Constitutional Repair: A Comparative Theory

Abstract

We are increasingly confronted by a pressing question: how can a constitutional democracy be repaired after being deeply degraded, but not ended, during a period of antidemocratic government? This study responds to the transnational challenge of constitutional repair by elaborating a novel syncretic theory of repair. Integrating diverse theoretical frameworks and comparative case-study analysis, the Article pursues four normative arguments: (i) assessing “constitutional damage” requires a methodological design alive to conceptual clarity, context, core damage, and disciplinary and perspectival limits; (ii) “constitutional repair” is best understood as a distinct paradigm of constitutional transition separate from both major constitutional change in stable democracies and democratic transitions from authoritarianism; (iii) onerous and risky processes of formal constitutional change should be approached with extreme caution if sub-constitutional fixes are sufficient to achieve initial repair; and (iv) reparative measures departing from orthodox rule-of-law norms can be deemed legitimate subject to both context and conditions.