Abusive constitutional borrowing : the latest legal iteration of a political crisis

In Abusive Constitutional Borrowing: Legal Globalization & The Subversion of Liberal Democracy (OUP 2021), Rosalind Dixon and David Landau have made a significant and sobering contribution to the comparative constitutionalism literature. The book combines analytical clarity with granular detail drawn from case studies worldwide to show how would-be authoritarians pretend to be liberal democrats while simultaneously undermining the structures and values of liberal democracy. In this symposium essay, I situate the book within comparative constitutional scholarship, highlighting three signal contributions to the extant literature. I then offer two minor critiques—on the Thailand case study and on the origins of the basic structure doctrine, respectively—before taking up the authors’ invitation to reflect more broadly on the state of liberal democracy and the nature of the threats facing it. My main takeaway is this: while Dixon and Landau impressively expand and apply the constitutional toolkit to safeguard liberal democratic institutions and norms, they—and all of us—are ultimately up against a political problem. That is, no matter how abuse-proof a liberal democracy is designed to be, illiberal, authoritarian leaders are likely to find new ways to undermine it. Liberal democracy, then, needs liberal democrats to develop a winning political strategy, one that keeps the anti-democratic forces at bay through the ballot box.