Transnational constitutionalism and a limited doctrine of unconstitutional constitutional amendment: A reply to Rosalind Dixon and David Landau

Abstract

As Rosalind Dixon and David Landau observe in their article, Transnational Constitutionalism and a Limited Doctrine of Unconstitutional Amendment (International Journal of Constitutional Law, vol.13, no. 3, pp. 606-638, 2015) the breakdown of constitutional democracy is a central fear of contemporary politics. On their account abusive constitutional amendments are central techniques for democratic backsliding, and judicial review of such amendments is justified on the basis that it safeguards democracy from itself. But on their account, the assertion of such a judicial power carries a potential danger -- that courts could overreach and second-guess constitutional amendments which do not pose an existential threat to constitutional democracy. I engage Dixon and Landau on two points. First, I suggest that comparative constitutional law should premise its analysis of the problem of democratic backsliding not on the problem of unconstitutional constitutional amendments, but rather on a broader inventory of the various legal tools used by autocrats that enable democratic backsliding, which encompasses the abuse of the power of constitutional amendment but extends well beyond it. Secondary, the more likely scenario is not that courts will overreach, but rather than they will fail to call democratic backsliding by its name, which raises important strategic questions for courts on whether to embrace the power to declare constitutional amendments unconstitutional and on what basis, or to calibrate the combination of justification and judicial control differently.