1. How to Lose Constitutional Democracy -- and How to Save it
Tom Ginsburg
Forthcoming, University of Chicago Press, 2018 (with Aziz Huq)

2. Regime types in the Third Wave: Polity

3. Freedom House: Democratic declines and advances

4. Economist Intelligence Unit 2017
# countries
% countries
% world
population
Full Democracies 19
11.4
4.5
Flawed Democracies 57
34.1
44.8
Hybrid Regimes 39
23.4
16.7
Authoritarian Regimes 52
30.5
34.0

5. Two kinds of risks: Collapses vs. Erosion
Indicator
Coverage
Collapses
Erosions
Freedom House 7 56
Polity 39 90
V-DEM Liberal Democracy
1900- 15 79

6. The erosion playbook: five legal tools
Lock in power through constitutional amendment
Eliminate institutional checks: bypass congress, pack the courts
Undermine rule of law: purge and pack bureaucracy
Eliminate electoral competition
Remove term limits
Electoral administration & gerrymanders
Remove powers of offices you lose
Limit speech and association, & contract the public sphere
Libel law
Intimidate journalists
Abuse anti-conspiracy and anti-terrorism laws

7. How does the U.S. Constitution stack up?

8. The US Constitution

9. Holes in our constitution
No emergency provisions
Institutional checks? Failure of Madisonian assumptions
Rule of law? No insulated accountability institutions
Partisan electoral administration
Speech and association? No “militant democracy”
Federalism as a two-edge sword
In short, we are safe from only two of the five modalities of erosion

10. Design ideas against erosion
Accountability machinery
Reinforce bureaucratic autonomy, eg inspectors general
Wealth disclosure and transparency
Independent electoral institutions
Opposition rights in the legislature
Constitutional court with 15 year terms
But institutions are only speedbumps

11. “Anything can happen to anyone, but it usually doesn't
“Anything can happen to anyone, but it usually doesn't. Except when it does.” 
--Philip Roth, The Plot Against America

12. What do they have in common?

13. Article V
The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress…

14. What is Constitutional Democracy and is it worth saving?
Elections in which the modal adult can participate and the loser turns over power
Core freedoms: rights to speech, association
Rule of law in administration, especially electoral administration
Compatible with wide variety of social arrangements

15. Bright Line WatchFeb 2018—Experts

16. Sample and waves of constitution-making

19. Attitudes (World Values Survey 1999-2014)
Similar in other Anglophone countries
Cohort effects
Also evidence of increasing polarization in US

20. Longest periods of democracy before reversal
Country
years (inclusive) #
GDP per capita in year of reversion
Cause of reversion
France 64
n.a.
Invasion/ coup d’état
Greece 51
n.a
Coup d’état
Venezuela 49
$9508
Consolidation of one- party dominance
Sri Lanka 34
$1067
Tainted election followed by repressive constitutional amendment and political violence
Uruguay 31
$4917
Gambia 28
$1219
Spain 24
Constitutional dictatorship by general

21. What is Constitutional Democracy and is it worth saving?
Elections in which the modal adult can participate and the loser turns over power
Core freedoms: rights to speech, association
Rule of law in administration, especially electoral administration
Compatible with wide variety of social arrangements

22. The playbook Lock in power through constitutional amendment
Eliminate institutional checks: bypass congress, pack the courts
Undermine rule of law
Purges (eg Holman rule) & packing of bureaucracy
Electoral manipulation and eliminate competition
Term limits
Electoral administration
Gerrymander
Remove powers of offices you lose
Limit speech and association, & contract the public sphere
Libel law
NGOs
Journalists
Anti-conspiracy and anti-terrorism

23. Types of government

24. Pure presidentialism on the decline
No new adoptions in countries after initial choice
Accountability vs. overload
Disadvantages of fixed terms in a fluid world
Winner take all or gridlockdemocratic breakdown?
Overstay problems

25. Parliamentary removal of those with Declining Job Approval

28. Retain the popular

30. Design against erosion: Horizontal accountability in constitutions

31. Can we learn anything from near misses?
Courts are important but not everything
Colombia and term limits
Ecuador v. Bolivia in term limits last year
Intraparty checks matter
South Africa this month
Sri Lanka 2015