"Politicians, judges, and citizens commonly use the phrase 'rule of law' to describe some good that flows from a legal system. But what precisely is that good? Even in Aristotle's time, there was no agreement on either its nature, and on whether it counted as an unqualified good. Even now, a core rule-of-law aspiration is that law can constrain how power is flexed. But how or when? Disagreement persists as to whether the rule of law is a matter of how law is used or why it is deployed. In consequence, the World Bank, the leaders of Singapore's one-party state, and the Communist Party in China can all offer their own spins on the concept.
By charting these disagreements and showing the overlap and the conflicts between different understandings of the concept, Aziz Z. Huq shows how the rule of law can still be used as an important tool for framing and evaluating the goals and functions of a legal system. He traces the idea's historical origins from ancient Greece to the constitutional theorist Albert Venn Dicey to the economist and political philosopher Friedrich Hayek. And he explores how that value is coming under pressure from terrorist threats, macroeconomic crisis, pandemics, autocratic populism, and climate change."
"Democracies are in danger. Around the world, a rising wave of populist leaders threatens to erode the core structures of democratic self-rule. In the United States, the tenure of Donald Trump has seemed decisive turning point for many. What kind of president intimidates jurors, calls the news media the “enemy of the American people,” and seeks foreign assistance investigating domestic political rivals? Whatever one thinks of President Trump, many think the Constitution will safeguard us from lasting damage. But is that assumption justified?
How to Save a Constitutional Democracy mounts an urgent argument that we can no longer afford to be complacent. Drawing on a rich array of other countries’ experiences with democratic backsliding, Tom Ginsburg and Aziz Z. Huq show how constitutional rules can both hinder and hasten the decline of democratic institutions. The checks and balances of the federal government, a robust civil society and media, and individual rights—such as those enshrined in the First Amendment—often fail as bulwarks against democratic decline. The sobering reality for the United States, Ginsburg and Huq contend, is that the Constitution’s design makes democratic erosion more, not less, likely. Its structural rigidity has had unforeseen consequence—leaving the presidency weakly regulated and empowering the Supreme Court conjure up doctrines that ultimately facilitate rather than inhibit rights violations. Even the bright spots in the Constitution—the First Amendment, for example—may have perverse consequences in the hands of a deft communicator who can degrade the public sphere by wielding hateful language banned in many other democracies. We—and the rest of the world—can do better. The authors conclude by laying out practical steps for how laws and constitutional design can play a more positive role in managing the risk of democratic decline."
"For years, the Supreme Court has turned a deaf ear to arguments that police officers should not be shielded by the legal doctrine of “qualified immunity” when they shoot or brutalize innocent civilians. “Qualified immunity” is just one of
several rules invented by judges that stop the vindication of basic rights. But aren’t courts supposed to be protectors of individual rights? In The Collapse of Constitutional Remedies, Aziz Z. Huq recounts a far more fraught history in which
the link between the Constitution’s system of independent courts and the protection of constitutional rights has always been tenuous.
Federal courts have created many legal concepts such as “qualified immunity” that may seem abstract, but inflict real-world harms: A bureaucrat fires her employee for testifying in a legal proceeding involving the boss’s family. Police
officers set a dog on a homeless man, leaving him severely wounded. A Mexican teenager is shot in the back at the US border—and dies. In all these cases, defendants walk away with minor or no penalties. Their victims had rights—but
no remedies thanks to rules created by federal judges.
A powerful historical account of how courts have carved a gap between rights and remedies, this book will reshape our understanding of why it’s so difficult to hold the American state to the rule of law."
