From Guardians to Stabilizers
- Martyna Wiśniewska
- 2 hours ago
- 19 min read
Premature Constitutional Closure: When Legal Certainty Becomes a Democratic Risk
The last century saw the global rise of independent constitutional courts, now present in over 80 countries. Paradoxically, this very institution has served a counterintuitive role in democratic backsliding: stabilizing, rather than constraining, executive power grabs.
The core question is simple: why do constitutional courts often make democratic erosion easier by legally validating contested reforms? This article argues that courts can function as commitment devices for illiberal incumbents. By upholding or procedurally validating controversial constitutional changes, courts reduce political uncertainty, facilitate elite coordination, and weaken domestic and international resistance. From this perspective, judicial review does not merely fail to stop backsliding, but it can actively transform de facto power into de jure stability. This dynamic can be characterised as the Premature Constitutional Closure (PCC): a mode of constitutional adjudication in which early and low-conflict judicial validation converts contested executive projects into settled constitutional commitments.
Analytically, this article combines comparative constitutional law with game-theoretical insights on commitment, signaling, and uncertainty reduction. Empirically, it draws on comparative cases including Russia and Colombia as a contrasting example where judicial intervention manipulated uncertainty.
Constitutional Review and the Democratic Promise
Historically, the aim of constitutional law was the establishment and regulation of central governmental institutions. This focus, however, began to shift in the second half of the twentieth century. The transformation was particularly pronounced in the aftermath of World War II, when new constitutional frameworks emerged in Western Europe, most notably in Germany and Italy, emphasizing constitutional review and fundamental rights. It was further reinforced during what Samuel Huntington famously termed the “third wave of democratization,” spanning roughly from the 1970s to the early 2000s, during which authoritarian regimes transitioned to democracy across Southern Europe (including Portugal, Spain, and Greece), Latin America, and later Central and Eastern Europe following the collapse of communism. These developments contributed to a reconceptualization of constitutional law, expanding its role beyond institutional design toward the protection of rights and the limitation of political power. Nowadays, constitutional law focuses heavily on fundamental rights, the balance of power, the rule of law, judicial independence, and the role of courts in holding the government accountable. This has been an accelerating process, as third generation rights have been given more traction. Moreover, the establishment of constitutional courts has traditionally been justified by three core arguments regarding what legislative review is meant to ensure.
First, legal certainty, whereas a decentralized system will result with various decisions regarding constitutionality of law, a centralized one bypasses potential disagreements that may arise among courts and therefore status may be settled quicker. Secondly, the level of expertise required for interpretation of the constitution is a difficult task, hence construction of a dedicated assembly for that task seems unquestionable. Finally, democracy, the argument being that democracy is linked to the existence of a procedure that gives all the citizens the right to vote, which we now delegate to the parliamentary assembly. Therefore to ensure democratic principles we need to ensure that constitutional review is carried out by judges that represent democratic principles, and who are selected through democratic procedures.
As we see, constitutional courts in their current state not only consolidate the democratic rights and freedoms, but also serve as enforcers of democracy as a whole. The observance of a counterintuitive role of constitutional courts in democratic backsliding is thus cause for worry. Constitutional courts may become instruments of democratic erosion when they legitimize executive power grabs under the guise of constitutional legality.
It is important to underline that democracy is not exhausted by majority rule. Constitutionalism exists precisely to limit political power in order to preserve democracy itself. When constitutional courts cease to act as counter-majoritarian institutions and instead provide constitutional legitimacy to authoritarian practices, democratic decay no longer occurs outside the law, but through it.
In this sense, constitutional courts occupy a paradoxical position within democratic systems. While they are designed to constrain political power and safeguard constitutional democracy, their capture or instrumentalization may transform them into facilitators of democratic erosion. This phenomenon demonstrates that the crisis of democracy today does not primarily manifest itself through open violations of the constitutional order, but rather through its formal preservation combined with substantive hollowing-out.
Courts as Commitment Devices: A Framework of Uncertainty Reduction
Technically, the relationship between the executive and constitutional courts can often be understood as a form of strategic accommodation resembling an alliance. Upon assuming office, political incumbents and constitutional judges enter an implicit understanding that preserves the court’s constitutional authority while respecting the executive’s institutional autonomy. In the event of a constitutional crisis, both actors tend to act in ways that prevent the blurring of institutional boundaries and protect the existing structure of executive power.
Constitutional review of the courts may therefore be seen through the lens of signaling, rather than merely providing judgements. Constitutional courts may influence uncertainty through manipulating the duration between the dispute and judgement. César Rodríguez-Garavito, prominent Colombian scholar and lawyer, argues that evaluating the effectiveness of judicial protection requires more than asking whether a court order was formally executed (Rodríguez-Garavito, C. 2011). Instead, real impact should be measured through a broader framework that includes both direct and indirect effects of judicial decisions. Following this substantive approach the recognition of different signals sent by constitutional courts can be made. Courts that provide pre-emptive judgement, like Russian Konstitutsionnyy Sud Rossiyskoy Federatsii, validated the constitutional amendments in 2020 before they were taken into the voting procedure by citizens, which may be understood as use of Premature Constitutional Closure. On the other hand, the Corte Constitucional de Colombia has throughout the years built a process of fragmented review, in which iterative judgments, delayed finality, and sustained monitoring have raised a level of uncertainty surrounding the future of the state. It is even more evident that the length before delivering the final judgements is in itself a judgement, not just a procedural practice, when we take into account how in both examples the decision of the constitutional courts did not declare the actions as unconstitutional. They agreed with the executive, at the same time providing the audience with additional signals.
This argument is further reinforced by quantitative research on the institutional conditions undertaken by Tom Ginsburg and Nuno Garoupa regarding which constitutional courts generate or suppress legal uncertainty. A comparative empirical study covering more than twenty Kelsenian constitutional courts (specialized constitutional court) codes two key variables:
instability in the political composition of constitutional courts, measured through reported conflicts over appointments or changes in appointment mechanisms
the incidence of institutional conflict between constitutional courts and supreme courts, as reported in legal journals and media sources.
Using correlation analysis and regression models with controls for rule of law, GDP per capita, and population, the study identifies a positive and statistically significant relationship between court instability and inter-court conflict. Specifically, instability in the court majority increases the predicted probability of conflict by approximately 57% in the full sample and by over 40%when France, an institutional outlier due to its pre-2009 abstract review system, is excluded (Ginsburg, T., Garoupa, N. 2011). While the small sample size limits causal inference, the findings nevertheless isolate judicial stability as a key explanatory variable shaping the level of constitutional contestation within a legal system. This evidence suggests that stable constitutional courts are structurally positioned to reduce uncertainty through early and authoritative constitutional validation, thereby facilitating the consolidation of executive power, whereas courts that operate under conditions of instability or deliberately sustain procedural openness are more likely to generate conflict and delay constitutional closure. The quantitative association between stability and conflict hence complements the observed divergence in democratic trajectories, indicating that constitutional courts influence democratic outcomes indirectly by modulating the degree of legal certainty surrounding contested exercises of political authority.
These quantitative findings are directly relevant to understanding constitutional courts as commitment devices. In institutional terms, a commitment device requires credibility, temporal durability, and reduced risk of reversal. The empirical association between stable court composition and low levels of inter-court conflict identifies precisely these conditions. Where constitutional courts exhibit stable political majorities, their decisions are less likely to be challenged, reopened, or undermined by other judicial actors, thereby increasing the perceived finality of constitutional validation. From the perspective of political incumbents, such stability allows constitutional review to serve as a mechanism for locking in contested policy choices and power arrangements over time. The probit results, indicating a substantial increase in conflict probability under conditions of judicial instability, suggest the inverse; where courts are unstable, constitutional endorsement cannot function as a credible commitment, as legal outcomes remain vulnerable to contestation and reinterpretation. Read in conjunction with the Russia and Colombia comparison, the quantitative evidence thus clarifies the mechanism through which constitutional courts operate as commitment devices: not through the substantive content of their rulings, but through their capacity to provide durable, low-conflict constitutional closure that transforms de facto political dominance into settled constitutional authority. Within this game-theoretical framework, PCC operates as a commitment mechanism. By closing constitutional contestation early, courts reduce uncertainty, enhance the credibility of executive commitments, and facilitate elite coordination. In this sense, PCC is not a failure of judicial independence but a function of judicial effectiveness under conditions of political dominance.
Certainty Before Contestation: Premature Constitutional Closure in Russia
The 2020 amendments to the Russian Constitution represent a turning point not so much in constitutional design as in constitutional practice. Formally, the reform was presented as a comprehensive modernization of the 1993 Constitution, intended to reflect social values, strengthen state sovereignty, and clarify institutional competences. In reality, the amendments consolidated trends that had already been visible in Russian constitutional law for years and legalized practices that were, in part, already functioning before the amendments officially entered into force.
From a strictly legal perspective, President Vladimir Putin did not require a referendum to enact most of the constitutional changes. The amendments concerned Chapters III–VIII of the Constitution, which may be altered through parliamentary procedures and regional approval, without a popular vote. These chapters define the core structural and operational framework of the Russian state, covering the federal structure, the Presidency, the legislature, the Government, the judiciary, and local governments. According to Chapter IX of the 1993 constitution, only changes to Chapters I, II, and IX require ratification through a popular vote. Nevertheless, a nationwide vote was held in July 2020, resulting in an official approval rate of 78%. The vote was not regulated as a constitutional referendum and did not follow the standard procedural safeguards associated with one. The decision was made to use obshcherossiiskoe golosovanie (an “all-Russian” vote), that was not at the time defined by Russian law and, therefore, not bound by existing legal requirements for other forms of popular vote. Its function was therefore primarily political rather than legal, serving to provide an additional layer of popular legitimacy to changes that had already been adopted by state institutions.
Notably, even before the amendments formally entered into force, several legal acts and administrative practices had already begun to reflect the new constitutional logic. This temporal overlap blurred the line between constitutional reform and ordinary lawmaking, reinforcing the perception that the “new” constitution merely codified an existing balance of power. The Constitutional Court played a crucial role in this process, as it was empowered to review and approve the amendments as a single constitutional package once signed by the president, rather than engaging in a detailed substantive review of individual changes.
One of the most symbolically significant aspects of the reform was the expansion of constitutional language related to identity, history, and state continuity. The Constitution now explicitly recognizes Russia as the legal successor of the USSR and emphasizes respect for ancestors who defended the Fatherland (Art. 67.). Russian is defined as the language of the “nation-forming people,” a formulation that carries strong political symbolism while remaining legally vague. These provisions resemble a constitutional preamble in substance: they articulate values and narratives rather than enforceable legal norms, yet they frame constitutional interpretation in a more ideologically charged manner.
At the same time, the amendments strengthened the principle of constitutional sovereignty. Article 79 was revised to assert the supremacy of the Russian Constitution over international law and international court decisions, a position that the Constitutional Court had already adopted in practice prior to 2020. An additional provision declares Russia’s commitment to peace and security at the international level, reinforcing the declaratory and symbolic nature of this section.
The most consequential changes, however, concern the structure of executive power. Through Article 92, President Vladimir Putin was granted the right to reset his previous presidential terms and to run for two additional terms, potentially remaining in office until 2036. While the president had already dominated the process of government formation, the amendments further weakened the role of the State Duma. If the Duma rejects the president’s nominee for prime minister three times, it may now be dissolved, and the government can be appointed regardless of parliamentary approval (Art. 112). Similarly, the president’s legislative veto powers were expanded: instead of being obliged to sign a bill passed by a two-thirds majority, the president may now send it to the Constitutional Court, effectively creating an unlimited veto mechanism mediated through constitutional review (Art. 107).
Judicial and prosecutorial appointments were also brought more firmly under presidential control. Whereas previously the Federation Council formally appointed judges of the Supreme Court and Constitutional Court upon presidential nomination, the president now plays a decisive role in initiating dismissals as well. The Prosecutor General and senior prosecutors are likewise appointed by the president, further reinforcing the vertical of power. Changes to the Constitutional Court itself, including a reduction in the number of judges and an expanded role in reviewing the constitutionality of legislation before it enters into force, have strengthened its function as an instrument of preventive constitutional control aligned with executive authority (Art. 83).
Eligibility requirements for presidential candidates were tightened in ways that appear formally neutral but are politically selective. Candidates must not have held foreign citizenship or residence permits and must have resided permanently in Russia, with specific exceptions introduced for territories such as Crimea (Art. 81). These rules exclude individuals with significant foreign education or long-term residence abroad, despite the fact that Putin himself previously lived and worked in Germany.
Taken together, the 2020 constitutional amendments do not amount to a constitutional rupture. Rather, they institutionalize an already existing model of governance characterized by a dominant presidency, a weakened parliament, and a constitutional court that plays a legitimizing rather than adversarial role. In this moment of the analysis, it is important to ask a question that should have arisen at the very beginning: why did Vladimir Putin need a referendum, which was legally unimportant and reportedly cost approximately 16 billion rubles in campaign? The Moscow mayor’s office even launched the “Million Prizes” program, giving away 2 million vouchers to voters that could be exchanged for goods or services. The answer is that the referendum was not designed to authorize the amendments, but it was designed to follow the Court’s validation and convert judicial certainty into popular inevitability.
Crucially, on 16 March 2020, the Constitutional Court issued a ruling, requested by the president, affirming the constitutional validity of the proposed amendments before they were submitted for referendum. By endorsing the changes at this stage, the Court provided legal certainty and legitimacy to deeply politically charged reforms that fundamentally altered the balance of power in the Russian state. This formal judicial validation reduced political uncertainty surrounding the amendments and signaled to elites, bureaucratic actors, and external observers that the reforms were legally anchored in the constitutional order, even where broader democratic contestation was absent or constrained.
In other words, rather than acting as a check on executive overreach, the Constitutional Court has functioned as a commitment device for the Russian leadership. Its pre-emptive endorsement of major constitutional reforms provides legal certainty for illiberal projects, facilitates elite and bureaucratic coordination behind the executive agenda, and weakens potential domestic and international opposition to constitutional changes. This mechanism helps explain why Russia’s democratic erosion has not been checked by judicial review but, in significant moments, has been reinforced through institutionalized constitutional validation. The Court’s pre-emptive endorsement exemplifies Premature Constitutional Closure. By validating the amendments before popular contestation could unfold, the Court transformed a politically contingent reform into a legally irreversible constitutional settlement.
Keeping the Constitution Open: Judicial Uncertainty as a Democratic Safeguard
Beginning in 2004, the Colombian Constitutional Court adopted a mode of intervention that deliberately privileged process over closure, thereby opening and sustaining constitutional conflict rather than resolving it. This judicial style first became visible in Judgment T-025 of 2004, in which the Court declared an “unconstitutional state of affairs” concerning the situation of internally displaced persons. Rather than prescribing specific policy outcomes, the Court articulated broad goals, imposed reporting obligations and deadlines, and retained jurisdiction over the case. By initiating long-term monitoring, the Court explicitly postponed legal finality. Executive authority was rendered conditional and revisable, and the legality of state action was framed as provisional rather than settled.
Between 2004 and 2008, the Court reinforced this approach through a series of follow-up decisions. These rulings refined compliance indicators, demanded updated reports from state agencies, and repeatedly reopened questions about whether constitutional obligations had been met. At the same time, the Court invited civil society organizations and oversight institutions into the monitoring process. The cumulative effect was the absence of a single “constitutional moment” capable of definitively resolving the issue. Executive action remained only provisionally valid, while bureaucratic actors learned that legality was iterative and contingent, not final. Legal validation was thus fragmented across time, preventing any clear consolidation of authority.
A similar pattern emerged in Judgment T-760 of 2008, which addressed systemic failures in Colombia’s healthcare system. The Court recognized the right to health as a fundamental constitutional right and ordered structural reforms, but it again avoided issuing a comprehensive endorsement of any specific policy design. Although the Court announced a monitoring framework, it left implementation pathways open and indeterminate. As a result, the executive could not credibly claim full constitutional backing for healthcare reform. The policy process remained legally contestable, and the Court maintained an active presence without delivering decisive closure. Another major policy domain was thus left constitutionally “open.”
In 2009, the executive attempted to escape this condition of uncertainty by declaring a state of emergency in order to reform the health-care system, thereby seeking to bypass ongoing judicial supervision. In response, the Constitutional Court, in Judgment C-252 of 2010, struck down the emergency decrees. The Court explicitly rejected the executive’s attempt to impose legal closure through exceptional powers and reaffirmed that such shortcuts would not be constitutionally validated. Once again, executive authority was rendered conditional, and the transformation of provisional power into settled authority was blocked.
The same dynamic was made most clear during the 2010 attempt to authorize a third presidential term for Álvaro Uribe.
The executive promoted a referendum allowing re-election and framed the initiative as procedurally democratic. In Judgment C-141 of 2010, the Court invalidated the referendum on procedural grounds, citing irregularities in campaign financing, legislative procedure, and constitutional amendment limits. Notably, the Court avoided both substantive endorsement and a categorical rejection of presidential continuity as such. The result was neither a constitutional green light nor a definitive substantive ban. The political project collapsed, without being constitutionally normalized in either direction. This episode represents the point of maximum fragmentation: decisive blockage without substantive closure.
Between 2010 and 2012, the Court continued its monitoring activities in both displacement and healthcare cases, maintaining a consistent logic of conditional legality, revisability, and participatory oversight. No executive initiative achieved de jure finality during this period. Legal uncertainty persisted long enough to disrupt elite coordination, facilitate electoral alternation as Uribe left office, and preserve institutional continuity. Rather than stabilizing executive power, the Court’s fragmented legal validation sustained constitutional contestation and prevented the consolidation of de facto authority into settled constitutional order. Unlike the Russian case, the Colombian Constitutional Court consistently avoided Premature Constitutional Closure. Through iterative judgments, delayed finality, and sustained monitoring, the Court preserved constitutional uncertainty and prevented executive projects from acquiring settled legal status.
Democracy in Light of Uncertainty
As we see from comparative analysis of judicial interventions from Russia and Colombia, Constitutional Courts serve as operators of uncertainty. They may reduce or enhance it through premature constitutional validation or use of procedural delay and fragmented review. Thus, as we analyse changes in the Liberal Democracy Index in both countries following constitutional amendments, we can see that following Russia’s post-2020 amendments the graph gets steeper, further accelerating the decline, whereas the opposite can be said about Colombia during critical decisions taken in 2010.
More precisely the index for Russia declined by 40% between 2020 and 2024, while in Colombia during the period from 2009 to2011 an increase of 15% was seen, this rate nowhere to be seen elsewhere. This correlation is not necessarily explained solely by these phenomena, however, and further analysis of other potential sources triggering the level of democracy is indeed necessary. The causes for these changes may vary. They may include party clashes, external crises, protests or independence of the media. However, given the narrow time frame, especially in the Colombian case, potentially the usage of PCC’s in regards to important constitutional matters could be the trigger. Furthermore, specific characteristics of Russia and Colombia may implicitly be a catalyst. The Russian Constitutional Court has a strong, centralized Kelsenian court that conducts abstract, ex-ante review. It is defined by low jurisdictional pluralism, that accompanied by the supremacy of the constitution over international law may be a quite specific framework, under which PCC’s are possible to weaponize. The Colombian Constitutional Court, on the other side of the spectrum, has a more diversified toolbox. For example, the existence of such a mechanism as estado de cosas inconstitucional (ECI), enabling the monitoring of courts’ actions, periodic reports or public hearings, creates an environment that favors the option of fragmented review. All of these conditions should be taken into account while evaluating the scope of conditions that enable the courts to weaponize the PCC, even in cases where this takes place unintentionally in an effort to deliver an early judgement.
Regulating Constitutional Closure: Policy Responses to Judicial Lock-In
If constitutional courts may function as commitment devices for illiberal incumbents, the policy challenge is not to curtail judicial power, but to regulate the conditions under which constitutional validation becomes final. Comparative evidence suggests that democratic erosion is facilitated where courts deliver early, stable, and low-conflict constitutional endorsement of executive projects. Accordingly, institutional design should focus on preserving a degree of constitutional uncertainty in high-stakes cases.
First, constitutional systems should restrict pre-emptive abstract review of constitutional amendments and core institutional reforms. Ex ante validation transforms contested political projects into settled constitutional commitments before democratic contestation can unfold. Secondly, courts should be required to adopt phased or delayed review mechanisms in cases affecting electoral rules, executive tenure, or emergency powers. Such procedures preserve legal openness while allowing courts to reassess the material effects of reforms over time. Thirdly, compliance monitoring and follow-up hearings should be institutionalized rather than treated as exceptional judicial activism. Finally, amendment review should be disaggregated and subject to heightened reasoning requirements to prevent the consolidation of executive power through package validation.
Taken together, these policy measures do not weaken constitutional courts. Instead, they recalibrate their signaling function by preventing premature constitutional closure and reducing the risk that judicial review will stabilize illiberal governance under the guise of legality.
In high-stakes constitutional reforms, international courts (e.g., ECHR, CJEU, Inter-American Court) can deliberately preserve legal openness rather than close debate. They do so by issuing interim measures, advisory or interpretive guidance, and by structuring iterative compliance (monitoring, follow-up, and proportionality re-balancing as facts evolve). Crucially, preliminary-reference and dialogue mechanisms prevent domestic PCC from becoming final by holding national authorities to a revisable standard one that can be recalibrated as evidence, social facts, or political conditions change. In this way, international adjudication does not replace domestic constitutionalism, but it keeps it open long enough for democratic contestation to occur. When domestic review risks premature closure, supranational courts may sustain productive uncertainty.
Such policy measures are particularly relevant within the European Union, where constitutional courts constitute a dominant institutional model rather than an exception since 18 out of 27 Member States have established separate constitutional courts, creating a shared procedural architecture with significant systemic implications. Democracy indices reveal growing divergence within the European Union. In Member States, significant declines in liberal democracy have occurred despite the continued formal operation of constitutional review and relatively high levels of executive respect for constitutional norms. In Poland, the Liberal Democracy Index declined from 0.82 to 0.62 over the past decade, while judicial constraints on the executive remained comparatively stable at around 0.9. During the same period, executive respect for the constitution decreased only marginally, from 1.8 to 1.66.
A similar pattern can be observed in Hungary, where the Liberal Democracy Index dropped from 0.52 to 0.32, while judicial constraints on the executive declined more moderately, from 0.64 to 0.48, and executive respect for the constitution remained largely stable at approximately 0.76.
These patterns suggest that democratic erosion within the EU may proceed despite the formal presence of constitutional constraints and apparent constitutional compliance. Rather than being driven solely by the suppression or dismantling of judicial institutions, democratic decline appears compatible with legal and institutional continuity. This divergence points to a limitation of existing indicators: they capture the existence of constitutional review and formal constraints, but remain largely insensitive to the timing, scope, and closure effects of constitutional adjudication. As a result, the legitimizing function of constitutional courts through which contested exercises of executive power are transformed into legally settled authority may escape conventional measurements of judicial constraint while nonetheless exerting profound effects on democratic outcomes. Although Poland and Hungary are two distinctive examples, where democratic backsliding was not a result of weaponizing PCCs, they serve as examples in which judiciary reforms went under the radar of these indexes. Most notably, Poland’s Constitutional Tribunal has faced serious allegations of political dependence following judicial reforms introduced by the former ruling party. These reforms led top European courts to conclude that the Tribunal is not a “legally established tribunal,” due to unlawful judicial appointments and irregular composition, and that its subsequent rulings challenge the supremacy of EU law and undermine the rule of law in Poland.
Conventional indicators of judicial constraint and constitutional compliance are largely insensitive to Premature Constitutional Closure, as they measure the existence of review rather than the timing and finality of judicial validation. Poland and Hungary serve as examples of erosion of democracy within the EU and that given this dynamic and subtle mechanism of PCC it's important to protect the EU's judiciary from weaponizing such tools.
If democratic erosion is facilitated by Premature Constitutional Closure, the policy challenge is not to weaken constitutional courts but to regulate the procedural conditions under which constitutional closure occurs. Existing EU monitoring instruments, including the Justice Scoreboard and Rule of Law Reports, focus on efficiency, independence, and perception, but remain largely insensitive to the timing, scope, and closure effects of constitutional adjudication. In this context, EU-level soft-law instruments, such as Commission guidelines or recommendations on constitutional review in high-stakes institutional reforms, could serve as an initial step toward addressing Premature Constitutional Closure without encroaching upon national constitutional identity. By foregrounding procedural standards rather than substantive outcomes, such measures would elevate an emerging systemic risk to the level of coordinated constitutional discourse within the Union.
By identifying Premature Constitutional Closure as a distinct judicial pathology, this article shows how constitutional courts can stabilize illiberal governance not by abandoning constitutionalism, but by performing it too efficiently too soon. Looking forward, the comparative cases examined in this article suggest that the democratic consequences of constitutional adjudication unfold not only at the moment of decision, but over time. In Russia, Premature Constitutional Closure has contributed to an establishment of executive dominance that remains resistant to future democratic reopening. By contrast, the Colombian Constitutional Court’s sustained use of fragmented review, delayed finality, and procedural monitoring has preserved constitutional openness, allowing democratic contestation and institutional alternation to occur without constitutional rupture.
These different trajectories highlight that the democratic function of constitutional courts cannot be adequately captured through conventional dichotomies such as activism versus restraint or independence versus capture. Instead, the critical variable lies in the temporal and signaling dimensions of constitutional review: when courts intervene, how decisively they close constitutional questions, and whether their judgments convert political projects into irreversible legal commitments. Premature Constitutional Closure thus reframes constitutional courts not merely as arbiters of legality, but as institutional actors capable of shaping political uncertainty itself.
The broader implication is that constitutionalism may become democratically dangerous not only when it collapses, but when it operates too efficiently under conditions of political dominance. Legal certainty, judicial stability, and authoritative constitutional validation in certain contexts facilitate democratic erosion by foreclosing contestation prematurely. Recognizing Premature Constitutional Closure as a distinct judicial pathology therefore shifts the normative focus from limiting judicial power to regulating the procedural conditions under which constitutional closure occurs. Preserving constitutional openness in reforms emerges not as a weakness of constitutional courts, but as a precondition for democracy’s capacity to correct itself over time.
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