Democratic backsliding, making and changing the constitution
Panel formed with individual proposals.
Part of the literature on attacks on the rule of law without institutional breakdown reports the process of creating new constitutions or constitutional amendments. The government of Jair Bolsonaro, the current Brazilian president, has been characterized by a decrease in rankings of the rule of law and democracy. However, the techniques used do not go through formal alteration or constitutional substitution, but through the mixture of three procedures: normative alterations through decree, budget strangulation of the bodies responsible for control and replacement of public servants that are not suitable for the institutional weakening project. All three operations have been used in the environmental area, causing the area to be weakened and the constitution to be deconstructed and emptied. Thus, understanding how the environmental area has been destroyed is relevant to understanding the threat to constitutional law.
This paper critiques ‘constituent power theory‘ (CPT), which holds that the people, the constituent power, are the sole agents capable of legitimately creating a constitution, and that they necessarily act outside of and in tension with the institutions of democratic governance. We argue that underneath CPT‘s cheery credentials of popular sovereignty and participatory democracy lays a foundation that is anti-pluralistic and elite-centric, and therefore undemocratic and illiberal. We make this argument by showing affinities between CPT and populism. First, we set out populism's core normative tenets. Second, we reconstruct CPT as a legitimating theory and show that it endorses the same tenets, and thus embraces a politics in which viewpoint pluralism is rejected, citizens are treated unequally, and elites are empowered against democratic procedures in ordinary times. Third, we sketch out implications of our argument on participatory constitution-making and constitutional entrenchment.
The division of branches of law into public and private is familiar to the Russian law. There has also been a tendency towards sectoral convergence within both groups, especially with regard to Public Law. An important factor here was the inclusion of the concept of ‘unified public power‘ into the text of the Constitution in 2020. It is assumed that this amendment will entail the development of uniform standards for the functioning of public-power mechanisms to tackle, inter alia, threats like COVID-19. However, despite constitutional guidelines, there is a lack of theoretical ground for the public power concept in the Russian legal doctrine, as well as understanding of the instruments that need to be developed to ensure its intersectoral regulation within the Public Law as a ‘super branch‘. Consequently, both Public Law and power, albeit having resonance in Russia, remain to be ‘unknowns‘ for legal scholars and practitioners, which undermines prospects of their future development.
This paper aims to show that secession, especially if unilateral, is difficult in contexts of liberal democracy. Obstacles and difficulties to consensual secession will be distinguished from those of unilateral secession, emphasising the harshness of the latter in light of the Catalan experience. With regard to consensual secession, several constitutional models will be ordered along a sort of spectrum of legal barriers. With respect to unilateral secession, many difficulties and problems will be addressed, such as polarisation, non-recognition, coercion, anarchy and legal uncertainty. Three strategies will be analysed to tackle these issues, namely domestication, perseverance and drama. Although a combination of all three is expected in the world of facts, domestication and perseverance should prevail over drama in the normative realm of liberal democracy. The strategy of drama ought to be limited or restrained in contemporary democracies. Drama is contagious and can backfire.
Globally, more than half the attempts at making a democratic constitution have failed to produce one. Another large number of constitutions where while a draft was made and implemented, the constitution failed and was ultimately rejected by the populace or political elites. A curious case emerges in instances when would-be-autocrats draft authoritarian constitutions in democratic regimes. They do it rather successfully. Moreover, they do so without using force, with the consent of large sections of the society, and in ostensibly democratic ways. The question that then arises is how would-be-autocrats are more successful than their democratic counterparts. Using three different case studies of authoritarian constitution-making from Hungary, Venezuela, and Turkey, this article will deep dive into the ‘method and madness‘ behind the success of would-be autocrat‘s constitution-making endeavors and these authoritarian constitutions‘ subsequent acceptance by the populace.