How to Lose your Constitutional Democracy

Is the United States at risk of democratic backsliding? And would the Constitution prevent such decay? To many, the 2016 election campaign and the conduct of newly installed President Donald Trump may be the immediate catalyst for these questions. But structural changes to the socio-economic environment and geopolitical shifts are what make the question a truly pressing one. Eschewing a focus on current events, Professors Ginsburg and Huq draw on comparative law and politics experience to explore these questions. They demonstrate that there are two modal paths of democratic decay. We call these authoritarian reversion and constitutional retrogression. A reversion is a rapid and near-complete collapse of democratic institutions. Retrogression is a more subtle, incremental erosion to three institutional predicates of democracy occurring simultaneously: competitive elections; rights of political speech and association; and the administrative and adjudicative rule of law. Over the past quarter-century, the risk of reversion in democracies around the world has declined, whereas the risk of retrogression has spiked. The United States is neither exceptional nor immune from these changes. Ginsburg and Huq evaluate the danger of retrogression as clear and present here (and elsewhere), whereas reversion is much less likely. They further demonstrate that the constitutional safeguards against retrogression are weak.

Lunch will be provided.