Accessible Requires Authentication Published by De Gruyter August 7, 2020

Democratic Erosion, Populist Constitutionalism, and the Unconstitutional Constitutional Amendments Doctrine

Yaniv Roznai and Tamar Hostovsky Brandes

Abstract

The world is experiencing a crisis of constitutional democracies. Populist leaders are abusing constitutional mechanisms, such as formal procedures of constitutional change, in order to erode the democratic order. The changes are, very often, gradual, incremental, and subtle. Each constitutional change, on its own, may not necessarily amount to a serious violation of essential democratic values. Yet, when examined in the context of an ongoing process, such constitutional changes may prove to be part of the incremental, gradual process of democratic erosion in which the whole is greater than the sum of its parts. This Article explores how courts can respond to such constitutional changes. We argue the Unconstitutional Constitutional Amendment Doctrine should be adapted to respond to existing constitutional practices that utilize incremental and subtle amendments to dismantle the democratic order. We suggest that an aggregated judicial review should be developed. We must also rethink the automatic immunity – the result of two hundred years of revolutionary constitutional theory – provided to complete constitutional replacement from constitutional restrictions and scrutiny. Finally, as opposed to the instinct to require judicial self-restraint with respect to constitutional changes that concern the judiciary itself, we suggest that this is perhaps the type of changes that require strictest scrutiny.


Corresponding author: Yaniv Roznai, Associate Professor, Harry Radzyner Law School, Interdisciplinary Center (IDC), Herzliya, Israel, E-mail: ; and Tamar Hostovsky Brandes, Senior Lecturer, Faculty of Law, Ono Academic College, Kiryat Ono, Israel, E-mail:

Earlier versions of this Article were presented at 2019 ICONS Annual Conference, Chile, July 1, 2019; Programa de Pós-graduação em Ciência Jurídica da UENP Law in Perspective: International Debates, A Universidade Estadual do Norte do, Paraná, Brazil, June 14, 2019; Interdisciplinary Center, Sixth Annual Int’l Symposium on Constitutional Agendas, Interdisciplinary Center, May 27, 2019; An International Conference on “Limits to constitutional changes – Saviors of or Opponents to Democracy?,” Interdisciplinary Center, Herzliya, Israel, May 23, 2019); Public Law Workshop, The Hebrew University, Jerusalem, Israel, Apr. 3, 2019; 5th ICON-S-IL Annual Conference, The College of Management, Rishon Litzion, Israel, Mar. 12, 2019; XIII Encuentro de la Jurisdiccion Constitucional, Bogota, Colombia, Jan. 24, 2019; and the 14th International Human Rights Researchers’ Workshop, College of Law and Business, Ramat Gan, Israel, Jan. 2, 2019 on “Democratic Backsliding and Human Rights.”


Acknowledgments

We would like to thank the organizers and participants of these events, for their comments and remarks, as well as those of the reviewers and journal’s editors.

Published Online: 2020-08-07
Published in Print: 2020-05-26

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