In this chapter, I develop a theory that focuses on the opposition’s strategic choices to fight the erosion of democracy. I define democratic erosion as a type of regime transition that happens over time, giving the opposition ample opportunity to respond, even after a leader willing to circumvent democracy has attained power. The strategies the opposition chooses and the goals it uses them for, I argue, are critical to understanding why some executives with hegemonic aspirations successfully erode democracy and others do not.

The erosion of democracy has become globally pervasive. New and old democracies around the world are now led by executives willing to undermine democratic institutions in order to achieve their policy goals. The booming literature on democratic backsliding has, for the most part, focused on the factors that drive these executives with hegemonic aspirations to power (Handlin 2017b; Norris and Inglehart 2019b) or the resources they have available to successfully undermine democratic institutions (Corrales 2018b; Levitsky and Ziblatt 2018b; Ginsburg and Huq 2019b; Weyland and Madrid 2019b). The underlying assumption of these theories is that popular and economically solvent heads of government in institutionally weak countries are almost always going to erode democracy, while their less popular and economically solvent counterparts in institutionally strong countries are almost always going to fail.

The chapter draws a comparison between the recent doctrine of the Inter-American Court of Human Rights on the duty of progressive realization, nonretrogression and use of the maximum of available resources and that of the United Nations Committee of Economic, Social and Cultural Rights in the cases decided from 2013 through individual communications. The Optional Protocol introduces the standard of reasonableness in the examination of the measures adopted by states to comply with its obligations, but whenever the satisfaction of the right’s minimum core, or the position of vulnerable groups is at stake, the Committee applies a sort of “strict scrutiny.” In these cases, a presumption of invalidity applies, the burden of justification shifts, and the state must demonstrate the unavailability of less restrictive measures. Reasoning about necessity and alternatives is often relevant also for the Inter-American Court, but this court does not adopt a structured proportionality analysis and develops the relevant notions and state obligations along formally different lines. The chapter analyzes commonalities and differences between the two approaches, signaling lines of evolution that emerge when placed in dialogue with one another.

This chapter focuses on the first stage of the erosion of democracy. In it, I assess the factors that increase the likelihood of having an executive with hegemonic aspirations and the extent to which these factors explain whether this head of government successfully erodes democracy or not.

The proportionality exam as developed by the German Constitutional Court expresses the idea that constitutional rights cannot be overruled neither by other constitutional rights nor public interests. Instead, colliding rights and public interests should be satisfied as factually and legally possible. The chapter defends that the integrated proportionality test, which analyzes suitability, necessity and proportionality in its narrow sense, while including a modulation of the intensity of the scrutiny, may become a powerful adjudication device. It allows for a nuanced implementation of the three subprinciples of the proportionality exam, enabling courts to level the ground for disadvantaged groups. To show the usefulness of the modulated exam in dealing with structural inequality in Latin America, two cases involving political rights decided by the Inter-American Court of Human Rights (Castañeda Gutman and Yatama v. Nicaragua) are examined.

Up until the 1990s, Venezuela was one of the longest-running and most stable uninterrupted liberal democracies in Latin America. Today, it is an authoritarian regime. In nineteen years, Hugo Chávez and his successor, Nicolás Maduro, managed to destroy the system of checks and balances, end free and fair elections, and terminate political rights and civil liberties. The government has delayed and canceled elections, circumvented the authority of the elected legislature, imprisoned political opponents without trial, used lethal force against protesters, and banned opposition parties. How is it that Venezuela, historically one of the most robust democracies in the region, turned into the second most authoritarian country in Latin America?

This chapter aims to analyze one aspect of the proportionality test in the case law of the Brazilian Supreme Court: its use as a tool for deciding cases involving socioeconomic rights. If these rights are one of the core elements of a transformative constitution, using the proportionality test to decide these cases raises the question of its transformative potential. We argue that there are several reasons for concluding that proportionality does not play a transformative role in Brazil. Some of these reasons are related to the general debate on the transformative potential of litigation; others are related to how the Brazilian Supreme Court uses the proportionality test, which could be summarized as follows: First, the Court has often used the proportionality test as a rhetorical device only; second, due to peculiarities of the decision-making process of the Court, proportionality has never been employed by the majority of its judges; third, in the realm of socioeconomic rights, the role of proportionality has been frequently undermined by other types of reasoning.

In the previous chapter, I showed how the Venezuelan opposition’s strategic choices helped Hugo Chávez erode democracy. In this chapter, I develop the other part of my argument by highlighting the role of the Colombian opposition in preventing democratic erosion. Between 2002 and 2010, Alvaro Uribe tried to erode democracy in Colombia. Like Hugo Chávez (1999–2013) in Venezuela, he introduced several reforms that sought to reduce the checks on the executive and extend his time in office beyond a second term. He was polarizing, and willing to push as far as he could to increase the powers of the presidency and stay in office beyond a second term. His government harassed opposition members, journalists, and members of the courts and worked in tandem with illegal armed actors to systemically undermine those who criticized the president. Contrary to Chávez, however, Uribe was not able to turn Colombia’s democracy into a competitive authoritarian regime. Despite his attempts to undermine the independence of the courts and the fairness of elections, Colombia’s constitutional order remained fairly strong, and Uribe had to step down after his second term.

The chapter discusses distributional analysis as a method of legal analysis interested in understanding the consequences of rules. While recognizing that this method shares this goal with proportionality analysis, the author intimately discards a reconciliation of both based on their different relationship to a theory of democracy. The author argues that proportionality analysis is wed to a vision of judges as restrained by the commands of legislators (or constitutional lawmakers), while distributional analysis sees judges as political actors entrusted with realizing the goal of redistribution. The case of gender mainstreaming is used to illustrate that arguing in favor of the use of distributional analysis does not mean forcing judges into continually adopting structural injunctions, nor provokes such levels of polarization that the sought-after redistribution is sabotaged by increased levels of countermobilization or backlash.

The Colombian Constitutional Court has decisively undertaken the role of guaranteeing the normative force of economic and social rights. It has devised several tools to that effect, among them a test to evaluate regressive measures. This chapter examines rulings that review statutory norms in the abstract, before arguments that denounce them as illegitimate retrogressions in the enjoyment of social and economic rights. These claims are assessed by applying what we call the “integrated regression test.” The chapter establishes the meaning, structure, operation and efficacy of this test, which uses proportionality analysis as an allocation method. It dissects how it operates to safeguard rights when their minimum core or preexisting associated benefits are withdrawn. The integrated regression test proves to be a strong and complex scrutiny, even if not completely unified in its use, with a wide range of singularities and a tendency to be more protective of social rather than economic rights.