This article argues that politics, not law, drives the narrow understanding of the legitimate grounds for impeachment. Lawyers usually succeed in setting the framework for the charge of impeachment. But politicians, though echoing lawyers' rhetoric, vote in a way that maximizes their reelection chances. A growing number of scholars bemoan this “over-legalization of impeachment” and argue that constitutions should allow impeachment for “general dissatisfaction” since politicians will inevitably act politically. I argue that law is not the problem. Politicians legalize the debate for their own purposes. Since 1991, there have been four cases of the successful ousting of a president by impeachment in countries with a general dissatisfaction clause. In all four, legislatures chose narrower grounds to prosecute the impeachment. I conclude that either constitutional designers should limit impeachment to general dissatisfaction or accept the inevitable and civilizing hypocrisies of politics.
The first decade of the 21st century witnessed a revival-cum-transformation of militant democracy to guard against emerging threats to fragile democracies. In addition to post-1945 Germany, the paradigmatic examples for how this new militant constitutionalism worked were Turkey (ban of Islamist parties), India (regulation of religious electoral campaigning), and Israel (exclusion of extremist parties). Since then, Turkey, India, and Israel have witnessed significant backsliding by the very same extremist forces the militant courts were attempting to tame. Is it therefore time to reassess militant democratic approaches? At best, were the measures helpful in delaying democratic decline? At worst, did they exacerbate existing cleavages or cause “backlash”? Going forward, are democracies better served by focusing on criminal processes to police violent groups? The paper concludes the (re)assessment by exploring weak form judicial review as a solution for judicial review in uncertain times.
The literature and practice of constitutional rights adjudication around the world strongly suggest that institutional designers today have a rather limited choice set. Only two basic “models” seem available. The first model is proportionality analysis in which rights are defined expansively and courts are empowered to make context specific determinations. The second model is categorical analysis. Associated with the US, it entails a relatively narrow definition of rights and more limited tools for judicial evaluation of rights disputes that sharply bias results in one direction. This paper argues that there is another available model around which constitutional rights adjudication can be structured, which combines elements of both models and has independent merits not captured by either. The paper elaborates the new model and makes the case for its attractiveness in order to challenge the existing binary in constitutional rights adjudication and push scholars (and courts) beyond it.
Recent literature has commented extensively on a European Rule of Law crisis often circumventing the ambivalence of that notion. I distinguish between enchanted and disenchanted attitudes towards the rule of law in Europe. According to the enchanted view, the concept of the rule of law can reliably determine the outer limits of what is compatible with that notion. The disenchanted view counters that the notion remains too elusive to be effectively operationalised in specific contexts. The stakes of the distinction are high: the enchanted view suggests an important role for experts to deal with these questions whereas the latter suggests a more important role for political decisionmakers. The paper situates the responses of the Court of Justice of the European Union and the European Court of Human Rights, largely based on proportionality analysis, within this typology of attitudes. It concludes that the way forward out of the rule of law crisis requires a modest, pragmatic attitude.