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How to Lose Constitutional Democracy -- and How to Save it
Tom Ginsburg Forthcoming, University of Chicago Press, 2018 (with Aziz Huq)
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Regime types in the Third Wave: Polity
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Freedom House: Democratic declines and advances
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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
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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
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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
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How does the U.S. Constitution stack up?
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The US Constitution
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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
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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
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“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
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What do they have in common?
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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…
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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
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Bright Line WatchFeb 2018—Experts
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Sample and waves of constitution-making
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Attitudes (World Values Survey 1999-2014)
Similar in other Anglophone countries Cohort effects Also evidence of increasing polarization in US
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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
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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
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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
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Types of government
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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 gridlockdemocratic breakdown? Overstay problems
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Parliamentary removal of those with Declining Job Approval
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Retain the popular
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Design against erosion: Horizontal accountability in constitutions
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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
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