TITLE:
Constitutionalism as a Dynamic of Constitutional Power: A Critical Engagement with the Thought of Landau and Albert
AUTHORS:
Bernardo Gonçalves Fernandes, Maurício Sullivan Balhe Guedes
KEYWORDS:
Constitutionalism, Constitution, Abusive Constitutionalism, Unconstitutional Constitutional Amendment
JOURNAL NAME:
Beijing Law Review,
Vol.16 No.3,
September
4,
2025
ABSTRACT: Recent constitutional scholarship highlights a troubling trend of democratic decline fueled by actions of majoritarian branches, particularly the legislature and executive. These actions, though cloaked in democratic appearances, use formal constitutional mechanisms to centralize power in authoritarian figures. Unlike traditional coups, this erosion of democracy is achieved through unconstitutional constitutional amendments, legitimized by legislative processes and often driven by populist leaders, prioritizing political self-interest over genuine representation. David Landau’s concept of “abusive constitutionalism” and Richard Albert’s theory of “constitutional dismemberment” have become pivotal in understanding this phenomenon. Both frameworks reveal how constitutional tools can be repurposed to dismantle democratic norms, enabling authoritarian control while maintaining a façade of legitimacy. This study investigates the interplay between constitutionalism and democracy, questioning whether modern constitutional frameworks sufficiently guard against authoritarian subversion. It begins by examining constitutionalism’s liberal roots as a constraint on state power, then analyzes Landau’s and Albert’s contributions to theories of democratic erosion. The study further critiques the notion that contemporary constitutions inherently empower authoritarianism, arguing instead that modern democracies, shaped by complex social dynamics and constant public oversight, resist such simplifications. Ultimately, the analysis challenges whether constitutionalism and democracy can coexist as distinct concepts or whether their entanglement creates vulnerabilities. By exploring these tensions, the study aims to refine the understanding of constitutionalism, framing it not only as a limit on power but as a safeguard for democratic integrity in the face of evolving threats.