Yaniv Roznai and Tamar Hostovsky Brandes

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

De Gruyter | Published online: August 7, 2020

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.

Introduction

In recent years, 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. However, 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.

The question we explore in this Article is how, if at all, courts can respond to such constitutional changes. In Section I we review the phenomenon of populist abuse of constitutional mechanism bringing about a democratic erosion. In Section II we examine how the doctrine of “unconstitutional” constitutional amendments (UCA) may be useful in the context of democratic erosion and what are its limits. In Section III, we contrast conflicting notions of popular sovereignty which populist leaders and the doctrine of UCA claim to express, and we propose a new theory of judicial review of constitutional amendments within the context of democratic erosion and abusive constitutionalism in Section IV.

I Democratic Erosion, Populism, and Abusive Constitutionalism

In recent years political theorists have been debating how to characterize and explain the rise and growing success of anti-liberal political parties around the world. These parties are often referred to as “populist.”[1] While the term has been criticized for both overuse and misuse,[2] it is nonetheless helpful in capturing and analyzing the shared characteristics of such parties and regimes, and in understanding the means and methods by which they operate.

Jan Werner Müller defines populism as “a particular moralistic imagination of politics, a way of perceiving the political world that sets a morally pure and fully unified – but … ultimately fictional – people against elites who are deemed corrupt or in some way morally inferior.”[3] A key feature of populism is that populists often speak in the name of “the people,”[4] envisioned as an organic, single entity. The will and interests of “the people,” not as an aggregation of those of individuals but rather as those of a unitary entity, are both of ultimate moral importance, and, allegedly, the only legitimate basis for political action and lawmaking. Populist leaders claim to authentically represent “the people’s will” and reject any other position as negating such will. Accordingly, they often reject what they argue to be unnecessary intermediaries between the people and themselves. They depict institutions that serve as intermediaries as illegitimate barriers controlled by elites, the role of which is to sustain and preserve the latter’s power.

In contrast to authoritarian leaders of the past, who established their autocratic power by force, often through coups, the recent wave of populist, authoritarian, or semi-authoritarian leaders employ an array of means to erode democracy in a legal, gradual, and incremental process. Elected in democratic elections, often following divisive campaigns that portray them as the only genuine representatives of the people and all others as enemies of the people, populist leaders, once in power, begin to dismantle the institutional checks on their power in all areas of life.[5]

Tom Ginsburg and Aziz Z. Huq explain that democratic erosion is a slow version of democratic decay.[6] They define it as a “process of incremental, but ultimately still substantial, decay in three basic predicates of democracy – competitive election, liberal rights to speech and association, and the rule of law.”[7] They explain that

Typically, it does not result in full-blown authoritarianism. Instead, its outcome is some form of competitive authoritarianism, in which elections of a sort still occur, where liberal rights to speech and association are not wholly stifled, and where there is some semblance of the rule of law.[8]

Hungary,[9] Turkey,[10] Poland,[11] and Venezuela[12] are examples of countries in which such processes took place.

The typical process is not only gradual and incremental, but also includes measures that may appear to be contradictory but are, in fact, supplementary. Thus, for example, populist leaders often limit the power of the judiciary, but, at the same time, engage in court-packing and appoint loyalists as judges. A similar approach – placing limits on the one hand, while, at the same time, seeking control – is applied to the media.[13] These acts derive from the gradual way in which populists establish their power. Limiting the power of democratic institutions is needed in other to neutralize them until populists are able to control them. Once the transition has been complete, and populists have taken over, these institutions can then be used to strengthen, legitimize, and reinforce the populists’ rule.

Of the various measures employed by current populist regimes to erode democracy, constitutional change is notable. Paul Blokker argues that, while authoritarian leaders were, in the past, assumed to be hostile towards constitutionalism, which was perceived as limiting their power, the relationship of current populist regimes with constitutionalism is more complex. “Populists in power,” he explains, “engage in intense reform (and abuse) of the existing constitutional arrangements, in contrast to the idea that populism consists of a merely oppositional, anti-political phenomenon.”[14]

The phenomenon of populist regimes using constitutional law to advance their goals has been described as “constitutional capture,”[15] “constitutional retrogression.”[16] “abusive constitutionalism,”[17] “autocratic legalism,”[18] or “populist constitutionalism.”[19] The exact content of each of these terms varies, but they are all based on the observation that one of the characteristics of the “new populism” is the manner in which populists, once in power, employ mechanisms of constitutional change to erode the democratic order.[20]

While all anti-democratic measures taken by populist regimes contribute to democratic erosion, abusive constitutionalism poses a special threat to democracy and human rights. First, in constitutional democracies, constitutional law establishes the central restraint on the government’s power and the ultimate safeguards against violations of human rights. Abusive constitutionalism erodes these protections by targeting both the institutions that restraint power, such as courts,[21] and the state’s democratic values, in particular, freedom of expression.

Second, abusive constitutionalism not only erodes existing protections, but positively entrenches anti-democratic structures as constitutional norms. Once anti-democratic values have been granted constitutional status, attempts to counter them through actions and rules of a lower normative hierarchy may actually be blocked. This may, in turn, have grave effects on civil society, and hinder the conditions necessary in order to facilitate a move toward a regime-change. Abusive constitutionalism can thus be used by semi-autocratic leaders to entrench their authority constitutionally by removing issues that may challenge it outside of the realm of regular politics.

Abusive constitutionalism becomes especially attractive with relatively flexible amendment processes. For example, what allowed for the weakening of checks and balances and the protection of rights in Hungary, effectively turning it into an illiberal state that fails “to comply with minimum standards of constitutionalism,”[22] was the Fidesz party’s two-thirds majority in parliament, which it abused to unilaterally amend and replace the constitution in pursuit of partisan goals.[23]

Ginsburg and Huq note that a central mechanism at the service of those leading the process is formal constitutional amendments: “the first and perhaps most obviously available pathway to democratic erosion uses formal constitutional amendment as a tool to disadvantage or marginalize political opposition and deliberative pluralism.”[24]

For example, returning to Hungary, the passing of the new Hungarian constitution, on April 25, 2011 that replaced the Communist – era constitution (which was amended in 1989 into a liberal-democratic one), facilitated Fidesz to strengthen and establish its control in Hungary. The new constitution served as the basis for an array of measures that allowed Fidesz to pack the Constitutional Court, control the judiciary in various other ways, and curb criticism.[25] In Ecuador and Bolivia, constitutional amendments were the initial maneuver for a course of democratic erosion, and in Venezuela, the establishment of a constitutional assembly, which, later on, facilitated the passing of a new constitution, was among the first measures Chavez initiated to solidify his control.[26] In Turkey, the 2017 constitutional changes initiated by Erdogan are considered to grant him unprecedented power.[27]

The examples above illustrate the power of abusive constitutionalism in facilitating sweeping measures that negatively affect democracy. However, as formal constitutional amendments are used – or abused – as a tool by the populist leader, the doctrine of “unconstitutional constitutional amendments,” which sets various limits to formal constitutional change, may prima facie function as a useful tool to block or hinder such attempts of abusive constitutionalism. But is this really so?

II The UCA Doctrine’s Utility against Democratic Erosion and its Limits

A The UCA Doctrine and its Protection against Abusive Constitutionalism

One feature of modern constitutionalism that is especially relevant for constitutional change is constitutional unamendability. Constitutional unamendability refers to the limitations or restrictions imposed on constitutional amendment powers from changing certain constitutional rules, values or institutions.[28] Unamendability may appear in the form of an explicit unamendable constitutional provision that, as Richard Albert describes, is “impervious to the constitutional amendment procedures enshrined within a constitutional text and immune to constitutional change even by the most compelling legislative and popular majorities.”[29] Unamendability may also be judicially-imposed, when court implicitly derives such limitations from the constitution, declaring that certain constitutional changes are strictly prohibited.[30] Unamendability, explicit or implicit, usually aims to protect core values of the constitution that express its constitutional identity.[31] In both cases, courts may enforce these limits by substantive judicial review of constitutional amendments that confirms the amendment’s compatibility with those constitutional values or provisions regarded as unamendable. If a constitutional amendment is regarded as incompatible with values or provisions protected by constitutional unamendability, court may declare the constitutional amendment as unconstitutional and void.[32] This is, in a nutshell, the UCA doctrine.

In various places, the UCA has proven to be a useful “stop sign” or “speed bump” against constitutional amendments by political leaders aiming to erode the democratic order.[33] In India, the UCA doctrine was famously used during Indira Gandhi’s declared state of “emergency” and was applied to strike down constitutional amendments seeking to shield from judicial supervision various matters such as expropriation claims, nationalizations, electoral disputes, and constitutional amendments themselves. The application of the UCA doctrine (or in its Indian term “basic structure doctrine”) was useful in a struggle against governmental attempts to weaken checks and balances institutions (such as the Supreme Court) and to restrict electoral opposition (as in the case of electoral fraud).[34] The Indian experience proved that the UCA doctrine may prevent unauthorized abuse of power and preserve democracy.[35]

Other examples also demonstrate the utility of the UCA doctrine against abusive constitutionalism. In Taiwan, in 1999, the Third National Assembly adopted the Fifth Amendment to the Constitution according to which the Fourth National Assembly shall be appointed from the various political parties according to the ratio of votes each party received in the corresponding Legislative Yuan election. It also extended the National Assembly’s term to two additional years. In 2000, after the constitutionality of the amendment was challenged before the Council of Grand Justices (the Council), the Council announced Interpretation No. 499 declaring the amendment unconstitutional on the grounds that it violated “some of the most critical and fundamental tenets of the Constitution as a whole,” including the people’s sovereignty, and the importance of checks and balances of governmental powers.[36] Through this judicial exercise of the UCA doctrine, the Taiwanese court played a vital role in preserving the democratic constitutional order against erosion.

More recently, in July 2018, the Ugandan Constitutional Court delivered a landmark, 814-page judgment embracing and incorporating the Indian “basic structure doctrine” and holding that parliament has limited amendment powers. Although the majority upheld provisions of a constitutional amendment that removed presidential age limits, all judges held that the amendment’s provision extending Members of Parliament’s term of office from five to seven years was unconstitutional and void.[37] Again, it was the Court that managed to stop, albeit partially, constitutional changes that would have damaged the democratic order.

Indeed, when courts declare a constitutional amendment that would significantly harm the democratic constitutional order to be unconstitutional, it can slow-down authoritarian initiatives until other political actors gain power[38] or even completely prevent such initiatives.

Consider, for example, the term-limit saga in Colombia. In 2002, Alvaro Uribe was elected President – and turned out to be very popular. As the constitution limited presidential term, Uribe sought to amend the constitution in a way that would allow him to run for a second term. In 2005, the Constitutional Court examined the constitutionality of the amendment, deciding that it was a valid constitutional change.[39] After another successful term, Uribe sought another amendment that would allow him to seek a third consecutive term in office. This time, the Constitutional Court held that a third consecutive presidential term would concentrate executive power, cause severe damage to institutional checks on the president, and force the political opposition to compete on a greatly tilted playing field. Rather than a constitutional amendment, this would be an unconstitutional “constitutional replacement” of the constitutional order.[40] After this dramatic ruling, President Uribe left power in a peaceful manner and, again, through the use of the UCA doctrine, the judiciary played an important role against democratic erosion.[41]

All these examples show the utility of the UCA doctrine against attempts to change the constitution in a manner that would damage the democratic order. True, UCA doctrine is not a perfect mechanism. As one of us wrote: “no constitutional schemes, even those that expressly attempt to, can hinder the sway of real forces in public life for long, or can absolutely block extra-constitutional activity … ”; however, “in normal times, unamendability can be a useful red light before certain ‘unconstitutional’ constitutional changes, and it can stand firm in the normal development of political momentum.”[42] Nonetheless, as we argue, in an era of populist constitutionalism, the doctrine has several inherent weaknesses in light of three characteristics of populist constitutionalism: incrementalism, constitutional replacement, and court packing.

B Incrementalism

As we note in Section II, nowadays, democratic breakdowns occur not by an immediate break – a sudden suspension or destruction of the constitution following a coup d’état – but by elected governments using, abusing, and subverting the democratic institutions themselves. Analyzing how charismatic leaders utilize electoral mandates to consolidate power and eliminate effective opposition, Kim Lane Scheppele emphasized the use of subtle legal means that ultimately dismantle the constitutional system. “To the casual visitor who doesn’t pay close attention,” she notes, “a country in the grip of an autocratic legalist looks perfectly normal. There are, after all, no tanks in the streets.”[43] Indeed, Ginsburg and Huq demonstrate how one of the prime elements of democratic erosion is incrementalism:

Democratic erosion is typically an aggregative process made up of many smaller increments. But those measures are rarely frontal assaults on one of the three institutional predicates of liberal constitutional democracy, of the kind that might be associated with an overly totalitarian or fascist regime.[44]

This is why it is very difficult to spot democratic erosion through abusive constitutionalism.[45]

The UCA doctrine, as we note earlier, aims to preserve the core identity of the constitutional order and its foundational values.[46] Where there is no direct assault on the constitution’s fundamental principles, the utility of the UCA doctrine is limited. The doctrine allows small-scale infringements even of protected constitutional rights and principles, as long as the constitutional amendment does not fundamentally abandon the protected values. In other words, as one of us wrote, “only an extraordinary infringement of unamendable principles, or a constitutional change that ‘fundamentally abandons’ them, would allow judicial annulment of constitutional amendments.”[47]

Accordingly, the UCA doctrine does not seek to prevent minor constitutional changes that deviate from or contradict unamendable principles, and which preserve the State’s constitutional identity. The UCA doctrine’s primary function is to preserve the constitutional order and protect it against revolutionary changes.[48]

The doctrine of UCA, as currently applied, allows for an incremental, gradual crumbling of the constitutional order brought about bit by bit by constitutional amendments. Accordingly, it is almost useless against democratic erosion that is virtually unnoticeable in the eyes of the doctrine. Assassins of democracy use legally, subtle, and gradual means to kill it.[49] This would be “Killing a Constitution with a Thousand Cuts.”[50] And the UCA doctrine helplessly stands aside, witnessing this assassination.

C Constitutional Replacement

The UCA is the result of the limits of constitutional amendment powers, or more accurately, it is the result of the judicial enforcement of these limits. But what if the constitutional change is brought about not through the exercise of the limited amendment authorities but that of the primary (or original) constituent power? In other words, what if abusive constitutionalism is taking place not in the sphere of constitutional amendments but that of a completely new constitution?

The UCA doctrine rests on the distinction between primary and secondary constituent power. It protects the people’s constituent power, expressed in the constitutional fundamental decisions, vis-à-vis the more limited amendment power of the constituted organs. While the doctrine limits the latter, it does not and conceptually cannot – limit the exercise of the primary constituent power of making a new constitution, that is regarded as having extra-constitutional characteristics.[51]

This is not to say that constituent power is omnipotent and that “everything goes”;[52] it is only to say that leaders may circumvent the doctrine by completely replacing the constitution with a new one.

The problem is, as David Landau puts it,

That constitutional replacement is also part of the toolkit of abusive constitutional regimes – by controlling the processes that trigger replacement or the process of constitution-making itself, powerful figures and movements can reshape the constitutional order efficiently in a way that suits their interests. The examples drawn from Venezuela, Ecuador, and Hungary show that constitutional amendment and constitutional replacement are viewed by would-be authoritarian actors as complementary mechanisms.[53]

But constitutional replacement remains largely unregulated in practice and regarded in theory as unlimited, which makes it easy to abuse by political leaders acting in the name of the people. In other words, constitutional replacement remains “part of the toolkit of would-be autocrats,” that allow them to overcome the UCA doctrine.[54] Limits to constitutional amendments may be useful against abusive formal constitutional amendments but not to complete wholesale replacement of the old constitution with a new one, pretending to represent the constituent power of the people which is inherently unlimited by existing constitutional forms and procedures.

D Attacking and Packing the Court

The UCA doctrine shifts the locus of constitutional change from the political authorities to the judiciary. This is part of its strengths. But it is also part of its weaknesses. In an era of populism and democratic erosion, when politicians realize that the ultimate decision regarding constitutional change rests with the judges then, courts may be threatened, pressured or packed, in ways that either undermine their ability or willingness to deploy the doctrine, or – worst – abuse the doctrine.[55]

In Venezuela, the constitution-making process allowed Chávez to remove and pack opposition-held institutions, and in Turkey, a set of constitutional amendments were used by the ruling party to expand the size of the Supreme Council of Judges and constitutional court, enabling their packing.[56] In Hungary, constitutional amendments expanded the size of the court, ousted the President of the Supreme Court, disempowered the existing judicial council and created a new institution with power over ordinary judicial appointments,[57] whereas in Poland, the Constitutional Tribunal was packed with handpicked judges and was reorganized through legislative means.[58] Accordingly, even if, in theory, the UCA may be a useful tool against abusive constitutionalism, the ability to pack the court and control it, severely undermines the utility of the doctrine.

As Ginsburg and Huq correctly claim:

Judges provide no fail-safe. The central role played by the courts can perversely raise the stakes in political battles over who controls the courts. … constitutional provisions on judicial appointments, removal, and salaries, are rarely immunized from constitutional amendments. Hence, it is typically fairly easy for a would-be autocrat to first gain control of the judicial apparatuses before turning to amending other features of the constitution.[59]

It is not only that the UCA doctrine in an era of populism is useless – it is worse. It is a powerful tool that can override constitutional provisions. With a packed court, this powerful judicial mechanism is now at the hands of political leaders, providing them another powerful tool to perpetuate their stay in power. Consider for example, recent events in Latin America in which courts used UCA doctrine not to limit presidential terms or hinder attempts to prolong them, as in Colombia, but in fact to remove presidential term limits at the service of the Colombian leaders.[60] Thus, in Nicaragua, the Constitutional Chamber of the Supreme Court declared in 2009 that the presidential term limit, which was added to the 1987 constitution as an amendment in 1995, violates core principles of the original constitution and was accordingly void,[61] thereby allowing Daniel Ortega, to seek potential reelection. Or, the 2017 Bolivian Constitutional Court decision holding that the terms limits in its 2009 Constitution were unconstitutional.[62] Likewise, in 2015, a packed Constitutional Chamber of the Supreme Court in Honduras ruled that the constitutional single presidential term limit, the eternity clause preventing it from being changed, and constitutional clauses prohibiting attempts to remove the term limits unconstitutional and inapplicable, thereby allowing President Juan Orlando Hernandez to be re-elected.[63]

What is most striking in these cases, is that through judicial decisions the leaders were able to achieve their goal that they could not otherwise have attained. It was the UCA doctrine that provided them with the legal tools to override constitutional limitations on their power. Abusing the doctrine allowed them to overcome such legal restrictions. These examples demonstrate how a misuse of the doctrine or its abuse may not only fail to block constitutional changes that threaten liberal democratic constitutionalism – but, in fact, may even promote such changes.[64]

III Whose People's Will? Populism v. Constitutional Unamendability

As indicated in Section I above, one of the defining features of populism is that populists claim to be the sole authentic representatives of the “people’s will.” This claim can be broken down into two different questions: the first is, who are included in “the people.” The second is, how is the people’s will identified, represented, and executed in terms of policy.

The populist response to the first question is somewhat circular: populist claim to represent the “people’s will.” “The people,” in turn, include those who do not challenge this representation. Populist rhetoric is based, to a large extent, on a Schmittian friend-enemy distinction.[65] Enemies may be internal: Nadia Urbinati describes populism as “collective resentment against the domestic enemies of the people.”[66] U.S. President Donald Trump has repeatedly referred to both his political opponents and the media as “enemies.”[67] In Israel, Prime Minister Benjamin Netanyahu urged his supporters to vote in the 2015 elections, warning them that Arab voters were “flowing to the polls.”[68] Netanyahu’s coalition has since initiated a series of “loyalty” bills, which seek to distinguish between those who are loyal to the state and those who are not loyal to it, denouncing the latter as illegitimate.[69]

However, populists’ enemies may also be external: In Europe, populist leaders turn their wrath against the European Union, calling for the protection of “national sovereignty” and “national interests” against “foreign intervention” representing “foreign interests.”[70] In other countries, populist leaders have targeted international institutions and international law as threatening the interests of “the people.”[71] These attacks serve to further strengthen the notion of “the people” as an organic, identifiable entity, with easily identifiable interests.

The delineation of the boundaries of “the people” is not always only a symbolic, political act aimed at delegitimizing opposition, but may also have feasible repercussions. In Hungary, the introduction of a lenient naturalization process for ethnic Hungarians, together with the granting of extra-territorial voting rights to those naturalized through such process, considerably changed the boundaries of the political community. Perhaps not surprisingly, these changes coincided with the interests of the Fidesz-KDNP party.[72] In Israel, changes to the qualifying threshold required for a party in order to enter the Knesset were introduced in 2014,[73] in an attempt, which did not succeed, to limit the political representation of Arab-Palestinian parties.

Once the boundaries of “the people” have been established, both symbolically and in practice, the question of whether and how populists identify, represent, and execute the will of the people arises. One of the central characteristics of populists, Müller explains, is the claim that “they, and they alone, represent the people.”[74] Populists reject the traditional institutions of representative democracy as elitist means of preventing the people’s will from being revealed, rather than as institutions representing it. Instead, they offer a unitary, organic notion of “the people” and argue to embody it. Since the populist leader is, allegedly, the authentic representative of “the people,” no process is necessary in order to identify the “people’s will” – the populist leader claims to simply know what it is.[75]

There are several possible challenges to this claim. First, as is indicated above, the current populist leaders were elected through democratic elections, and often enjoy wide popular support. In addition, while populists undermine democratic institutions, they often turn directly to the people in the course of executing their agenda, commonly, through referenda. This appears to contradict the above-discussed claims. After all, referenda subject populists’ policies to the people’s vote, and the people – in the aggregated sense, not the “natural” one – allegedly have the power to reject such policies.[76]

Indeed, populists often claim that they, rather than the “old” establishment, are truly committed to democracy.[77] The depiction of domestically elected representatives as self-serving elites, detached from the needs and interests of the ordinary people, is a central characteristic of populist discourse.[78] The reason that this claim appeals to public opinion, is that it builds on real weaknesses and failures of representative democracy,[79] most importantly, the ability of the people to rule,[80] and on the gap that inevitably exists between the “ordinary people” and the law.

The populists alleged commitment to democracy, however, can easily be dismantled. In addition to anti-institutionalism, the rejection of pluralism is an essential element of populism.[81] Populists reject pluralism because, under the friend/enemy distinction, there is no room for opinions that compete with those present. There is, thus, no need for a “marketplace of ideas” or a process of deliberation in which different opinions and views are pitted against each other in order to reveal and form the “people’s will.”[82] With respect to referenda, for example, Müller explains that for populists,

A referendum isn’t meant to start an open-ended process of deliberation among actual citizens to generate a range of well-considered popular judgement; rather, the referendum serves to verify what the populist leader has already discerned to be the genuine popular interest as a matter of identity.[83]

Paul Blokker concludes that while populist constitutionalism “criticizes liberal or legal constitutionalism on similar grounds as (radical-)democratic approaches to constitutionalism,” it “failed to deliver on its own promise of democracy.”[84] However, arguably, even if populists themselves are not committed to democratic values, as long as the “people’s will” is expressed through mechanisms such as elections and referendums, and as long as the policies employed are consistent with such expressions, they ultimately reflect it and are supported by it. This is of course misleading because populism supports top-down mechanisms of popular participation that function to legitimize populist politics, while “real” popular constitutionalism, one might argue, “stresses deliberation, shaping and control functions of participation that tends to maximise people’s capacity to discuss and to form preferences and judgments on public affairs, encouraging equal access to power.”[85]

Indeed, whether the populist express the people’s will depends both on how the “people’s will” is defined and how it is to be identified.[86] The notion of the “people’s will” is central to the UCA doctrine, under which courts appear to override not only the regular political will, but the normatively-higher “people’s will” exercised through constituent power. However, the UCA doctrine is actually based on the primary constituent power of the people.[87] In exercising the review of amendments, one of us has argued, courts “are not acting in a completely counter-majoritarian manner, for they have the support of the high authority of the primary constituent power.”[88] Under the UCA, when courts exercise judicial review over constitutional amendments, they have to decide “between the supra-temporal will of ‘the people,’ as expressed in the basic principles of the constitution, and the temporary will of ‘the people,’ as expressed in a constitutional amendment.”[89]

The question whether the courts have the institutional capacity to decide between these two notions of “the people’s will,” and, in particular, what allows them to “determine the ‘spirit’, ‘basic structure’, or ‘basic principles’ of the constitutions”[90] arises in all situations in which the UCA doctrine is applied. The answer to this question determines, to a large extent, the legitimacy of applying this doctrine.

This question is especially acute in a populist setting. The UCA doctrine is grounded, as indicated above, in the notion of people’s primary constituent power. However, populists appear to draw on the same power: by weakening representative institutions and turning directly to “the people” through methods of direct democracy such as referenda, by convening constitutional assemblies, and by adopting all-new constitutions, to replace old ones that, allegedly, did not reflect the people’s will. How, in this context, can judicial power to override constitutional changes be justified as reflecting the people’s will?

In answering this question, we need to distinguish between two types of legitimacy: normative-institutional legitimacy and social legitimacy. The first refers to the question whether an act is justifiable under our normative assumptions regarding the law and its institutions. If one accepts the UCA doctrine and the role of courts in reviewing constitutional amendments, and, in addition, accepts the claims presented above, that is, that what is portrayed by populists as “the people’s will” may, in many instances, be a distorted version of such will, the claims made by populists have no real bearing on the legitimacy of the application of the UCA doctrine precisely because of the abusive manner in which populists use the notion of “the people’s will.” While, intuitively, measures of direct democracy may appear as clear indications of the people’s will, examples such as the Brexit referendum demonstrate that the reality is more complex, and that while referendums may be good indicators of public opinion in a given moment, they can be too simplistic to provide answers to the people’s will in a more substantive, nuanced sense. The nature of the amendment process is of importance in this context: the more deliberative, inclusive and time-consuming a constitutional amendment process is, the more it is likely to reflect the true “people’s will” rather than a momentary public opinion or majoritarian caprice. From a normative-institutional perspective, the legitimacy of court’s intervention will be weaker in such cases.

From a social legitimacy perspective, however, the picture may be different. Social legitimacy refers to the question whether an act is perceived as legitimate.[91] Populist leaders can easily portray judicial review of constitutional amendments as illegitimate interference with the people’s constituent powers, especially when the UCA doctrine is applied to constitutional changes made following a referendum or a decision of a constitutional assembly. These claims may appeal to the public and deepen the already-existing backlash against the courts that is characteristic of populist regimes. This, in turn, may serve as a pretext for further curtailment of the courts’ authority.[92] The ability of courts to resist such backlash depends on an array of different factors, most of them social, and there is no one-size-fits-all answer to the question when courts may ultimately prevail, and when they will lose.[93] However, while judicial restraint may shield the courts themselves from further attack, the relevant question is whether it will allow them to act in other instances. In a reality in which a government is determined to implement its policies, it is doubtful whether this will indeed be the case. Democratic erosion, it seems clear, cannot be fought with legalism alone.[94] This does not mean that courts should become completely strategic, as this will probably not necessarily shield them from backlash. As Mattias Kumm claimed, research demonstrates that

When under pressure from increasingly aggressive executive and legislative branches, the judicial branch’s best option is to stick to its guns and simply do its job as it usually would … for maintaining democracy, it is important that judges press onward with exercising their authority, even if keeping their heads down to weather the storm might seem like a more attractive option … “courts were not successful” when they tried to “become strategic actors and tried to retrench, back down … and go into a [metaphorical] bunker … to weather the storm.”[95]

The best option for the courts, is probably to adopt a “business as usual”[96] attitude. And indeed, still, court can protect democracy and make corrections in the democratic process, at least in early stages of erosion, when the judiciary is still independent.[97]

Thus, finally, it can be argued that although strategic considerations by the court are understandable from a real-politik perspective, they should not play a central role in a court’s decision to act in response to amendments it genuinely perceives as unconstitutional. As Sujit Choudhry notes,

It could very well be that inviting courts to assert the ultimate power of judicial review over constitutional amendments, and to use the most politically charged justification for doing so, is strategically unwise in fraught political contexts where the very political forces that create the risk of backsliding also pose a risk to the court itself. But principle need not yield to pragmatism in every circumstance.[98]

We would also add that when courts possess the power to review constitutional amendments, this – considering a rational choice theory approach to judicial behavior – allows them to act sincerely, i.e., according to their own policy preferences rather than searching for second-best solutions considering possible overrides and backlashes. The ability of courts to invalidate even constitutional amendments creates an environment prone to such judicial “sincerity,” where judicial policy preferences generally prevail over legislative decisions.[99]

Regardless of one’s position with respect to the legitimacy of strategic considerations, we argue that in an era of populism, there is a need to rethink some of the principles underlying the UCA doctrine.

IV Toward a New Understanding of Judicial Role?

We argued above that the UCA is a truly democratic mechanism that aims to preserve the people’s constituent power as manifested in the constitutional fundamentals, and hence a legitimate exercise vis-à-vis the populists’ claim to be the sole representatives of the people. It remains to explain how judicial activity concerning formal constitutional changes in populist era should be exercised.

In what follows, we open a discussion on three possible routes that aim to circumvent or at least partially overcome the challenges outlined in Section III. Each of these, we believe, deserves its own full treatment. With that, all three merit our attention here, in order to grasp the full picture.

A An Aggregated Judicial Review of Constitutional Amendments

As noted earlier, one of the limits of the UCA doctrine is that it fails to address incremental minor changes to the constitutional order. However, these minor changes have an aggregated effect. As Sadurski writes, the “comprehensive assault upon liberal-democratic constitutionalism produces a cumulative effect, and the sum is greater than the totality of its parts.”[100] Indeed, even if each of the changes on its own does not transform the constitutional order, the incremental aggregation of events may lead to a wide-ranging risk to the liberal-constitutional order, to an erosion of its democratic institutions, and to a gradual democratic backslide.

It is this danger that the minority judges saw in the German Klass case, disagreeing with the majority that the unamendable provision prohibits only a fundamental abandonment of the protected values:

[the unamendable provision] … limits constitutional amendments. Such an important, far-reaching, and exceptional provision must certainly not be interpreted in an extensive manner. But it would be a complete misunderstanding of its meaning to assume that its main purpose was only to prevent misuse of the formal legal means of a constitutional amendment to legitimize a totalitarian regime … Art. 79, par. Three means more: Certain fundamental decisions of the basic Law makers are inviolable … The wording and meaning of Art. 79, par. 3, do not merely forbid complete abolition of all or one of the principles. The word ‘affect’ means less … The constituent elements are also … to be protected against a gradual process of disintegration … .[101]

The unamendable provision, the minority opined, protects also against a gradual process of disintegration.

As the minority opinion in the Klass case suggested, the time has come to consider an aggregated form of judicial review of constitutional amendments. Let us assume an ordinary scenario – abusive constitutionalism is made possible due to the introduction of distinct changes in the legal structure; each by itself does not represent a fundamental abandonment of the constitutional order’s fundamental principles and may not be sufficiently problematic. However, incrementally and in a cumulative manner, these changes bring about a fundamental transformation of the constitutional order to an illiberal or semi-authoritarian one. Assuming that the transformation is not yet complete, we argue that it justified for the court to take into consideration all prior constitutional changes in addition to the single constitutional change it is currently reviewing. That is, we argue that what is needed is an aggregated doctrine that would allow courts to review a specific amendment together with the surrounding legal environment with which it would interact.[102]

For example, we believe that this is precisely what the Colombian Constitutional Court did in its third term case, and what the Israeli High Court of Justice (HCJ) did in its judgment on the biennial budget. The established constitutional rule in Israel was that once a year the government submits the budget for the approval of the Knesset (Israeli Parliament), and if the budget is not approved - the Knesset is dissolved. However, in 2009, the government established a biennial budget, as a temporary measure to handle the global economic crisis. The use of temporary constitutional laws continued for four additional times, when in 2017, the government decided, for the fifth time, to approve a biennial budget by passing another temporary law. After the temporary constitutional amendment was challenged before the HCJ, this time the court refused and issued a nullification notice to the temporary Basic Law.[103] Justice Rubinstein stated that the amendment of the basic law by temporary orders, time after time and under the current circumstances, constitutes a misuse of constituent power: “the repeated use of a temporary order to amend the Basic Law not only overrides the public debate, but also undermines the status of the Basic Laws in a way that justifies a judicial action.”[104]

The Israeli case raises the question why a one-time or two-time biennial budget was allowed, while a fifth was considered to be an unconstitutional abuse of constituent power. Likewise, we may ask why Uribe’s attempt to run for a second term was a valid constitutional amendment, but a third time was considered an unconstitutional replacement. The explanation is, we claim, that the courts applied an aggregated review to the constitutional change. “The quantity turned into quality,” as Justice Hanan Melcer explained in his support in the majority’s decision in the biennial budget case.[105] The recurring use of the temporary amendment turned the “infringement” of the constitutional rule into its “modification.”

While not in the context of judicial review of amendment, the idea of an aggregated review is not novel in legal thinking.[106] Pozner and Porat, for example, examine examples of how aggregation might take place in torts, contracts, criminal law, and public law.[107] The problem of aggregation rises when the existing legal doctrine cannot internalize various types of information that may be relevant in order to make a more accurate decision. But it is precisely in the abusive constitutionalism context of incremental encroachments of fundamental principles that such a new thinking is required. According to such a new thinking, the justification for using an aggregated review would be enhanced when there is synergy between the various amendments, i.e., when the infringement created by the combined changes is greater than the collective infringement of the changes if examined separately.[108]

Consider for example constitutional changes to the electoral threshold. A change from 2 to 3.25% may be reasonable or justified on its own. Likewise, a decrease from 3.25 to 2%. However, a frequent change of this threshold every election in a way that benefits the governing party may be regarded as abuse of the amendment power and as an unconstitutional constitutional change – through the aggregated review perspective.

An aggregated review may relax – even if not solve – the challenge posed by the incremental use of subtle constitutional amendments (while simultaneously of course, providing courts with much greater power).

One may argue that incremental changes enjoy sounder democratic legitimacy than changes made through a single amendment, since the process of enacting a change through several changes will usually be longer, more complex, and provide people more opportunities to object to it. However, an incremental process may also be used as a means for disguising the full effect and implications of the change. Incrementalism, notes Khaitan, does not mean gradualism, but rather the movement toward a goal through “multiple small steps.”[109] Incrementalism can be used as a means of framing public debate around narrow questions that regard each amendment on its own, rather than on their overall effect. In an environment in which public debate and media interest move at a fast pace, it is difficult to expect the public to see the full picture.[110] Aggregation mitigates this difficulty.

The aggregation doctrine raises various questions, such as what is the aggregation that is measured? Is it only an aggregation of a single principle or rule (as in the Colombian term limits, the biennial budget in Israel, or the hypothetical electoral threshold scenario), or more generally the aggregated effect of different changes to the constitutional order even if those touch upon different areas? What is the time frame from which aggregation is considered? In addition, ought we consider only constitutional measures that were adopted or also sub-constitutional measures, such as primary or secondary laws that interact with and influence the constitutional framework? These are all central issues that would have to be further developed when constructing an aggregated judicial review.

We believe that a cautious approach should be applied in setting the principles for an aggregated review. In general, aggregation should be examined with respect to the effect of changes in a specific area (for example, election threshold, judicial independence, term limits, etc.). We do believe when the impact of constitutional amendments in a specific area are being evaluated, sub-constitutional changes in that area should be considered if they are relevant to assess the effect of the constitutional changes. Aggregation is thus challenging but not unthinkable. As Sujit Choudhry noted, regarding Hungary:

[T]he Hungarian reversion to authoritarian rule has occurred through a very large number of individual constitutional amendments, which if taken on their own, would not raise red flags on the basis that they fall outside the scope of a basic structure common to constitutional democracies. Nonetheless, in aggregate, they clearly have undermined the democratic character of the Hungarian constitutional order. … However, … Hungary is a relatively easy case because of the way in which the separate constitutional amendments were visibly, and publicly, linked closely with each other over a compressed time frame as part of an overall project of constitutional transformation.[111]

Thus, it seems clear that isolated constitutional amendments enacted proximately within a specific era and in a relatively close timeframe can be considered an aggregation.

The main idea is to consider the quantitative changes – even when incremental and subtle – to basic constitutional principles in order to examine the qualitative effect on them, and, thus, be able to block the amendment that, no matter how minor itself, together with preceding amendments could be considered “the Straw that broke the Constitution’s back.”[112]

B Review of Constitutional Replacements

As we note earlier, constitutional replacement is another tool for abusive constitutionalism which is, at least by established theory, immune from judicial review. But why, one may ask, do we provide constitutional replacement complete immunity from judicial review when the replacement process can often easily be abused, just like amendment process, in a way that undermines the democratic order? We therefore agree, as a matter of principle, with David Landau and Rosalind Dixon that “[r]estrictions on constitutional replacement, like those on constitutional amendment, might be defended on the basis that replacement, like amendment, can in fact be abused in the name of the people in order to undermine democracy.”[113] And such restrictions ought to be enforced by judicial review in court.

We do not aim to fully develop here mechanism or standards for such a review. One option, raised by scholars such as Carlos Bernal, Vicki Jackson, and Kim Lane Scheppele, is to define a proper or legitimate exercise of the constituent power and through such an exercise to be able to supervise constitution-making/replacement processes and the authenticity of the exercises of constituent power.[114] The primary strength of allowing the judiciary to define the constituent power and examine its exercise is that this approach is in harmony with the theoretical rational behind constitutional unamendability. It would also be a tool for the UCA doctrine to express its superiority over a populist fake claim to represent the people’s will. An alternative solution, proposed by Dixon and Landau, would be to allow courts to assess the replacement comparatively. By examining comparative constitutional arrangements, courts can evaluate whether the particular constitutional arrangements under challenge are present in a large number of other constitutional democracies.[115] Apart from the familiar problem of “cherry picking” which can be overcome with suitable criteria for comparison,[116] the main difficulty with this approach, is, of course, the comparable standard. In times of democratic erosion, when the standard of other constitutional democracies may deteriorate and more countries imitate illiberal practices, this can create a dangerous race to the bottom.

Regardless of the basis for such a review, we claim that the judiciary’s legitimacy to review constitutional replacement correlates with the replacement process. The more the replacement process resembles the formal amendment process in terms of the procedural requirements, the more legitimate it is for the court to intervene.[117] A flexible replacement process that excludes cumbersome thresholds should not be immune from judicial review simply because it uses the term “replacement” rather than “amendment.”

The very fact is, that comparative constitutional law reveals that the idea of “an unconstitutional constitution”; i.e., of an original constitution being subject to judicial review and even declared by the judiciary as unconstitutional, is not unthinkable.[118] And such a power may be another useful tool for combating backsliding.

C Amendments Affecting Judicial Independence

As we note earlier, one of the challenges facing the UCA is that in the populist era, court packing weakens the judicial struggle against democratic erosion. Accordingly, perhaps in a democratic erosion context, courts should be especially aggressive in protecting their independence. This, again, may appear to conflict with legitimacy considerations, as the court may be seen as acting to preserve its powers and enhance its self-interests. However, as the example above demonstrates, preserving judicial independence is vital to the survival of democratic order.

Claims of misuse of the UCA doctrine have been made regarding judicial application of the doctrine in India and Bangladesh. Rehan Abeyratne, for example, argues that recent judgments in these countries concerning judicial appointments and removal, demonstrate the court’s misuse of the UCA doctrine for self-interest by the judiciary, in an attempt to maintain its superiority over other branches of government.[119] Similarly, on January 30, 2019, the Slovak Constitutional Court invalidated a constitutional amendment regarding background checks as a condition to be appointed to judicial office, holding that the amendment violated the constitution’s implicit material core, rooted in principles of democracy, rule of law, division of power, and judicial independence.[120] This decision may be criticized as an example of misuse of the UCA doctrine for self-interest.

The risk of the judiciary acting in self, or institutional interest, should be acknowledged. Considering this risk, one has to remember that public trust – its legitimacy – is all the judiciary possesses, as it “has neither the sword nor the purse,” to use Hamilton’s famous words.[121] Court judgments are read, examined, commentated on, and criticized by peer-judges, foreign judges, lawyers, law professors, and others. This is an important vehicle for scrutiny. And the fact that scholars criticize judgments, such as the Indian, Bangladesh, and Slovakian, are an important signal to that effect.[122] Dixon and Landau, for example, used comparative constitutionalism in order to criticize the above-mentioned judicial cases in Honduras and Nicaragua concerning presidential term limits.[123] Such judicial abuse undermines courts’ legitimacy.

In the end of the day, even with such risks, considering how detrimental attacks on the judiciary were to democratic decline, and considering how the weakening of judicial institution facilitated the capture of political institutions, in countries such as Poland, Hungary, and Turkey, in the context of abusive constitutionalism, there is strong justification for applying the UCA doctrine especially in cases concerning judicial independence and separation of powers.

Conclusion

Ideally, the main route to protect against abusive constitutionalism is constitutional design.[124] However, in reality, constitutions are often not designed in a manner that includes sufficient safeguards against abuse. In this Article, we examine the role of the judiciary in responding to abusive constitutionalism in those cases where preexisting constitutional safeguards were insufficient to inhibit it.

As we claim, basic assumptions must be reconsidered. Instead of using the UCA doctrine to protect exclusively against revolutionary constitutional amendments that would establish a fascist regime, we must adapt the doctrine to exiting 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, perhaps it is precisely such changes that require the strictest scrutiny. In each of these cases, in applying the UCA doctrine, courts should weigh the amendment process and take into consideration the extent to which it is extensive, inclusive, and deliberative. And, of course, careful considerations should be given to the social and political context when considering whether the mechanisms we propose can be effective in protecting the democratic order.[125] It is not necessarily a one-size-fits-all.

At the end, these are all legal mechanisms with a limited ability to stop political powers. This does not mean we should not constantly consider how to improve such mechanisms to safeguard our democratic-constitutional orders. As we identify new forms of threats to constitutional democracies, we must revisit and refine existing doctrines in order to better respond to such threats.

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

© 2020 Walter de Gruyter GmbH, Berlin/Boston