Abstract
The attack on democracy in the contemporary era rarely comes by coup or use of force. It arrives through the very mechanisms meant to protect the constitution- this phenomenon is described as abusive constitutionalism. This article examines the impact of the form of the constitution compared to the political culture and civil society that sustain constitutional norms. The political scenarios in different countries are analysed using doctrinal and comparative analysis to study its impact. The political scenarios in multiple countries, both with written and unwritten constitutions are evaluated, such as in Hungary, El Salvador, Mexico, Colombia, Israel, United Kingdom, and then focuses on India, outlining the contemporary challenges posed by majoritarian regimes. The article argues that abusive constitutionalism is not confined to any particular form. Rigid written texts have repeatedly failed when independent institutions, political restraint and a free civil society fail to act, while flexible and uncodified forms have been defended where the conditions held. Yet, constitutional rules remain important. A codified system provides legal grounds for judicial intervention, establishes institutional limits, and offers citizens a basis for democratic resilience. Form and culture are therefore complementary rather than rivals, although neither can fully substitute for the other. The article thus concludes that for constitutional morality to sustain, it requires effective checks on executive power, procedural safeguards against arbitrary actions, along with protection of civic space and a political culture to defend constitutional norms.
Keywords: Abusive constitutionalism; Written and unwritten constitutions; Constitutional morality; Civil society, Democratic resilience.
I. Introduction
In Marbury v. Madison, Chief Justice Marshall pointed out the written constitution as “the greatest improvement on political institutions”.[1] Two centuries later, the picture is not the same. As time progressed, the methods adopted by authoritarians have changed, and now constitutional democracies are rarely overthrown by aggravated use of force. They are more often reshaped from within by elected majorities who amend, replace or reinterpret the constitution while leaving its outward form intact. David Landau calls this “abusive constitutionalism”: the use of the formal tools of constitutional change, chiefly amendment and replacement, to make a state “significantly less democratic than it was before”.[2]
This challenges a long-standing belief in constitutional theory: the classification of constitutions into written or unwritten, or as rigid and flexible, and the assumption that a single entrenched text is a firmer barrier to tyranny than a body of statutes and conventions without a codified structure. Abusive constitutionalism shows otherwise, by pointing out the political situations in different countries. In Hungary, the governing party rewrote its constitution with a parliamentary majority, whereas the situation in El Salvador saw the legislature remove presidential term limits in a single sitting. Israel’s coalition succeeded in its judicial overhaul through Basic Laws that an ordinary Knesset majority could change, which was later annulled as a result of widespread protests. The instruments differed, but the method was the same: legality was turned against constitutionalism, irrespective of its form or structure.
The formal character of a constitution cannot predict how resilient it is. What decides it depends on whether political actors treat them as binding when compliance is mandatory, which B.R. Ambedkar called constitutional morality, and whether people, the press, and revolutionary uprisings have the freedom and capacity to resist it when those actors do not.[3] The claim nonetheless needs qualification. Written rules are not irrelevant. They serve as the means for citizens to coordinate,[4] standards that courts enforce, and symbols that mobilise movements.
The argument proceeds in six further parts. Parts II and III set out the concept of abusive constitutionalism and its relatives in the literature. Part IV provides comparative evidence as to the situations in different countries. Part V turns to India, where an unwritten doctrine, the basic structure, guards a written constitution, and where current pressures are testing that settlement. Part VI weighs the strongest objections to the thesis, and Part VII concludes.
[1]Marbury v. Madison, 5 U.S. (1 Cranch) 137, 178 (1803).
[2] David Landau, Abusive Constitutionalism, 47 U.C. Davis L. Rev. 189, 195 (2013).
[3]Constituent Assembly Debates, vol. 7 (Nov. 4, 1948) (statement of Dr B.R. Ambedkar), discussed infra Part V.
[4]Barry R. Weingast, The Political Foundations of Democracy and the Rule of Law, 91 Am. Pol. Sci. Rev. 245 (1997).