The Inherent Authoritarianism in Democratic Regimes

The Inherent Authoritarianism in Democratic Regimes

Description

Authoritarianism is an inherent structural tendency of democratic regimes. Constitutional theory and constitutional courts would do well to recognize this fact. Although the United States is viewed as the democratic country that, over the longest period of time, has most avoided this tendency, that is not quite accurate. For most of the 20th century, an entire region of the country, the South, was a one-party political state. The Democratic Party had an unchallengeable, total monopoly on political power; there was no meaningful oppositional party, no likelihood that candidates from an opposing party would be able to challenge the existing exercise of political power, let alone be elected. Even today, a few states in the United States retain this character as one-party political systems. If democracy means accountability of public officials to voters in elections that involve meaningful electoral competition, portions of the United States, for extended periods of time, have effectively been authoritarian regimes. Nor was the absence of electoral competition the result of “natural” democratic processes or a mere reflection of the “preferences” of voters for one-party rule. It resulted instead from a fundamental characteristic that all democratic regimes should be recognized to face: the tendency of the partisan forces that gain temporary democratic control to attempt to leverage that control into more enduring and effective political domination. In the South for much of this century, this authoritarian control of politics was accomplished through techniques like the gerrymandering of election districts; the use of state law to shift electoral control back and forth from local to statewide level for various offices as doing so furthered the interest of the dominant party; the manipulation of the electorate through devices like poll taxes as pre-conditions to voting; and numerous others. In other contexts, the techniques by which existing political powers will, predictably, seek to entrench themselves can include regulation of how campaigns are financed; what qualifications candidates and parties must have to be eligible to compete in electoral politics; how political institutions are designed; and other process-defining choices. The specific mechanisms vary from country to country, but the fundamental paradox is the same: democratic processes must be structured through law, but those in control of designing those laws are themselves self-interested political actors. To be sure, constitutions seek to remove some of these issues from day-to-day democratic politics. But constitutions can provide only the skeletal frameworks for democratic institutions. Inevitably, ongoing regulation and oversight of democratic processes through further legal adjustment will be required. And inevitably, to the extent legislative bodies are the primary vehicle for designing those adjustments, the tendency to manipulate the laws of democracy to insulate existing political officials and parties from meaningful electoral competition will manifest itself. The accretion of anti-competitive electoral laws is one of the processes by which democratic regimes can slowly transform into authoritarian ones. This essay seeks to identify this tendency as a fundamental, but largely neglected one, for constitutional analysis. Drawing on the American judicial experience, it also seeks to show how conventional frameworks of constitutional analysis—especially the discourse of individual “rights”—are badly organized to recognize and address this tendency. I will propose an alternative framework, one that suggests that constitutional law conceive of democratic politics less in terms of rights and more in terms of structures of competition characteristic of economic markets. Politics shares with all markets a vulnerability to anti-competitive behavior. In political markets, this takes the form of alteration of the rules of engagement to protect the established powers that be from the risk of successful challenge. This market analogy may be pushed one step further by viewing the elected officials of today as a managerial class, imperfectly accountable through periodic review by a diffuse body of equity holders denominated the electorate. Like the managerial class well known to the laws of corporate governance, these political managers readily identify their stewardship with the interests of the corporate body they lead. Like their corporate counterparts, they will act in the name of the corporate entity to protect against outside challenges to their authority. Again like their corporate counterparts, they will use procedural devices implemented in their incumbent capacity to attempt to lock up their control. Antitrust and private corporate law recognize these tendencies in private markets. At some point, robust and appropriate competition transmutes into monopolistic domination, as the recent Microsoft litigation illustrates. In free markets, the state stands apart from that competition and regulates its ground rules through antitrust and other laws. We need to begin to see politics in terms similar to markets: the organizations that compete in political markets—principally, political parties—will similarly seek to dominate and eliminate their competition. This is an inevitable tendency of the good electoral competition democracy seeks to encourage. But here, unlike private markets, there is no state that can stand above the competitive arena and ensure that the ground rules of robust and appropriate competition are maintained, for the state at any one moment in time is controlled by the very political and partisan forces that the state, in theory, is supposed to monitor and check. This, then, is a central task for constitutional analysis: how can constitutional law be structured to provide the equivalent of antitrust law to ensure that the ground rules of democratic politics remain robustly and appropriately competitive?

Source Publication

Out of and Into Authoritarian Law

Source Editors/Authors

András Sajó

Publication Date

2003

The Inherent Authoritarianism in Democratic Regimes

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