Failure of constitutional regimes

It is sometimes still argued, against written constitutions, that they are neither a necessary nor a sufficient constitution for a flourishing democratic state. This argument points to the many cases where seemingly well-intentioned democratic written constitutions have failed, being unable to contain or withstand the forces of oligarchy, reaction or authoritarian populism.

The most notorious example of such a failed constitution is the German Constitution of 1919, which ultimately could not save the Weimar Republic from Hitler and Nazi tyranny. Moreover, inter-war Germany was not an isolated example of constitutional failure. Many of the European constitutions of that era suffered a similar fate. The Polish Constitution of 1921 – a parliamentary constitution modelled on that of the French Third Republic – failed to provide a stable foundation for democracy and was replaced in 1935 by an authoritarian constitution concentrating power in the hands of the President. Romania's Constitution of 1923, a liberal-democratic constitution on Belgian lines, suffered a similar fate. After a relatively good beginning, it was unilaterally abrogated by a palace coup in 1938 and replaced with a reactionary authoritarian constitution.

The record of written constitutions in the developing world after decolonization was also patchy. Carefully drafted and decently democratic Westminster Model constitutions in Burma, Ghana, the Gambia, Kenya, Malawi, Nigeria, Sierra Leone, and many other developing nations were either undermined by authoritarian amendments that gutted them of their checks and balances (as in Kenya during the period from 1963 to 1967) or swept aside in military coups (as in Burma in 1962 and Nigeria in 1966). As Yash-Pal Ghai, put it: