The Georgetown Law Journal, Vol. 99, 2011
New democracies have emerged in unprecedented numbers in the period since the fall of the Soviet Union. Virtually all of these countries have created constitutional courts tasked with imposing constitutional constraints on the new democratic process. These courts should be unencumbered by a Madison v. Marbury moment as their role is to oversee the legislative products of the new democracies. The question then arises why the strong reliance on constitutional courts in these new democracies, a reliance not present in the last great wave of democratizations following World War II. This article analyzes the role of constitutional courts in stabilizing new democracies as they emerge from authoritarianism. Relying on both contractual and strategic considerations, the article presents a picture of constitutional courts as mediating or “hedging” the transition to democracy by offering the prospect of further resistance to one-party domination that has doomed many new democracies. By potentially lending an institutional ally to the losers in the first period of government formation, constitutional court may aid in resisting the process in which the first election is a contest for who gets to assume the power of the state, and in which the first election also proves to be the last election. This analysis is applied to the work that courts have done in shoring the institutional structures of divided government in counties from Eastern Europe to South Africa, and including restored competitive democracies in South Korea and Mexico. The argument then turns to the jurisprudence which does and should follow from the role of courts in stabilizing the transition to democracy.
Date of Authorship for this Version
Issacharoff, Samuel, "Constitutional Courts and Democratic Hedging" (2010). New York University Public Law and Legal Theory Working Papers. Paper 187.