The paper begins with a reflection on whether there had been a proper constitutional ‘design’ in the case of Poland. It then provides an account of certain patterns of constitutional breaches, which render reflections on the resilience of constitutional design problematic. A case study of the Constitutional Tribunal follows, and it is shown how the authorities managed to convert it (basically, with no formal changes in its institutional design) into an active and enthusiastic helper of the legislative majority and executive. General observations are offered on the relationship between constitutional design and the ‘human factor’ occasioned by Polish democratic backsliding, and on the possibility for ‘institutional self-defense’ within democratic constitutional design. The paper concludes that formal institutions must be underwritten by norms which are by-and-large shared, and by common understandings about what counts as a norm violation, even if formal legal rules are silent about it.
This article argues that since undermining institutional checks and balances has been the distinctive strategy of “structural populism,” then the defense of constitutional democracy must develop a similar disciplined focus as its enemies, in the form of an anti-concentration principle that makes dismantling separation of powers more difficult to accomplish. This anti-concentration principle has a number of components in practice, addressing most of the major structural elements of constitutional, institutional, and democratic design, and amounts to a counter-playbook for constitutional democrats on how to increase resistance to, or preemptively thwart, the moves that have proven so successful over the past few years. Of course, relying on constitutional, institutional, and democratic design to render the concentration of political power more difficult to achieve is not a panacea, and can only be part of any solution, but it is not irrelevant.
Authoritarian populists exploit gaps in constitutional design, searching out the weak spots that allow them to take over the system. Such incrementalism and experimentalism would seem to render constitutional design useless as a tool for combating 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 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. Multiple institutions of accountability provide the best prevention of total takeover, as with the “near misses” of democratic backsliding.
The project aims to address current patterns of democratic retrenchment, or what one of us (Landau) has labelled ‘abusive constitutionalism.’ More specifically, it aims to focus on three key principles of democratic design that could help address this problem in future constitutional settings, namely: principles of ‘tiering’ and ‘sequencing’ processes of constitutional change, and the principle of ‘splitting’ constitutional authority. We further point to a fourth principle – ‘anchoring’ – as a guide to the design and implementation of these other principles. We do not plan to suggest that these principles are either an exhaustive or fail-safe guide to preventing democratic erosion. None of these principles are ultimately necessary or sufficient to protect democracy. But we will argue that they are helpful in doing so, at least if understood in an appropriately clear but also context-sensitive way.