Constitutions are widely recognized as a critical or essential component to a well-functioning democracy. Although many would agree that the U.S. Constitution is not a perfect document, it has existed as the U.S.’s governing document for over two-hundred years, albeit with several modifications. The U.S. Constitution is internationally recognized as one of the hardest constitutions in the world to amend requiring a “two-thirds majority vote in both the House of Representatives and the Senate or by a constitutional convention called for by two-thirds of the State legislatures”[1]. Needless to say, especially in today’s hyper-polarized environment, it would be extremely difficult to amend the Constitution in any meaningful way without some degree of either a sizeable majority or a very broad popular mandate.

Some argue that this difficulty leads to circumstances where leaders in power challenge existing democratic institutions by pushing an expansive view of constitutional interpretation, but without formally amending the constitution. In How to Save a Constitutional Democracy, Ginsburg and Huq argue that sometimes this is necessary as the Constitution does not explicitly address certain government functions such as the executive’s branch emergency powers which have instead been developed through a framework created by the legislatures and courts [2]. They write, “since the 1970s, Congress has delegated broad and discretionary grants of emergency and war power to the executive” which was not included in the Constitution. As a result, since the Constitution is so difficult to adapt and different times require different uses or expansions of government powers then, in their view, the Constitution can be weakened and rendered somewhat ineffective as presidents and others can push against and challenge democratic institutions without ever needing to formally amend the Constitution.

However, although the authors are correct in identifying the problem created by a Constitution that has a high-threshold to amend, the alternative they don’t address is even worse. With the global rise of populist leaders who seem to have little regard for certain democratic institutions, an article published The Atlantic states that “50 percent of populists either rewrote or amended their country’s constitution when they gained power, frequently with the aim of eliminating presidential term limits and reducing checks and balances on executive power.” Recent notable examples of this include Turkish President Erdoğan and his Justice and Development Party using a populist platform to push constitutional referendums including judicial and executive reform. A 2017 referendum that barely passed with a majority replaced Turkey’s parliamentary system with an executive presidency and presidential system giving Erdoğan more unchecked power. Other notable examples include a 2009 referendum in Venezuela which removed presidential term limits. In both these cases, a simple majority vote amended the constitution and rewrote its structure is such a way that has led to an inherently less democratic system of government.

As shown, authoritarian-leaning leaders can tap into their populist movements to help change the constitution in such a way that both undermines democracy and increases their own power. Once these changes are put into place, they can be very hard to undo. Currently, a political crisis exists in Venezuela pitting Nicolás Maduro against National Assembly leader Juan Guaidó who both claim to be Venezuela’s legitimate President. Venezuela’s constitution has been tempered and adapted by whoever was in power to the point that the document is now rendered ineffective in resolving this crisis with both sides using Constitutional changes and interpretation as a way to help establish their own claims to power.

Going back to the discussion of the U.S. Constitution, the requirements to pass amendments are so high that it basically guarantees the necessity of a bipartisan coalition to change anything. Therefore, society and politicians must be overwhelmingly supportive of these changes. Unlike some popular referendums to constitutions in countries such as Turkey and Venezuela that have been shown to damage democracy, the U.S. system guarantees the preservation of the original documents system of checks and balances while practically guaranteeing that Constitutional amendment cannot be used as a partisan tool to consolidate power.

On Ginsburg and Huq’s original point, yes, not being able to directly amend the Constitution itself could lead to different ways that the legislation and judiciary can work to change the practice of the Constitution, but an easier-to-amend Constitution is a far greater threat to democracy. If an authoritarian-leaning leader is already pushing back against democratic norms established in the Constitution, then having a Constitution that is easier to amend would further enable them to consolidate power, protect their incumbency, and repress challenges.

A strong constitution provides a system of checks and balances that are fundamental for the preservation and functioning of a democracy. The easier it is to change this system, the easier it is for a populist and authoritarian-leaning leader to both increase and hold onto power even if the popular will shifts against them. I agree with Ginsberg and Huq that a constitution by itself is not enough to preserve democracy, but I argue that a constitution with a higher-threshold to amend helps ensure the existence of a system of checks and balances making it harder for a particular authoritarian leader to completely disregard and steamroll democratic institutions.  As the Constitution is the highest law in the land, the preservation of its democratic institutions against authoritarian-leaning leaders is paramount for the success of any democracy. As was shown in several cases, such as Venezuela, once a Constitution is amended to protect the rule of those in power with no regard for democratic institutions, it becomes very hard to go back and repair the damage that was done.

[1] “Constitutional Amendment Process”. National Archives. Accessed April 21, 2019. https://www.google.com/search?q=how+to+amend+the+us+consitution&rlz=1C5CHFA_enUS689US690&oq=how+to+amend+the+us+consitution&aqs=chrome..69i57j0l5.5960j0j7&sourceid=chrome&ie=UTF-8

[2] Ginsburg, T. and Huq, A.Z., 2018. How to Save a Constitutional Democracy. University of Chicago Press. Chapter 5

Photo by U.S. Air Force, “Constitution commemoration falls in line with Air Force birthday”, Creative Commons Zero license.