A new paper argues that exploitation of gaps within democratic constitutions during emergencies, such as the Covid-19 pandemic, has the potential to erode democracies if emergency measures remain when the public health crisis subsides. But more rigid constitutions may have the same ultimate effect. The ability to partially restrict civil liberties in emergencies within a tight constitutional framework is vital to the survival of liberal democracies.
As the pandemic emergency spread across the world, a crisis of a different kind infected Western democracies. Containing the spread of the virus demanded strict measures that were largely unprecedented in peacetime: lockdown restrictions, border closures, vaccine mandates, and vaccine passports.
Such was the novelty of the threat, and so extreme were the required measures, that many governments were simply unable to implement such policies in a timely manner and at the scale required. Could executives bypass legislative constraints to avoid delay? Would executive orders have the legal authority to mandate such measures? Or would the courts rule such acts as unconstitutional? How could democratic governments mandate restrictions to established and constitutionally-protected liberal rights of their citizens?
With quick resolve and strong public support, governments around the world found ways around the normal constraints of their constitutions. One after the other, governments declared states of emergency or found other means to obtain extra-constitutional powers that would allow them to implement the policy measures recommended by health authorities.
The unfortunate side effect was that these same extra-constitutional powers often gave governments the ability to implement policy measures that went beyond what was recommended by health authorities. In Hungary, Covid-19 misinformation has been criminalized. In Poland, a digital App with geolocation and face recognition technology is used to monitor citizens who contract the virus. In Australia, the federal army was deployed to patrol the streets of the most demographically diverse parts of Sydney, while the city’s state Police Commissioner publicly announced that police officers wrongly issuing tickets won’t be held to account.
While the pandemic emergency–and voters–demanded that governments implement some of these policies, many voices across the Western world raised concerns that the extra-constitutional powers could outlive the pandemic and place their countries on a path to autocracy. These fears are perhaps more justified where governments have capitalized on their newly granted powers to limit media freedom, reduce political competition and accountability, and strengthen their electoral position.
In a recent paper, we study how emergencies such as the Covid-19 pandemic may spur demand for illiberal policies, and how to prevent this phenomenon from turning into a process of autocratization.
In fact, this pattern is not new. In the face of other emergencies in the past, democratic majorities have supported governments taking illiberal decisions. Twenty years ago, after the tragedy of September 11, voters in the United States supported extra-constitutional and extra-judiciary measures to interrogate potential terrorists. Only one US Senator—Wisconsin Democrat Russ Feingold—voted against the controversial Patriot Act, despite the fact that it contained several provisions that the Supreme Court judged as unconstitutional, such as the indefinite detention of immigrants not charged with any crime.
So what can be done about this apparent paradox, whereby governments need the ability to respond to crises but may abuse emergency powers? This is an age-old question that continues to attract attention from political scientists, legal scholars, and historians.
Some liberal democratic constitutions mandate procedures for the executive to access emergency power; they tightly define such powers, as well as when and how judicial review applies to these procedures. In other democracies, these powers are less well-defined. In some cases, governments had to invoke powers under existing laws that were only indirectly linked to the current pandemic emergency. As the Constitution of Japan famously does not include an emergency clause, the pandemic forced the government to amend legislation from 2012 (which was drawn up in the wake of the 2009 flu epidemic) rather than adopting new procedures to deal with the novel challenges presented by Covid-19. In other cases, in the absence of a written Bill of Rights, the legality of emergency measures is left to a broader grey area within common law. Without a defined procedure to access emergency powers, governments in these countries used their popular mandates to exploit gaps in their constitutions rather than accessing constitutionally regulated powers.
In our recent paper, we develop and analyze a dynamic game-theoretic model that captures this tradeoff between liberty, security, and electoral accountability. Our analysis shows that this exploitation of gaps within democratic constitutions has the potential to dynamically erode democracies. Instead, the ability to partially restrict civil liberties during emergencies within a tight constitutional framework is vital to the survival of liberal democracies—albeit limiting how “liberal” such democracies may be during normal times.
“The problem of liberal constitutional design is one involving a tradeoff between how much liberty a constitution guarantees to its citizens in normal times and how much security it provides them when emergencies come along.”
Our basic message is that democracy is only sustainable when voters believe that the system will effectively protect them against economic crises, terrorist threats, and health emergencies. But those same institutions that make democracies liberal often frustrate voters precisely when swift responses to crises are needed. Checks and balances built into the system to avoid executive takeover also slow down the adoption of new policies. Parliamentary procedures that allow for minority representation often water down incisive executive decisions. Separation of powers and judicial review that support the rights of individual citizens against the abuse of the leviathan sometimes stop the implementation of policies that have already been formally adopted and announced.
Therefore, the problem of liberal constitutional design is one involving a tradeoff between how much liberty a constitution guarantees to its citizens in normal times and how much security it provides them when emergencies come along. A constitution that is too flexible in allowing executives to act without following established procedures may offer to voters more security against new threats. However, it is incompatible with liberal values because in normal times governments would be able to silence protests, co-opt the media, and suppress the rights of minorities.
On the other end, a constitution that is too “liberal” may fail to effectively respond to emergencies. Once this happens, scared voters are likely to demand politicians to abuse their powers and act beyond the spirit of the constitutional constraints they should respect. In fact, even across consolidated democracies, we find that voters who are more worried about terrorist attacks or their ability to find a job (or likelihood to lose it) are more likely to support the view that their country needs a strongman who does not bother with parliaments and courts. In a similar vein, Matthew H. Graham and Milan W. Svolik document how voters in the United States who care about liberal aspects of their democracies are willing to give them up if this means passing legislation they strongly prefer. However, in line with our prediction that such voters should only be worried when their governments do not have access to well-regulated emergency powers, we find that this correlation between fear and support for a strongman only exists in countries in which executives face the most stringent constitutional constraints.
The history of executive takeovers is populated with leaders who took power amongst popular demand for order and security: Caesar and Augustus offered a populist peace after a century of civil wars; the Fascists in Italy and Germany responded to a popular demand to curtail the threat of socialism.
By disregarding constitutional procedures and constraints, these “illiberal”–but democratically elected–governments effectively respond to emergencies. However, they also expand their powers to suppress protests and silence the media in order to maintain power regardless of whether voters would really like to continue with them. Therefore, once voters resort to an illiberal government, they lose some of their ability to keep their government accountable–backsliding into an “illiberal democracy.” Our model predicts that sometimes voters may be able to return to a liberal government and reestablish electoral accountability. However, this is not always the case: democracies may forever fall into the trap of illiberalism as a consequence of a single crisis. In other words, in the long run, a constitution that is too liberal is not sustainable.
The solution to this problem is a more flexible constitution, which grants governments just enough power to react effectively to most emergencies when needed, reassuring voters that a strongman is not needed to protect them from new threats. But such an optimal constitution should also not give governments more power than what is strictly needed, so to guarantee the maximum amount of sustainable liberty. Indeed, Article 48 of the Weimar Constitution is an infamous reminder of the dangers that emergency powers can pose if they grant too much power to a government.
Other factors may also affect how much liberty can be sustainable. For example, when technological changes increase the frequency of alarms about new threats–which is likely to be the case with the rise of social media–they also increase the need for greater emergency powers to reassure voters that a liberal democracy is able to respond to these threats. This means that there is an inevitable tradeoff between transparency (how much governments may limit leaks and keep information secret) and maximum sustainable liberty.
A classical solution to this problem is to increase checks and balances so that even illiberal governments cannot ultimately pursue a policy of democratic backsliding towards a fully autocratic regime. Similarly, in many contexts such as in the European Union, there is the hope that supranational institutions (and trade agreements) may stop illiberal governments from excesses. However, such institutions may be a double-edged sword. While they may slow down the process of autocratization once an illiberal government is elected, they also induce voters to be less wary of the potential risks associated with electing one. That is, precisely because voters may be convinced that these institutions will stop illiberal governments from total takeover, voters may believe that electing one is without this risk at all. Therefore, stronger checks and balances may increase the likelihood that voters elect illiberal governments, ultimately increasing the risk of democratic backsliding.
In the coming decades, Western democracies may lose some of their control over the world order. Alongside, new existential threats from global warming and more frequent pandemics may raise the popular demand for swift effective policymaking. As a result, liberal democracies may need to adopt even more clear and swift procedures for governments to limit liberties if we are to make liberal democracy a viable system in our increasingly scary world.
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