For more than two centuries, the constituent assembly has been the classical way for government to begin again on a new ground of legitimation. However, in an age of democratic backsliding, new autocrats are hijacking the form of constituent assemblies without the slightest intention of generating public consent. We need a critical theory to assess when constituent assemblies do real legitimation work and when they are just covers for autocratic concentration. I show how our present theory is actually a theory of first constituent assemblies in a particular location. I propose that we use a different theory for assessing second and third and later constituent assemblies in a particular place. A later constituent assembly cannot displace an earlier one unless its democratic pedigree of the second is stronger than the first. Constitutional democracy embeds a normative one-way ratchet.
The results of recent referendums around the world have concealed an important similarity among many of them: they were not constitutionally required. For example, the UK Constitution does not require a referendum to authorize Brexit nor does the Colombian Constitution require one to ratify the FARC peace pact. Yet in both cases incumbents felt compelled to forego the settled rules of constitutional change in order to bring their reform proposals directly to the people. This is not a rare practice: leaders have often had recourse to referendums by choice rather than obligation as part of a larger strategy to legitimate a major constitutional change. I draw from various non-obligatory referendums to develop a typology of discretionary referendums in constitutional amendment. I examine why constitutional actors use discretionary referendums and situate their use against the backdrop of an increasingly observable phenomenon in democracies: the circumvention of formal amendment rules.
Both in the US and around the rest of the world, courts are generally conceptualized as the last line of defense for the liberal democratic constitutional order. We show that it is not uncommon for judges to issue decisions that instead intentionally attack the core of electoral democracy. Courts around the world, for example, have legitimated anti-democratic laws and practices, banned opposition parties to constrict the electoral sphere, eliminated presidential term limits, and repressed opposition-held legislatures. We call this: 'abusive judicial review'. Would-be authoritarians at times seek to capture courts and deploy them in abusive ways as part of a broader project of democratic erosion, because courts often enjoy legitimacy advantages. This paper gives examples of abusive judicial review from around the world, explores potential responses both in domestic constitutional design and international law, and asks whether abusive judicial review is a potential threat in the US.
Populist leaders recently abuse formal constitutional change procedures, in order to erode the democratic order. The changes, are very often, gradual, incremental and subtle, and, when examined in the context of an ongoing process, may prove to be part of a democratic erosion process in which the whole is greater than the sum of its parts. While the doctrine of ‘unconstitutional constitutional amendments (UCA) may seems as a useful tool against abusive constitutionalism, we demonstrate why in the context of democratic erosion it faces three significant limitations rooted in: incrementalism; total constitutional replacement; and court-packing or judicial capture. These three characteristics of populist constitutionalism severely undermine the utility of the UCA doctrine. We thus propose a new theory of judicial review of constitutional amendments within the context of democratic erosion and abusive constitutionalism, in order to tackle or at least relax these challenges.