About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline

47 U.C.D. L. Rev. 189 (2013-2014)
Abusive Constitutionalism

handle is hein.journals/davlr47 and id is 195 raw text is: Abusive Constitutionalism

David Landau*
This paper identifies an increasingly important phenomenon: the use of
mechanisms of constitutional change to erode the democratic order. A rash
of recent incidents in a diverse group of countries such as Hungary, Egypt,
and Venezuela has shown that the tools of constitutional amendment and
replacement can be used by would-be autocrats to undermine democracy
with relative ease. Since military coups and other blatant ruptures in the
constitutional order have fallen out of favor, actors instead rework the
constitutional order with subtle changes in order to make themselves
difficult to dislodge and to disable or pack courts and other accountability
institutions. The resulting regimes continue to have elections and are not
fully authoritarian, but they are significantly less democratic than they
were previously. Even worse, the problem of abusive constitutionalism
remains largely unresolved, since democratic defense mechanisms in both
comparative constitutional law and international law are largely
ineffective against it. Some of the mechanisms most relied upon in the
literature - such as the German conception of militant democracy and
the unconstitutional-constitutional amendments doctrine - are in fact
either difficult to deploy against the threat of abusive constitutionalism or
easily avoidable by would-be authoritarian actors. This Article suggests
ways to reinforce democracy against these threats, while acknowledging
the extreme difficulty of the task. The phenomenon of abusive
constitutionalism should impact the conversation about how the fields of
Copyright @ 2013 David Landau. Associate Dean for International Programs
and Assistant Professor of Law, Florida State University College of Law. My thanks to
Richard Albert, Carlos Bernal, Joel Colon-Rios, Charlton Copeland, Rosalind Dixon,
Alexandra Huneeus, Sam Issacharoff, Heinz Klug, William Partlett, Yaniv Roznai,
Mark Tushnet, Ozan Varol, Susan Williams, Sam Wiseman, and participants at the
Law & Society Conference in Boston, MA, the Younger Comparativists Committee
Annual Meeting of the American Society of Comparative Law at the University of
Indiana-Indianapolis, the Southeast Legal Scholars Conference in Palm Beach, FL, the
International Symposium on Constitutional Rights at Macquarie University, and
faculty workshops at the University of Wisconsin Law School and at the Center for
Constitutional Democracy at the University of Indiana Maurer School of Law, for
comments on this draft.


What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.

Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Contact us for annual subscription options:

Already a HeinOnline Subscriber?

profiles profiles most