About a decade ago I began to redirect a significant part of my academic focus away from the study of the law of American democracy. My new attention was the product of a renewed sense of common enterprise across democracies that emerged from two critical events. The first was the contested presidential election of 2000; in particular, the failure of the Florida electoral machinery to produce a clear result and the subsequent intervention of the Supreme Court in Bush v. Gore. The second was the emergence of difficult national security decisions within the United States following the attacks of September 11. Each represented a significant challenge to the structure and integrity of American democracy, each exposing a characteristic vulnerability of democracy either to process failure from within or to external enemies.

In the aftermath of these events, I began to wonder more systematically about how other democracies deal with such challenges. American democracy is no doubt exceptional in its duration and in its constitutional pedigree. But it has also had the benefit of a relatively stable political order and geographic isolation (or insulation) from potential military threats. What if the workings of democracy in this country were themselves challenged? Or, what if the War on Terror forced a recalibration of the delicate balance between liberty and security?

If American democracy were suddenly more vulnerable, perhaps the experiences of other democracies would help in thinking about the resulting challenges. This inquiry assumes no universalism of law, no sense that a foreign consensus should obligate a response in American law – although it does not presume either that informed judgments from abroad should be rejected per se because of their foreign origins. Rather, comparative assessments sometimes help to illuminate certain characteristics of domestic difficulties that might otherwise be obscured by their apparent intimate relations to our lived experiences.

Constitutionalism in divided societies poses a core paradox. Why would rival social groups enter into any apparently constraining constitutional bargain with imprecise terms, and why would they expect the objectives of the bargain to be honored? Societies suddenly thrust into the proto-democratic arena (like the former Soviet republics) typically lack the civil society institutions that buttress democratic rule, the political parties that can organize democratic participation, and even the basic cadre of candidates groomed in the public demeanor of democratic politics.

The immediate issue is why immature political movements in emerging democracies would look to resolve these basic constitutive problems of democracy through the creation of independent courts. This question is distinct from the more common one of what explains the long-term stability of relatively independent courts in successful democracies. Where stability can be safely assumed, sophisticated political actors operate with an understanding that who will rule at any point in the future is uncertain and they should accordingly seek to limit the ability of one or the other to exploit momentary political favor. As a result, “[e]nforcement of the constitution … might be understood as an equilibrium resulting from the tacit agreement of two or more social groups to rebel against a government that transgresses the rights of either group.” The key is that the parties believe they are participating in what may be termed a repeat game and that being ahead or behind at any point does not mean that the roles will not be reversed in the future.

Newly created democracies lack the basic confidence in the long-term stabilizing role of courts: untested democracies cannot vouchsafe that there will be rotation in office and that all political factions will ultimately benefit from some kind of arbitrated guarantee of a fair process. The first time in any exchange appears as the only engagement and the rules of repeat play only come into effect when there is a shared sense of the long term. At the moment of state creation, the only power that is likely to matter is control of the executive and, by extension, of the military.

Across many national settings, the recent history of constitutional courts shows the need for these courts to handle politically freighted issues on which democracy depends, and the surprising willingness of diverse political systems to accept court intervention. Particularly in the case of newly minted apex constitutional courts, the customary concern in the United States with the countermajoritarian difficulty should not and does not detain these courts. These courts were created for the express purpose of checking legislation against a constricting constitutional template.

In concluding this book, it is important not to lose sight of the overriding objective. The goal of constitutional review is not so much jurisprudential as the enabling of democratic self-governance. Constitutional judicial review is a way to keep the politically powerful from derailing the experiment in democracy. As expressed by my colleague Stephen Holmes in an early assessment of democratic transitions after the fall of the Soviet Union, democracies cannot function if the core objectives of the polity are not entrenched beyond immediate political challenge. This is the constraining role of the constitutional compact. Such constitutional constraints are “enabling” in the sense that public confidence against tyranny allows positive authority to be vested in government institutions because they are less likely to be captured for illegitimate ends. But like all institutional arrangements, constitutional limits are imperfect. A constraint is not an absolute prohibition, and risks remain.

Democracies may succumb to passion, to the momentary whims and desires of majorities, to forces not readily controlled within the normal majoritarian processes of governance. Understanding the frailties of democratic governance goes back to the remarkable accounts of Thucydides regarding the inability of classical Athens to resist popular demands for ill-fated military adventures, including the doomed attack on Sicily. Modern constitutional scholarship has picked up the theme well formulated by John Hart Ely as a matter of institutional distrust.

A quarter century has passed since the fall of the Berlin Wall. The initial throes of the twentieth-century defeat of communism and fascism invited the triumphant claim that the sweep of democracy was indeed upon us. As even the Arab protesters from Cairo to Tunis would show, seemingly impervious autocratic regimes could succumb to long nascent aspirations for popular governance. The wave of embryonic democratic transitions that began with the fall of the Soviet Union was indeed a heady time. History may not have ended with the fall of democracy's ideological rivals. But the arc of history appeared decisively tilted toward democracy.

Today the assessment is more mixed. Democracy turns out to require more than just holding an initial election for head of state. The rule of law cannot be commanded by a text but needs institutional guarantors. Political parties need to learn the give and take of electoral coalitions and the difficult translation of a party platform into a program for governance. There must be confidence that the rules of the game are relatively fair and that the losers of today can emerge as the potential winners of tomorrow. Perhaps most of all, there has to be some assurance that there will be a chance to reconsider tomorrow, that the winners of today will be willing to surrender office tomorrow as the tides of public opinion and electoral support may shift.

To look around twenty-five years after the end of the Soviet Union is sobering. The initial flirtations with democracy in the former Soviet republics of Central Asia collapsed into autocratic rule. The Green Revolution in Iran was suppressed, as was the Bahraini uprising. The civil war in Syria, at the time of this writing, rages on. In Egypt mass protests, street violence, ethnic conflict, and political instability continue, with the military now once again in power. Libya remains a cauldron of political unrest with even rudimentary public authority deeply contested.