (as expressed by that country’s Constitutional Court after the Second World War) and international human rights law, as shown by the jurisprudence of the European Court of Human (p.8) 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 The United States is perhaps the world’s most prominent outlier, although there may be intimations of or a nascent proportionality-style 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. The 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 modified its position to hold that constitutional changes at variance with the ‘basic structure’ could not be carried out.51 The 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 counter-majoritarian difficulty.52 Nonetheless, as Roznai demonstrates, it has spread around the world with stunning success, being adopted by a wide range of countries, again across different legal traditions, regions, and contexts.53 The standard justification 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 different moments.

Constitution-making is sometimes conceptualized as the ultimate manifestation of national sovereignty. But increasingly, it is permeated by international and transnational influences. Transnational influences on constitution-making have long existed, for example in the British influence on post-colonial constitutions,55 but they seem to (p.9) 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 drafting bodies and modes of popular participation, as well as design choices such as the inclusion of rights, constitutional courts, and other independent bodies.56

The 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-conflict environments, have been written under UN auspices since the end of the Cold War.57 The actors staffing these offices 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

This kind of support structure also exists at other times and levels. Scholars have noted a transnational dialogue of judges.59 This dialogue encompasses citation and cross-influence in opinion writing, but it also includes a series of meetings, facilitated through more or less formal global or regional institutions. The 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 The burgeoning and increasingly globalized community of comparative constitutional law academics is another source of influence. The 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

These transnational sources of influence are matched by equally significant international pathways. We have already noted the role of the UN in constitution-making. Regional human rights bodies, as well as other regional institutions, have also emerged as a key source of influence. In Europe, of course, the influence of the ECHR (p.10) on domestic constitutional doctrine has been mapped in detail.62 The 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 different 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. The Venice Commission is an advisory body, staffed by national constitutionalists, that gives advice on constitutional reforms and legislation in light of ‘European constitutional heritage’. The 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 significant institutions also exist in other regions, especially Latin America and Africa. The 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 Inter-American 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

Thus, there are a range of both transnational and international institutions and actors helping to diffuse norms of liberal democratic constitutionalism. This network has been critiqued on several different grounds. Some scholars, for example, argue that it reflects 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 influence.

These arguments raise important concerns, even if they are in some respects overstated. The ‘club’ of high-profile courts and justices, for example, has been expanded (p.11) 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 different. Our point is not that these networks are so strong as to be hegemonic. They may be in some cases. But the larger problem is that they are often unduly weak or limited in their influence, such that the seeming triumph of liberal democratic ideas is in some sense more rhetorical and apparent rather than real. The 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 efforts can be better insulated against the very real risks of abuse.

B. The New Authoritarianism and Shifting 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 shifted in subtle ways over the past several decades.

Immediately after 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 confident 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 (p.12) As Krastev and Holmes argue, ‘1989 heralded the onset of a thirty-year Age of Imitation’.73

This was the period in which Fukuyama could confidently assert the ‘end of history’: liberal democracy appeared to be the only game in town. There 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 difficult, 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 These 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 flaws in market-based economies—including a persistent decline in work, wages, and benefits 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, often 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

There 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 The dominant current view is that populists of both the left and the right are often (although not inevitably) (p.13) 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. They 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. Thus, populists may change or rewrite constitutions and laws in an attempt to entrench electoral advantages and weaken the opposition. The result, as shown in populist regimes as diverse as Venezuela, Turkey, and Hungary, may be the erosion or even destruction of democracy.

The 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, offers 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 (p.14) 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 often dripping with disdain for the ‘West’, are only incipient. They are not fully thought out and they do not offer 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 off popular discontent with existing strains of liberal democratic constitutionalism, but they have yet to offer 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 often maintain all the building blocks of liberal democracy. They still have rights, courts, electoral commissions, and anti-corruption bodies. They 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 (p.15) democracy or maintain authoritarianism is in.94 One of us has called this anti-democratic use of the tools of constitutional change ‘abusive constitutionalism’.95

Third, 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 justified 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 justified the law via comparison: he noted that there is not ‘one single paragraph in the media act that you cannot find 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 justified 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 effectively 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 The Orbán regime used political constitutionalism—a key concept within modern liberal democratic constitutionalism—to legitimate attack on the courts. And once that effort 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. This ought to be unsurprising, given how intertwined the two communities have become. Across parts of Latin (p.16) America, for example, courts have drawn heavily on international and regional norms governing the right to political participation to strike down limits on presidential re-election. These decisions were issued at the behest of powerful leaders seeking to remain in office indefinitely, generally under conditions where observers have raised significant doubts about the quality of democracy. Yet the nature of Latin American caudillismo has changed: instead of the old school strongman refusing to leave office in defiance 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. The Significance 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 identified 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 These 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 These clauses are often 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 after the 2009 military removal of President Manuel Zelaya;101 (p.17) in Africa, it was triggered after coup attempts in countries such as Mali and Guinea Bissau.102

One unintended consequence of these improvements in the promotion and enforcement of liberal democracy is that authoritarian actors, as William Dobson notes, ‘are far more sophisticated, savvy and nimble than they once were’.103 They understand that ‘in a globalised world the more brutal forms of intimidation are best replaced by more subtle forms of coercion’.104 Authoritarianism has become more legalistic in part as a survival strategy in response to these changes in the transnational and international levels.

These shifts make it more beneficial for authoritarian actors to cloak their actions in the language and techniques of liberal democratic constitutionalism. These pressures are not evenly distributed across countries and regions; they depend in large part on the expectations of domestic, regional, and international actors. There are still openly authoritarian states in some regions—consider the Middle East. But there is also a liberal democratic script that has been followed by many states since the end of the Cold War, even among those that in reality are authoritarian or hybrid. To some extent, this may simply reflect isomorphism, especially for those aspects of constitutional design that can be rendered relatively costless to the regime (such as constitutional rights).105

In parts of the world where the regional pressures pushing a liberal democratic model are especially thick and powerful, such as Europe, one would expect the tendency toward abusive constitutional borrowing to be especially strong. There, both Council of Europe institutions (such as the ECHR and the Venice Commission) and EU institutions to a degree have a mandate to protect and promote liberal democracy, and there are no real counter-examples to liberal democratic governance.106 To a lesser but still considerable degree, though, similar dynamics exist in Latin America and even Africa, where international institutions have increasingly promoted democratic norms and sanctioned obvious non-compliance with those norms (in the form, for example, of a coup d’etat).107

Regimes may gain a series of advantages from clothing their authoritarian moves in the guise of liberal democracy. One potential benefit is that using a liberal democratic tool may obscure the true intent or effect of a maneuver. Of course, in many cases close, sophisticated observers will have a sense of what is going on. But the relevant audiences for political change are heterogeneous, and at any rate much broader than the set of sophisticated observers or analysts. Important domestic constituencies, for example, (p.18) may still misunderstand abusive constitutional borrowing as a pro-democratic rather than anti-democratic move, giving it increased legitimacy. At the very least, this form of borrowing may muddy the waters. This ambiguity may give would-be authoritarians an important rhetorical tool to convince supporters and other domestic actors that they are advancing rather than attacking democratic principles.

Even where abusive constitutional borrowing does not play this concealment or obscuring role, it may still play other valuable functions for the regime. It may, for example, raise the costs of a strong negative response from transnational or international actors. Even where international actors understand the true intent or likely effect of a given move, they may still have more difficulty calling out or sanctioning a regime that clothes its actions under the guise of liberal democratic constitutionalism. This is in part due to well-founded concerns about external actors intervening too aggressively in domestic constitutional disputes.108 Constitutional interpretation is, of course, both prone to inevitable ambiguity and often bound up with local techniques and concerns.109 Thus, even a dubious legal decision that does significant damage to democracy may meet a muted international reaction out of concern that international actors may be misunderstanding or misinterpreting the dispute. In contrast, an authoritarian actor who violates his or her own law in an obvious way (such as by blatantly ignoring term limits or carrying out a military coup) is likely to face a much stronger international response.

Similarly, the international community may sometimes fear that an attack on a misuse of a design, concept, or doctrine that is central to liberal democracy may be construed as an attack on that design, concept, or doctrine itself. For example, transnational or international actors may fear that by calling out or sanctioning an abuse of judicial review, they are undermining the promotion of judicial independence itself, especially in fragile contexts. Promoters of these concepts may therefore fear that attacking its misuse will damage the norm itself.

Transnational and international actors may also worry that by responding to the abuse of liberal democratic law and discourse, they are opening themselves up to scrutiny of their own practices. Thus, liberal democratic states and actors can criticize military coup d’états with the safety of knowing that they are critiquing practices that are far from their own reality. But misuse of law and liberal democratic norms can hit much closer to home, opening states up to scrutiny of their own undemocratic or illiberal practices or enclaves. This in turn invites charges of hypocrisy, either because states are ignoring their own problems or because they are calling out other states for practices they themselves engage in. The potential charge of hypocrisy may at times make states and international actors less willing to respond aggressively to the abuse of liberal democratic practices.

There is also one final point, which strikes close to the heart of this book. The promoters of liberal democratic designs, doctrines, and concepts often promote them (rightly, in our view) as constitutional technologies with a clear teleology attached. Constitutional courts are intended to protect the democratic constitutional order,110 (p.19) constitutional rights to defend the basic interests of especially vulnerable minority groups,111 etc. And these are claims made at a high level of abstraction; similar but more precise statements are often made about specific designs or doctrines. To be sure, there is contestation about the desirability or form of many of these things, but the point is that their intended substance is promoted alongside their form. In short, they assume a kind of good faith by borrowers.

Abusive constitutional borrowing, however, works by decoupling this intended unity of form and substance. All forms of constitutional borrowing involve some degree of adaptation of constitutional norms from one country to another; and this process of adaptation inevitably involves at least the partial decoupling of the form of a constitutional norm from its substance, from accompanying norms and conditions, or even from its purposes. In the hands of would-be authoritarians, this kind of adaptation can also allow liberal democratic norms to be borrowed in the service of anti-democratic ends.

As we explain in Chapter 3, this can be done in four different ways. The most obvious is by adopting the form of liberal democratic constitutionalism without intending to import the substance at all—this is a sham form of borrowing, which essentially uses liberal democratic norms like rights as a Potemkin Village behind which authoritarian projects operate. Other forms involve selective or acontextual forms of borrowing, which take liberal powers or prohibitions without accompanying democratic exceptions or immunities, or constitutional institutions without the necessary supporting social, economic, and political conditions that give those institutions a pro-democratic operation. The least obvious—but to us one of the most interesting and dangerous—form is by inverting the intended substance or teleology, making liberal democratic ideas into a kind of boomerang with anti-democratic rather than pro-democratic effects. It is striking how readily a range of liberal democratic concepts and institutions—rights, courts, constituent power theory, the unconstitutional constitutional amendment doctrine, and political constitutionalism, to give a partial list—can be turned into powerful tools to attack democracy.

Many of the central concepts of liberal democratic constitutionalism are double-edged swords. Liberal democratic norms, doctrines, and concepts can travel without the teleology that their promoters would hope would be attached to them. When the teleology is stripped, they become mere tools which can be used efficiently to undermine, rather than support, liberal democracy. In those circumstances, it is no wonder that the use of liberal democratic norms can be attractive to would-be authoritarians as anti-democratic tools. This, in turn, poses a central challenge to theorists and practitioners of constitutional democracy, both domestically and internationally.

For example, modern theories of constitutional design and practice place great emphasis on courts as protectors of the democratic order.112 Courts are thus given an increasingly high number of powers, and demands, as a result. But this centralization of power and responsibility in apex courts makes them effective tools to carry out the (p.20) opposite set of tasks: consolidating power for the regime and repressing the opposition. A similar point holds for other institutions charged with protecting democracy in the modern world: electoral commissions and anti-corruption bodies are given considerable amounts of power to maintain even electoral playing fields, but if captured by a regime, they can efficiently carry out the opposite function. Furthermore, modern constitutional design includes an increasing (and increasingly complex) set of constitutional rights. These rights can sometimes be enforced in such a way as to consolidate power for the regime, and to sideline rather than empower minority groups.

How should the liberal democratic community respond to these challenges? Our main goal is to analyze a phenomenon that has been overlooked by comparative constitutional law scholarship and by many of those promoting liberal democratic constitutional ideas. Just as David Kennedy sought to raise awareness among the international law community about the ‘dark side’ of international humanitarian and human rights law,113 we seek to clarify an important dark side that shadows liberal democratic constitutionalism.

This awareness in turn has implications on at least three levels. First, monitoring and enforcement of domestic developments by the international and transnational communities, and the appropriate level of skepticism (or realism) that should be expressed and acted upon in the face of dubious actions taken in the name of liberal democracy. Second, the development and diffusion of liberal democratic designs, doctrines, and concepts, where key players should take a more defensive approach that is sensitized to the (often very high) risk of abuse. We call this approach ‘abuse-proofing’ liberal democratic norms. Third, the level at which liberal democracy is debated and discussed. The phenomenon of abusive constitutional borrowing is a kind of perverse by-product of the dominance of liberal democratic forms, even in an era where its underlying assumptions have fallen under sharp attack. In this sense, the narrowness of current designs and debates may invite subversion, rather than the more open and honest kind of contestation that would help to heal and improve the wobbling but invaluable edifice of liberal democratic constitutionalism.

D. The Plan of the Rest of this Book

Chapters 2 and 3 flesh out the basic concept of abusive constitutional borrowing. Chapter 2 begins by clarifying our concept of democratic ‘abuse’, which (as in our other work on abusive forms of constitutional change) depends on a relatively minimalist, electoral conception of democracy familiar from recent work on democratic erosion in both political science and comparative constitutional law. It is a concept we refer to as the ‘democratic minimum core’. This definition is not necessarily incompatible with the embrace of thicker, more maximalist definitions of democracy in other contexts, but it provides a useful yardstick for making judgments about democratic backsliding or erosion. Chapter 2 also explores the variety of ways in which political actors may achieve ‘abusive’ forms of constitutional change—including formal (p.21) constitutional amendment and replacement, the amendment or repeal of constitutional or quasi-constitutional statutes, processes of judicial interpretation, and various policy ‘workarounds’.114

Chapter 3 extends this analysis to the domain of constitutional comparison and borrowing. It argues that abusive constitutional borrowing involves the appropriation of liberal democratic norms with the effect of making the political system significantly less democratic. Chapter 3 also introduces a typology of four forms of abusive constitutional borrowing: ‘sham’ borrowing, which seeks to borrow liberal democratic forms while suppressing the substance; selective borrowing, where a would-be authoritarian selects only part of a norm in order to magnify its anti-democratic effect; acontextual borrowing, where norms are purposefully transplanted to new political and social contexts where they will have the opposite of the intended effect; and ‘anti-purposive’ borrowing, which makes liberal democratic ideas into boomerangs that attack rather than fortify constitutional democracy.

Chapters 4 through 7 consider a series of examples, chosen both to convince the reader that the phenomenon is empirically significant and to give a sense of its dynamics. Throughout, we draw on a wide range of examples from Africa, Asia, the Americas, and Europe, and in doing so hope to address recent critiques of the field of comparative constitutional law as focused only on the usual suspects.115 While we shed new light on well-studied cases such as Poland, Hungary, and Venezuela, we also branch out to show how the same logic operates in other contexts such as Nicaragua, Rwanda, Cambodia, Thailand, and Fiji.

Chapters 4 and 5 focus on perhaps the two bedrocks of modern liberal democratic constitutionalism: rights and courts (or more precisely, the practice of judicial review). Despite their centrality to the overarching project of liberal democracy, both can readily be used to consolidate power and to repress opposition groups. In Chapter 4, we show how hate speech laws and gender quotas have enhanced authoritarianism in Rwanda, anti-Holocaust memory laws have been turned into tools to threaten political opponents in Poland and Russia, voting rights discourses have helped to tilt electoral playing fields in Fiji and Hungary, and a sham-like commitment to environmental rights aided the consolidation of power in Ecuador.

Chapter 5 draws on a wide range of examples, but focuses most centrally on the many ways in which the Venezuelan Supreme Court repressed the opposition-held Congress following the landslide 2015 election, and on how high courts in Cambodia and Thailand used militant democracy principles to ban parties in a way that undermined, rather than protected, democracy. In fact, many of the examples in this book involve courts abusing liberal democratic doctrines, highlighting both the very high levels of deference courts are given in the modern transnational legal order and the relative ease with which these institutions can be redeployed to advance authoritarian projects. Courts have been conceptualized in the literature as more or less effective shields of the liberal democratic order;116 we show how they can be turned into powerful tools to undermine democracy.

(p.22) Chapters 6 and 7 expand outward a bit, while retaining a focus on ideas tightly linked to liberal democracy. Chapter 6 analyzes a set of ideas linked to constituent power, or the insistence on popular democratic will as the basis for the legitimacy of constitutional institutions. Both the assertion of all power as stemming ultimately from ‘the people’, and the limitations that this assertion might impose on the amending power of ordinary political institutions, have become important tools for would-be authoritarians. We show how leaders in Venezuela and Ecuador have convoked Constituent Assemblies to consolidate power, as well as how many autocratic leaders throughout Latin America have wielded the unconstitutional constitutional amendment doctrine and related ideas to excise presidential term limits based on a purported human and constitutional right to re-election. Authoritarians have also abused supportive international law norms designed to buttress domestic popular sovereignty. Here we consider the use of an ‘unconstitutional government’ argument to legitimate a military coup by the Fijian Human Rights Commission, and the deployment of national identity and constitutional pluralism arguments by the Hungarian and Polish regimes to shield anti-democratic or illiberal maneuvers from scrutiny by the European Union.

Chapter 7 looks at the concept of political constitutionalism, an idea with deep grounding in liberal democratic scholarship and practice, and which asserts that constitutional commitments are best enforced via more political, and less judicial, forms of enforcement. In Poland and Hungary, political constitutionalist ideas were abused to justify the weakening and capture of independent judiciaries. And in Israel, allies of Prime Minister Netanyahu have recently attempted to borrow the Canadian model of ‘New Commonwealth Constitutionalism’ in order to derail an ongoing criminal process against him.

Finally, Chapter 8 concludes by examining the implications of our analysis. We contend that abusive constitutional borrowing poses an extraordinary challenge for analysts and promoters of liberal democracy. The new, more sophisticated, and legalistic form of authoritarianism with which it is associated is well adapted to thrive in the modern transnational order. But we think that a greater awareness of this dark side of liberal democracy can be used to improve monitoring and enforcement at the international level, the design and shaping of liberal democratic constitutional norms (particularly what we call ‘abuse-proofing’), and the continuing dialogue about the nature of liberal democracy itself.

Notes:

(1) See David Fontana, ‘The 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, ‘The 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, ‘The Migration of Proportionality Across Europe’ (2013) 11 New Zealand J Pub & Int’l L 483; Joao Andrade Neto, Borrowing Justification for Proportionality: On the Influence of the Principles Theory 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, Thomas E Kellogg, ‘Arguing Chinese Constitutionalism: The 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 Shaffer, 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: The Role of Transnational Legal Norms’ in Gregory Shaffer, Tom Ginsburg, and Terrence C Halliday (eds), Constitution-Making and Transnational Legal Order (CUP 2019) 234, 234–5.

(10) See Francis Fukuyama, The 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 after 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: The 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.

(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), The Migration of Constitutional Ideas (CUP 2006) 1.

(20) See Zachary Elkins, Tom Ginsburg, and James Melton, The 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 “The Declining Influence of the United States Constitution” ’ (2012) 87 NYU L Rev 2088, 2094.

(21) Law (n 5).

(22) There 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. The 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: The 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, ‘The Evolution and Ideology of Global Constitutionalism’ (2011) 99 Calif L Rev 1163.

(25) Zachary Elkins, Tom Ginsburg, and Beth Simmons, ‘Getting to Rights: Treaty Ratification, Constitutional Convergence, and Human Rights Practice’ (2013) 54 Harv Int’l LJ 61.

(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: The Impact of Constitutional Social Rights on Social Spending’ (2017) 60 JL & Econ 713.

(29) Tom Ginsburg and Mila Versteeg, ‘Why Do Countries Adopt Constitutional Review?’ (2014) 30 J Econ & Org 587.

(30) Ran Hirschl, ‘The 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: The 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; Theo Öhlinger, ‘The Genesis of the Austrian Model of Constitutional Review of Legislation’ (2003) 16 Ratio Juris 206, 214; Georg Schmitz, ‘The Constitutional Court of the Republic of Austria 1918–1920’ (2003) 16 Ratio Juris 240.

(33) Ginsburg and Versteeg (n 29).

(34) See, eg, recent French adoption of concrete review: King (n 31).

(35) Stephen Gardbaum, The New Commonwealth Model of Constitutionalism: Theory and Practice (CUP 2013); Stephen Gardbaum, ‘The 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, The New Commonwealth Model of Constitutionalism: Theory and Practice (CUP 2013); Rosalind Dixon, ‘The Forms, Functions, and Varieties of Weak(ened) Judicial Review’ (2019) 17 Int’l J Const L 904.

(37) Ginsburg and Versteeg (n 29) find that domestic political factors (particularly levels of political competition) are a better predictor of adoption of judicial review than international patterns of diffusion, contrary to the standard finding 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).

(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: The Functions of Courts in Authoritarian Politics’ in Tom Ginsburg and Tamir Moustafa (eds), Rule of Law: The Politics of Courts in Authoritarian Regimes (CUP 2012) 1.

(42) Rosalind Dixon and Eric A Posner, ‘The 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 Justification’ (2011) 59 Am J Comp L 463; Stone Sweet and Mathews (n 7).

(47) Cohen-Eliya and Porat (n 47).

(48) Ibid.

(49) Carlos Bernal, ‘The 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: The Migration and Success of a Constitutional Idea’ (2013) 61 Am J Comp L 657.

(54) Yaniv Roznai, Unconstitutional Constitutional Amendments: The Limits of Amendment Powers (OUP 2017); Joel Colon Rios, ‘Enforcing the Decisions of “The 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: The Case of Pakistan’ (2017) 2 UC Irvine J Int’l Trans & Comp L 33.

(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 Through Expert Knowledge’ (2015) 11 L, Culture & Humanities 363; Zaid Al-Ali, ‘Constitutional Drafting and External Experience’ in Tom Ginsburg and Rosalind Dixon (eds), Comparative Constitutional Law (Edward Elgar 2011) 78; Guenter Frankenberg, ‘Constitutional Transfer: The IKEA Theory 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/what-we-do/constitution-building>.

(59) Anne-Marie Slaughter, ‘Judicial Globalization’ (1999) 40 Va J Int’l L 1103.

(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/>.

(62) Helen Keller and Alex Stone Sweet (eds), A Europe of Rights: The Impact of the ECHR on National Legal Systems (OUP 2008); Anne-Marie Slaughter, Alec Stone Sweet, and JHH Weiler (eds), The 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, ‘The 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: Theory, 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: The Emergence of a New Ius Commune (OUP 2017).

(68) Sripati (n 2).

(69) Ran Hirschl, Comparative Matters: The Renaissance of Comparative Constitutional Law (OUP 2014).

(70) On the global south critique, see, eg, Daniel B Maldonado (ed), Constitutionalism of the Global South: The Activist Tribunals of India, South Africa and Colombia (CUP 2013); Zoran Oklopcic, ‘The South of Western Constitutionalism: A Map Ahead of a Journey’ (2016) 37 Third World Q 2080; Philipp Dann, Michael Riegner, and Maxim Bönnemann, The 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), The New Law and Economic Development: A Critical Appraisal (CUP 2006); Zaid Al-Ali, ‘Constitutional Drafting and External Experience’ in Tom Ginsburg and Rosalind Dixon (eds), Comparative Constitutional Law (Edward Elgar 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, The Light that Failed: Why the West Is Losing the Fight for Democracy (Pegasus 2020) 5.

(74) Martin Krygier, ‘Marxism and the Rule of Law: Reflections After 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 After COVID’ (unpublished manuscript 2020) (on file 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, The Concept of the Political (UCP 2008).

(79) See discussion in Jan-Werner Müller, What Is Populism (Pennsylvania 2016) 44–8.

(80) Andras L Pap, Democratic Decline in Hungary: Law and Society in an Illiberal Democracy (Routledge 2017).

(81) See Daniel Hegedus, ‘The Kremlin’s Influence 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 Stiftung, 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 Aff 47.

(82) See Hegedus (n 81).

(83) See Kreko and Gyori (n 81).

(85) See ibid.

(86) See ibid.

(87) See ibid.

(88) Mark Tushnet, ‘The 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, ‘The 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 (finding that the frequency of coups has declined and that their significance for democracy has become more ambiguous); Ozan O Varol, ‘The 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).

(94) See Varol (n 91) 1677; Alvin YH Cheung, ‘For My Enemies, the Law’: Abusive Legalism (JSD Thesis, New York University School of Law, 2018) (on file 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, ‘The Hungarian Constitutional Court and Constitutional Identity’ (Verfassungsblog, 10 January 2017) <https://verfassungsblog.de/the-hungarian-constitutional-court-and-constitutional-identity/>.

(99) See, eg, Antonio Perez, ‘Democracy Clauses in the Americas: The 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? The Effects 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>.

(102) See J Shola Omotola, ‘Unconstitutional Changes of Government in Africa: What Implications for Democratic Consolidation?’ (Nordiska Afrikainstitutet Discussion Paper 70, 2011) <http://www.diva-portal.org/smash/get/diva2:478511/FULLTEXT01.pdf>.

(103) William J Dobson, The Dictator’s Learning Curve: Inside the Global Battle for Democracy (Random House 2013).

(104) Gabor Halmai, ‘Legally Sophisticated Authoritarians: The Hungarian Lex CEU’ (Verfassungsblog, 31 March 2017) <http://verfassungsblog.de/legally-sophisticated-authoritarians-the-hungarian-lex-ceu/>.

(105) David S Law and Mila Versteeg, ‘The Evolution and Ideology of Global Constitutionalism’ (2011) 99 Calif L Rev 1163, 1163–4; John W Meyer and others, ‘World Society and the Nation-State’ (1997) 103 Am J Soc 144.

(106) Eg, Scheppele (n 14); Jan-Werner Muller, ‘Should the EU Protect Democracy and the Rule of Law Inside Member States?’ (2015) 21 Eur LJ 141.

(107) Eg, Morton H Halperin and Mirna Galic (eds), Protecting Democracy: International Responses (Lexington 2005).

(108) Rosalind Dixon and Vicki C Jackson, ‘Constitutions Inside Out: Outsider Interventions in Domestic Constitutional Contests’ (2013) 48 Wake FL Rev 149.

(110) Samuel Issacharoff, ‘Constitutional Courts and Democratic Hedging’ (2010) 99 Geo LJ 961.

(111) John H Ely, ‘Democracy and the Right to Be Different’ (1981) 56 NYU L Rev 397; Ronald Dworkin, Freedom’s Law: The Moral Reading of the American Constitution (OUP 1999).

(112) Tom G Daly, ‘The Alchemists: Courts as Democracy-Builders in Contemporary Thought’ (2017) 6 Global Constitutionalism 101.

(113) David Kennedy, The Dark Sides of Virtue: Reassessing International Humanitarianism (PUP 2005).

(114) Mark Tushnet, ‘Constitutional Workarounds’ (2008) 87 Tex L Rev 1499.

(115) Hirschl (n 69).

(116) Issacharoff (n 110).