In recent years, nations around the world have faced a veritable crisis of ineffective government. Basic governmental functions – preventing private violence, resolving disputes through lawful means, providing an infrastructure to enable people to meet their most elementary needs for shelter, nutrition, transportation, communication, education – go unmet. In some countries, these basic functions are met but longer-term governance issues languish, and government is perceived to be unresponsive in ways that some believe contribute to political backlashes, including those against minority groups. These failures in governance are also perceived to have contributed to a global upsurge in authoritarianism and a concomitant decline in democracy.1

Moreover, the basic freedoms protected in many democratic constitutions – freedom from state-sanctioned torture and from punishment or coercion without fair process; freedom of expression, of religion, of movement; freedom from invidious discrimination; enjoyment of property without arbitrary government interference; free exercise of the suffrage – cannot exist, in an organized society, without government effective enough to control itself and its agents and otherwise to secure the protection of those rights.

Nearly a million people dead and counting. More than 77 million infected, a little less than one-fifth of the total infections worldwide.1 The United States has had more deaths than any other country, and its COVID-19 death rate of 276 per 100,000 people is the highest among the world’s wealthiest nations.2 Blacks, Hispanics, and Native Americans are hospitalized and die at significantly higher rates than whites.3 Some bright lights exist too, one being the speedy development of vaccines and their deployment in 2021 – although there, too, both the national government and the states have sometimes stumbled.4 Another is legislative enactment of major fiscal measures which sustained individuals and businesses in the face of economy calamity.5 Still, by many public health measures, the United States’ response to the COVID-19 pandemic has been a governmental failure.

The constitutional entrenchment of economic and social rights often requires courts to intervene directly in the administration of government. Such rights – to access goods, services, and programs such as social security, education, and health care – are now present in more than two-thirds of the world’s constitutions.1 Newer constitutional amendments extend such rights to housing, land, water, and a clean environment, implicating a wide array of government actions or omissions. Moreover, despite the conventional wisdom that such rights should not be enforced by courts, and should be entrenched at most as directive principles or other statements of aspiration, the duties for government that such rights create are increasingly justiciable.2 For better or worse, courts have become central in enforcing both negative and positive duties, in complaints arising from such matters as medical treatment denials, evictions, education outcomes, pollution levels, or food distribution schemes.

What is the most fundamental challenge facing democracies today? One major concern is democratic backsliding, regression, or the rise of “illiberal democracies.” Another concern, closely related, is the rise of “populism,” at least in certain forms, such as those that are fundamentally anti-pluralist and view the “people” as a “moral, homogenous entity whose will cannot err,”1 or, in less virulent form, those that express impatience with institutional structures and norms – such as judicial review, independent institutions, or separation of powers – that stand in the way of direct, unmediated expression of the “popular will.” Good reasons exist for these concerns across many democracies today. But, in my view, the deepest and perhaps most enduring challenge to democratic governments across the West that has emerged in recent years is what I call “political fragmentation.”2 Put briefly, political fragmentation is the dispersion of political power into so many different hands and power centers that it becomes extremely difficult to marshal enough political power and authority for governments to function effectively.

Notwithstanding the efforts that have been made to pluralize the concept, constitutionalism continues to be identified closely with, and for many remains synonymous with, classical liberal thought.1 The eighteenth-century notion that constitutionalism is mainly about restraining the Leviathan refuses to die. The continuing strength of the association between constitutionalism and this particular strain of liberalism does not preclude movement to a post-liberal (or post-neoliberal) understanding of constitutionalism. It does suggest, however, that post-liberal constitutionalism is more likely to stick if it assumes at least some of the trappings of old-school liberal constitutionalism. The best way to transform the language of liberal constitutionalism, in other words, is to speak some version of the language of liberal constitutionalism. This is why the idea of a “right to effective government” (hereinafter, REG) suggests itself as an ideal vehicle for this kind of evolutionary development: it appropriates elements of liberal constitutionalism and puts a decidedly post-liberal twist on them. The result looks reassuringly familiar yet is fundamentally different – a wolf in sheep’s clothing.

In recent years, nations around the world have fallen prey to what might be described as a crisis of ineffective government. Basic governmental functions and services, such as ensuring education, health care, and a strong economy, are deeply compromised. Not only does ineffective governance undermine the general welfare, it can also pave the way for authoritarian regimes to take hold in erstwhile democracies. In their bid for power, autocratic leaders have often capitalized on citizens’ disenchantment with governance failures. In response to the rise of authoritarianism in democratic nations, considerable scholarly attention has been paid to the relationship between constitutionalist structures and democratic sustainability.