World’s constitutions are in crisis

Noah Feldman

Many constitutional systems around the globe have been tested in 2016. Turkey, Poland, the UK, the U.S. — each case sheds some light on how different constitutional arrangements respond to the challenges of political factions.

Begin with the worst constitutional crisis, the one that is taking place in Turkey in the aftermath of a coup attempt against the government of Recep Tayyip Erdogan. The background is complicated: Erdogan’s AK Party won national elections in 2002, 2007 and 2015; Erdogan himself was directly elected president in 2014. All these elections were pretty clean, and most observers accept that a plurality of Turks have preferred Erdogan’s party for a decade and a half.

But the failed coup this past summer changed Turkey’s constitutional landscape drastically. Not only did Erdogan purge the military, but he took the opportunity to purge the judiciary, too, badly undermining the rule of law.

The lesson is that when a government believes one faction is trying to bring it down undemocratically, it will be sorely tempted to suppress that faction outside the constitution. Although Turkey’s constitution has been fairly functional, the country’s prospects for remaining democratic have been weakened considerably.

Poland represents a less drastic but still worrisome case. Poland’s ruling right-wing nationalist PiS party began 2016 by trying to rig the constitutional court so it wouldn’t block the party’s planned encroachments on democratic rights. By spring, there had been major protests by a democracy movement, and the government hardened its position despite warnings from the European Union.

This month, PiS imposed new restrictions on journalists covering the parliament, which in turn triggered a new round of protests.

Poland’s constitutional system may rally if international support and civil society can pressure PiS to respect political liberties. The next year will be crucial — and if the system doesn’t succeed, Poland could become a victim of gradual constitutional failure, like Turkey and closer to the heart of Europe.

The UK has the oldest continuously operating constitutional system in the world, and it’s got lots of experience in dealing with partisan politics. Broadly, the British solution has long been to rely on constitutional traditions that aren’t found in a single, written document, creating a system based on the theory of parliamentary sovereignty, one that respects the rights of minorities. It’s a kind of miracle, constitutionally speaking — and no other country has really been able to replicate it.

Yet Britain is changing. Since its accession to the European Union, the country has been exposed to steady pressure to judicialize those constitutional protections — the approach mostly used in Europe and modeled in large part on the post-World War II U.S. Supreme Court. The risks and benefits of that shift have been very much in evidence during the debate about whether the Conservative-led government can formally leave the EU after a referendum without a separate parliamentary vote.

The U.S. is the archetypal example of how a constitutional system grapples with partisan division using courts — and the limits of that approach. The Republican Senate managed to block Barack Obama from naming a Supreme Court justice who would have helped balance constitutional rights in the face of a Republican government.

Now a Republican Congress and Republican president will be limited by the court only as long as the court does not have a strong Republican majority.

The fault lies partly with the Founding Fathers, who designed the Constitution to avoid the creation of political parties, not take account of them. It’s hard for the party that controls Congress to check the president when he comes from their party. The courts have stepped in to try to fix this problem by protecting minority rights.

For the most part, the U.S. system has worked. It’s going to be tested in the months and years ahead.

Noah Feldman is a Bloomberg View columnist and professor of constitutional and international law at Harvard University.