The Politics of Constitutional Meltdown

Forthcoming in Mark Tushnet and Dimitry Kochenov (eds), Research Handbook on the Politics of Constitutional Law

29 Pages Posted: 17 Nov 2021

See all articles by Paul P. Craig

Paul P. Craig

University of Oxford - Faculty of Law

Date Written: October 1, 2021

Abstract

This chapter is concerned with the politics of constitutional meltdown. The concept lacks a precise meaning, with the consequence that the terrain is potentially vast. Constitutional meltdown could embrace external challenge to the existing constitutional order, either through forces outside the state, or civil war. War is, as von Clausewitz aptly noted, the continuation of politics by other means. The ‘politics’ of constitutional meltdown thus conceived would then signify the motives for the external aggression, or civil war. This inquiry would, somewhat paradoxically, be uninteresting for the purposes of this chapter. There are multiple causes for invasion or civil war and in such instances the constitution is normally collateral damage, with the consequence that there would be little of interest if meltdown were conceptualized in such terms.

The traditional constitutional order can, however, be shaken internally. This can occur in different ways. It may be driven by insurgent or opposition parties, which regard the undermining of the constitution as part of the strategy for gaining power, more especially where they contend that it does not promote the nation’s ‘real interest’, as exemplified by the rise of the Nazis in Germany. Constitutional meltdown can also be precipitated by government failure to contain domestic disorder, one consequence of which is that it violates the constitution to maintain power through a coup. There are also instances where constitutional meltdown is consciously undertaken by the governing party of the state to enhance its power. It raises interesting issues aplenty and is the focus of the ensuing discussion within the allotted space available. The analysis proceeds in four stages.

The discussion begins with the proximate political strategy for such constitutional meltdown. This connotes the method used by those intent on undermining the existing constitutional order. If you are intent on doing so, what do you do and how do you do it. This leads to examination of democratic backsliding, and the ways in which an executive aggrandizes power and emasculates the constitutional status quo. It is exemplified through events in Hungary and Poland.

The focus then shifts to consideration of the underlying political imperative. Concern with the politics of constitutional meltdown cannot rest content with the political techniques used to impinge on the independence of the judiciary or the freedom of the press. We should press further to understand the political impulse and imperative that lies behind this. This is examined in two parts of the chapter, which consider respectively illiberal democracy and competitive authoritarianism, and the ways in which they underscore constitutional meltdown.

The final part of the chapter considers the second order political consequences of constitutional meltdown. This captures the political ramifications of meltdown for institutional ordering outside the particular state, with the principal focus being on the EU. There are, as will be seen, two dimensions to this inquiry. We need to understand why constitutional meltdown in a Member State is important for the EU, and the techniques at its disposal for dealing with the conundrum. We must also press further and understand the broader political implications for the EU of continued membership by states that espouse illiberal democracy.

Keywords: democratic backsliding, populism, competitive authoritarianism, judicial independence, rule of law

Suggested Citation

Craig, Paul P., The Politics of Constitutional Meltdown (October 1, 2021). Forthcoming in Mark Tushnet and Dimitry Kochenov (eds), Research Handbook on the Politics of Constitutional Law , Available at SSRN: https://ssrn.com/abstract=3934287 or http://dx.doi.org/10.2139/ssrn.3934287

Paul P. Craig (Contact Author)

University of Oxford - Faculty of Law ( email )

St. Cross Building
St. Cross Road
Oxford, OX1 3UJ
United Kingdom

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