On the Relative Irrelevance of Constitutional Design: Lessons from Poland

The paper starts by asking whether was a proper constitutional ‘design’ in the case of Poland, considering the contingencies of the current constitutional set-up. It then provides an account of certain patterns of constitutional breaches which have been commonplace since 2015, and which render reflections on the resilience of constitutional design problematic. A case study on the Constitutional Tribunal shows how the authorities managed to convert it into an active helper of the legislative majority and executive. More 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.

The Counter-Playbook: Resisting the Populist Assault on Separation of Powers

This article argues that since undermining institutional checks and balances has been the distinctive strategy of “structural populism,” the defense of constitutional democracy must develop a similar disciplined focus, in the form of an anti-concentration principle that makes dismantling separation of powers more difficult to accomplish. This principle has a number of components, addressing most of the major structural elements of constitutional, institutional, and democratic design, and amounts to a counter-playbook on how to increase resistance to the moves that have proven so successful over the past few years. Of course, relying on 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. In particular, the counter-playbook that is developed in this article may help to prevent “political populist” regimes from transforming into the more dangerous structural populist type.

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.

Abusive Constitutionalism & Democratic Entrenchment: Constitutional Design in an Age of 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.