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The Constitutional Paradox: Can Democracy Survive Emergency Powers?
Can a democracy use autocratic methods to save itself without losing its soul? In this episode, Prof. Patrick M Kuhn explores the "constitutional paradox"—the idea that liberal democracies may occasionally adopt the very autocratic tools they are built to prevent to survive existential threats. Starting from President Trump's threat to invoke the Insurrection Act of 1807, this episode draws on legal-political models of emergency powers, current empirical research revealing when and under what conditions the use of extraordinary powers results in democratic erosion, and previous uses of the Insurrection Act in U.S. history to illuminate the thin line between decisive leadership and the erosion of constitutional order.
To learn more about the host and his research interests, visit Patrick's website: https://www.durham.ac.uk/staff/p-m-kuhn/
Relevant Literature:
Bjørnskov, C., & Voigt, S. (2018). Why do governments call a state of emergency? On the determinants of using emergency constitutions. European Journal of Political Economy, 54, 110–123.
Bjørnskov, C., & Voigt, S. (2021). You don’t always get what you’d expect: On some unexpected effects of constitutional emergency provisions (Working Paper). SSRN.
Bjørnskov, C., Voigt, S., & Khesali, M. (2022). Unconstitutional states of emergency. Journal of Legal Studies, 51(2), 455–481.
Genovese, M. A. (1979). Democratic theory and the emergency powers of the president. Presidential Studies Quarterly, 9(3), 283–289.
Goupy, M. (2018). The state of exception theory of Carl Schmitt and the ambivalent criticism of liberalism. Zeitschrift für Politikwissenschaft, 28, 395–408.
Humphreys, S. (2006). Legalizing lawlessness: On Giorgio Agamben’s State of Exception. European Journal of International Law, 17(3), 677–687.
Kurian, G. T. (Ed.). (2011). Emergency powers. In The Encyclopedia of Political Science. CQ Press.
Laebens, M. G. (2023). Beyond democratic backsliding: Executive aggrandizement and its outcomes (V-Dem Working Paper Series 2023:54). Varieties of Democracy (V-Dem) Institute.
Lazar, N. C. (2006). Must exceptionalism prove the rule? An angle on emergency government in the history of political thought. Politics & Society, 34(2), 245–275.
Lijphart, A. (1978). Emergency powers and emergency regimes: A commentary. Asian Survey, 18(4), 401–407.
Loevy, K. (2021). Emergency powers. In The Oxford Handbook of Comparative Constitutional Law. Oxford University Press.
Lowande, K., & Rogowski, J. C. (2021). Executive power in crisis. American Political Science Review, 115(3), 911–927.
Lührmann, A., & Rooney, B. (2021). Autocratization by decree: States of emergency and democratic decline. Comparative Politics, 53(4), 617–649.
Nunn, J., & Goitein, E. (2025, November 12). The Insurrection Act, explained. Brennan Center for Justice.
Peltz, P. (2023). The abuse of emergency provisions: How and under which conditions declared states of emergency foster democratic decline (Working Paper). Institute of Law and Economics, University of Hamburg.
Poyet, C., Niemikari, R., & Raunio, T. (2024). What makes democratic institutions resilient to crises? Applying a novel analytical framework to the case of Finland. Journal of Contemporary European Studies, 32(1), 246–261.
Reynolds, J. (2012). The political economy of states of emergency. Oregon Review of International Law, 14(1), 85–130.
Rooney, B. (2019). Emergency powers in democracies and international conflict. Journal of Conflict Resolution, 63(3), 644–671.
Scheuerman, W. E. (2000). The economic state of emergency. Cardozo Law Review, 21(5-6), 1869–1894.
Music: The Good News by SHANTI from https://tunetank.com/track/263-the-good-news/
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By School of Government and International Affairs (SGIA), Durham UniversityCan a democracy use autocratic methods to save itself without losing its soul? In this episode, Prof. Patrick M Kuhn explores the "constitutional paradox"—the idea that liberal democracies may occasionally adopt the very autocratic tools they are built to prevent to survive existential threats. Starting from President Trump's threat to invoke the Insurrection Act of 1807, this episode draws on legal-political models of emergency powers, current empirical research revealing when and under what conditions the use of extraordinary powers results in democratic erosion, and previous uses of the Insurrection Act in U.S. history to illuminate the thin line between decisive leadership and the erosion of constitutional order.
To learn more about the host and his research interests, visit Patrick's website: https://www.durham.ac.uk/staff/p-m-kuhn/
Relevant Literature:
Bjørnskov, C., & Voigt, S. (2018). Why do governments call a state of emergency? On the determinants of using emergency constitutions. European Journal of Political Economy, 54, 110–123.
Bjørnskov, C., & Voigt, S. (2021). You don’t always get what you’d expect: On some unexpected effects of constitutional emergency provisions (Working Paper). SSRN.
Bjørnskov, C., Voigt, S., & Khesali, M. (2022). Unconstitutional states of emergency. Journal of Legal Studies, 51(2), 455–481.
Genovese, M. A. (1979). Democratic theory and the emergency powers of the president. Presidential Studies Quarterly, 9(3), 283–289.
Goupy, M. (2018). The state of exception theory of Carl Schmitt and the ambivalent criticism of liberalism. Zeitschrift für Politikwissenschaft, 28, 395–408.
Humphreys, S. (2006). Legalizing lawlessness: On Giorgio Agamben’s State of Exception. European Journal of International Law, 17(3), 677–687.
Kurian, G. T. (Ed.). (2011). Emergency powers. In The Encyclopedia of Political Science. CQ Press.
Laebens, M. G. (2023). Beyond democratic backsliding: Executive aggrandizement and its outcomes (V-Dem Working Paper Series 2023:54). Varieties of Democracy (V-Dem) Institute.
Lazar, N. C. (2006). Must exceptionalism prove the rule? An angle on emergency government in the history of political thought. Politics & Society, 34(2), 245–275.
Lijphart, A. (1978). Emergency powers and emergency regimes: A commentary. Asian Survey, 18(4), 401–407.
Loevy, K. (2021). Emergency powers. In The Oxford Handbook of Comparative Constitutional Law. Oxford University Press.
Lowande, K., & Rogowski, J. C. (2021). Executive power in crisis. American Political Science Review, 115(3), 911–927.
Lührmann, A., & Rooney, B. (2021). Autocratization by decree: States of emergency and democratic decline. Comparative Politics, 53(4), 617–649.
Nunn, J., & Goitein, E. (2025, November 12). The Insurrection Act, explained. Brennan Center for Justice.
Peltz, P. (2023). The abuse of emergency provisions: How and under which conditions declared states of emergency foster democratic decline (Working Paper). Institute of Law and Economics, University of Hamburg.
Poyet, C., Niemikari, R., & Raunio, T. (2024). What makes democratic institutions resilient to crises? Applying a novel analytical framework to the case of Finland. Journal of Contemporary European Studies, 32(1), 246–261.
Reynolds, J. (2012). The political economy of states of emergency. Oregon Review of International Law, 14(1), 85–130.
Rooney, B. (2019). Emergency powers in democracies and international conflict. Journal of Conflict Resolution, 63(3), 644–671.
Scheuerman, W. E. (2000). The economic state of emergency. Cardozo Law Review, 21(5-6), 1869–1894.
Music: The Good News by SHANTI from https://tunetank.com/track/263-the-good-news/