This article analyses three main tensions situated at the heart of democratic erosion processes around the world: the conflict between substantive and formal notions of democracy; a conflict between believers and non-believers that courts can save democracy; and the tension between strategic and legal considerations that courts consider when facing pressure from political branches. At its core, the article argues that courts have an important role in protecting democracy against constitutional reforms eroding the constitutional order, and that courts should stand firm against pressure and do their best to protect democracy.
We develop a typology of four functions that courts may perform under a broad read of Ely: protecting fragile democracies against erosion, improving the performance of democratic institutions, protecting discrete and insular minorities, and protecting against majoritarian political failures. The broad theory, we argue, is a useful conception of judicial role, although it faces various difficulties, including how to define the limits of judicial review, and how to prioritize some aspects of the role (such as those compelled by the narrow read of Ely) over others. Nonetheless, we argue that the broad read of Ely often asks the right kinds of questions of both courts and scholars.
The idea that citizens possess duties, in addition to rights, appears to be growing in popularity, with proponents on both the right and the left. In this Article, we show that duties for individuals have always been common in national constitutions. Today, no less than 64 percent of all constitutions include at least one duty; such as the duty to “respect the constitution,” “defend the country,” “protect the environment,” and “pay taxes.” We draw on original data that captures the historical trajectory of constitutional duties in national constitutions. We document the first instances of adoption, and their subsequent spread in constitutions globally. We also code what type of duties are most common, and how this has evolved over time. We find that, although legal scholarship has had relatively little to say about constitutional duties, they have long been part of a liberal constitutionalism. What is more, many courts in these countries have actually enforced constitutional duties.
When courts seek to strengthen their own institutional power, they often need to be strategic. In many fraught political contexts, judiciaries lack a history of asserting authority against powerful political actors. How can courts with fragile authority establish and enhance judicial power? This article explores the phenomenon of strategic judicial empowerment, offering an account of how and when courts deploy various strategies aimed at enhancing their institutional position vis-à-vis other branches of government. Drawing on recent examples from apex courts in Pakistan, Malawi, Malaysia, and the United Kingdom, it explores the ways in which judges use tools of statecraft to increase the effectiveness of their decisions and enhance their role in the constitutional order. It explores the particular strategies that courts might employ in service of self-empowerment, such as strategies of maxi-minimalism and mini-maximalism.
This Essay argues that, when viewed in comparative perspective, the UK Supreme Court’s decision in Miller II was a functional and appropriate defense of the basic structure of the British constitutional order. In addition, it suggests that any increase in the Court’s judicial power or claim to authority will be a function of the Johnson Government’s and the legal profession’s response to the decision, rather than due to the legal determination itself. And thus, the anxiety expressed about the negative impact of the decision on parliamentary sovereignty may turn out to be a self-fulfilling prophecy.