The New Fourth Branch
Institutions for Protecting Constitutional Democracy

Analyses why constitution-designers have come to establish institutions protecting constitutional democracy in modern constitutions.

Mark Tushnet (Author)

9781009048491, Cambridge University Press

Paperback / softback, published 2 September 2021

220 pages
22.8 x 15.4 x 1.1 cm, 0.3 kg

'In this already indispensable work on the theory and practice of designing innovative government structures to protect constitutional democracy, Tushnet brilliantly and carefully appraises existing 'fourth branch' institutions. A scholarly provocation favoring decentralized structures and remedies with more face-to-face interactions, the book demands reading by all serious scholars of constitutional government.' Vicki C. Jackson, Laurence H. Tribe Professor of Constitutional Law, Harvard Law School

Twenty-first-century constitutions now typically include a new 'fourth branch' of government, a group of institutions charged with protecting constitutional democracy, including electoral management bodies, anticorruption agencies, and ombuds offices. This book offers the first general theory of the fourth branch; in a world where governance is exercised through political parties, we cannot be confident that the traditional three branches are enough to preserve constitutional democracy. The fourth branch institutions can, by concentrating within themselves distinctive forms of expertise, deploy that expertise more effectively than the traditional branches are capable of doing. However, several case studies of anticorruption efforts, electoral management bodies, and audit bureaus show that the fourth branch institutions do not always succeed in protecting constitutional democracy, and indeed sometimes undermine it. The book concludes with some cautionary notes about placing too much hope in these – or, indeed, in any – institutions as the guarantors of constitutional democracy.

1. Introduction
2. Why a fourth branch – the structural logic
3. Why a fourth branch – the functional logic
4. Design issues in general
5. Design principles in practice – a survey
6. Anticorruption investigations – case studies from Brazil and South Africa
7. Electoral commissions – case studies from India, the United States, and South Korea
8. Audit agencies
9. Conclusion.

Subject Areas: Constitutional & administrative law [LND], Political science & theory [JPA], Social & political philosophy [HPS]