CONSTITUTIONAL DESIGN AFTER BACKSLIDING: ONE-TIME MAJORITIES AND THE DEMOCRATIC CORE

Abstract

The experience of democratic backsliding counsels the need to reevaluate the design of constitutional systems and their institutions. Academia, however, has focused too myopically on countermajoritarian institutions, and in particular the courts, as the primary bulwarks against democratic decay. In designing more resilient systems, this article argues for more focus on constraining the ability of one-time majorities from altering the constitutional minimum core—those institutions, procedures, and rights necessary to maintain a competitive, liberal democracy. This approach aims to prevent a transient majority from changing the ‘rules of the game’ without hindering their ability to deliver on policy agendas, which itself feeds the very disillusionment that gives rise to illiberal populist backsliders. This guiding principle leads toward more nuanced approaches to constitutional design, three examples of which are discussed here. First, the use of time rules such as staggered amendment procedures to structure, protect, and, where necessary, slow the pace of government action; second, incorporating the opposition as a constraint—but not a veto—on the majority beyond using supermajorities as a proxy for consensus; and third, nuancing constitutional entrenchment and constitutional protections like amendment thresholds, to guard the democratic core without preventing effective governance or necessary change.