The Entrenchment of Democracy
The Comparative Constitutional Design of Elections, Parties and Voting
Tom Ginsburg, Aziz Z. Huq, and Tarun Khaitan, eds.
Cambridge University Press
ISBN: 9781009447713
The authoritarian turn
Those of us who are citizens of a democracy like to believe we have a say over what the government does and that our preferences, or those of the majority, translate into policies. However, authoritarian actors have grown bolder in recent years and major democracies have turned inward, contributing to a decline in global freedom. Oppressive and often violent authoritarian forces have successfully tipped the international order in their favour in many countries, exploiting both the advantages of non-democratic systems and the weaknesses in ailing democracies. The result is a new global status quo in which acts of repression go unpunished and democracy’s advocates are increasingly isolated.
The challenge for defenders of democracy is to adopt measures that help to promote electoral integrity, without overplaying the necessity of such measures or the ‘broken’ nature of the current electoral system.
How can we make sense of these developments and the legal institutions that underpin our democracies? The Entrenchment of Democracy edited by Tom Ginsburg, Aziz Z. Huq and Tarun Khaitan brings together political scientists and legal scholars to dissect constitutional law and the meta-rules that structure democratic politics. Other relevant scholarly works have focused on the constitutional design of elections, parties and voting. This new volume argues that certain choices must be entrenched in a constitution to enable democratic politics, but questions to what extent and with what level of detail. The “entrenching” framework suggests that constitutions should be very comprehensive in setting out the rules of political competition.
Political tyranny and party politics
The book is divided into three parts, exploring the crisis surrounding the concept of democracy, constitutionalisation, and specific institutions. Following the editors’ introduction, Samuel Issacharoff and Richard H. Pildes explore how persistent minoritarian capture threatens democratic legitimacy. The threat of the tyranny of the minority over the majority now looms as a central challenge that democratic thought, policy, and doctrine must confront. The authors also address political polarisation, one of the most pressing challenges facing contemporary democracies and one often associated with a broader epistemic crisis.
In chapter three, Rosalind Dixon and David Landau focus on “Constitutions and Abusive Electoral Regulation”. According to them, “aspects of the democratic minimum core should receive heightened protection under a ‘tiered’ model of constitutional amendment and design” (153). The challenge for defenders of democracy is to adopt measures that help to promote electoral integrity, without overplaying the necessity of such measures or the “broken” nature of the current electoral system.
In chapter four, “Political Parties in Constitutional Theory”, Tarunabh Khaitan examines the functions of a political party in a healthy democracy that can aid in the diagnosis of party ills and unhealthy party systems. To help parties perform their brokering function effectively, Khaitan prescribes three actions for constitutions: they should seek to protect party autonomy and closely align their rights and duties with their hybrid public-private nature; optimise the number of parties so that there are enough to represent every type of voter, without making voter information costs unaffordable; and ensure the separation of parties and the state so that no single party can gain a hold on state institutions and offices.
It is essential to consider constitutional design from the perspective of electoral losers, rather than just winners, and more specifically, to promote equitable participation of the opposition in governance
Tom Ginsburg and Mila Versteeg’s contribution (chapter five) shows how a constitutionalising democracy can be either too constricting, or subject to manipulation, depending on context, and this can change over time. Taking the example of Kenya, the authors show the ability of the courts to rely on constitutional principles. However, the case of The Philippines proves that constitutionalisation is not always a sufficient remedy to block authoritarian power (116). In this regard, the case of Taiwan is also alarming since the nation is “democratic consolidation trap” whereby the very mechanisms that enabled democratic transition now prevent necessary evolution.
Adem Kassie Abebe delves into the issue of tackling winner-takes-all Politics in Africa. He argues that, in combating democratic backsliding, it is essential to consider constitutional design from the perspective of electoral losers, rather than just winners, and more specifically, to promote equitable participation of the opposition in governance. A balance must be struck to ensure that the desire to counter the tyranny of the political majority.
Threats to democratic governance
According to Tom Gerald Daly and Brian Christopher Jones, political parties are central to democracy but orphans of constitutional thought. The authors highlight the main threats that political parties pose to the sustainability of representative liberal democratic governance around the world. They emphasise the urgent need to pay greater attention to the often-ambiguous ways in which parties threaten democratic governance today. To answer the question of knowing whether we can just trust courts to “make the right call”, Daly and Jones focus on the concepts of non-judicial options, emerging international mechanisms, incentivising opposition rights, and stronger controls on electoral manipulation (150). According to them, to frame the challenges facing democratic rule worldwide as an executive, or even leadership, problem, is to miss the deep structural role that parties play in processes of democratic deterioration and decay.
Yasmin Dawood dissects what is the value of a constitutionalised right to vote (155), an issue made more urgent recent struggles over voting and voting rules in the US where he complexity of the rules comprising the right to vote is also evident. The author also provides an overview of voting rights in Canada, illustrating the multidimensional nature of the right to vote (158). Since the right to vote is both multidimensional and institutional, its sub-constitutional components influence the reality of voting far more than the mere fact that it is constitutionalised. Therefore, Dawood argues that while a constitutional right to vote can help strengthen the right to vote in practice, it alone does not guarantee its usefulness. These rights can, paradoxically, undermine democracy by providing democratic cover to autocrats in competitive authoritarian regimes while simultaneously undermining constitutional guarantees. That said they can still exert beneficial constraints on elected autocrats (190).
Deeply researched works like this are more important now than ever as the hope of living in a state that fulfils the promises of its founding democratic texts remains elusive for so many of us.
In a later chapter Silvia Suetu examines, through a selective range of case studies, the complex interplay between eternity clauses and electoral democracy. Eternity clauses can be defined as constitutional provisions or principles that are immune from amendment. Therefore, these clauses function as barriers or “stop lines” to constitutional amendment. Any amendment violating those clauses would be unconstitutional and, as such, would be invalid. Through the examples of Germany, Czechia, Israel and Turkey, she demonstrates that courts will not always strike the right balance between protecting and unduly narrowing democratic commitments. In some cases, they may even unintentionally undermine multi-partyism itself or influence electoral outcomes. In Europe generally multi-party systems continue to prevail.
Constantly evolving democracies
The volume’s authors meticulously analyse the complexity of the interaction between third-party decision-makers responsible for delineating constituencies, administering the vote, and resolving conflicts, as well as a set of rights that express values and condition mobilisation. The very complexity of the interaction of all these elements makes it difficult to draw solid predictive conclusions about the effects of any one institutional feature in isolation. Uncertainty reigns more than ever in terms of democracy. Each chapter reminds us that we must pay attention to deep structures, but also to institutional innovations that respond to the constantly evolving challenges of democratic societies. Recent experience and theory can help us understand, and perhaps attempt to address, these challenges.
Overall, the book is an incisive and comprehensive exploration of legal and political phenomena underpinning democratic systems around the world where politics are increasingly divisive. Deeply researched works like this are more important now than ever as the hope of living in a state that fulfils the promises of its founding democratic texts remains elusive for so many of us.
Note: This review gives the views of the author and not the position of the LSE Review of Books blog, nor of the London School of Economics and Political Science.
Currently based in Norway, Samira Allioui is a trial attorney and legal researcher. Her research interests focus on procedural rules of international courts and tribunals, international private and procedural law as well as international civil procedure. She began her career in legal academia as a Law Teaching Fellow with the University of Strasbourg.
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