Constitutional Processes And Democratic Commitment

Enhancing prospects for democracy is an important objective in the process of creating a new constitution. Donald L. Horowitz argues that constitutional processes ought to be geared to securing commitment to democracy by those who participate in constitutional processes. Using evidence from numerous constitutional processes, he makes a strong case for a process intended to increase the likelihood of a democratic outcome. He also assesses tradeoffs among various process attributes and identifies some that might impede democratic outcomes.

Publisher Description

From one of our leading scholars of comparative constitutionalism, advice for everyone involved in the surprisingly common practice of constitution-writing Enhancing prospects for democracy is an important objective in the process of creating a new constitution. Donald L. Horowitz argues that constitutional processes ought to be geared to securing commitment to democracy by those who participate in them. Using evidence from numerous constitutional processes, he makes a strong case for a process intended to increase the likelihood of a democratic outcome. He also assesses tradeoffs among various process attributes and identifies some that might impede democratic outcomes. This book provides a fresh perspective on constitutional processes that will interest students and scholars. It also offers sound advice for everyone involved in the surprisingly common practice of constitution†‘writing.

Law is fast globalizing as a field, and many lawyers, judges and political leaders are engaged in a process of comparative borrowing. But this new form of legal globalization has darksides: it is not just a source of inspiration for those seeking to strengthen and improve democratic institutions and policies. It is increasingly an inspiration - and legitimation device - for those seeking to erode democracy by stealth, under the guise of a form of faux liberal democratic cover. Abusive Constitutional Borrowing: Legal globalization and the subversion of liberal democracy outlines this phenomenon, how it succeeds, and what we can do to prevent it. This book address current patterns of democratic retrenchment and explores its multiple variants and technologies, considering the role of legitimating ideologies that help support different modes of abusive constitutionalism. An important contribution to both legal and political scholarship, this book will of interest to all those working in the legal and political disciplines of public law, constitutional theory, political theory, and political science.

Democracies are in danger. Around the world, a rising wave of populist leaders threatens to erode the core structures of democratic self rule. In the United States, the election of Donald Trump marked a decisive turning point for many. What kind of president calls the news media the “enemy of the American people,” or sees a moral equivalence between violent neo-Nazi protesters in paramilitary formation and residents of a college town defending the racial and ethnic diversity of their homes? Yet, whatever our concerns about the current president, we can be assured that the Constitution offers safeguards to protect against lasting damage—or can we? How to Save a Constitutional Democracy mounts an urgent argument that we can no longer afford to be complacent. Drawing on a rich array of other countries’ experiences with democratic backsliding, Tom Ginsburg and Aziz Z. Huq show how constitutional rules can either hinder or hasten the decline of democratic institutions. The checks and balances of the federal government, a robust civil society and media, and individual rights—such as those enshrined in the First Amendment—do not necessarily succeed as bulwarks against democratic decline. Rather, Ginsburg and Huq contend, the sobering reality for the United States is that, to a much greater extent than is commonly realized, the Constitution’s design makes democratic erosion more, not less, likely. Its structural rigidity has had the unforeseen consequence of empowering the Supreme Court to fill in some details—often with doctrines that ultimately facilitate rather than inhibit the infringement of rights. Even the bright spots in the Constitution—the First Amendment, for example—may have perverse consequences in the hands of a deft communicator, who can degrade the public sphere by wielding hateful language that would be banned in many other democracies. But we—and the rest of the world—can do better. The authors conclude by laying out practical steps for how laws and constitutional design can play a more positive role in managing the risk of democratic decline.

"A Practical Guide to Constitution Building provides an essential foundation for understanding constitutions and constitution building. Full of world examples of ground-breaking agreements and innovative provisions adopted during processes of constitutional change, the Guide offers a wide range of examples of how constitutions develop and how their development can establish and entrench democratic values. Beyond comparative examples, the Guide contains in-depth analysis of key components of constitutions and the forces of change that shape them. The Guide analyzes the adoption of the substantive elements of a new constitution by looking at forces for the aggregation or dissemination of governmental power, and forces for greater legalization or politicization of governmental power, and examining how these forces influence the content of the constitution. It urges practitioners to look carefully at the forces at play within their individual contexts in order to better understand constitutional dynamics and play a role in shaping a constitution that will put into place a functioning democratic government and foster lasting peace."--