By Mike Dorf
My new Verdict column uses the developing story in Egypt as an opportunity to make a few points about the potentially different roles that constitutional courts play in new democracies versus established democracies. It concludes with a deliberately provocative comparison between last week's decisions by the Supreme Constitutional Court of Egypt and our own Supreme Court's decisions in Bush v. Gore and Citizens United v. FEC. I do not say--because I do not believe--that the SCOTUS is as much a holdover of the Presidential administrations that appointed the respective justices as the the Supreme Constitutional Court of Egypt is a holdover of the Mubarak regime. Nonetheless, there are at least some similarities.
Still, the column distinguishes between mature democracies and emerging democracies. Although I think this is a reasonably clear distinction in many cases, I should clarify that it is a difference of degree rather than kind. Moreover, by "mature" democracies, I do not necessarily mean "old" democracies. The Roman Republic existed in one form or another for centuries but by the middle of the first century BCE, it was no longer stable. A "mature" democracy as I use the term, is a democracy that is likely to be stable over the long run going forward.
But how can one tell whether a country will remain a stable democracy going forward? I think the short answer is that one cannot. The best one can do is play the odds. Good public institutions--including civil society institutions--are probably a necessary condition but not a sufficient one. Shocks--such as wars, severe economic downturns, or natural disasters--can so undermine the basis for social and political cooperation as to empower undemocratic forces. Is it unthinkable that Greece, say, could slip into authoritarianism in the event that continued austerity or an exit from the Eurozone leads to political unrest and violence in the streets?
The United States avoided this fate during the Great Depression but much of Europe did not. Most academic discussion of that juxtaposition focuses on what led Weimar Germany to fail. The usual answer is some combination of the wrong political structures and a weakness in German culture. Let's assume that's right. The resulting question is how one builds up the right political structures and culture. For Francis Fukuyama circa 1992 the answer is that it just more or less happens, more or less everywhere, because of the superiority of liberal democracy to the alternatives. I think I agree with Fukuyama over the scale of centuries. In two hundred years, if advanced human civilizations still exist, it would be surprising if liberal democracy hadn't taken hold pretty much everywhere.
But we know what Keynes said about the long run. How, in the course of less than a human lifetime, does one move from political institutions and a political culture in which the military/security forces dominate politics to institutions and culture in which they do not? My column raises this question with respect to Egypt and Pakistan but it could also be raised about China and (to a lesser extent) Russia. To my mind, the best place to look for answers is not in long-established democracies that made the transition in the 18th or 19th century but in Latin America. The transition of most of Latin America from autocracy to democracy over the last generation is not irreversible, of course, but it's remarkable nonetheless. So, my advice to small-d democrats in the democratizing world: Learn to speak Spanish!