Tom Ginsburg and Aziz Huq – How to Save a Constitutional Democracy

It is common to qualify democratic governance as not simply democracy but liberal democracy. This is natural because freedom has been associated with democracy dating back to the Greek philosophers Plato and Aristotle. It is difficult to imagine an illiberal democracy which retained the foundations of democratic governance within an authoritarian or even totalitarian context. Viktor Orbán has described Hungary as an illiberal democracy but the farther it gets from liberalism, the less democratic it has become.

In ways liberalism is in opposition to democracy. It demands certain policies, procedures and institutions. Liberalism is the philosophy which gave rise to the idea of universal human rights. Indeed, liberalism is applied universally without cultural context. On the other hand, democracy gives the people the freedom to make decisions within their government. It is an almost postmodern idea where the right answer changes from country to country. Indeed, the formation of policy emphasizes the process rather than the outcome of its decision. In this manner liberalism qualifies democracy as a certain type.

However, many aspects of liberalism are endemic to democracy. Freedom of speech, the press and assembly are both foundational pieces of liberalism and democracy. The rule of law is a liberal concept yet is essential for large-scale democratic government. Poland and Hungary have flirted with illiberalism but have found it has weakened their democracy because it is nearly impossible to demarcate between the two. Liberalism and democracy are largely intertwined or as Marc Plattner has written “Can’t Have One Without the Other.” Rather than establishing limitations for democracy, liberalism clarifies or even amplifies its meaning.

Tom Ginsburg and Aziz Huq believe it is necessary to add a further description of constitutional. It is not meant to differentiate between nonconstitutional democracies because democratic governance relies on established institutions which are established through a written or unwritten constitution. Rather it emphasizes the way political institutions reinforce liberal democracy even when they are not democratic in nature. Nondemocratic institutions have long played a role in the democratization of many political systems. In England and Spain, the monarch played an influential role in the transition to democracy. Yet it was their acceptance of their own political marginalization which made it possible for this transformation to occur.

Democratic political systems develop multiple political institutions of elected and unelected public servants. Ginsburg and Huq have found unelected public servants are just as instrumental to the preservation of liberal democracy as elected officials. Indeed, it is often the elected officials who pose the greatest danger to democratic governance. This idea is central to the research of Milan Svolik who finds polarization leads voters to choose leaders who represent their beliefs on policy even when they recognize the leader as a threat to the political system. But populist leaders do not necessarily fit cleanly onto the traditional left-right spectrum. Lipset described fascism as the radicalization of the political center. This is a better description of today’s populism which merges many policies of the political left with the xenophobia of the political right.

Ginsburg and Huq use a few examples where nondemocratic political institutions step in to save liberal democracy. For example, Latin America has a long tradition of executive term limits culminating in the Mexican Revolution’s mantra “No Reelection.” But term limits have recently been set aside in many countries as strong leaders consolidate political power. Through a series of constitutional reforms Evo Morales is now campaigning for his fourth consecutive term as the President of Bolivia. Colombia handled the issue of executive term limits quite differently from Bolivia. President Uribe extended his successful first term as President into a second term through constitutional amendment. He was on the verge of resolving the military conflicts between private military organizations like FARC which had undermined the state’s monopoly on the use of force. But as the second term came to an end, Uribe looked to the legislature to amend the constitution again to allow for a third consecutive term in office. The Constitutional Court stepped in at this moment and declared the proposed amendment as unconstitutional. A third term was seen as detrimental to the balance of power within its political system because the President would have appointed nearly every nonelected office holder at the end of their term. This consolidation of power represented a constitutional substitution rather than a simple amendment.

Within the case studies of the book, Ginsburg and Huq find it is often unelected officials who prevent the erosion of democratic governance or even reverse its decline. They believe it is important to emphasize the constitutional nature of liberal democracy not because it distinguishes itself from other forms of democracy but because it emphasizes the importance of other political institutions which are not typically viewed as democratic as necessary for its preservation. The book itself uses examples from around the world but is primarily focused on the American political system. It is a book meant for an audience in the age of Trump where scholars have begun to question the possibility of democratic decline within the United States. Yet it has enormous implications for democratic theory.

This book is a sort of sequel to a law review article titled, “How to Lose a Constitutional Democracy.” It is a bit of an understatement to describe it as an article. It was published in the UCLA Law Review but is 92 pages including a table of contents. It is nearly a book itself. Their newer book How to Save a Constitutional Democracy is an easier read which is meant to reach the general public. It has a more optimistic feel even though it engages the same content. Another paper from Tom Ginsburg which establishes some of the foundations for his later work is “On the Evasion of Executive Term Limits” which is found in the William and Mary Law Review.

These scholars find ways to merge political and legal theories. Their collaboration has been important to bring together these distinct traditions into something which translates across both disciplines. Their work is not as well known as other scholars who have written on the recent decline of democracy such as Yascha Mounk but there is no difference in quality between the two. Moreover, they are significant scholars in their own right with growing reputations. Whether their contributions become fully recognized in the years to come, their ideas have already begun to influence the literature. Their work is increasingly cited in the journals I read. Do not be surprised if their reputations continue to grow.

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