Maya Gazit is a doctoral student in law at the University of Ottawa, working in comparative constitutional law, constitutional theory, and democracy. Her research examines abusive constitutionalism – the strategic manipulation of constitutional mechanisms to consolidate power and undermine democracy– and explores whether courts can play a meaningful role in responding to such practices.
Maya completed an LL.M. in Legal Theory at the University of Toronto, where her research focused on one specific manifestation of abusive constitutionalism: abusive constitutional replacement. Her doctoral research expands this inquiry, examining the phenomenon from a broader comparative and theoretical perspective. Maya also holds an LL.B. and an M.A. in Public Policy from Reichman University in Israel.
Before beginning her academic career in Canada, Maya practiced law in Israel and served as a senior law clerk at the Supreme Court of Israel. During her clerkship, she worked on constitutional and administrative cases amid intense institutional strain following the 2023 judicial reform. This experience shaped her scholarly interest in the conditions that sustain constitutional democracy, with particular attention to the role of courts in periods of democratic stress.
Abusive Constitutionalism and Judicial Review
My research examines abusive constitutionalism as an emerging and increasingly urgent phenomenon in comparative constitutional law. In an era of rising populism and democratic decline, manipulation of constitutional forms has become a pervasive threat to democratic governance. Landau has identified the phenomenon as “the use of the mechanism of constitutional change – constitutional amendment and constitutional replacement – to undermine democracy”.
In Israel, for instance, repeated temporary amendments to the constitution, since 2009, allowed governments to adopt biennial budgets rather than annual ones, weakening parliamentary oversight of government spending. Such examples demonstrate how constitutional tools can be exploited to consolidate authority; often by weakening the very constitutional safeguards designed to limit such executive overreach. I propose to take abusive constitutionalism a step further and examine its relevance to other form of constitutional practices. My research project examines abusive constitutionalism as a category in its own right, asking the following research questions: How should abusive constitutionalism be defined, particularly in contrast to other established doctrines in the field of constitutional law (such as the Basic Structure doctrine)? What theoretical foundations can justify imposing limits on constitutionally abusive practices? When such abusive practices occur – what remedies are available to courts, if any?
To address these questions, I will characterize and analyze three principal forms of abusive constitutionalism:
- abuse by constitutional amendment, where amendment authority is exploited to achieve narrow, short-term political advantages;
- abuse by constitutional replacement, where an entire constitution is manipulatively replaced to accommodate the ruling regime; and
- abuse through the invocation of constitutionally-granted powers, where existing constitutional powers are strategically deployed to entrench authority. In Canada, for example, this last form may include potential abuse of the notwithstanding clause, unilateral provincial initiatives to amend the federal constitution (such as Quebec’s Bill 96), and the federal government’s use of section 44 authority to unilaterally amend the federal constitution.
By clarifying the concept of constitutional abuse, distinguishing it from adjacent doctrines, and identifying judicial responses across different systems, this project aims to enrich comparative constitutional theory and strengthen the conceptual tools available to confront democratic erosion.
