The Inherent Authoritarianism in Democratic Regimes

This article argues that authoritarianism is an inherent structural tendency of democratic regimes. The article is written as a chapter for a book, Out of and Into Authoritarian Law, that explores the revival of authoritarianism tendencies in certain new constitutional democracies of Eastern and Central Europe. The article locates one structural tendency toward authoritarianism in the techniques by which those currently holding political power manipulate regulation of democratic structures with the aim and effect of suppressing political competition. This tendency is amply illustrated in the historical experience of mature democracies, such as that of the United States. A central task of constitutionalism ought to be to resist this inevitable pressure toward the shutting down of political competition, which enables political power to be wielded without accountability. But the task of constitutionalism in modern times has been too narrowly defined, in many courts, as the protection of individual rights and equality, at the expense of a focus on protecting the structures of democratic political conflict. The article documents the modes of analyses that have stood in the way of courts adequately recognizing the authoritarian tendencies of democratic regimes; these modes include "the allure of romantic individualism" through which courts mistakenly view democracy as a matter of individual participation of atomistic actors. The article suggests an alternative framework which would better enable courts to identify structural threats to the integrity of democratic processes. The article concludes with studies of the Czech and German Constitutional Courts, which by contrast to the United States Supreme Court have taken a more aggressive stance towards the relationship of democracy and constitutional law in order to better resist the inevitable tendencies in all democracies towards more authoritarian control of political power.