Are Constitutional Democracies Really in Crisis?

—Mark Tushnet, William Nelson Cromwell Professor of Law, Harvard Law School

It may seem churlish for one of the co-editors of the recently published Constitutional Democracies in Crisis? (with Mark Graber and Sanford Levinson) to raise questions about what readers might take to be the book’s basic conceptualization, that we are experiencing a widespread crisis for constitutional democracy. For me, though, the question mark at the end is as important as are the words that precede it. You should read the book as a whole to see whether we actually justify the question mark.

Start with the observation that the asserted crisis is fairly recent – or, put another way, the nations that are said to be experiencing a crisis of constitutional democracy have been in that situation for no more than a decade, and in many places for a shorter period (at the moment, less than two years for the United States, for example). Ten or even fifteen years is not that long in any nation’s political experience, though of course for those living through bad times things will be quite bad – for a while. We don’t really know, though, whether we’re observing something permanent about constitutional democracy in these nations, or something like the normal ebb and flow of politics, where the “ebb” has perhaps taken the tide a bit farther out than we’re used to. But, for all we know (now), in many places the flow may bring things back in a few more years.

For me the experience of Ecuador is instructive. Articles written five or so years ago routinely listed Ecuador along with Venezuela and Bolivia as experiencing democratic retrogression (or whatever the author’s favored term was). Rafael Correa looked like populist leaders elsewhere, both with respect to the economic programs he promoted and the constitutional changes he sought. But, it turned out, Correa may have been a blip. The Ecuadorean constitution was indeed amended substantially, but Correa was unable to extend his own term of office. And his designated successor Lenin Moreno turned upon Correa and undid the constitutional changes. We don’t know what’s going to happen in Ecuador over the next few years, but for the moment the best characterization seems to be “Correa ebb/Moreno flow, not much to notice here.”

And the fact that accounts of democratic decline almost always focus on individual leaders – Correa, Chávez, Morales in South America, Trump in the United States, Orbán, Kaczyński, Erdoğan in Eurasia – is suggestive. Most if not all of them are fairly described as charismatic, at least in their national contexts. Whether their charisma can be institutionalized after they leave seems to me an open question. The current turmoil in Venezuela suggests the difficulties; Maduro’s inability to institutionalize Chávez’s charisma means that it no longer helpful to describe Venezuela as a constitutional democracy in crisis (“failed state” seems more accurate). Again, it may take quite a while for the current leaders to pass from the scene, and meanwhile life in their nations may be quite unpleasant for their opponents. Those interested in the course of constitutional development probably ought to take a longer perspective and throw a lot of “maybes” and “perhaps not yet, buts” into their arguments.

A final observation: “Decline” is in these contexts a pejorative term. Perhaps, though, what we’re observing is the proliferation of variants of constitutional democracy. Examples of nations that have declined from a reasonably robust constitutional democracy to the contemporary equivalent of Stalinist Russia are rare. Rather, what we’re seeing is a redefinition of many components of constitutional democracy – freedom of expression, for example, and some rough equality of position in electoral competition. Quite robust definitions have been replaced by substantially weaker ones – and along many though not all of the dimensions that make up constitutional democracy. Still – riding one of my hobby horses – maybe we ought to try to see Morales’s Bolivia as an interesting attempt to institutionalize a different idea of what we mean by “constitutional democracy.” And, frankly, if Morales’s Bolivia, why not Trump’s United States? (And, to be even more provocative, why not Kaczyński’s Poland?)

The editors of Constitutional Democracy in Crisis? hope that its thirty-eight essays will generate productive conversations about both the words in the title and, as I’ve tried to suggest here, the punctuation mark at the end.

Suggested Citation: Mark Tushnet, Are Constitutional Democracies Really in Crisis?, Int’l J. Const. L. Blog, Sept. 10, 2018, at: http://www.iconnectblog.com/2018/09/are-constitutional-democracies-really-in-crisis