Author Interview: How to Save a Constitutional Democracy

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How to Save a Constitutional Democracy

Tom Ginsburg and Aziz Z. Huq

Tom Ginsburg tells us about his recently published book, co-authored with Aziz Z. Huq: ‘How to Save a Constitutional Democracy’.

What inspired you to take up this project?

The immediate cause was the election of Donald Trump in our own country, which prompted us to write an article called “How to Lose a Constitutional Democracy.” So in some sense our motive was civic concern.  However, we wanted the book to be about much more than Trump or the United States. Instead, we decided to look at the forces challenging liberal constitutional democracy around the world, and how constitutions can facilitate or retard them. We then leverage this comparative knowledge to look back at the United States and how our own constitution, so often worshipped in political discourse, actually fares. It’s not a pretty picture and we conclude that, in the event of a threat, the Constitution might actually facilitate erosion. We also speculate on the best constitutional designs to avoid erosion. 

In all of this, we are working under the conviction that legal scholars have a particularly relevant expertise for understanding democratic erosion. After all, in contrast with the military coup or the popular revolution, democratic erosion proceeds, typically, through a series of incremental steps that are themselves legal in character. Legislation, constitutional amendments, tax audits, court cases, administrative rules; all of these and many other instruments are put in service of the putative authoritarians, but they are also the tools of resistance and defence of the rule of law.  Our view is that constitutional and legal scholars should bring our analytic tools to the project.

I was fortunate enough to meet Justice Ruth Bader Ginsburg at a conference when we were working on our book, and I mentioned the title “How to Lose a Constitutional Democracy” and she said “you should write about how to save one.”  That’s pretty good advice from a wise source.

Whose work was influential on you throughout the course of the project?

We read a good deal of political science and history in the course of researching the book.  Robert Paxton’s Anatomy of Fascism was important as was work by Adam Przeworski, Nancy Bermeo and Jan Werner Muller, whose pithy account of populism remains in my view the clearest.  In terms of legal scholars, Woijiech Sadurski’s work on Poland, Kim Lane Scheppele’s on Hungary, and David Landau’s on Latin America have all been very rich sources of data and inspiration.

What challenges did you face in writing the book?

Our biggest challenge, honestly, has been getting it out before it is a work of history or fiction! The production process can be frustrating for a time-sensitive project, but I suppose the book will, unfortunately, be relevant for a few more years.

Writing the book went pretty quickly and was completed for the most part by the end of the summer of 2017. My co-author Aziz Huq makes me look slow.  I also took a bit of a detour trying to come up with a large-n empirical analysis of erosion, but that convinced me that our measures of democratic quality aren’t really fine-grained enough to be that useful.

It is interesting to try to produce an enduring book in the midst of a 24-hour news cycle. Here in the US, we are buffeted by head-turning political revelations on an almost daily basis.  It is a challenge to rise above the chatter and the outrage to think about deeper forces. Only readers will be able to tell us if we have succeeded.

What do you hope to see as the book’s contribution to academic discourse and to constitutional or public law more broadly?

There are a lot of books about democratic backsliding.  One of our contributions, as lawyers, is to emphasize that democracy is legally constructed—that it cannot function with an underlying set of legal rights and legal institutions. As I mentioned above, it is also the case that constitutional backsliding (or decay or erosion) is increasingly legal. These days, authoritarians seldom engage in coups that end democracy overnight or break legal continuity. Instead, law and legal institutions are central to the authoritarian project too.  So if we can stimulate systematic thinking about the role of law and courts we will have been successful.

One of our themes is that we are in some sense seeing the deeper judicialization of politics, in both democratic and authoritarian settings. As we all know, judicialization has been a major trend of the last few decades, but one of the unintended consequences of increased judicial power is that courts have become targets of the powerful.  This was in some sense quite predictable but it is nonetheless disturbing to see in some contexts.  It will be interesting to watch how governance evolves after an era of enchantment with the judiciary has come to a definitive end.

 What’s next?

I’m working on some lectures on the specific mechanisms by which international law and institutions can support or hinder democracy. It turns out that much of the action here involves regional institutions, rather than some kind of global “right to democratic governance” as Thomas Franck put it some years ago.  Aziz continues to work in the hand-to-hand combat of American constitutional law.  And together we have just penned an article on democracy’s “near misses”—cases in which it looks like backsliding will be permanent, but democracy makes a comeback or refuses to fail.  We think we can all learn a lot from such cases.  I expect we’ll keep exploring these themes for as long as is relevant.

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