This paper examines constitutions as constraining mechanisms. The first section reviews the common view that constitutions are mechanisms for constraining political enemies or unsympathetic constitutional decision makers. The second section examines invalidation, neglect, circumvention and capture, the strategies unsympathetic constitutional decision makers may employ when seeking to frustrate efforts to constrain them constitutionally. The last section explores the limited capacity constitutional reformers have to prevent or inhibit invalidation, neglect, circumvention and capture. Constitutionally constraining unsympathetic decision makers is at best a reasonable strategy for achieving a particular constitutional result, such as establishing the date on which a president takes office. Constitutional reformers seeking fundamental regime change, must employ other strategies for making their constitutional vision the official law of the land.
Literature on democratization poses a strong emphasis on belief in constitutional courts as building tools for democracy. More recently, however, critical views of this correlation have been presented, especially regarding democratic consolidation. Hirschl questions the construction of a “Juristocracy,” whereby the empowerment of the courts leads to a gradual shift from the legislative to the judiciary as the final instance of political decisions. Daly, on the other hand, questions the supposed efficacy of constitutional courts as tools of democracy building and consolidation, especially when qualitative evaluation is brought to the equation. Further on, underlying the defense of this tool as indispensable for a successful democratization process, there is a specific, non-neutral, paradigm of democracy, which leads to the promotion of certain tools, in detriment of others. In order to contribute to that debate, this paradigm is to be investigated, as proposed in the paper.
New autocrats these days comes to power in (more or less) free and fair elections. They then change the legal rules to ensure that the constraints under which they should constitutionally govern are loosened and they alter the election laws to ensure that they cannot be removed from power. The fact that all of this occurs by law often fools the critics. In this paper, I discuss how to recognize the danger signals of creeping autocracy by deconstructing some of the typical legal moves that creeping autocracy takes.