Law Review Symposium Examines Global Threats to Constitutional Democracy

Anagha Sundararajan ’18
Law School Communications
June 19, 2017

Amid growing debate about the impact of rapid globalization and rising populism, scholars from around the world gathered at the Law School last month to identify and examine challenges to liberal constitutional democracies. They discussed the effectiveness of written constitutions that enumerate individual rights, the role of judicial review, and the commitment to democratic elections and the rule of law, among other topics.

Titled “The Limits of Constitutionalism: A Global Perspective,” this year’s University of Chicago Law Review symposium addressed the causes underlying the recent push toward populism seen in several countries.

“The idea [for the symposium] came somewhat naturally, given the concerns that have been building for some years about the resilience of constitutional democracy around the world,” said Tom Ginsburg, the Leo Spitz Professor of International Law. In places like Hungary and Poland, far-right nationalist groups have been using the mechanisms of liberal democracy to provide legitimacy to autocratic regimes. Across the globe, political parties have become weaker and less influential while individual candidates and leaders have become more powerful. The conference sought to address all of these challenges to liberal constitutional democracy while grappling with the necessary balance among those three components—liberalism, constitutionalism, and democracy—that are frequently in tension with each other.

Speakers drew on theoretical frameworks from a variety of disciplines, including political science and economics, to address recent challenges to certain liberal democratic norms, including the right to a free press, the freedom of expression, and free and fair elections. In their introduction to the symposium, Aziz Huq, the Frank and Bernice J. Greenberg Professor of Law, Ginsburg, and University of Virginia School of Law Professor Mila Versteeg argued that, as part of their rise to power, populist governments around the world “have repudiated liberal norms of tolerance and openness, restricted press freedom, attacked institutional checks that promote the rule of law, and catalyzed constitutional and statutory transformations that promise to entrench populist coalitions.”

The goal of the symposium was not only to spell out these threats to liberal constitutional democracy as a structural framework for governments, but also to better understand the causes and consequences of these threats. In their opening, Huq, Ginsburg, and Versteeg said they hoped that the papers from this symposium “sound not merely in scholarly terms, but also as interventions in a larger public debate” about the future of liberal constitutional democracy worldwide. In acknowledging the tension between liberalism, constitutionalism, and democracy, participants argued that the challenges to modern liberal constitutional democracy came because states were being forced to choose two out of the three.

Professor Samuel Issacharoff of NYU Law School argued that democracies have been failing because the institutions that facilitate democratic governance have fallen into disrepair.

“[T]he accelerated decline of political parties and other institutional forms of popular engagement…the paralysis of the legislative branches…the loss of a sense of social cohesion, and…the decline in state competence” have compromised the integrity of democratic institutions, Issacharoff argued. As institutions flounder, heads of state start using personal relationships to ensure that the business of governing is carried out, leading to public distrust in the government and disillusionment with democracy. As part of the discussion around Issacharoff’s piece, participants pushed back against his characterization of liberal democracies.

Ruth Gavison, the Haim Cohn Professor of Human Rights at the Hebrew University and a scholar-in-residence at the Crown Center for Jewish and Israel Studies at Northwestern University, agreed that the features identified by Issacharoff were indeed an important part of the problem. However, she suggested that the challenge went deeper. She argued that the most basic presupposition of a stable and justifiable democratic order is the feeling that it serves a political community connected by interests and commitments, in which rulers act for the “demos” and are accountable to it. This basic presupposition is no longer self-evident. Making (liberal) democracy more attractive again does not require better liberal constitutions, Gavison argued. Rather, it has to show that it can respond effectively and adequately to the challenges of providing welfare, community, and security for all of the main groups within each demos, in a globalized world in which states and their ‘peoples’ seem to be much less in control of their own affairs.

The idea of democracy providing a source for its own undoing was reflected in a paper presented by Kim Lane Scheppelle, the Laurance S. Rockefeller Professor of Sociology and International Affairs at the Woodrow Wilson School and the University Center for Human Values at Princeton University. Her paper focused on how autocratic regimes in Poland and Hungary used the tools of constitutional democracy to undermine it. The new autocrats “are very savvy legalists who are engaged in constitutional revolutions that would not be possible if they were simply trying to publically smash the systems they interpreted,” Scheppelle said during the conference. She argued that the new autocrats are not coming into power through military coups but through elections.

“They masquerade as democrats, coming to power through elections and intending to hold elections off into the future,” she said.  Their dirty work, she added, is being done by lawyers. The problem is that constitutional democracies are largely becoming less liberal and more autocratic.

Other papers focused on constitutions and their role in shaping society. Versteeg and Adam Chilton, an assistant professor at the Law School, presented a paper that uses quantitative methods to argue that the existence of a constitutional court with a form of judicial review does not inherently increase the likelihood that constitutional rights will be respected in any given regime.

The conference itself sparked lively debate over two days of panels and discussions.

“We hadn’t anticipated that [the topic] would be on the minds of Americans, too, but that’s how it turned out,” Ginsburg said. “We were thrilled with the way the symposium came together. The Law Review was able to attract some of the best legal scholars in the country to think about a topic that is, unfortunately, very timely.”