Transnational constitutionalism and a limited doctrine of unconstitutional constitutional amendment: A reply to Rosalind Dixon and David Landau

Sujit Choudhry
2017 International Journal of Constitutional Law  
observe in their article, "Transnational Constitutionalism and a Limited Doctrine of Unconstitutional Constitutional Amendment," 1 the breakdown of constitutional democracy is a central feature of contemporary politics. Yet it is important to remember that this phenomenon is as old as democracy itself. For comparative constitutional law, what is important is a shift in how the breakdown of democracy tends to occur. As I have argued elsewhere, historically, the paradigmatic example of democratic
more » ... ample of democratic breakdown was a military coup d'état that seized power and overthrew a civilian government in blatant contravention of the existing constitutional order. 2 This was later joined by the self-coup or autogolpe, whereby democratically elected presidents remained in power unconstitutionally and escaped the confines of term limits and/or electoral losses, for example, by declaring a state of emergency that suspended many of the constitution's provisions, and then amending parts of or rewriting entirely the constitution by decree or convening an extra-constitutional constituent assembly. However, as Nancy Bermeo observes, the prevalence of coup d'états and autoglopes declined steeply with the end of the Cold War, because of the strong international disincentives and the widespread presupposition that democracy is now "the only game in town." 3 What has partially replaced them is democratic backsliding, whereby a democratically
doi:10.1093/icon/mox058 fatcat:ozkajiewmzagvawyhjwde4uucq