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Abusive Constitutional BorrowingLegal globalization and the subversion of liberal democracy$
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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

The Abuse of Constituent Power

The Abuse of Constituent Power

(p.116) 6 The Abuse of Constituent Power
Abusive Constitutional Borrowing

Rosalind Dixon

David Landau

Oxford University Press

This chapter explores the abusive borrowing of ideas related to constituent power—the concept that all power ultimately stems from the people, and which thus reserves power to the people to replace their constitution, while limiting the ability of ‘constituted’ institutions to make fundamental changes. It shows how constituent power theory has been abused to legitimate anti-democratic Constituent Assemblies, including twice in recent years in Venezuela. It also demonstrates how the unconstitutional constitutional amendment doctrine has been wielded throughout Latin America to eradicate presidential term limits, on the argument that they are infringements of the human rights of both voters and elected officials. Finally, it explores the anti-democratic use of international law doctrines related to constituent power: the abuse of ‘unconstitutional government’ norms to justify a military coup in Fiji, and the wielding of the European Union’s constitutional identity doctrines for illiberal or anti-democratic ends in Hungary and Poland.

Keywords:   constituent power, unconstitutional constitutional amendment doctrine, constituent assembly, constitutional identity, European Union, term limits, Latin America, Hungary, Poland, Fiji

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