This paper examines democratic decline, primarily in Turkey, Hungary, and Poland, in order to shed light on United States separation of powers jurisprudence. It shows that centralization of control over the executive branch undermines the rule of law, tilts the electoral playing field, and shrinks the space of public debate. This experience indicates that the United States Supreme Court should not adopt the unitary executive theory, which maintains that the Constitution should be construed to give the president unilateral control over the executive branch. The unitary executive theory can pave the way to autocracy.
Technology has revolutionized activism. However, governments have learned to target the affordances it provides. This article challenges the accepted framing of this phenomenon, centered on surveillance and privacy. First, it conceptualizes such government action as digital domination. Applying the republican concept of freedom as non-domination, it argues that domination’s core harm is to activists’ freedom. Since activism is a check on government, undermining the possibility for activism jeopardizes the freedom of the citizenry as a whole. Second, governments’ reliance on digital militias allows them to circumvent limits on their authority, endangering the rule of law. Finally, governments do more than surveillance: they (1) gather information on activists; (2) disrupt communication channels; (3) flood online conversation to drown out the opposition; (4) deploy the state’s coercive power based on information gathered, and (5) mobilize digital militias to bully activists online.
Erdogan, both as prime minister and president, has exhibited a pattern of robust constitutional engagement. This Article investigates that phenomenon by examining many of the controversial episodes in Turkish political history where Erdogan has interpreted the Constitution. First, it considers the normative question of whether the president should interpret the Constitution and finds textual indications that strongly suggest some executive mandate to interpret the Constitution, meaning the Turkish Constitutional Court should not be regarded as having a monopoly over constitutional interpretation. Second, from the standpoint of constitutional reality, Erdogan has been and is interpreting the Constitution. The Article, while reiterating the early finding that the Constitution does empower the President to engage in constitutional interpretation, concludes on a note of caution: executive statements interpreting the Constitution should not denigrate other branches of government.
In the times of real socialism in the countries of the Eastern Bloc, the system for filling key public positions in administration, economy and other realms of social life was based on the recommendation of the communist party. One of the foundations of the new democratic states was to become the principle of filling public positions on the basis of meritocratic criteria. In Poland, however, despite formal regulations guaranteeing the citizens the right to access to public service on equal terms, staffing the key positions in state administration and economy depends on political decisions by the consecutive governing parties. Based on empirical research, this paper argues that after 30 years of democracy there has been restoration of the patterns of staffing public positions used in the period of real socialism. Replacing legal norms by informal rules serving current party interests results in erosion of public institutions and undermines the very foundation of liberal democracy.
Recent years mark a constitutional change in the perception and function of several major accountability institutions in Israel. This constitutional change is promoted by political players through constitutional hardball. The article will analyze five examples of constitutional hardball aimed at changing the patterns of ethos and function of five accountability mechanisms: the erosion of opposition status in the Judiciary Selection Committee; Politicization of senior civil service appointment; Erosion of the Attorney General's monopoly on state representation in the Supreme court; A new functional approach to the role of the state comptroller; And the demise of a Knesset Transparency Committee. Analyzing these five reforms in the aggregate using constitutional hardball can lead us to a cumulative description of an erosion of important Israeli accountability institutions, all has a significant democratic role in balancing executive power.