Against Constitutional Chicanery: The Rule of Law Strikes Back

Constitutional chicanery – also known as constitutional backsliding, abusive or populist constitutionalism – is an elusive phenomenon: its architects (whether populist or illiberal, still, usually democratically elected) use language and solutions familiar from ’constitutions with constitutionalism’ in order to consciously remove formal constraints from the exercise of political powers.

In recent years courts in several jurisdictions (the U.S., the U.K. and the Council of Europe) made attempts to capture constitutional chicanery. While these may be exceptional, the judicial exercise of powers exhibited therein is not only compatible with the rule of law, but is an essential element of its aspirational dimension. The paper hopes to encourage constitutional actors to take inspiration from courts and bring the aspirational dimension of the rule of law to life in order to counter constitutional chicanery.