Conference: DEFENDING HUMAN RIGHTS IN TIMES OF CONSTITUTIONAL CRISES

Friday and Saturday, May 18–19, 2018

Wilder House | 5811 S Kenwood Ave | Chicago

Organized by Monika Nalepa (Political Science) and Tom Ginsburg (Law) under the Pozen Center faculty research project, “Defending Human Rights in Times of Constitutional Crises.”

Cosponsored by the Chicago Center for Contemporary Theory.

>>> About the Conference
>>> Conference Agenda
>>> Participant Bios 

Register for the conference here.


About the Conference

Since 2015, a constitutional crises has been unfolding in Poland. After gaining a parliamentary majority in the 2015 elections, the ruling Law and Justice party, PiS, began implementing its far-reaching program of judicial reform. What started as a reshuffle and reorganization of the Constitutional Tribunal is now threatening judicial independence and the basic principles upholding rule of law in Poland. These threats include proposed judicial reforms aimed at “flattening” the structure of the judiciary and accelerating disciplinary action towards justices, potentially leading to hundreds of judges losing their jobs. Disciplinary measures in particular range from warnings to salary cuts. Further changes include the possibility of disciplining a retired judge, who could be denied his pension for unethical behavior. Moreover, the right to discipline judges, which is now initiated by a special ombudsman for discipline, upon the recommendation of the National Council of the Judiciary, would be transferred to the Minister of Justice.

Concerns about the effects of the constitutional crises in Poland are emblematic of a larger set of concerns about constitutional crises in new democracies. In countries with a long established tradition of judicial independence, constitutional courts do not need to intervene all that frequently to exert their power. The sheer anticipation of their intervention is enough to prevent the executive from going down the path of unconstitutional legislation. However, in young democracies, the anticipation of having key pieces of legislation struck down serves as a temptation for ruling governments to weaken the constitutional court. How can those seeking to defend human rights in new democracies respond to these moments of constitutional crisis?

The goal of this conference is to explore the effectiveness of different responses to instances where constitutions are in jeopardy, particularly when the courts themselves (and their independence) are the targets of executive encroachment. The dilemma of how to guarantee individual rights at times of constitutional jeopardy is a universal one and is equally relevant in the established democracies of the US or Western Europe. However, because young democracies are more sensitive to such crises, examining the ways in which human rights can be protected in these places can provide a laboratory for designing and studying such responses in more mature democracies.


Conference Agenda

Friday, May 18

1:00pm-1:15pm // Registration and light snacks


1:15pm-1:30pm // Welcome


1:30pm-3:00pm // Panel 1
Moderator: Emilia Justyna Powell

Gretchen Helmke | Purges in the Courts: A New Theory of Judicial Manipulation with Evidence from Latin America
This paper develops a new strategic theory of judicial manipulation rooted in the logic of preemptive strikes. In contrast to standard insulation accounts, I argue that uncertainty about remaining in power may lead politicians to violate judicial independence, not shore it up. The paper examines nine hypotheses related to the theory using a novel dataset on judicial crises across eighteen Latin American countries between 1985 and 2008. Following the first strike logic, I show that variation in judicial crises is systematically related to the president’s risk of instability and to the costs he bears for launching such attacks, as captured by presidential powers, timing within the presidential term, the history of past presidential instability, confidence in the judiciary, and the age of the president’s party. Along the way, I rule out alternative hypotheses related to divided government and tit-for-tat norms. The conclusion explores the broader implications of my argument for democratic erosion and the rule of law.  

Monika Nalepa, Georg Vanberg, and Caterina Ciopris | Authoritarian Backsliding
A prominent development in recent years has been an apparent "authoritarian backsliding" in a number of countries that appeared to be either well-consolidated democracies, or at least on the track to become such. Authoritarian backsliding is a complex phenomenon, and there are, of course, multiple potential causal factors at work. For example, the inability of opposition groups, including civil society groups, to coordinate on challenging authoritarian developments may be contributing factors (an argument in the spirit of (Weingast1997). Alternatively, polarization in the electorate may create a situation in which citizens are willing to vote for autocratic parties despite the fact that they have authoritarian tendencies because they prefer this alternative to the available alternatives (see Svolik, in progress) .In this paper, we explore another potential mechanism. In particular, building on Svolik'swork, we examine how polarization in the electorate and among political elites can generate opportunities for backsliding. The key contribution of our approach is to demonstrate that this can happen even ifcitizens are fundamentally opposed to authoritarianism, and would not choose to support a party they knewto be authoritarian. However -- and this is the crucial assumption in our model -- in practice, there are dynamic elements to authoritarian backsliding that often make it difficult for citizens, especially in the early stages of these developments, to know precisely what kind of government they are facing. Governments make initial policy choices that are condemned by some as laying the foundation for authoritarian moves, but are seen by others as ideologically more polarized, but sincere policy choices that do not portend autocratic intentions. In other words, citizens must make choices about whom to support while facing uncertainty about the ultimate intentions of incumbent governments.  The key insight of our model is to show that given such uncertainty, sufficient polarization in the electorate and among political elites can lead citizens to support incumbent governments even if there is some risk that these governments are ``closet autocrats'' despite the fact that citizens are fundamentally opposed to authoritarianism. One consequence is that in our model, citizens may genuinely come to regret their electoral choices -- a marked contrast from models in which citizens accept authoritarian outcomes because on balance these are preferable to the alternative. 


3:00pm-3:15pm // Break and refreshments 


3:15pm-4:45pm // Panel 2 
Moderator: Pablo Beramendi

Chris Fariss, Scott Tyson | How Data Comes to Be
The process of observing, collecting, and interpreting data is an arduous process and involves a diverse set of individuals at every level, all of whom, ultimately contribute to our understanding of the world around us. The task undertaken by these individuals is incredibly important as it provides the most fundamental building blocks with which the assessment of policies, theories, and paradigms are ultimately assessed. However, as scholars, we are often confronted with different measures that should, in principle, be measuring the same underlying concept. To elucidate some of the novel problems that bedevil measurement of subtle concepts, we develop a framework to understand the interaction between three key actors who are involved in the collection, dissemination, and evaluation of observations and eventually data. The first actor, the information gatherer, is the on-the-ground person who knows best the true underlying concept trying to be measured, but whose incentives may not necessarily be to share that information (at least unmanipulated) to others. The second, is the monitor, or actor who takes the observational material provided by the information gatherer and systematically codes or operationalizesit into reports. The last actor in this process is the policy consumer (which can include academics) who uses the information provided by the monitor to generate a policy or scientific inference about the world. We consider the process by which observations are made, collected, and interpreted by these three types of actors for the United States Department of State Human Rights reports. These reports are used to generate a wide variety of policy and scientific inferences.

Adam Chilton | Rights Without Resources: The Impact of Constitutional Social Rights on Social Spending
Over the past decades, constitutions around the world have come to protect a growing number of social rights. This constitutionalization of social rights has generally been met with approval from academics, human rights activists, policy-makers, and development economists alike. But despite this widespread support, there is hardly any evidence on whether the inclusion of rights in constitutions actually changes how governments provide social services to their citizens. We take up this question by studying the effect of adopting the constitutional right to education and healthcare on government spending. Using data on 186 countries’ constitutional rights, we employ a variety of empirical tests to examine if the rights to education and healthcare are associated with increases in government spending. Our results suggest that the adoption of these social rights is not associated with statistically significant or substantively meaningful increases in government spending on education or healthcare.


Saturday, May 19

8:00am-8:30am // Coffee and light breakfast


8:30am-10:45am // Panel 3
Moderator: Austin Wright

Milena Ang, Yuna Blajer de la Garza 
In this paper, we analyze the use of false criminal charges in Mexico, where democratization was quickly followed by a "war on drugs” that has challenged the existence of the Mexican constitutional state. Existing literature views evident judicial tampering as a consequence of institutional dependence: cases in which the criminal charges were fabricated are often attributed to political desire to control opposition. We depart from this view and argue that false charges can be a specific type of strategic manipulation of the judiciary, one that responds to bureaucratic interests, and not political ones. We explore this argument in the context of the war on drugs: a key implication of our argument is that despite the monetary costs and the creation of a number of institutions to investigate and build drug-related criminal cases, false charges that can even border on the ludicrous are still rampant. We close the paper with a discussion of the generalizable implications of our theory, focusing specifically on how politicians have mostly relied on institutional reform as a way to tackle (or to pretend to tackle) this problem, and suggest that the answer may lie on an extensive professionalization of the investigative agencies and public ministries.

Jeffrey Staton | Bending but not Breaking: Rule of Law Tensions and Regime Survival
Independent judges are thought to promote regime survival by allowing perceived violations of rules limiting arbitrary power to be challenged in a fair setting. Empirical evidence generally supports this claim. Yet by asking judges to hold leaders accountable, systems of constitutional review can create political tensions. Judicial institutions are sometimes attacked, judges some-times impeached, and judicial orders are sometimes ignored. These processes can undermine independence in a variety of ways. We argue that if courts are to encourage regime stability, they must do so by managing these conflictual political contexts. Political contexts in which judges believe that overt political attacks are probable are unlikely to meaningfully influence regime maintenance; however, judges can contribute to regime stability even in contexts in which their decisions are sometimes ignored. Non-compliance with judicial orders need not be a problem for a robust political system. Indeed, to impact regime stability, judges must be willing to risk being ignored. We evaluate empirical implications of this argument in a study of democratic and autocratic regime survival.


10:45am-11:00am // Break and refreshments 


11:00am-12:30pm // Panel 4
Moderator: Tom Ginsburg

Zachary Elkins | Militant Democracy and the Pre-emptive Constitution
I explore the concept of militant (streitbare) democracy in the context of what appear to be persistent threats to democratic order.  I begin with an attempt at concept reconstruction.  I offer a re-conceptualization intended to distinguish and identify historical manifestations of the concept. I then trace and document these elements – understood as particular architectural styles -- across historical constitutions. Finally, I argue for the relevance of the militant constitution in the face of particular contemporary threats to democracy, such as term-limit evasions and other acts of executive hubris. 

Emilia Justyna Powell, Steven Christian McDowell, Robert O’Brien, Julia Oksasoglu | Islamic Law in Domestic Legal Systems and State Governance: Democratization, Judicial Independence and Human Rights 
Anecdotal evidence portrays Islam as antithetical to individual rights-based governance. States embracing Islam-based laws are seen as existing in an environment—arguably Islamic law itself—that ipso facto jeopardizes rule of law and encourages executive encroachment on judiciary. Though the literature largely disproves these expectations, many questions remain unexplored: What levels of legal hierarchy—a constitution or a subconstitutional legal system— shape state policies in these states? Is Islam’s constitutional and subconstitutional presence antithetical to rule of law, personal liberties and judicial independence? Relying on original data of laws in 29 Islamic-law-states (2001-2012), we demonstrate that constitutional and subconstitutional dimensions affect governance differently. For instance, only Islam-infused subconstitutional laws can restrict private liberties. Interestingly, the mere presence of Islam at various levels of legal hierarchy has by itself no effect on government’s compliance with judicial decisions. Islamic law is not ex sui natura cause of democratic/constitutional crises in the Islamic milieu.


12:30pm-1:45pm // Lunch


1:45pm-3:15pm // Panel 5
Moderator: Monika Nalepa

Marta Derlatka 
Over the last 3 years, Poland’s Constitutional order has been overhauled. The Law and Justice Party achieved a decisive success in parliamentary and presidential elections in 2015. Although the Law and Justice Party did not reach the threshold required for constitutional amendments, it decided to launch a process of fundamental transformation of the governmental structure, including the judicial branch. The Constitutional Court became the primary target: changes in its personal compositions and modifications of its procedure resulted, first in paralyzing its ability to adjudicate constitutional cases and, since the beginning of 2017, in its absorption into the new political scheme. The neutralization of the Constitutional Court paved the way to further reforms of the judicial branch. New legislation, adopted in 2017, provided for re-composition of the Supreme Court and the National Council of the Judiciary. It also introduced far reaching changes in the organization of lower courts, in particular, in their relations with the Minister of Justice. In the overall perspective, the greatest danger of the reforms is their potential to undermine rule of law in Poland. Time will tell whether the Constitutional Court, in its present composition, would be able to assess the constitutionality of the above-mentioned legislation.

Kim Lane Scheppele | Your Rights Were Not Violated: Constitutional Capture, Cruel Markets, and the New Face of Autocracy
Human rights were designed to counter 20th century authoritarians.   These authoritarians arrested, imprisoned, tortured and killed their adversaries.  They blocked free expression, interfered with freedom of association, overrode conscience -- often by force.  Twentieth century authoritarians captured whole populations, prevented them from leaving the state and forced them into labor and slavery.   They staged show trials on trumped-up evidence, turned prosecutors into weapons, and launched wars to settle scores.    After two world wars under cover of which horrible violations of basic dignity and liberty occurred daily on a mass scale, human rights have come to stand for “never again.”  Human rights instruments were designed to prevent that particular profile of abuse. 

As we consider the end of history, the decline of democracy, the rise of populism, the collapse of constitutionalism and other attempts to account for the worrisome trends that we see in democratic states around the world, we might notice that with a few exceptions (Erdogan in Turkey after the attempted coup; Maduro in Venezuela after his party lost the parliament) these disturbing developments have by and large not been accompanied by mass violations of human rights in the way that 20th century authoritarianisms were.   Instead, declining democracies -- in which all independent institutions are brought under control of a governing party -- have featured relatively few direct rights violations.  Without rights violations, nothing must be wrong, right?

In this essay, I explore the new techniques for bringing about fear and intimidation in formerly democratic publics, techniques that clearly put pressure on individuals to cede their democratic aspirations to a thuggish state but that do so without obviously violating rights.   Taking the example of Hungary, I will show how the governments can create what I call “cruel markets.”  Free markets produce winners and losers.  One has the talent and luck to rise into new jobs, or one’s invention falls flat when no one wants it.   Businesses that cannot make profits close; people whose talents are no longer needed become unemployed.   These painful side effects of free markets are not conventionally considered violations of rights.  They are just what markets do - give some people tough luck.   A state in which markets deal out bad news is not a state with a human rights problem.  It is a normal capitalist state. 

But what if the state uses its power to deliberately tilt markets against particular individuals and groups who are its enemies?   A state that targets enemies with austerity, that regulates certain businesses (but not comparable others) into bankruptcy, that pushes individuals into unemployment and then works behind the scenes to ensure that they cannot be rehired anywhere has created a “cruel market.”   Markets are no longer free in such a world, they become cruel because they are deliberately used to inflict pressure and pain on enemies.   But the sort of cruelty that comes from unfavorable markets is not prohibited by human rights agreements.   If one’s employer closes due to regulatory pressures, or one’s business fails because it can no longer make a profit in a tight market, are rights violated?   No, that’s just how markets are supposed to work!   Those who fall into poverty, or leave the country, or find their life plans thwarted have not experienced rights violations because those are not the pressures against which rights were designed to be a shield.   

Because many of the techniques of the new autocrats pressure opponents but do not result in straight-up rights violations, observers of captured constitutional regimes have found it hard to articulate just what is wrong with what the autocrats are doing.  This essay ends with a proposal that we must go beyond rights to identify illegitimate uses of state power to create economic winners and losers. 

3:15pm-4:45pm // Panel 6
Moderator: Yuna Blajer de la Garza 

Cheng-Yi Huang | Vicious Circle of Ancillary Power: The Resurgence of Executive Primacy in the Age of Populism
Some powers are not listed in the Constitution but they are crucial to the mechanism of separation of powers. They facilitate, consolidate and expand the executive power. They are unenumerated but ancillary to constitutional powers like appointment, control of bureaucracy, policymaking and execution, or emergency. Usually there are at least three types of ancillary power: coordinative, disciplinary, and supportive. This article first articulates the relationship between ancillary powers and constitutional powers. Later it explains why the ancillary powers help the chief executive, be it the prime minister or president, to grasp political power and entrench their political interests in the twilight zone. This article provides three cases to demonstrate the expansion of ancillary power: first, the Abe administration’s policymaking and personnel powers in Japan; second, the Pis government’s court-packing strategy in Poland; third, President Ma Ying-jeou’s domination in the legislative arena through his party leadership in Taiwan. Through the three cases (coordinative, disciplinary, and supportive), the paper aims to unfold the formation of executive primary and relates it to the rise of populism as the demand side effect. Against this backdrop, executive primary has a tendency to constrict rights protection mechanism as a result of power consolidation and pose challenges to constitutional equilibrium.  To break the vicious circle engendered by ancillary powers, this paper urges to reconsider the power allocation between the chief executive and public administration. A shared model of constitutional-administrative power would alleviate the pains brought by executive primary.

Tom Ginsburg | How to Save a Constitutional Democracy

We live in the shadow of democratic failure. From East Asia to Latin America to Eastern Europe, new democracies and old have been teetering. The nature of the threat today, however, is different from the threat facing earlier democracies during the twentieth century. Rather than courting collapse, democracies today face a risk of erosion. Elected rulers with autocratic tendencies find ways to exploit the resources of democratic constitutions as ways to dismantle democratic competition and liberal rights to speech and association. What remains often has the outward trappings of a democratic state under the rule of law—but not its substance.  Constitutions, many designed in the wake of World War II, rarely contains defenses against this threat of dismantling from within. The result is systemic vulnerability to democratic erosion.

This paper examines how law and constitutions can either channel or delay democratic decline. It analyzes case studies from Europe, the Americas, Asia, and Africa to illuminate the way in which particular political institutions and constitutional rules can be helpful—or else exploited by would-be autocrats for their own ends. The book then turns to what constitutional designers, whether working with a new constitutional project or a long-established one such as the United States, can do to resist democratic erosion. Designers of new constitutions and reformers of established constitutions will have recourse to different tools, and must deploy different strategies, to limit democratic erosion.  The book concludes by exploring the relationship of institutional design to political mobilization. 



Participants

Milena Ang

University of Chicago

Milena Ang is a member of the Society of Fellows at the University of Chicago, where she studies comparative democratization, political economy, and institutions. Her dissertation project, “Corrupting Accountability” explores the question of when a judicial prosecution of a corrupt politician is an instance of accountability.

Pablo Beramendi

Duke University

Pablo Beramendi is asosociate professor of Political Science at Duke University, where his work focuses on different aspects of the political economy of inequality and redistribution

Yuna Blajer de la Garza

University of Chicago

Yuna Blajer de la Garza is a PhD candidate in the Political Science Department at the University of Chicago. Her research analyzes the meaning of “belonging” and citizenship within twenty-first century democratic societies, focusing on the relationship between formal citizenship and substantive belonging, and the ways in which citizens mobilize the legal framework of the state when they seek to delineate and police the boundaries of their affective communities. Blajer de la Garza is a 2017–18 Pozen Family Center graduate lecturer in human rights.

Adam Chilton

University of Chicago Law School

Adam Chilton is assistant professor of law and a Walter Mander Research Scholar at the University of Chicago Law School. research interests lie at the intersection of international law, comparative law, and empirical legal studies. His current research projects include using quantitative research methods to study the effectiveness of constitutional rights at improving the protection of human rights; coding the development and enforcement of antitrust regimes around the world; testing the political determinants of the United States polices in a variety of areas of international economic law; and mapping the ideology of the legal profession. 

Marta Derlatka

Derlatka LLC

Marta Derlatka, PhD, runs a private law practice in Poland where she specializes in constitutional law (including constitutional complaints, applications to the European Court of Human Rights, complaints to the Commissioner for Human Rights, and citizens’ initiatives), administrative law, labor and employment law, and law of cooperatives. Since 2000 she has worked at the Constitutional Tribunal as a Clerk to judges Garlicki and Wyrzykowski, and since 2002 has been a member of the academic staff of the Department of Constitutional Law at Cardinal Stefan Wyszyński University in Warsaw.

Zachary Elkins

University of Texas-Austin

Zachary Elkins is associate professor of in the department of government and college of liberal arts at the University of Texas-Austin. His research focuses on issues of democracy, institutional reform, research methods, and national identity, with an emphasis on cases in Latin America. With Tom Ginsburg, Elkins codirects the Comparative Constitutions Project—an NSF-funded initiative to understand the causes and consequences of constitutional choices—and the website constitutionmaking.org, which provides resources and analysis for constitutional drafters in new democracies. 

Christopher Fariss

University of Michigan

Christopher Fariss is an assistant professor in the Department of Political Science at the University of Michigan. His research focuses on the politics of human rights, violence, and repression. He uses computational methods to understand why governments around the world choose to torture, maim, and kill individuals within their jurisdiction. Other projects cover a broad array of themes, ranging from foreign aid to American voting behavior, but share a focus on computationally intensive methods and research design.

Tom Ginsburg

University of Chicago

Tom Ginsburg is professor of international law and political science at the University of Chicago, where he focuses on comparative and international law from an interdisciplinary perspective. He is the author of many books, most recently Judicial Reputation. With Zachary Elkins, he codirects the Comparative Constitutions Project, an effort funded by the National Science Foundation to gather and analyze the constitutions of all independent nation-states since 1789. Ginsburg is a member of the Pozen Family Center for Human Rights faculty board. 

Gretchen Helmke

University of Rochester

Gretchen Helmke is professor of political science at the University of Rochester where her research focuses on comparative political institutions, democratization, the rule of law, and Latin American politics. She is the author of Courts Under Constraints: Judges, Generals, and Presidents in Argentina.

Cheng-Yi Huang

Academia Sinica

Cheng-Yi Huang is an associate research professor at the Institutum Iurisprudentiae of Academia Sinica in Taiwan. His research fields include comparative administrative law, constitutionalism, risk management and environmental regulation, democratization, judicial politics and legal history, statutory interpretation, and behavioral law and economics.

Monika Nalepa

University of Chicago

Monika Nalepa is associate professor of political science at the University of Chicago. With a focus on post-communist Europe, her research interests include transitional justice, parties and legislatures, and game-theoretic approaches to comparative politics. She is the author of Skeletons in the Closet: Transitional Justice in Post-Communist Europe. Nalepa is a member of the Pozen Family Center for Human Rights faculty board. 

Emilia Justyna Powell

University of Notre Dame

Emilia Justyna Powell is associate professor of Political Science at the University of Notre Dame with a concurrent appointment at the Notre Dame Law School. She specializes in international law and international courts, the Islamic legal tradition, and Islamic constitutionalism. Her most recent book project, Islamic Law States and International Law: Peaceful Settlement of Disputes, provides a comprehensive examination of differences and similarities between Islamic law and the classical international law, especially in the context of dispute settlement.

Kim Lane Scheppele

Princeton University

Kim Lane Scheppele is the Laurance S. Rockefeller Professor of Sociology and International Affairs in the Woodrow Wilson School and the University Center for Human Values at Princeton University. Scheppele's work focuses on the intersection of constitutional and international law, particularly in constitutional systems under stress.

Jeffrey Staton 

Emory University

Jeffrey Staton is associate professor in the department of political science at Emory University where he teaches and conducts research on comparative political institutions. He directs the Center for the Study of Law, Politics and Economics and is the Judiciary Project Manager for the Varieties of Democracy project.

Scott Tyson

University of Michigan

Scott Tyson is assistant professor of political science at the University of Michigan. His research focuses on formal political theory, political economy, authoritarian politics, and collective action.

Georg Vanberg

Duke University

Georg is professor and chair of the Department of Political Science at Duke University. His research focuses on political institutions. He is particularly interested in judicial, constitutional, and legislative politics and in coalition theory. He is coauthor of Parliaments and Coalitions: The Role of Legislatures in Multiparty Governance.

Austin Wright

University of Chicago Harris School of Public Policy

Austin L. Wright is assistant professor of public policy at the University of Chicago Harris School of Public Policy. He is a faculty affiliate of The Pearson Institute for the Study and Resolution of Global Conflicts, the Empirical Studies of Conflict Project, and non-resident fellow of the Liechtenstein Institute. His research leverages microlevel data to study the political economy of conflict and crime in Afghanistan, Colombia, Indonesia, and Iraq.