Tramming Authoritarian Legacy for the Present: Constitutional Review of National Security Law in South Korea and Taiwan
In post-authoritarian democratic states, how do constitutional courts deal with the authoritarian-era structures that persist into the democratic present? One such structure is national security law—a legal tool favored by authoritarian regimes and one whose legacy can disrupt the landscape of a post-authoritarian democracy. Although many studies have focused on national security law in hybrid or authoritarian regimes, far fewer studies have explored the law’s ramifications for post-authoritarian democracies. In this study, I adopt an interdisciplinary approach to examine how the constitutional courts in South Korea and Taiwan—two post-authoritarian democracies with similar trajectories—navigate these legal legacies. The Korean Constitutional Court exhibits an exceptionally deferential posture, grounded in a fixed perception of security threats that remains unchanged despite regime transition. In contrast, the Taiwanese Constitutional Court interprets pre-democratization security narratives as artifacts of the former regime, requiring reinterpretation and transformation over time. This comparative analysis shows how courts engage with authoritarian legacies through the lens of national security, shaping not only liberal democratic values but also evolving concepts of threat and collective security. In doing so, they contribute to the ongoing constitutional negotiation between liberty and security at the heart of post-transition constitutional democracy.