Decline of Constitutionalism
“We should look forward to a time, and that not a distant one, when corruption .. will have seized the heads of government, and be spread by them through the body of the people; when they will purchase the voices of the people, and make them pay the price. .. The time to guard against corruption and tyranny, is before they shall have gotten hold on us.” – Thomas Jefferson
Comparative Constitutional Law is not doing what the ‘inventors’ of constitutionalism held for THE task. CCL describes and explains systems that sustain human rights based democracies, systems which are designed to perpetuate power. Twenty years ago it was a reasonable assumption that constitutionalism has a fair chance to become the world norm. The paradigm of constitutionalism did not prevail and a number of political movements and interests pull away into illiberal, and other ‘democracies. In the current, considerably conflated, even artificial public assumption about a looming crisis, liberal institutions (and not only free trade market liberalism) are turned into culprit, a devilish conspiracy stirring weakness and anarchy. In a growing number of countries illiberal constitutional regimes have been established, elsewhere similar considerations transform from the inside the traditional constitutional arrangement.
The course will review democratic theories of anti-constitutionalism (with emphasis on populism) but it offers a novelty by concentrating on the legal aspects of anti-constitutionalism. It will present the legal techniques and central institutions of illiberal regimes: national sovereignty; direct democracy-referendum, recall; new immigration and security laws; privatized liberty; anti-globalization and a new law of international relations; legislation of identity politics; undoing of multiculturalism, reorganization of civil service and judiciary. Economic reorganization is also part of the conundrum. We will also discuss the efforts of the institutions of liberal democracy to protect itself (cases on declared unconstitutionality). It is for the students to develop a theory and technique of militant constitutionalism.
The course will use case studies from Europe, Latin-America and South-East Asia; however the test cases include ‘mature’ democracies as well, where illiberal measures are taken on a daily basis (redefinition of citizenship, permanent emergency etc.). In addition we will look into the contribution of international institutions to the unfolding erosion.
There can be thrill in a depressing subject, and it is better to learn about it than suffer it with ignorant impotence!