Constitutional Responses to Setbacks in Democracy – with Dieter Grimm and Luís R. Barroso

Modern democracy was born linked to the idea that a Supreme Law, the Constitution, should guarantee rights and limit the exercise of power. The year 1789 can be considered ground zero of this history, not only for the outbreak of the French Revolution but also for the United States Constitution entering into force.

However, now that the world is experiencing a significant democratic recession, would the Constitutions and constitutional courts be sufficient obstacles to preserve democracy from the onslaught of authoritarian and populist leaders?

“There is no strict legal answer to this fundamental question. The survival of democracy depends on having cultural, social, and economic preconditions for this system of government to be valued and defended by the majority of the population over time,” said German jurist Dieter Grimm, who served as a judge at Germany’s Federal Constitutional Court (based in Karlsruhe) from 1987 to 1999. “Building these preconditions requires a lot of dedication and takes time, but all that effort can be lost in a short time,” he warned.

“Representative democracy, guaranteed by the Constitution, ended the 20th century apparently victorious, after overcoming numerous military regimes around the world, as well as Nazism and Communism. In the 1990s, it seemed that most countries had chosen to follow this ideal path of politics. Would this then be the end of history?” Asked Barroso, echoing the title of Francis Fukuyama’s famous book. “Unfortunately, something seems to have gone wrong a few years ago, with the simultaneous occurrence of three phenomena: populism, radical conservatism, and authoritarianism. These are different things, but the problem comes when you put them together,” continued the Brazilian judge.

Colleagues at Yale Law School, where Grimm taught between 2002–2017 and Barroso usually spends seasons as a visiting professor, the German and Brazilian lawyers participated in the “Constitutional Responses to Setbacks in Democracy” webinar at the invitation of the Fundação FHC, of the German Embassy in Brasília, the Europe-Brazil Democracy Forum, and the JOTA website.

Dieter Grimm: ‘There is no such thing as a ‘true sentiment of the people.’’ 

The promise of democracy is not that “the people’s true sentiment” will prevail, as populist leaders suggest, simply because it does not exist. “What exists are countless combinations of opinions and individual interests based on which collective desire is built, which evolves and changes over time,” explained the Humboldt University (Berlin, Germany) Law professor.

According to the jurist, all individuals and groups in society will never see their interests prevail. There will always be those discontented. “What democracy enables, if well implemented, is that everyone can participate in the formation of that collective desire on equal terms, through fair elections and democratic dialogue in society and in Congress. Political commitments should not be seen as something negative, but as a virtue of democracy,” he continued.

“The majority must not have unlimited power to impose their interests on the minority (or minorities) and, to prevent this from happening, there are constitutional restrictions that preserve fundamental rights, including the right of the minority to seek and obtain a new majority in the next election,” he explained. “As we do not know in advance if we will be majority or minority (or for how long), this system should be of interest to everyone, but we see that it has been losing support in recent years. Why is it no longer attractive?” He asked.

Luís R. Barroso: Three causes of the democratic recession

The Brazilian Federal Supreme Court Justice recalled that representative democracy is in crisis in several countries for three main reasons, which are already well known: allegations of corruption involving almost all parties; increasing social inequality, despite advances in economic development in recent decades; and the impacts that globalization and the technological revolution have on employment, mainly in small- and medium-sized communities far from large cities, often neglected by central governments.

“Widespread corruption undermines the credibility of the party system (one of the foundations of representative democracy for decades) and paves the way for the election of charismatic anti-system leaders, who manipulate the needs and fears of the population, promising immediate solutions that will take their toll on the future,” warned the current president of the Superior Electoral Court.

The popularization of social networks, which enable direct communication between people and themselves with government officials and aspirants to power, accelerated this wearing out process and questioning of democratic institutions, including the media and the Legislative and Judiciary Branches. “The superior courts are tasked with controlling the abuse of power, which is why they are so attacked,” said Barroso.

Grimm: ‘Step-by-step transformation towards authoritarianism’

“The fact that most representative democracies have not been delivering on what is expected of functional national governments for some time has undoubtedly readied the soil for the rise of populism and authoritarianism,” agreed Grimm. “What we are experiencing today is not an all-out revolution against the old system or a total rejection of democracy, but a step-by-step transformation towards more authoritarian and populist regimes. Its leaders claim to represent people’s true sentiment against corrupt political and economic elites who only pursue their private interests. And they promise to build a true democracy as opposed to a degenerate democratic regime,” summarized the German judge.

According to Dieter Grimm, every democratic constitution lists some preconditions for democracy to survive, including fair elections with equal conditions for all candidates, broad and open public debate, media that is free and independent of state control and excessive economic influence, independence between the three branches of the federal government, and institutions strong enough to control the government.

“In countries with more robust constitutional courts that guarantee appeals and judicial reviews, transforming a democratic system into an authoritarian one would take years, as the Supreme Court will undoubtedly get in the way. But, what if change starts precisely by limiting the power of these courts?” He asked.

He cited Hungary and Poland as negative examples. Former communist countries in Eastern Europe that became democratized at the turn of the 1980s to the 1990s, strengthened their constitutional courts and succeeded in becoming members of the European Union (which has a democratic clause), for some years now they have elected leaders who have acted to paralyze the Judiciary Branch, reduce independence between the powers, and limit democracy little by little, subjecting it to their interests.

South Korea and Brazil, which became democracies in the 1980s, and South Africa, which ended apartheid in 1991, were cited as examples of countries with strong and independent constitutional courts, which have been able to exercise their role as guardians of the Constitution and fundamental democratic principles.

The German example: ‘militant democracy’ and ‘eternal clauses’

The former judge of the Federal Constitutional Court of Karlsruhe recalled that the destruction of the Weimar Republic (a liberal regime that ruled Germany from 1919 to 1933) and its transformation into a totalitarian regime, Nazism (defeated at the end of World War II, in 1945), led the country to adopt the theory of “militant democracy”, in which movements and leaders who show an interest in destroying the fundamental institutions of democracy can be legally punished or eliminated from the democratic game.

“One dilemma that arises, however, is when to ban an expanding movement or party because while it is small, it seems disproportionate to eliminate it from the political scene. After it grows, it may be too late,” said Grimm.

Another instrument Germany adopted to protect democracy was “eternal clauses” in the Constitution, fundamental principles that cannot be changed even with an absolute majority. The Brazilian Constitution also has its “irrevocable clauses”, which cannot be changed even by constitutional amendments.

“The problem is that these clauses are only valid as long as the Constitution that provides for them remains in force. However, if a movement against them wins elections with an absolute majority and calls for a new constitutional assembly, there is nothing to stop them from ending those clauses. In the end, what really matters is whether or not society will allow this degree of violation of democracy and its principles,” he concluded.

Barroso: ‘Brazil resists, but those who value democracy need to be alert’

Thirty-two years after the promulgation of the 1988 Constitution, which laid the foundation for post-military democratic Brazil (the Brazilian dictatorship lasted from 1964 to 1985), Brazilian democracy is also under attack, but, according to Justice Luís Roberto Barroso, it has proven to be resilient. “The threats, so far only rhetorical, to Congress, the Federal Supreme Court, and the media have aroused a vigorous reaction from institutions and civil society and led its authors, among them the current President of Brazil, to retreat,” said the Rio de Janeiro State University (UERJ) Constitutional Law professor.

Acting independently, the Federal Supreme Court made recent decisions to preserve federalism, the fight against hate and misinformation campaigns, and the indigenous population’s fundamental rights, the Justice recalled.

“Since re-democratization, we have overcome hyperinflation, periods of recession and high unemployment, corruption scandals, and two presidential impeachments. We have had governments more to the left, the center, and the right, and now we have a president with authoritarian tendencies. None of this has compromised our relatively young democracy so far. But we need to stay alert,” he continued.

The Brazilian judge concluded by stating that Brazil has some homework to do: “We still have many people excluded, either because of poverty and social inequality or because of racism and the lack of equal opportunities for the entire population. Democratic survival depends on us being able to bring all of society together under this institutional umbrella and create the feeling that everyone is part of a prosperous, just, and democratic nation. I hope it’s not an illusion.”

Otávio Dias is a journalist specializing in politics and international affairs. A former correspondent for Folha in London and editor of the estadao.com.br website, he is currently the content editor at Fundação FHC.

Portuguese to English translation by Melissa Harkin & Todd Harkin (Harkin Translations).