Sujit Choudhry of Constitutional “Red Lines” and the Specter of Democratic Failure

Leading constitutional scholar Professor Sujit Choudhry has recently released a chapter-length excerpt from his upcoming book Constitutional Democracies in Crisis? The excerpt centers around a December 2017 tweet by former Obama-era Attorney General Eric Holder. The tweet declares any termination of the US Special Counsel Robert Muller as an “absolute red line”, warranting “mass, popular, peaceful” protests by the American people (releasefact.com).

The Chapter Length Excerpt

Choudhry’s excerpt serves as a dissection of the tweet, classifying it as built on the concepts of “constitutional self-enforcement” through “focal points”, as he labels them. Choudhry postulates that constitutions serve to inform citizens’ expectations of how their elected officials should act, prompting particular focus on specific constitutional rules or “focal points” that officials are not expected under any circumstances to break.

A major focal point in the United States, for example, would be presidential term limits, which have been in existence in the country since the 1940s and restrict holders of the Presidency to two four-year terms. This “focal point” is codified by law and largely uncontroversial, and any attempt by an authoritarian figure to violate it would be strongly opposed by an overwhelming segment of the population. It would be, to put it in Holder’s words, a “red line”.

Choudhry expresses surprise that Holder’s tweet reflects more so a reliance on general aversion to violations of focal points to make a case against the termination of the Special Counsel, as opposed to an appeal to legality, which would be expected from a former Attorney General. As Choudhry sees it, Holder’s position is an insinuation that the legal system will have less of an effect on whether or not such a violation would be upheld than public opinion and civil engagement would.

All in all, Choudhry comes to the conclusion that Holder’s “red lines” – a violation of legally-binding and generally accepted focal points – can be understood as a democratic failure.

Sujit Choudhry specializes in global comparative constitutional law, possessing expertise in issues such as federalism, decentralization, secession, minority rights, citizen’s rights, semi-presidentialism and democratic transitions, amongst many others (constitutionaltransitions.org).

Keep up with Sujit, visit Crunchbase

More of Choudhry on http://sujitchoudhry.com/