The Law of Constitutional Capture

Abstract

Constitutional capture is commonplace in the world today. A government that was built to be for the common good, the public interest, is rebuilt from the inside to become a government for the interests and preoccupations of the leadership. That leadership finds ways to keep governing a people while ceasing to be truly accountable to those people. This article identifies and explains the deep legal mechanisms at work in constitutional capture. In doing so, the article finds a way to rescue our endangered democracies that has been overlooked in contemporary scholarship. A substantial interdisciplinary literature has recognized that singular leadership stabilizes tyrannies. Having one person as chief executive is the natural, equilibrium form of tyranny, to which tyrannies by committee, such as military juntas, tend to move. The existing literature on democratic erosion and constitutional capture has not recognized that singular leadership destabilizes democracies. Having one person as chief executive is democracy’s Achilles heel, the structural feature most responsible for democratic erosion and constitutional capture. Legal systems grow from converging expectations that singular leaders are uniquely situated to shift. This article explains how having one true leader poses its unique threat to constitutional democracy and why formal checks and balances by legislatures and courts are insufficient to neutralize this threat. The article identifies constitutional alternatives that avoid this danger and have been proven by comparative constitutional experience to let constitutional democracy thrive.