Courts and Intralegal Oppression

In the 21st century, elected authoritarians excel at capturing the poorly cabined intralegal powers of the state to consolidate power and to increase dependence of an expanding gyre of the population on direct connections to the beneficence of the incumbent regime. The challenge to the courts is much more likely to be structural not individual and concerned with governance not rights. This paper will develop a methodology of judicial democratic intervention using three key judicial mandates as guideposts. The three are the Basic Structures doctrine from India, the Certification Decision from South Africa, and the Colombian denial of a third term to President Uribe. Taken together these decisions preserve the permanent need for accountability to independent sources of power such as the judiciary, structural protections against excessive entrenchment of majoritarian power, and the preservation of political competition against the lock up of state authority by the power of incumbency.