In the developing US conversation on threats to the democratic order, resistance, protest and citizen action against such threats are largely viewed as extra-constitutional, in the sense that the specific issue of public resistance against tyranny is not squarely addressed in the text of the US Constitution itself (although it is discussed in the Federalist Papers). 

Other states have expressly enshrined provisions in the Constitution legitimating resistance against tyranny.  This talk discusses provisions in the German and Venezuelan constitutions, enacted 50 years apart in very different circumstances: Article 20(4) of the Basic Law of Germany 1949 states: "All Germans shall have the right to resist any person seeking to abolish this constitutional order, if no other remedy is available." Article 350 of Constitution of Venezuela 1999 provides: "The people of Venezuela, true to their republican tradition and their struggle for independence, peace and freedom, shall disown any regime, legislation or authority that violates democratic values, principles and guarantees or encroaches upon human rights." (cited, for instance, by the man prosecuted for a helicopter attack on the Supreme Court in June 2017). 

While these provisions are rare in comparative terms, and rooted in very particular histories, they ultimately express an ancient idea: that there is a point at which tyrannical rule (or the serious threat thereof) renders resistance against the government, and the State more widely, legitimate. This opens a variety of questions, of which three loom large: (i) how do we judge, within the terms of the Constitution, when this threshold has been crossed?; (ii) is the answer to our question based in universal principles or particular historical experiences?; and (iii) how have these provisions been employed in Germany and Venezuela to date, and have they had any real impact on how individuals have mounted resistance against threats to democracy? 

Dr Tom Gerald Daly

Tom is Director of the Democratic Decay Resource (DEM-DEC: www.democratic-decay.org), Associate Director of the Edinburgh Centre for Constitutional Law, a Fellow of Melbourne Law School, Co-Convenor of the Constitution Transformation Network (Melbourne) and Co-Editor of the International Association of Constitutional Law (AICL-AIDC) Blog. He has previously clerked for the Chief Justice of Ireland, lectured on human rights law and democracy at Edinburgh Law School and the University of Copenhagen, and as a consultant has worked on or managed EU, Council of Europe, African Union, International IDEA, and Irish government projects concerning public law, human rights, and democracy-building. His current book project concerns the role of public law in countering ‘democratic decay’ worldwide. Forthcoming publications include an article, ‘Democratic Decay: Conceptualising an Emerging Research Field’ in the Hague Journal on the Rule of Law. Recent publications include The Alchemists: Questioning Our Faith in Courts as Democracy-Builders (Cambridge University Press, 2017) and ‘Democratic Decay in 2016’, in IDEA’s Annual Review of Constitution-Building. He was an inaugural I-CONnect blog columnist for 2017, focusing on democratic decay, and tweets @DemocracyTalk.

Lunch will be provided.