The Comparative Constitutional of Democratic Backsliding: A Report on the State of the Field

Abstract

There has been a crisis in the modal forms of liberal constitutionalism that emerged as a default design choices for political systems across Europe and North America in the wake of World War II. Central to the crisis have been institutionalized assaults on democratic institutions, often conducted with legal tools. This article reviews the extensive literature in American comparative constitutional law on the role that legal institutions play in the process of democratic backsliding. Drawing on a range of comparative experience, it draws attention to questions of constitutional amendment rules; entrenched protection for rights of free speech and association; term limits and other protections of election integrity; and the constitutional viability of an autonomous bureaucracy and ‘fourth branch’ institutions designed to check the abuse of executive power.