[Editor’s Note: In this installment of I•CONnect’s Book Review Series, Andrea Scoseria Katz reviews Constitutional Democracy in Crisis? (Mark A. Graber, Sanford Levinson & Mark Tushnet, eds., Oxford 2018).]
Is Constitutional Democracy in Crisis? Well, That Depends on How You Define “Constitutional,” “Democracy,” and “Crisis”
–Andrea Scoseria Katz, Samuel I. Golieb Fellow in Legal History, New York University School of Law
Let’s start with the obvious: a book of 700 pages containing 38 essays of varying approach and ambition risks incoherence. It is not entirely unfair to accuse Constitutional Democracy in Crisis? (Mark Graber, Sanford Levinson & Mark Tushnet eds., 2018), a formidable, well-conceived and well-written volume, of this failing. One feels the editors could have pushed the theory-building enterprise further.
The volume asks the right questions. “Our concern,” write the editors, “is whether a global crisis of constitutional democracy is taking place, or whether the recent afflictions suffered by many constitutional democracies reflect only the success of constitutional democracy in the past, chronic problems with particular constitutional democracies, or problems distinctive to particular democratic regimes; or whether many commentators are confusing attacks on political liberalism or transformative constitutionalism with a weakening of constitutional democracy.”
The editors opted not to foist upon their contributors standardized definitions of terms like democracy, constitutional, or crisis because, in a book of fine-grained qualitative studies such as this one, “insisting on conformity might well be fruitless and unproductive.” To the extent that among the book’s greatest strengths are twenty or so colorful, nuanced sketches of specific constitutional regimes by authors with significant expertise in these, the editors are right—to flatten these would have been a waste.
Yet imposing analytical consistency across the volume might have been worth the price. The excellent case studies supply a wealth of empirical insights that, properly digested, could have gone far to answering the trenchant, timely questions the editors dangle at the start. The case studies’ own theoretical ambition also means that the book’s structure—separating case studies from theory-building essays—doesn’t quite hold. And however diverse may be the waves of populism, illiberalism, and democratic backsliding unfolding across the world, the case studies do leave the impression that similar phenomena are at work.
The book is laid out in four parts. Part 1 provides background, including Jack Balkin’s theory of constitutional crisis, Tom Ginsburg and Aziz Huq’s overview of the global trajectory of liberal constitutional democracy, and Ellen Kennedy’s excellent account of legal debates during the fall of Weimar, a specter still hanging over modern constitutional democracy. Part 2 canvasses specific regimes—including the U.S. (Jennifer Hochschild, Eric Posner), Canada (Richard Albert and Michael Pal), France (Nicolas Roussellier), Poland (Wojciech Sadurski), Spain (Victor Ferreres Comella), Venezuela (David Landau), Israel (Yaniv Roznai), Turkey (Ozan Varol), and India (Manoj Mate), and regions—Latin America (Roberto Gargarella), the EU (Michaela Hailbronner), and sub-Saharan Africa (James Thuo Gathii). Part 3 examines the influence on constitutional democracy of factors like climate change, religious fundamentalism, terrorism, economic inequality, populism, and immigration, while Part 4 concludes.
To its central question, are the world’s constitutional democracies in crisis?, the book provides a multiplicity of answers. For a start, the volume’s authors are split between minimalism—a constitution is in crisis only where it is openly disobeyed by politicians or the public at large, or when it fails to forestall a looming crisis (Balkin, Gargarella)—and more inclusive theories that build in “softer” cultural or sociological indices of crisis: the misuse of legal forms (e.g., Varol on Turkey’s descent into “stealth authoritarianism”), a decline in norms underpinning democratic politics (Hochschild on Trumpian America, Roznai on Israel), the breakdown of party systems (Kim Scheppele on Venezuela and Hungary), or weakening public faith in governing structures (Hailbronner on the EU).
The authors generally agree that something is wrong with constitutional democracy, but for most, this stops short of crisis. (Erin Delaney, a lonely optimistic voice, sees in Brexit “a moment of tremendous potential” for the UK to evolve from a system of parliamentary sovereignty to one of popular sovereignty.) In the U.S., Balkin identifies growing “constitutional rot,” while Eric Posner sees widespread dissatisfaction that has not yet erupted into regime disruption. France faces institutional “malaise” (Rousellier); India, “constitutional erosion” (Mate); Israel, an “attack” on liberal and substantive notions of democracy (Roznai); Ginsburg and Huq identify a “global democratic recession” that could augur worse ahead. Only Hungary, Poland, Turkey, and Venezuela have clearly devolved from constitutional democracies to, respectively, an “illiberal state,” “plebiscitary autocracy,” presidentialism minus checks and balances, and an “embattled authoritarian regime.”
The sheer number of labels is dizzying, although the conclusion that constitutional democracies face some threat short of crisis is commonsensical. Yet the cross-regime similarities in the symptoms described here made me wish for some concluding essays that would have synthesized these findings into a unified theory of constitutional democratic crisis. Such symptoms include:
- A breakdown in party systems;
- Increased executive power;
- Decreased legislative power or legislative dysfunction;
- Illiberalism;
- Attacks on the rule of law and independent or mediating bodies;
- The election of outsider or extremist candidates; and
- Critiques of economic inequality and distributional outcomes.
The same heterogeneity affects the authors’ take on causes (a lack of consensus that characterizes the discipline more broadly, as Ginsburg and Huq note). Gargarella traces the problems of Latin American constitutional democracy to constitutions that juxtapose conservative structures with progressive rights. J.H.H. Weiler points to the “hollowness” of European democracy, which substitutes for patriotism, values, and community a clientilistic, procedural, and ultimately uninspiring vision of citizenship that cannot sustain legitimacy. David Schneiderman argues that democratic decline is explained by citizens’ alienation at the narrowing of policy space available to them as a consequence of the institutions of economic globalization. Mark Graber describes the breakdown of the postwar project of “transformative constitutionalism” inspired by Rawlsian or Habermasian universalism and committed to the promotion of human dignity through political freedoms, commercial prosperity, secularism, and independent courts. Tushnet points to political elites’ failure to “deliver on the promises” of social-welfare constitutionalism. Surprisingly, none of the authors engage with the neo-Marxist thesis, recently put forth by Sam Moyn in The Last Utopia and Not Enough, that human rights and neoliberalism were always uneasy partners, an omission to the detriment of this otherwise excellent volume.
Suggested Citation: Andrea Scoseria Katz, Review of “Constitutional Democracy in Crisis?” (Mark A. Graber et al., eds.), Int’l J. Const. L. Blog, Aug. 6, 2019, at: http://www.iconnectblog.com/2019/08/book-review:-andrea-scoseria-katz-on-“constitutional-democracy-in-crisis?”
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