Sam Issacharoff: How Do Courts Get Away with Intervening in Politics?

The following is the second of three guest posts by NYU’s Sam Issacharoff about his new book, Fragile Democracies:

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In 2010, the Colombian Constitutional Court struck down a proposed constitutional amendment that would have permitted President Alvaro Uribe to seek an unprecedented third term. Although the constitutional amendment was procedurally proper, or at least tolerably so, the Court invoked a greater principle of democratic accountability to prevent the excess consolidation of executive power.

As extraordinary as an unconstitutional constitutional amendment may seem, the Colombian Court found itself in good company. In 1996, the South African Constitutional Court had struck down the entire first proposed post-apartheid constitution as itself unconstitutional. The Indian Supreme Court had proclaimed that certain “basic structures” of democracy were inviolate, even in the face of constitutional efforts at amendment. Courts across the globe, from South Korea to Eastern Europe to Israel to Mexico, and of late even to Africa, were crossing decisively into the political thicket. At issue with increasing frequency was the proper calibration of political authority in the embryonic stages of post-authoritarian rule.

Two questions follow. First, what is the end aim of this form of judicial intervention? Unlike a simpler rights proclamation, the object is not to free a dissident from prison or award damages against state misconduct, or even to enjoin a particular decision. The Colombian decision to deny the voters of Colombia the choice of returning President Uribe to office a third time has to be justified in terms of a commitment to democratic competition, and in turn to the importance of popular “renewal of consent” through the ability to vote the rascals out.

Second, how can courts possibly get away with challenging incumbent political power? Unlike the traditional rights based interventions, structural reallocations of power necessarily engage core issues of governmental authority. Part of the answer has to be the uncertainty of the consolidation of power in the early stages of democracy. Part also lies in the support from the outgroups in the society, and the ability to claim a democratic heritage for the judicial intervention. Intriguingly, an important source of judicial authority comes from the mediating role that courts play (what I term “democratic hedging”) in allowing the first governments to form in post-autocratic conditions.

By recasting a core judicial function in terms of democratic stabilization, the book organizes disparate constitutional themes in various countries around the need to preserve democratic accountability. Looked on in this fashion, the anti-communal incitement cases of India, the anti-corruption cases of South Africa, the anti-lustration cases of Eastern Europe, and even the minimum vote requirement for parliamentary representation all begin to fall into patterns that define the judiciary as a superintendent of the integrity of the political process.

There is no doubt that the emergence of strong constitutional courts is a defining feature of the late 20th century efforts at new democracies. The book argues that properly discharged, this judicial power can forestall many of the characteristic failings of fragile democracies. The last post assesses the prospects of this strategy.

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