Democratic Erosion, Populist Constitutionalism and The Unconstitutional Constitutional Amendments Doctrine

Populist leaders recently abuse formal constitutional change procedures, in order to erode the democratic order. The changes, are very often, gradual, incremental and subtle, and, when examined in the context of an ongoing process, may prove to be part of a democratic erosion process in which the whole is greater than the sum of its parts. While the doctrine of ‘unconstitutional constitutional amendments (UCA) may seems as a useful tool against abusive constitutionalism, we demonstrate why in the context of democratic erosion it faces three significant limitations rooted in: incrementalism; total constitutional replacement; and court-packing or judicial capture. These three characteristics of populist constitutionalism severely undermine the utility of the UCA doctrine. We thus propose a new theory of judicial review of constitutional amendments within the context of democratic erosion and abusive constitutionalism, in order to tackle or at least relax these challenges.