The Myth of the Illiberal Democratic Constitution

20 Pages Posted: 5 Oct 2021

See all articles by David Landau

David Landau

Florida State University - College of Law

Date Written: October 2021

Abstract

This chapter argues that the category of the illiberal democratic constitution is a very unstable one. It tends to collapse, in different ways, into two other categories: the liberal democratic constitution and the authoritarian constitution. In theory, an illiberal democratic constitution would be based on popular will and would thus hold free and fair elections, but without including the separation of powers and rights to check majority will. But in practice, the design of illiberal constitutions draws heavily on liberal democratic constitutionalism, containing rights, courts, and other counter-majoritarian institutions. No distinctive illiberal constitutional design has emerged, and illiberal, anti-democratic impacts are instead achieved by subverting or abusing liberal democratic designs. In another sense, the illiberal democratic constitution tends to collapse into authoritarianism. This is because liberalism and democracy have a strong tendency to erode together – attacks on liberal concepts like rights and courts also usually tilt the electoral playing field heavily in favor of incumbents, making elections increasingly problematic tests of popular will. Crediting the claims of would-be autocrats that they are actually (illiberal) democrats thus buys into a dangerous myth. It grants a specious imprimatur of majoritarian democracy, while allowing them to reject “western” liberal baggage that is in fact crucial for protecting democratic constitutionalism.

Keywords: illiberalism, democracy, constitutionalism, abusive constitutionalism

Suggested Citation

Landau, David, The Myth of the Illiberal Democratic Constitution (October 2021). Available at SSRN: https://ssrn.com/abstract=3936215 or http://dx.doi.org/10.2139/ssrn.3936215

David Landau (Contact Author)

Florida State University - College of Law ( email )

425 W. Jefferson Street
Tallahassee, FL 32306
United States

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