Democratic Erosion, Populist Constitutionalism and the Unconstitutional Constitutional Amendment Doctrine

Abstract

The recent phenomenon of democratic backsliding is characterized, among other things, by what has been referred to in the literature as “constitutional capture”, “constitutional retrogression”, “abusive constitutionalism” or “populist constitutionalism”. These terms describe the practices by which populist politicians, once in power, employ constitutional law to promote their goals and weaken the state’s democratic values, mechanisms and institutions. We examine the applicability of the Unconstitutional Constitutional Amendment doctrine (“the Doctrine”) in the context of democratic backsliding. We argue that the Doctrine has the potential of guarding against the use of constitutional change tools to undermine democracy. However, we also argue that the characteristics of democratic backsliding present special challenges for the application of the Doctrine. The first challenge derives from the incremental nature of democratic backsliding, which renders it difficult to identify the benchmark for applying the Doctrine. The second challenge regards the shortcomings of the Doctrine in responding to constitutional replacement, and, more broadly, the allegedly limited justifications for applying the doctrine when constitutional changes are made using direct democracy measures, such as referendums. The third challenge derives from the manner in which populist constitutionalism targets the judiciary. We outline and analyse these challenges and offer guiding principles and adjustments for applying the Doctrine in response to democratic backsliding. We distinguish between normative and strategic considerations for applying the Doctrine, and while we do not dismiss the latter, we focus on the former. With regards to the challenge of incrementalism, we argue that Courts should consider the accumulative or aggregated effects of a series of constitutional amendments. With regards to constitutional replacements or amendments that were adopted following direct democracy measures, we argue that Courts should focus on examining the depth and inclusiveness of the process. With respect to judicial independence, we argue that despite the strategic risks associated, constitutional changes that infringe upon judicial independence should be especially scrutinized.