Constitutions are important instruments for promoting and entrenching commitments to democracy. But all too frequently constitutional processes are used to promote distinctly antidemocratic ends or to advance the cause of would-be autocrats by removing democratic checks and balances on the exercise of political power. This kind of “abusive” constitutional action can also involve changes to the text of a written constitution, either by way of formal constitutional amendment or replacement, which are often difficult to reverse. By amendment, political actors can, for example, extend term limits or undermine institutions like courts. Wholesale constitutional replacement may be a bigger threat because actors can take a variety of coordinated actions against the political order. Recent examples include the constitutional replacement by the Fidesz party in Hungary in 2011, the Venezuelan constitutional replacement by Hugo Chávez in 1999, the attempted constitutional replacement by Robert Mugabe in Zimbabwe in 2000, and the replacement of the Ecuadorian Constitution by Evo Morales in 2007. In all cases, the relevant constitutions eroded democracy, or attempted to do so, and made incumbents significantly more difficult to dislodge.
The field of comparative constitutional law recognizes a set of stock defenses against the possibility that would-be autocrats might use the processes of constitutional amendment for antidemocratic ends. A well-known example is the unconstitutional constitutional amendments doctrine, which allows a court to hold certain amendments unconstitutional for failing to comply with basic principles. Despite its problems from the standpoint of democratic theory, the doctrine is now often accepted by courts and scholars as a means of democratic defense.
This Article focuses on the much less explored possibility that courts and constitutions might deploy doctrines constraining constitutional replacement. Recent work in constitutional theory creates a sharp distinction between constitutional amendment, which can properly be constrained in order to protect against manipulation, and constitutional replacement, which is supposedly an exercise of the sovereign power of the people outside of any legal restraints. We argue that this sharp separation is problematic. Restrictions on constitutional replacement, like those on constitutional amendment, might be defended on the basis that replacement, like amendment, can in fact be abused in the name of the people in order to undermine democracy. Restrictions on amendment might also increase the incentives for political actors to rely on processes of replacement, where such processes are not similarly constrained. The two forms of restriction may thus interact at the level of actual practice or political incentive.
