Volume 19, Issue 1 - Polarized Constitutionalism; Co-edited by Iddo Porat and Gila Stopler

Political polarization has become one of the most significant challenges facing modern democracies, reshaping political discourse, governance, and public trust in institutions. This article explores the nature of polarization, defining it as the deepening ideological and social divide between political factions, often accompanied by hostility and distrust. We examine its primary causes, including economic inequality, media fragmentation, identity politics, and institutional design, all of which contribute to reinforcing divisions and entrenching partisan loyalties. A central argument of this article is that polarization not only exacerbates political conflict but also transforms traditionally neutral institutions into partisan battlegrounds, undermining their credibility and effectiveness. Courts, in particular, have increasingly become the focus of political struggles, as different factions seek to shape judicial rulings to align with their ideological preferences. Ultimately, we argue that the partisanship of institutions is one of the most damaging consequences of polarization, leading to diminished trust in democratic structures and weakening their ability to function effectively.

Could voluntary or negotiated secession or separation be a solution to the problems of maintaining a single government for a highly polarized polity? Negotiated secession would convert political negotiations over the terms of domestic law into negotiations over the terms of international treaties regulating relations between separate nations. The existence of bilateral and multilateral treaties across a range of topics reduces the costs of individual negotiations because such treaties offer “off-the-shelf” models. Tradeoffs across topics can provide protections for the “minorities within minorities” problems historically associated with secession and separation. The overall model can be described as one in which the parties exchange conditions for concessions. In the end, outcomes will result from relative bargaining power and the related question of the intensity with which the polarized entities hold their views on the list of items on the policy agenda. This is not dramatically different from how outcomes result from bargaining within the polarized polity, with the important exception that secession or separation changes the default outcome from policy paralysis to pursuit of distinct policies within the separated entities.

The behavior of judges on both the U.S. Supreme Court, and on federal and state courts throughout the United States, has changed dramatically in the past decade – polarizing along party lines in ways not visible in decades past. Yet while this pattern in some respects echoes that seen in other constitutional democracies around the world today, American legal polarization has been driven in important part by a specifically domestic conservative legal movement whose role and impact are still only partly understood. This article shows how that movement’s intellectual and strategic features have functioned to challenge long-settled norms of legality in the United States – including norms of judicial stability and impartiality – and are today driving a growing reactive interest in elevating “movement,” or purposefully impartial, judges on the progressive left. Further, drawing on empirical studies of judicial behavior and public opinion, the article considers the hypothesis that the dramatic growth in polarized judicial behavior these movement forces have helped to drive is in turn contributing to a bipartisan decline in public belief in the possibility (or desirability) of judicial impartiality more broadly. While the conservative legal movement is best known for its efforts to shift the substance of liberty and equality protections under American constitutional law, its more profound impact may be of this latter kind – destabilizing norms that have helped to preserve at least the relative autonomy of law from politics in the United States for more than a century.

For the second half of the twentieth century and the early years of the twenty-first century, the belief in pancontinental constitutional frameworks boosted the political and legal integration of Europe. In less than twenty years, the scenario has dramatically changed. The belief that the peoples of Europe would proceed through a potentially endless process of harmonization and unification has been replaced by political tensions between those who support integration and those who support state sovereignty. Such tensions have materialized both within the European Union and in the Council of Europe, as the recent clash between the Polish Constitutional Court and the Court of Justice of the EU on one hand and the Russian abandonment of the Council of Europe on the other exemplify. Beneath the surface, the two factions have profoundly different agendas. The supporters of integration often advocate for a progressive and liberal agenda and state power constraints, while conservatives couch their arguments in terms of state sovereignty and domestic political discretion. The net result is a form of vertical polarization – a tension between factions alternatively supporting state or supranational and international frameworks. Such factions often see state claims and supranational and international frameworks claims as irreconcilable, because each level of government would be inextricably associated with a specific political agenda. The article distills the vertical characters of polarization in Europe, explains how political polarization has morphed into strained relations between national, supranational, and international institutions, and considers and criticizes some recent proposals to reinvigorate pan-European integration. It concludes that the survival of pancontinental institutions in Europe can only be achieved by distinguishing between political agendas and constitutional frameworks in largely unprecedented ways: a task that only European legal culture can carry out.

Courts often do not play a significant role in constitutional replacement processes. Observers have identified exceptions and theorized about the courts’ possible functions during and after those processes. However, little has been said about the courts’ work taking place before replacement processes occur. This essay shows that courts can help establish the conditions for constitutional change by encouraging the demand for such change. They can do that by fostering the perception that the Constitution has become a tool to help one side of the political struggle win over politically salient constitutional conflicts, thus contributing to the polarization among competing political groups. Observers have reported that backlash against the courts is possible. I claim that a backlash against the Constitution itself is also possible. Encouraging the losers of the constitutional conflict to either attack the court or the constitution is possibly an unintended consequence of judges deciding cases in politically consequential ways. The implication is that strategic judges must balance the need to resolve cases in ways they perceive correct with the long-term acceptance of the Constitution. Still, a collective action problem makes this task difficult to achieve. The essay explores these ideas using different examples and expands on how the Chilean Constitutional Court contributed to building opposition against the Constitution before the Constitutional Convention was convened.