Is Constitutional Design Really Useless? Democracy without Democrats

Authoritarian populists exploit gaps in constitutional design, searching out the weak spots that allow them to take over the system. Incrementalism and experimentalism are the twin modes, and would seem to render constitutional design useless as a tool for combatting populists. It is true that no design is foolproof, and institutions only speedbumps. Yet we can learn something from recent cases of “near misses” in which democracy survives a threat from authoritarian populism. We identify the phenomenon of “Democracy without Democrats,” in which elected officials lack the necessary disposition to maintain democratic competition, while non-elected actors, such as judges and bureaucrats, have both the incentives and the capabilities to take actions that preserve democracy. This paradoxical situation has an important implication for constitutional design, one that draws on Madisonian principles, modified for the 21st century.