Band 19, Heft 3

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.

In recent years, constitutional discourse has centred around the disqualification of modifications made to constitutions on supraconstitutional grounds rather than for a failure to meet the formal requirements for modification prescribed by the constitution and the legitimacy of judicial intervention in such modifications. The purpose of this paper is to pinpoint the theoretical and practical difficulty in accepting these doctrines in the law and to propose an alternative approach that does not allow the court to intervene unless the modification prevents the people from modifying the constitution itself or is made through undemocratic methods. The article claims that the content of the rights protected in an amendment to the constitution should not determine the constitutionality of the amendment but should be examined according to whether it is a law that should be obeyed which raises questions only in cases of harms to jus cogens principles.

Human dignity reflects the notion of the equal worth of everyone, everywhere. It is reflected in law in treaties, constitutions, and statutes, and by courts and claims by counsel. Astonishingly, however, dignity’s role in national and subnational jurisprudence in the United States is largely overlooked, a condition this paper aims to address. Dignity’s diaspora is observed normatively throughout time and space. Scores of philosophers, prophets and social justice pioneers (and some political leaders) pontificated about dignity. But dignity is law as well as norm. Dignity in law enjoys deep and wide spatiality. Dignity is foundational to the United Nations, the Universal Declaration on Human Right, both international human rights covenants, some regional conventions, and various international and multilateral treaties. Most national constitutions recognize dignity, with dozens providing subjective rights to human dignity. Moreover, hundreds of courts worldwide have issued thousands of legal decisions invoking dignity. Its role in law is wide, deep and trenchant. Dignity’s legal footprint is slowly enlarging in jurisprudence in the United States. It has made regular appearances in cases across the legal spectrum, including those involving criminal justice, discrimination, employment, the environment, and other matters. For a generation the U.S. Supreme Court regularly invoked human dignity, including in cases involving capital punishment, reproductive rights, and same sex relations. Yet its role here has recently waned. Dignity plays a larger role in legal outcomes at the subnational level in the United States, if modestly and mostly concerning the dignity rights of crime victims. Yet here, too, dignity almost never succeeds as a stand-alone right. To the contrary, dignity most often plays a supporting role in vindicating other rights, such as to privacy, non-discrimination or speech. This can be due to any number of circumstances, including ignorance within the legal culture, resistance within the judiciary, or that those most likely subject to suffer a dignity deprivation are least likely to be able to do something about it. Outcomes suggest dignity’s role in law in America is either largely nascent or practically inconsequential.

Advocates of strong versions of democracy and majoritarian decisionmaking in American politics have long expressed concern about constitutional rules that constrain majorities. That such countermajoritarian rules in constitutions are, broadly speaking, anti-democratic has been a central critique of American constitutionalism, and has flourished in recent scholarship. Many scholars have concluded that our Constitution is fundamentally flawed, while others have argued that these concerns can be ameliorated by approaches to constitutional architecture and to judicial review that are democracy-enhancing. We argue here that this debate suffers from a neglect of a key aspect of political strategy and of constitutional design. Critically, proponents of majoritarian constitutions ignore the problem of constitutional stability. To understand why some democracies survive, we stipulate a constitutional desideratum : regardless of a constitution’s normative contents, a constitution does no one any good if it quickly fails. Our positive thesis is that all successful constitutions satisfy the limit condition : to survive constitutions must limit the stakes of power. When powerful groups feel threatened by the party holding power, they are likely to support extra-constitutional action to protect themselves. Majoritarians therefore face a fundamental tradeoff: Greater responsiveness to majorities raises the stakes of politics; and yet this makes the constitution less stable. This view implies that majoritarians should embrace countermajoritarian features that limit the stakes: when countermajoritarian features protect constituencies with the power to disrupt the constitution, they increase a constitution’s stability and thus its longevity and its successful performance.