Understanding the Politics of Resentment: Of the Principles, Institutions, Counter-Strategies, Normative Change, and the Habits of Heart

I believe that our endless discussion of HOW has caused us to lose sight of WHY

Sir David A. O. Edward, Luxembourg in retrospect: a new Europe in Prospect¹

In the realm of judicial behaviour, what judges say, what rules they announce and/or threaten to announce is often a more significant aspect of their behaviour than how they vote

M. Shapiro, Can Judges Deliberate?²

Prologue: Polish Judicial System Goes Down and Why Should We Care?

The paper asks, when is a constitutional design of any (domestic, international, supranational) polity in error? On the most general level, such a critical juncture occurs when a polity's founding document (treaty, convention, constitution) protects against dangers that no longer exist or does not protect against the dangers that were not contemplated by the founders. Constitutions not only rule but should also protect against deconstitution. When analyzed together, the cases of Hungary, Poland, South America,³ and more recently, the United States,⁴ suggest a worrying new pattern of the erosion of constitutional democracies. One may even speak of a recipe for constitutional capture in one state after another that travels in space and in time.⁵ The new autocrats know that the law might be used to dismantle the law and institutions and engage in a different form of "repression by stealth"⁶ or the deconstruction of democracy itself by using the legal means (autocratic legalism).⁷ This process tends to result in a systemic undermining of the key components of the rule of law, such as human rights, independent and impartial courts, and free media. It follows a well-organized script, tends to begin with disgruntled citizens voting to break the system by electing a leader who promises radical change, and often refers to the "will of the people" while trashing the pre-existing constitutional framework with cleverly crafted legalistic blueprints borrowed from other "successful" autocrats. Poland, Hungary, and other legalistic counter-revolutions (Venezuela and Turkey) are not the sort of mass human rights violations that merit scrutiny from an international level. The world has already (and luckily so) developed a framework to deal with these issues.

The paper asks whether the capture of state institutions in Poland (and Hungary before it⁸) is an outlying case or if it foreshadows the future of Europe more generally. Whatever the case, Poland matters, and for more than just the Polish. The case illuminates salient features and fissures in the bases for democratic government, the rule of law, and constitutionalism when confronted with the sweeping politics of resentment.⁹ Recently, the Editorial Board of the New York Times saw it fit to comment on the European Commission's decision on December 20, 2017, to invoke, for the first time in the history of European integration, Article 7 of the Treaty of the European Union against Poland.¹⁰ The editors emphasized:

An independent judiciary, however, is not only the bulwark of the democratic order to which Poland signed on when it joined the European Union, but a fundamental requirement for the functioning of a single market. Upholding the treaties on which the union is based is indisputably within the European Commission's purview. The European Commission was right to invoke Article 7. It must follow that up by sternly explaining to Mr. Kaczynski's followers and other nationalist forces across Europe that there are red lines they cannot cross—not because Brussels so wills, but for their own sake. An independent judiciary is chief among them.¹¹

With this, the United States has finally woken up¹² to the gravest of the constitutional crises that has been engulfing the European Union (EU): the crisis of democracy and the rule of law within one of the Member States that threatens the European Union as a whole.¹³ As important and devastating as Brexit and financial crises are, they are crises of governance and institutional structure. The argument presented here is that none...