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New Book Co-Authored by ABF Research Professor Examines Legal Defenses Against Democratic Decline

February 1, 2019, Press releases

CHICAGO, Feb. 1, 2019  A new book by American Bar Foundation (ABF) Research Professor, Tom Ginsburg, and University of Chicago Law School Professor, Aziz Huq, explores how democracies collapse and erode and how to better uphold and defend democratic rights and values by drawing lessons from history and recent experiences of democratic decline worldwide.

How To Save A Constitutional Democracy investigates how democracies around the world have experienced a rising wave of populist leaders or single political parties that have threatened to erode the core structures of democratic self-rule. Leading legal scholars Ginsburg and Huq explore two pathways that can lead a nation away from democracy: authoritarian collapse, which is defined as a democracy's sudden and complete collapse into an authoritarian form of government, and democratic erosion, which occurs when the rule of law, individual rights and competitive elections decay slowly over time. From there, Ginsburg and Huq ultimately lay out a detailed agenda of practical measures to ensure that laws and constitutional design play a more positive role in managing the risk of democratic decline in both established and younger democracies.  

The book offers a wealth of examples from around the world to demonstrate how, in practice, constitutional rules can both deter and accelerate decline. From Latin America to Eastern Europe, democracies have been susceptible to a single political party that eliminates political competition or would-be autocrats who have found ways to influence and manipulate the system by undermining the checks and balances of the federal government, a robust civil society and media, and individual rights.

Using these examples, the authors mount an urgent argument against complacency and for constitutional reform. They make the case that while the U.S. Constitution has endured for centuries, it does not contain the necessary provisions to slow down any potential autocrat or eroding political competition that is bent on dismantling the republic. While systems of checks and balances have been exalted in the past, there is now a growing acceptance in deference of courts to more political branches. Recent evidence has also shown that citizens of democracies are becoming more cynical about democracy's virtues, and more skeptical about their ability to participate and influence national politics meaningfully.

“One of the things we wanted to take on was the idea of American exceptionalism — the notion that the U.S. is immune from the forces that are affecting other democracies around the world. What we found was that, not only are we not immune from democratic erosion, but in some ways our Constitution makes us uniquely vulnerable," Ginsburg said. "To take one example, many other countries would have a constitutional rule that would prevent government shutdowns of the kind we just experienced. Many others would have special constitutional bodies to ensure accountability and would not assign management of elections to partisan bodies.”

The authors make the case that the United States Constitution does not always work as a safeguard against democratic decline. Rather, Ginsburg and Huq contend, the sobering reality for the U.S. is that the Constitution’s design makes democratic erosion more, not less, likely. Its structural rigidity, while making it difficult to amend, has had the unanticipated consequence of empowering the Supreme Court to fill in some details — often with doctrines that ultimately facilitate rather than inhibit the infringement of rights. 

The authors conclude by laying out steps for how reframing laws and constitutional design can play a more positive role in managing the risk of democratic decline.

“We try to go beyond just diagnosing the problems to providing solutions in law and constitutional design, for the United States and for other countries around the world,” said Ginsburg. 

A special reception will be held to celebrate the publication of How To Save A Constitutional Democracy on Wednesday, February 6 from 5-6:30 p.m. at the American Bar Foundation offices in Chicago. Ginsburg and Huq will give a presentation about the book, followed by a Q&A. Copies of the book will also be available for purchase and signing. 

For more information or to register for the event, click here.  

Tom Ginsburg is a Research Professor at the American Bar Foundation and the Leo Spitz Professor of International Law at the University of Chicago, where he also holds an appointment in the Political Science Department.  He holds B.A., J.D. and Ph.D. degrees from the University of California at Berkeley. Ginsburg currently co-directs the Comparative Constitutions Project, a National Science Foundation-funded data set cataloging the world’s constitutions since 1789. 

Aziz Z. Huq is the Frank and Bernice J. Greenberg Professor of Law at the University of Chicago Law School. He holds a B.A. from the University of North Carolina at Chapel Hill and a J.D. from Columbia University Law School. He clerked for Judge Robert D. Sack of the U.S. Court of Appeals for the Second Circuit and for Ruth Bader Ginsburg of the Supreme Court of the United States. Huq's scholarship is focused on the interaction of constitutional design with individual rights and liberties.


About the American Bar Foundation

The American Bar Foundation (ABF) is among the world’s leading research institutes for the empirical and interdisciplinary study of law. The ABF seeks to expand knowledge and advance justice through innovative, interdisciplinary, and rigorous empirical research on law, legal processes, and legal institutions.  To further this mission the ABF will produce timely, cutting-edge research of the highest quality to inform and guide the legal profession, the academy, and society in the United States and internationally. The ABF’s primary funding is provided by the American Bar Endowment and the Fellows of The American Bar Foundation.

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Posted by Danielle Gensburg

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