Table Of ContentOXFORD COMPARATIVE CONSTITUTIONALISM
Series Editors
RICHARD ALBERT
William Stamps Farish Professor of Law,
The University of Texas at Austin School of Law
ROBERT SCHÜTZE
Professor of European and Global Law,
Durham University and College of Europe
Abusive Constitutional Borrowing
OXFORD COMPARATIVE CONSTITUTIONALISM
Series Editors
Richard Albert, William Stamps Farish Professor of Law,
The University of Texas at Austin Law School
Robert Schütze, Professor of European and Global Law,
Durham University and College of Europe
Comparative constitutional law has a long and distinguished history in
intellectual thought and in the construction of public law. As political
actors and the people who create or modify their constitutional orders, they
often wish to learn from the experience and learning of others. This cross-
fertilization and mutual interaction has only accelerated with the onset of
globalization, which has transformed the world into an interconnected
web that facilitates dialogue and linkages across international and regional
structures. Oxford Comparative Constitutionalism seeks to publish
scholarship of the highest quality in constitutional law that deepens our
knowledge of local, national, regional, and global phenomena through the
lens of comparative public law.
Advisory Board
Denis Baranger, Professor of Public Law, Université Paris II Panthéon-A ssas
Wen- Chen Chang, Professor of Law, National Taiwan University
Roberto Gargarella, Professor of Law, Universidad Torcuato di Tella
Vicki C Jackson, Thurgood Marshall Professor of Constitutional Law, Harvard Law School
Christoph Möllers, Professor of Public Law and Jurisprudence,
Humboldt- Universität zu Berlin
Cheryl Saunders A.O., Laureate Professor Emeritus, Melbourne Law School
ALSO PUBLISHED IN THIS SERIES
A Theory of African Constitutionalism
Berihun Adugna Gebeye
Deliberative Peace Referendums
Ron Levy, Ian O’Flynn, Hoi L. Kong
Eternity Clauses In Democratic Constitutionalism
Silvia Suteu
Scales of Memory
Constitutional Justice and Historical Evil
Justin Collings
The Global South and Comparative Constitutional Law
Edited by Philipp Dann, Michael Riegner, and Maxim Bönnemann
City, State
Constitutionalism and the Megacity
Ran Hirschl
Constitutional Change In The Contemporary Socialist World
Ngoc Son Bui
Poland’s Constitutional Breakdown
Wojciech Sadurski
Abusive Constitutional
Borrowing
Legal Globalization and the Subversion of
Liberal Democracy
ROSALIND DIXON
Professor of Law and Director of the Gilbert + Tobin
Centre of Public Law, UNSW Sydney
DAVID LANDAU
Mason Ladd Professor and Associate Dean for International
Programs, FSU College of Law
1
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Acknowledgments
This book is the product of many years of individual and joint work, beginning with
David’s article Abusive Constitutionalism.1 In that article, David noted the ways in
which democracy could be eroded by formal mechanisms of constitutional change.
Since then, we have jointly explored how similar dynamics operate in a variety of dif-
ferent contexts and modes of change.2 This book extends this prior work by exam-
ining the ‘borrowing’ by would- be authoritarians of tools, techniques, and doctrines
of liberal democracy for anti- democratic ends. Abusive borrowing, we have come to
believe, highlights an important—a nd overlooked— dark side of comparative consti-
tutional law.
Abusive Constitutional Borrowing could never have been produced without the gen-
erous support of a great many friends and colleagues in the field. We note our special
thanks to Ran Hirschl for encouraging us to pursue the project as a book-l ength one,
and participants at the ICON- S conferences in Copenhagen and Santiago for generous
feedback on earlier drafts. We likewise acknowledge the invaluable feedback and en-
couragement of participants at workshops on parts of the manuscript held at Harvard
Law School in 2017, UNSW in 2018, Melbourne Law School in 2018, and Columbia
Law School in 2020, especially Bill Alford, Jessica Bulman- Pozen, Tom Daly, James
Fowkes, Jamal Greene, Michaela Hailbronner, Vicki Jackson, Tarun Khaitan, David
Law, Gillian Metzger, Will Partlett, David Pozen, Jeff Redding, Kristen Rundle, Scott
Stephenson, Adrienne Stone, Arun Thiruvengadam, Mark Tushnet, Matt Waxman,
and Lulu Weis. We also benefited at various points from feedback and support from
many other colleagues in comparative constitutional law, including Adam Chilton,
Melissa Crouch, Erin Delaney, Stephen Gardbaum, Tom Ginsburg, Aziz Huq, Sam
Issacharoff, Madhav Khosla, Martin Krygier, Elizabeth Perham, Eric Posner, Theunis
Roux, Yaniv Roznai, Wojciech Sadurski, and Mila Versteeg.
Chapter 5 draws substantially on our recent article, Abusive Judicial Review,3
and we thank the UC Davis Law Review and its student editors for their excellent
1 David Landau, ‘Abusive Constitutionalism’ (2013) 47 UC Davis L Rev 189.
2 David Landau and Rosalind Dixon, ‘Constraining Constitutional Change’ (2015) 50 Wake Forest L
Rev 859; Rosalind Dixon and David Landau, ‘Transnational Constitutionalism and a Limited Doctrine of
Unconstitutional Constitutional Amendment’ (2015) 13 Int’l J Const L 606; David Landau and Rosalind
Dixon, ‘Abusive Judicial Review: Courts Against Democracy’ (2019) 53 UCDL Rev 1313; Rosalind Dixon
and David Landau, ‘Tiered Constitutional Design’ (2018) 86 Geo Wash L Rev 438; Rosalind Dixon and
David Landau, ‘Constitutional End Games: Making Presidential Term Limits Stick’ (2019) 71 Hastings
LJ 359; Rosalind Dixon and David Landau, ‘1989–2 019: From Democratic to Abusive Constitutional
Borrowing’ (2019) 17 Int’l J Const L 489; Rosalind Dixon, ‘Constitutional Rights as Bribes’ (2018) 50
Connecticut L Rev 767; David E Landau, Rosalind Dixon, and Yaniv Roznai, ‘From an Unconstitutional
Constitutional Amendment to an Unconstitutional Constitution? Lessons from Honduras’ (2019) 8 Global
Constitutionalism 40.
3 Landau and Dixon, ‘Abusive Judicial Review’ (n 2).
vi Acknowledgments
assistance during the publication process. We likewise thank the Connecticut Law
Review for permission in Chapter 4 to draw on work that first appeared in Dixon’s
article Constitutional Rights as Bribes.4 We also note our thanks to Richard Albert,
Jamie Berezin, and Robert Schultze for their encouragement and support for the
publication of the book with Oxford University Press and its series on Comparative
Constitutionalism, and to Melissa Vogt for outstanding research assistance. We ac-
knowledge the support of the Manos Foundation and the role it played in bringing
the work to fruition. Finally, we thank our families for all of their love, support, and
patience as we worked on this project.
4 Dixon, ‘Constitutional Rights as Bribes’ (n 2).
Summary Contents
1. Introduction: A Dark Side of Comparative Constitutional Law 1
2. Democracy and Abusive Constitutional Change 23
3. The Concept and Scope of Abusive Constitutional Borrowing 36
4. The Abuse of Constitutional Rights 56
5. Abusive Judicial Review: Abusive Borrowing by and of
Constitutional Courts 81
6. The Abuse of Constituent Power 116
7. The Abusive Borrowing of Political Constitutionalism and
Weak-Form Judicial Review 152
8. Can Abusive Borrowing Be Stopped? 176
Index 209
Detailed Table of Contents
1. Introduction: A Dark Side of Comparative Constitutional Law
A. The Rhetorical Triumph of Liberal Democratic Constitutionalism
B. The New Authoritarianism and Shifting Patterns of
Constitutional Borrowing
C. The Significance of Abusive Constitutional Borrowing
D. The Plan of the Rest of this Book
2. Democracy and Abusive Constitutional Change
A. Abuse and Democracy
B. Democracy and Liberalism
C. The Many Forms of Abusive Constitutional Change
D. Conclusion
3. The Concept and Scope of Abusive Constitutional Borrowing
A. The Who and What of Abusive Constitutional Borrowing
B. Constitutional Comparison and Borrowing
C. A Typology of Constitutional Borrowing
D. Four Modes of Abusive Constitutional Borrowing
1. Sham Borrowing
2. Abusive Selective Borrowing
3. Abusive Acontextual Borrowing
4. Abusive Anti-Purposive Borrowing
E. Conclusion
4. The Abuse of Constitutional Rights
A. Hate Speech and Memory Laws in Rwanda, Poland, and Russia
B. Voting Rights in Hungary and Fiji
C. Gender Rights and Quotas in Rwanda
D. Environmental Rights in Ecuador
E. Conclusion
5. Abusive Judicial Review: Abusive Borrowing by and of
Constitutional Courts
A. Defining and Situating Abusive Judicial Review
B. Abusive Judicial Review as a Regime Strategy: The Abuse of’
Judicial Review
C. Weak and Strong Forms of Abusive Judicial Review
1. Weak Abusive Judicial Review
2. Strong Abusive Judicial Review
X DETAILED TABLE OF CONTENTS
D. Abusive Judicial Review in Action: Two Case Studies 98
1. Venezuela and the Suppression of the Congress 98
2. Cambodia, Thailand, and Militant Democracy 103
E. The Limits of a Strategy of Abusive Judicial Review 112
R Conclusion 115
6. The Abuse of Constituent Power 116
A. Constituent Power and Constitution-Making in Latin America 117
1. Pro-Democratic Usage: Colombia (1991) 120
2. Abusive Usages: Venezuela (1999) and Ecuador (2008) 122
3. Abusive End Game: The Venezuelan ‘Constituent Assembly’ of 2017 125
B. The Unconstitutional Constitutional Amendment Doctrine
and Presidential Re-Election in Latin America 129
1. Democratic Hedging in Colombia 131
2. Abusive Usage Elsewhere in Latin America 132
3. A Constitutional Right to Re-Election: The Logic of Abusive Usage 136
C. International Supports for Constituent Power 141
1. Unconstitutional Government Norms in Fiji 141
2. Constitutional Identity in Eastern Europe 144
D. Conclusion 151
7. The Abusive Borrowing of Political Constitutionalism and Weak-Form
Judicial Review 152
A. Political Constitutionalism and its Relatives 153
B. The Abusive Borrowing of Political Constitutionalism in
Eastern Europe 158
C. Israel and the Abusive Borrowing of the New Commonwealth Model 166
D. Conclusion 174
8. Can Abusive Borrowing Be Stopped? 176
A. Monitoring and Sanctioning Abuse 180
1. Toward Global Legal Realism 182
2. The Design of Monitoring Institutions 186
3. The Level of Response: Transnational Norms vs International Law 188
4. Avoiding Anti-Imperialist Backlash and Other Pitfalls 190
B. Abuse-Proofing Liberal Democratic Norms 193
1. Abuse as Grounds for Elimination? 193
2. Howto Abuse-Proof 196
3. The Problem of (Proto-)Abuse by Liberal Democratic States 200
C. Debating and Defending Liberal Democracy: Contestation
and Respect for the Democratic Minimum Core 203
Index 209
