Legitimacy & Constitutionalism

Constitution

Set of superior rules that define how laws are made, applied, interpreted, and changed. It establishes institutions, powers, and state-citizen relationship.

Purposes of a Constitution

• Empower the state

• Establish values and goals

• Provide stability

• Protect freedom.

• Legitimize regimes.

Key Features of a Constitution

• Preamble - states principles & seeks public support

• Organizational section - defines governing institutions

• Bill of Rights - protects individual/group rights

• Amendment procedure - specify how to change the constitution

Constitutionalism

• Acceptance of governing according to constitutional rules. (legitimacy)

• The idea of limited government — the power of rulers is legally restrained.

• Shared beliefs about law, politics, citizenship, and the state.

New Constitutionalism (Characteristics of Modern Constitutions)

Presented by Shapiro & Stone Sweet

• Written constitutions

• Elections or referenda to empower the people.

• All state action must obey constitutional law.

• Rights protected through constitutional justice.

• Constitution defines its own amendment process.

Typology of Constitutional Forms

Type 1: Absolutist Constitution

• Power centralized and unconstrained.

• Rejects popular sovereignty and separation of powers.

• Case Study: French Charter of 1814, USSR, Military regimes in Asia, Africa, and South America (20th century)

Type 2: Legislative Supremacy Constitution

• Legislature is supreme; constitution is not entrenched.

• No special amendment procedures.

• Case Study: UK, New Zealand, France (3rd & 4th Republics)

Type 3: Higher Law Constitution

• Entrenched constitution with special amendment rules.

• Substantive limits on government via constitutional rights.

• Judicial review enforces the constitution.

• Case Study: Germany & US, most modern democracies

Judicial Review

• In the US, SCOTUS. In Europe, Separate Constitutional Court.

• Abstract review — no specific case, political actors refer questions.

• Concrete review — arises from real court cases.

Democratic Decline Framework

Presented by Huq & Ginsburg.

• Authoritarian reversion — sudden collapse of democracy.

• Constitutional retrogression — slow erosion of competitive elections, speech/association rights, and the rule of law.

• Mechanisms of Retrogression:

  • Constitutional amendment

  • Removing institutional checks

  • Centralizing executive power

  • Distorting the public sphere

  • Eliminating political competition

Global Decline of Constitutional Democracy

• Since about 2011, constitutional democracies have been declining.

• The danger now is slow erosion, not sudden coups.

• Leaders keep democratic institutions but undermine checks, rights, courts, and elections from within.

• Democracies look the same on paper but become weaker in practice.