The asserted primacy of norms over rules and institutions raises perhaps the greatest challenge for scholars and practitioners of constitutional design. In the midst of the great crisis facing contemporary democracy, in America and globally, is there nothing that the law can do? In this paper, I suggest that with appropriate constitutional anchors, the courts can fuel political support for the same unwritten norms that make the courts effective at all – making the causal arrow run in both directions. To do so, courts must fearlessly call autocracy by its name.
This paper shifts the focus to the engagement between populism and democratic governance as an institutional account of how democracies function. Post-2008 anti-elitism as a social commitment translated to a robust anti-institutionalism in terms of state authority. The aim is not so much to provide definitions of either populism or democracy as to call attention to the features of democratic rule that have commanded attention for the era of democratic ascendancy over the past two centuries and that now seem subject to deep challenge. Without claiming apocalyptically that this era of democratic ascendency has come to a close, it is nonetheless worth examining how it operated to see the sources of contemporary disrepair. Here the suggestion is that there may be more inherent conflict with populism, turning not so much on the ultimate issue of an elected head of government but on the limits on the exercise of power.
Marx’s famous phrase holds that history repeats itself, “the first time as tragedy, the second as farce.” The phrase seems apt for the two Constituent Assemblies in Venezuela over the past twenty years: Hugo Chavez’s in 1999 and Nicolas Maduro’s in 2017. While constitution-making moments are sometimes romanticized as the high point of democratic constitutionalism, in Venezuela each of these two assemblies has helped — in first a tragic and then a farcical way — to construct or deepen Venezuela’s slide towards authoritarianism.
This paper highlights how the decline of political parties has contributed to the decline of constitutional democracy across the globe.