The Case for Systemic Constitutional Analysis

Ed Note – We are hosting an international blog symposium on India and Global Decline in Democracies as a part of our New Scholarship initiative. We will be discussing Professor Tarunabh Khaitan’s article, which he introduced here. More information on the symposium can be found here. This post is the seventh response in the series, by Professor Kim Lane Scheppele.

Tarun Khaitan’s account of the rule of Narendra Modi leaves no more room for doubt: India’s democracy is teetering on the brink of autocracy. As Khaitan shows with patient attention to the constitutional specifics, Modi has launched continual attacks across the board against virtually all checks on his power that might come from elections, from the other branches of government, from transparency institutions that ensure monitoring and assessment, and from the civil sector. The pattern of these attacks makes clear that Modi’s assault is deliberate, systemic and highly integrated since no check on Modi’s discretionary power, however small, is left unchallenged. Sometimes the institutions being attacked have proved resilient, but all too often, the assaults have succeeded in weakening the core elements of India’s constitutional democracy. The story that Khaitan tells makes for depressing but urgent and essential reading.  

Unfortunately, India has a lot of company. Constitutional democracy is under serious threat in every corner of the world. Viktor Orbán in Hungary and Jaroslav Kaczynski in Poland have engaged in systematic deconstruction of their respective judiciaries, pluralistic media and accountability institutions and now they are trying to evade a reckoning with the EU. Hungary is so far gone that it is unclear whether anything short of a full constitutional reboot will fix it while Poland is on a fast and slippery slope to follow Hungary. Venezuela is on life support after Hugo Chávez’s constitutional revolution turned out to be the opening stages of an unconstitutional dictatorship. Turkey can no longer even pretend to be a robust constitutional democracy after Recep Tayyab Erdogan consolidated extraordinary power by constitutionally switching the country from a parliamentary to a presidential system. He has governed with emergency powers ever since a failed coup attempted to topple him. Everyone has long since given up on Russia. 

If you add to these countries the list of others that have walked up to the edge of autocracy and stepped back – perhaps we could include Ecuador, Peru, Argentina, Kenya and South Africa – then the news isn’t all catastrophic. But it is not good. And then there is the US.   Despite the election of Joe Biden, the outgoing president is as I write still refusing to concede.  In fact, the damage Donald Trump has inflicted on constitutional government in America is massive and the constitutional norms Trump broke will take longer to fix than it took him to break them. But perhaps the constitutional order can still recover.

Constitutional democracies are endangered to a greater or lesser degree in a surprising range of countries, and Khaitan’s account of the situation in India should make constitutionalists despair for the world because India’s democratic success against all odds has long been one of those stories that was almost too good to be true. India was always imperfect and quite visibly so. And yet it was also so unquestionably a constitutional democracy that its imperfections stood out against a better backdrop. And now, it is on the threshold of becoming something else.  

So how should we understand what is happening in India and elsewhere? While aspiring autocrats used to target governments with phalanxes of soldiers, now the new autocrats engineer the destruction of constitutional regimes with phalanxes of constitutional lawyers. As a result, constitutional coups have different shapes, internal dynamics and timescales when they are performed by lawyers as opposed to when they are carried out by soldiers. Militaries generally rely on surprise and overwhelming force. When there is a military coup, a sudden state of emergency is declared as tanks roll into the streets. There is no doubt that normal government is over. But with constitutional coups engineered by constitutional lawyers, the dynamic is different. Instead of a sudden and visible jolt, there is a painstaking step-by-step destruction of the ability of each constitutional institution to exercise a check on executive power. It is slow, stealthy and looks normal until the moment that normality collapses. 

These days, constitutional coups are typically an inside job, carried out by someone who was elected to lead a democratic state. And because constitutional coups start like normal ambitious governments – someone is elected and then he changes many rules – it is only possible to tell that a country is on a dangerous track if one is paying close attention to the patterns of change. Khaitan’s analysis of what is happening in India is a model for scholars to emulate as they try to figure out whether a particular constitutional government is in trouble.   By going through institution after institution, by tracing step by step the destruction of the capacity of each piece in the constitutional puzzle to resist Modi’s aggressions, Khaitan shows that Modi is not just a rhetorical populist but instead someone bent on subverting India’s constitutional democracy and turning it into his permanent and personal platform. Yes, Modi was elected – re-elected even – and he remains popular, but this apparent democratic legitimation does not justify the consolidation of power so that power can no longer rotate in future elections. Constitutions respond to democratic preferences, of course, but they must also balance the democratic preferences of today with the possibility that democratic preferences in the future may change.   

 “Killing a Constitution with a Thousand Cuts” deftly illuminates the pattern and not just the highlights (or lowlights) of the constitutional assaults in India. It performs systemic constitutional analysis by seeing the Indian constitutional system as a whole. Each attack, considered by itself, may not look serious enough to warrant a dramatic conclusion about constitutionalism in general but the repetition of the attacks and the choice of targets shows that a leader with autocratic ambitions is thinking strategically, systemically and diabolically about how constitutional orders are structured and therefore how they can be systematically dismantled. Khaitan’s analysis makes clear that Modi’s attacks on the judiciary are not one-off, and the assaults on the basic electoral framework that has previously guaranteed more or less free and fair elections are not just an accident but part of the same vision for the consolidation of power. The small abuses that might otherwise go unremarked – like the failure to appoint a head of the anti-corruption agency for which the BJP (when it was out of power) campaigned and the pressure on the National Statistical Commission to hide unemployment reports – look much more significant when placed against a background in which all other checks on power are being eliminated one after the other.  In short, one of the important virtues of Khaitan’s analysis is precisely its big-picture view of the forest while still presenting documentation of the individual trees. Any one of Modi’s aggressions against the constitutional order may be forgiven as misguided enthusiasm on the part of someone who feels he has a mandate for change. All of these developments taken together remove any doubt about what Modi is trying to accomplish.  

Systemic constitutional analysis is therefore precisely what we need for our present moment. Unfortunately, decades of comparative constitutional legal scholarship have given pride of place to the person who goes narrow and deep specializing only in comparative free speech law or in the technical differences in the jurisdiction of high courts or the comparative limits on the amendment power and so on. That is all valuable work, of course, but when constitutional governments around the world are endangered, we have to learn to think like those who are endangering them in order to fend off the threats. We can’t afford such specialization when the opponents of constitutional government are generalists who think systemically.

A functioning constitutional democracy is a set of interlocking institutions each of which helps to support and check the others. The most robust constitutional systems are those that have complex designs that are hard to unpick. And yet we teach comparative constitutional law as a set of silos – rights over here, structures over there. Judiciaries in that corner, parliamentary rules of procedure in another. Parties and elections are over in some other discipline. In asking about how to guarantee judicial independence in a given constitutional system, however, it may be more relevant to the future of constitutional government in a specific place to ask about how a judiciary would fit into the rest of the system than to ask whether the model of the US, Germany or South Africa is the best one overall to copy. And yet, most of our expertise as constitutional scholars and policy advisors is specialized along the wrong axis – toward comparing one piece across different systems rather than toward examining more closely how constitutional systems work as a whole.

Unfortunately, the policy world has also modelled a form of constitutional diagnostics that make it nearly impossible to see systemic assaults on constitutionalism for what they are.  Even the best of the international constitutional consultants like the Venice Commission or International IDEA prepare handbooks and analysis that deconstruct constitutional government into constituent parts so that the whole rarely appears in view. So, for example, the Venice Commission analyzes one law at a time, when asked.  It will review one country’s new law on the judiciary and another country’s new law on electoral reform, each standing alone.  Probably because of language barriers and lack of bandwidth, as well as because of a sense that particular constitutional topics really can be made sense of one at a time, they rarely consider the law they are analyzing in the context of the system into which it will be inserted. Another key consultant, International IDEA, has a handbook on electoral system design and a different one on funding parties and election campaigns.  It has one assessing the quality of democracy and another on democracy at the local level. The manual on constitution-building, for example, takes each branch separately without giving much attention to how the parts fit together. In practice, however, the party finance system and the electoral system design work together as do the form of government (presidential or parliamentary) and the constitutional status of the political opposition or the design of the judiciary and the party system. How democracy works at local level has a lot to do with what it possible to do at national level and so on. And all of these things interact with each other. But the constitutional consultants work on one law, one institution or one topic at a time.  

The new autocrats have outsmarted the experts because their expertise runs perpendicular to that of the scholars and policy analysts. Most experts specialize in one topic or another; autocrats see systems. Experts develop catalogues of different general options; autocrats work out precisely what needs to be done in this particular constitutional system to disable the checking functions of a key institution. In short, almost everywhere that experts look, autocrats are looking in the other direction to see whether the coast is clear. 

Khaitan’s analysis is precisely what we all should be doing as we diagnose constitutional democracies in failing health. It may not be a bad thing that a new leader changes the civil service system. Or that the system of judicial appointments is updated. Or that a cumbersome system be streamlined with the elimination of some long-criticized veto points. But when all of the changes point in the same direction toward weakening constraints on the executive and there are too many changes to be a coincidence, one must conclude that what might have appeared to be well-meaning changes may have some other far darker motivation behind them. When the constitution is no longer capable of constraining the ambitions of an autocrat, then constitutional government is gone. But only painstaking constitutional analysis of the sort that Khaitan has done here can really tell us whether that is happening.  

India was one of the places I had been worried about. Colleagues and former students who teach comparative constitutional law there had given me different pictures of what was happening. But in reading the overwhelming, systematic and persuasive evidence that Khaitan has amassed, I am no longer in doubt that India is in the middle of a constitutional coup. 

Professor Kim Lane Scheppele
Professor Kim Lane Scheppele is the Laurance S. Rockefeller Professor of Sociology and International Affairs in the Princeton School of Public and International Affairs and the University Centre for Human Values at Princeton University. Professor Scheppele’s work focuses on the intersection of constitutional and international law, particularly in constitutional systems under stress.
 
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