Democracy against liberalism and the punishment of elite deviance

Abstract This Article examines the tension between liberalism and democracy in the context of elite accountability, arguing that the liberal-democratic project faces a legitimacy crisis partly due to its failure to effectively hold political and economic elites accountable. The Article contrasts classical democratic approaches to elite accountability with the liberal-constitutional framework that emerged in the 18th century. While liberal political thought pioneered a new understanding of formal equality before the law that guarenteed individual freedom through juridical due process, it simultaneously abandoned crucial democratic mechanisms for constraining powerful elites. This has resulted in two significant weaknesses: disproportionate punishment of marginalized groups and an inability to hold wealthy and powerful actors accountable. The Article suggests that reintegrating elements of preliberal democratic accountability—where the power to punish elites was a defining feature of popular sovereignty—could help address contemporary democratic deficits without abandoning liberal achievements in procedural rights. The Article proposes a number of possible institutional innovations aimed at renegotiating the relationship between liberal rights and democratic accountability for elites. These include purpose-built impeachment tribunals with direct public participation, reforms to prosecutorial incentives, fully public adversarial trial systems, and expanded qui tam provisions. By recovering democratic practices of elite accountability, liberal democracies can recover their legitimacy—achieving a balanced approach to elite deviance that preserves both popular sovereignty and individual rights, while restraining the corrupting influence of concentrated wealth and power.