Specifying the Outer Boundaries of Constitutional Self-Defense in Liberal Democratic States: A Framework for Analysis

Elected governments across the globe increasingly limit fundamental rights, arguably to manage societal divisions or counter serious harms, such as extremism and political violence. Yet which speech restrictions and group bans qualify as illiberal restrictions adopted by intrusive states, and which constitute safeguards in liberal societies endangered by extremism, remain open questions. This uncertainty hinders normative and empirical assessments of whether the changes in democratic legal architectures that we have observed in the United States, Europe, and Latin America signal democratic erosion or resilience. Integrating research from comparative politics, political theory, and law, we distinguish between a defensive and an illiberal logic of rights restructuring and, relatedly, propose conceptual tools to specify whether actual legal provisions limiting rights meet or violate liberal democratic minimum standards. To examine theoretically expected trends in rights restructuring, we employ these tools to analyze changes in the regulation of association, assembly, and expression in 12 European countries over a 23-year period. Worryingly, provisions falling outside the boundaries of self-defense—indicating an illiberal logic of rights restructuring—have grown. This substantiates concerns about democratic erosion, reinforced by a growing number of elected governments pushing, if not overstepping, legal limits to implement their political agendas.