Democracy and Abusive Constitutional Change

Abstract

This chapter defines abusive constitutional change as an intentional attack on the democratic minimum core, or a minimalist, electorally focused definition of democracy familiar from recent work in law and political science. The advantage of using a yardstick for abuse that is a relatively thin, electoral version of democracy is that it avoids engaging more contestable commitments and thus enjoys a higher degree of global consensus. The chapter also distinguishes democracy from liberalism and explores the complex relationship between the two concepts. There is a theoretical tension between democracy and liberalism, although recent experience has suggested a strong tendency for them to erode together. Finally, the chapter explains the main forms of abusive constitutional change—formal constitutional amendment and replacement, sub-constitutional change through the passage of new legislation, and informal methods of change such as judicial reinterpretation. Most recent experiences with democratic erosion rely on a broad mix of these methods.