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.
When we think about courts as possible bulwarks against attacks on liberal democracy, we tend to think of their core role: upholding the law in the courtroom. However, in recent years judges worldwide – from Europe to the USA to India – have been pushed into taking virtually unprecedented action outside the courtroom. While these actions might be viewed by some as simply another step in the perceived judicialization of politics, in most cases they represent acts of desperation. In this talk I will map key instances of extra-judicial activity against attacks on liberal democracy, discuss their significance against canonical principles such as judicial impartiality and independence, place recent developments in historical context, make useful distinctions between strategic and merely ‘injudicious’ behaviour, and draw on my long experience of working with judiciaries and judicial associations worldwide to emphasize just how much of a departure these actions represent for many judiciaries.
The ECJ is seen as a crucial actor in countering the populist assaults on judicial independence in Eastern Europe. However, some voices doubt that the ECJ’s technocratic approach can resolve the issues. This paper provides a more nuanced account of the ECJ’s contribution to countering democratic erosion and distinguishes the direct and indirect anti-erosion strategies. In the direct strategy, the ECJ aims to overturn the problematic policy immediately. While potentially highly effective, this strategy has significant legitimacy costs for the ECJ, may have unintended consequences and rests on contingent social and political factors. The indirect strategy sees the ECJ entangled in a complex web of actors participating in an open-ended process of countering democratic erosion. In the indirect scenario, the ECJ’s judgments may not be the direct triggers of change, but still function as resources for a broader anti-erosion community in political battles for the rule of law.
Louis Hartz famously declared that American liberalism was different from European’s because Americans were “born” (liberal) without having to become so. European liberals needed a strong state while American liberals were more inclined to treat liberty as freedom from government. That the US was born populist may explain some differences between the ways in which the Trump Administration and other right-wing populist governments have sought to implement a similar agenda. Right-wing populists in countries as diverse as Venezuela, Hungary, Poland, Turkey and Israel have had to tear down a regime with some degree of commitment to what I have called thickened progressive cosmopolitan constitutional democracy. The Trump Administration, by comparison, does not confront a constitution, culture or judiciary with nearly the same degree of commitment to such values. The result is that goals other populists have sought through radical transformation have been achieved by minor tweaks in the US.