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Document Type

Article

Publication Date

Summer 8-1-2019

Publication Citation

26 Indiana J. Global Legal Studies 501 (2019)

Abstract

The paper asks, when is a constitutional design of any (domestic, international, supranational) polity in error? On the most general level, such a critical juncture occurs when a polity's founding document (treaty, convention, constitution) protects against dangers that no longer exist or does not protect against the dangers that were not contemplated by the founders. Constitutions not only rule but should also protect against deconstitution. When analyzed together, the cases of Hungary, Poland, South America, and more recently, the United States, suggest a worrying new pattern of the erosion of constitutional democracies. One may even speak of a recipe for constitutional capture in one state after another that travels in space and in time. The new autocrats know that the law might be used to dismantle the law and institutions and engage in a different form of "repression by stealth" or the deconstruction of democracy itself by using the legal means (autocratic legalism). This process tends to result in a systemic undermining of the key components of the rule of law, such as human rights, independent and impartial courts, and free media. It follows a well-organized script, tends to begin with disgruntled citizens voting to break the system by electing a leader who promises radical change, and often refers to the "will of the people" while trashing the pre-existing constitutional framework with cleverly crafted legalistic blueprints borrowed from other "successful" autocrats. Poland, Hungary, and other legalistic counter-revolutions (Venezuela and Turkey) are not the sort of mass human rights violations that merit scrutiny from an international level. The world has already (and luckily so) developed a framework to deal with these issues.

The paper asks whether the capture of state institutions in Poland (and Hungary before it) is an outlying case or if it foreshadows the future of Europe more generally. Whatever the case, Poland matters, and for more than just the Polish. The case illuminates salient features and fissures in the bases for democratic government, the rule of law, and constitutionalism when confronted with the sweeping politics of resentment. Recently, the Editorial Board of the New York Times saw it fit to comment on the European Commission's decision on December 20, 2017, to invoke, for the first time in the history of European integration, Article 7 of the Treaty of the European Union against Poland. 10 The editors emphasized:

An independent judiciary, however, is not only the bulwark of the democratic order to which Poland signed on when it joined the European Union, but a fundamental requirement for the functioning of a single market. Upholding the treaties on which the union is based is indisputably within the European Commission's purview. The European Commission was right to invoke Article 7. It must follow that up by sternly explaining to Mr. Kaczynski's followers and other nationalist forces across Europe that there are red lines they cannot cross-not because Brussels so wills, but for their own sake. An independent judiciary is chief among them.

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