The International Journal of Constitutional Law (ICON), perhaps the top peer-reviewed journal on comparative constitutional law, has a lead article in its forthcoming issue by Stephen Gardbaum, entitled Comparative Political Process Theory. Drawing on challenges to democracy in a number of countries, Gardbaum’s provocative piece seeks to apply and extend American style political-process theories of judicial review to the modern age.

ICON is also publishing a series of replies to Gardbaum’s important piece, including a short one of mine entitled Political Process Theory and Institutional Realism, here. Here is a brief excerpt:

Many democracies now suffer from new-found political fragmentation, with the long-dominant major parties or coalitions shattering into many splinter parties. That makes forging governing coalitions together more difficult; the resulting governments more unstable; and weakens the ability to craft the political programs that might address the very economic and cultural stresses fueling that fragmentation. The rise of social media, with its many political benefits, also undermines political authority and the ability of democratic governments to respond effectively to policy challenges; as soon as difficult policy choices begin to be discussed, political opposition can be mobilized virtually overnight, whether within the political realm, in the political culture more generally, or in the streets. The challenges today also include not just political overreaching, but political underreaching —in the longest-established democracies in particular, the pandemic has highlighted the risks of political abdication, the unwillingness of executives or legislatures to exercise their powers to address urgent public needs. Pooled-sovereignty structures and globalization can weaken the ability of domestic governments to respond to their citizens’ demands. Governments are too strong and too weak, sometimes in the same country. Indeed, current populism is itself a response to the perceived failure of democratic governments to be able effectively to address the economic and cultural anxieties of many citizens. . . .

Put more generally, on several of the problems he identifies, Gardbaum’s approach asks courts to open up the black-box of the legislative process, to make a realistic assessment of matters such as whether particular legislation is the product of special-interest politics or sufficiently deliberative. His approach thus implicates the broader tension in judicial review between what I have called “institutional formalism” and “institutional realism”—a tension that runs beneath the surface of much of public-law adjudication. Public law regularly entails courts reviewing the actions of other governmental institutions. When courts do so, an implicit but always present question is whether judges should treat the institution in a more formal sense and simply review its output, or whether they should examine the nature and quality of the process and decision-making underlying the institution’s action.. . .

Confronted with the array of challenges and threats to democracy today, constitutional scholars, perhaps understandably, turn to courts and legal doctrine. But the challenges democracies face today are so much more profound than those at the time of Democracy and Distrust (or at least than the problems on which Ely’s work focused) that we must turn to matters of democratic institutional design as well. More effective than judicial review might be hard-wiring into the design of political institutions themselves more structures and sites from which oppositional political parties have the right and the tools with which to investigate, audit, oversee, and challenge the party in power. Indeed, as David Fontana has written, “[t]he spread of government in opposition rules as a means of dividing power among political groups is one of the most consequential innovations in constitutional design in the past several decades.”…

To be sure, no institutional design can ensure that dominant political forces, with enough time and power, will not be able to capture control and subvert the democratic order for their own purposes. Institutional buffers and mediating forces can at best slow that process down, perhaps long enough that new, more democratic forces gain power. But in the transition from John Hart Ely’s America of the 1980s to the challenges democracies across the globe confront today—including in the United States—courts will not be enough.