Authoritarian Constitutionalism in Liberal Democracies

Posted: 27 Sep 2018

Date Written: August 18, 2018

Abstract

This chapter treats the form of authoritarian constitutionalism prevalent in Europe and the Western Hemisphere as an ideology, in the weak sense, an amalgam of tropes and rhetorics that allude to or evoke in an incoherent way two authoritarian traditions: a reactionary Catholic one and a fascist one. The ideology is one of the factors guiding legal interventions in liberal democratic constitutional orders that are also internally incoherent. Incoherence, along with the existence of conservative and progressive factions within the liberal democratic camp, creates multiple occasions for a hermeneutic of suspicion with respect to contemporary constitutional argument. In this situation, decision among legal alternatives requires a politics. As an example, even “court packing,” which is usually treated as a priori authoritarian, may in some circumstances be legally and politically justified in a liberal democratic framework. This approach contrasts with one that treats authoritarianism either as a coherent ideology or as signifying merely violation of liberal democratic norms.

Keywords: authoritarianism, constitutionalism, hermeneutic of suspicion, ideology, fascism, court packing

Suggested Citation

Kennedy, Duncan, Authoritarian Constitutionalism in Liberal Democracies (August 18, 2018). Available at SSRN: https://ssrn.com/abstract=3233071

Duncan Kennedy (Contact Author)

Harvard Law School ( email )

1575 Massachusetts
L333
Cambridge, MA 02138
United States
617-495-4619 (Phone)

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