– Alexandra Mercescu, Lecturer at the Faculty of Law of the West University of Timisoara (Romania)
This is the fifth post of a Symposium on Militant Constitutionalism, comprised of 10 pieces. You can access the introductory post here.
Romania’s Constitutional Court has recently become a global poster child for militant democracy – or, more precisely, militant constitutionalism (for the difference between the two, see Michal Stambulski and Corrado Caruso 2026). Its decisions made headlines worldwide, above all the one annulling the first round of the presidential elections. It is generally accepted by scholars who have closely examined the respective decisions that the reasoning behind them was highly creative (or ultra vires depending on how inclined one is to support/criticize the process and/or the outcome). There is little dispute that it took a stretch of legal imagination and a rhetorically manufactured semblance of factual certainty to arrive at such radical measures (see Bogdan Iancu 2025). Yet, I will defend the outcome as useful. Wary of sweeping generalizations that flatten law’s cultural strata, on the basis of which one would deem possible to dismiss, or for that matter, embrace militant constitutionalism ex ante, in theory, at all times, irrespective of place, context and formal procedures, I think it is possible to defend its deployment in the specific Romanian context on grounds of efficiency, as a strategy of “time buying.”
From October 2024 to March 2025, the Romanian Constitutional Court staged two “performances” of militant constitutionalism that differed in their legal reasoning yet were connected in scope (for a more detailed doctrinal analysis, see Alexandra Mercescu 2025). Drawing on several constitutional provisions, including the Court’s duty to oversee presidential elections, the Constitution’s axiological norms, and the presidential oath of office, the Court inferred a doctrine of loyalty to the Constitution, which it then used to bar two presidential candidates from running (while one of the two was more ill-mannered than genuinely threatening, the other was the reverse).
Between those two decisions, the Court also annulled the first round of the presidential election – an annulment that, at least on paper, had nothing to do with the political views of the candidates concerned. Officially, the annulment was justified on the grounds of foreign interference and several other procedural irregularities in the electoral campaign, like a breach of funding transparency, which the Court deemed sufficiently serious to have impaired citizens’ ability to form their voting preferences freely. However, it was an open secret that the Court’s intervention ultimately sought to keep the more threatening candidate out of the race by ordering a rerun of the election in anticipation of that candidate’s subsequent ban. Had another, more palatable candidate advanced to the second round, it is very likely that the Court would have turned a blind eye to the alleged foreign interference.
The “loyalty” doctrine developed by the Court brought Romania’s European identity into sharp relief, emphasizing that candidates who run on platforms contrary to key European values have no place in the country’s political arena, which remains irreversibly committed to a European destiny. Of course, the Court was enacting this very commitment in the act of articulating it. Moreover, it is quite clear that the Court was engaging in an imagined dialogue with the EU over the latter’s principles and expectations. In barring anti-European and anti-rule-of-law voices, the Court paid heed to principles already recognized in CJEU case law, such as the principle of non-regression in democracy and the rule of law (Case C-896/19 – Repubblika; Joined Cases C-83/19, C-127/19, C-195/19, C-291/19, C-355/19 and C-397/19 – “Romanian judges” cases). Conversely, the EU reacted immediately after the Court annulled the elections, acknowledging the immense difficulty of fighting “digital” enemies designed to undermine liberal democracy by opening formal proceedings against TikTok, under the Digital Services Act, over election-related risks. The Romanian example thus perfectly illustrates the claim that “unlike militant democracy, which is largely confined to the nation state, militant constitutionalism operates across multiple levels of governance, particularly within the European Union” (Stambulski and Caruso 2026).
Time is of the essence, in law no less than in politics.
First, if militant constitutionalism is to function properly, it must intervene at the right moment; it must locate the narrow space between acting too early and acting too late. In the Romanian case, as unlikely as this might seem at first sight, the absence of protests following the annulment of the elections and the subsequent exclusion of the ultra-nationalist candidate may be read as an indication that the intervention occurred at a politically opportune time. To be sure, such silence may be indicative of many things: first, it could reflect a profound alienation from the public sphere or a deeply rooted belief that the system is fundamentally rigged. Yet it may also suggest the absence of genuine attachment to the excluded ultra-nationalist candidate and, instead, only a temporary and superficial attraction to a charismatic political figure. It could also be understood as a warning signal sent by part of the electorate to the political establishment, rather than as evidence of a genuine intention to elect such fringe candidates. Finally, it may further indicate that the electorate of the illiberal actors removed from the race still felt sufficiently represented by the more electorally palatable populist candidate who remained in the contest. After all, a turnout of almost 65% hardly suggests a public so disillusioned as to withdraw from participation altogether. On this reading, what the Court excluded were particular actors, not legitimate political agendas as such.
Secondly, and more importantly, militant democracy buys time: time for the political establishment to enact pro-democratic reforms, on the one hand (1), and time for the populist wave to pass or slow down, on the other (2).
- Time for political redress through reforms and heightened civic engagement
One often encounters the argument that liberal establishments invoke the rhetoric of threat and emergency in the face of democratic backsliding only because they are no longer capable of addressing the material grievances of large segments of the population (Alex Cistelecan & Stefan Baghiu 2025). That may well be true (militant constitutionalism, like militant democracy more generally, certainly does not remedy the root causes of populism). But even if it is, it tells us little about the utility of militant constitutionalism itself. There is no reason, conceptually or politically, why one could not have both: militant constitutionalism as an immediate defensive, preventative or reactive, mechanism, and a political establishment – momentarily “saved” by it – subsequently compelled to confront the underlying causes of public disenchantment and democratic erosion. Whether the Romanian context, marked by liberalism’s long-standing entanglement with the far-right (Cosmin Cercel 2024), can sustain such a reconversion of politics is another question, open to debate.
This temporal dimension is crucial. Once in power, authoritarian populists tend to devote considerable effort to dismantling or neutralizing institutional counterweights, with the result that oppositional forces are often drawn into an exhausting struggle over the rule of law itself, rather than over economic redistribution or broader social questions. Moreover, restoring the rule of law after it was gravely affected is no easy task, as the example of Poland clearly shows (Michal Stambulski 2024; Wojciech Zomerski 2025). Under such conditions, the possibility of reimagining more distributive politics – or indeed any transformative politics – is significantly diminished. It is therefore far easier to reflect on how to reshape political agendas under conditions of relative calm secured through militant constitutionalism than in a rolling-coaster type of setting in which political establishments and civil society must spend each day resisting ever new assaults on the liberal constitutional order (unless one is ready to suggest that, in politics too, like more generally in life, one needs pressure to expand).
For that reason, resentment appears to stem less from the actual deployment of militant constitutionalism than from what follows it. If, after so dramatic a warning as the annulment of elections, the political establishment proves incapable of revisiting its commitments and instead reverts to business as usual, that is indeed deeply troubling. But it is not, strictly speaking, an indictment of militant constitutional itself. A constitutional court may buy time and thus ring an alarm bell (see Oscar Vilhena Vireira’s analysis of the Bolsonaro case, 2023); it cannot force political actors to revise their agendas. In Romania today, much of the resentment is likely to arise from the fact that the new coalition government has once again embraced hard-line neoliberal policies (Cistelecan & Baghiu 2025). That failure belongs to ordinary politics, not to the defensive logic of militant constitutionalism.
Moreover, the time that Courts buy when doing militant constitutionalism can be wisely used by “citizen-driven forces capable of breathing a democratic spirit into contemporary constitutionalism” (Stambulski and Caruso 2026). Thus, rather than stifling political participation, militant constitutionalism can be the starting point of a more vigourous political life. While populists might appear to want to bring more direct democracy, by appeal to referendums for instance, Nadia Urbinati has convincingly show that they “d[o] not seek to restore political autonomy to citizens” (Nadia Urbinati 2019, p. 164). In fact, participation may be downgraded by an aggressively illiberal public atmosphere. It is exceedingly difficult to persuade citizens of the merits of any political programme or civic initiative when public debate is saturated by personalized politics and a rhetoric designed to activate irrational anxieties and affective attachments linked to identity, religion, or an imagined mythical past. Is liking a message automatically generated by bots on TikTok “genuine” political participation? Are electoral campaigns carefully choreographed by PR companies – including those of populists – more than a mere spectacle in which citizens occupy the back seat? (Colin Crouch 2004).
2. Time for populism to wane
The postponement of an illiberal crisis through militant constitutionalism already appears highly valuable for the simple reason that political conditions are never static. Much can change over time, including the international fortunes of populist movements. We do not know how enduring the MAGA phenomenon will prove in the United States, and its influence abroad is far from guaranteed (not least because nationalist populist movements are bound to clash at some point). In the absence of powerful external models to emulate, and, at times, external networks of ideological and financial support, it is far from clear that populist forces in Romania would be capable of organizing and consolidating themselves on their own. Therefore, militant democracy is best understood as a pragmatic device: not an ideal solution, but a means of holding the line until the immediate danger recedes. That danger may not disappear quickly, but the strategy remains worth attempting – at least as an exceptional measure, to be used with restraint, since no political order can sustain itself by annulling elections every five years or constantly banning non-mainstream candidates. As Bojan Bugaric (2019) argues, if populists are to retreat they must principally be defeated in the democratic arena.
The Court did not explicitly address the temporal argument in its decisions. Yet, by refusing to distinguish between a presidential candidate and an elected president in terms of their duty of constitutional loyalty, it implicitly suggested that there is little sense in allowing a candidate to prevail only to take an insincere oath of office afterwards and, in any event, risk subsequent impeachment. In other words, the Court indirectly considered the merits of preventing at the outset what might otherwise have to be remedied later. One might object that impeachment is built into the institutional design precisely to address, through democratic means, the possibility that a president may depart from their constitutional duties. Nonetheless, one may also speculate that the Court was keenly aware of the risk that segments of the political elite could defect to the illiberal camp once the latter succeeds in seizing power. Romania’s current political crisis illustrates the danger of such troubling alignments: the mainstream left-wing party, the PSD, chose to support the far-right AUR in bringing down the coalition government of which it had itself been a part. In a country where the spectre of ultra-nationalism is never far from view, the argument for preventing such political conversions or co-optation carries particular force. Indeed, it is likely that in an increasing anti-European political climate, many self-restrained nationalists might well feel emboldened to reveal their true ideological allegiance. As it has been argued, “shifts in elite coalitions among politicians, bureaucrats, and economic actors drive regime changes more than institutional erosion or ideological movements” (Kutsal Yesilkagit and Johan Christensen 2026).
This being said, militant constitutionalism needs to stand on a firm legal basis all the more that it is, by definition, counter-majoritarian and must not come across in the eyes of either the legal community or the public as an arbitrary intervention. Procedures exist to protect us from arbitrariness. Therefore, even for those who are not particularly troubled by doctrinal “impurity”, like me – after all, no doctrine is absolutely “pure”, free from a certain degree of arbitrariness, including the political question doctrine which tries to police the boundaries between law and politics: Alexandra Mercescu and Sorina Doroga 2021 – there remains a threshold below which the legal form becomes normatively unacceptable and risks turning into in a caricature.
Romania can, and should, draw lessons from this episode that many perceived, rightly so, as legally frail. Among the most obvious are the need for more precise electoral legislation governing digital campaigning and election-related communication on online platforms (Bianca Selejan-Guțan 2024) (something, admittedly, difficult to achieve as the domain is rapidly changing; any regulation would entail a number of implicit presuppositions that are likely to be perceived differently across the political spectrum). Another pressing point would be the need to articulate more clearly the emerging doctrine of loyalty to the Constitution, ideally by an act of Parliament, especially with a view to providing procedural guarantees of the kind largely absent from these recent militant-constitutional decisions (indeed, the banned candidates had no possibility to contest their being stripped of the right to be elected, see Manuel Gutan 2024).
Additionally, one could make the case that a more effective implementation of other militant democratic measures (such as sanctioning anti-hate speech or the apology of fascist history) should be consistently pursued as a way of countering illiberal trends downstream, making more radical upstream interventions unnecessary. Romania does have legislation to that effect, though, it has, for the most part, remained dormant.
Last but certainly not least, this electoral saga should function as a wake-up call for greater social mobilization. It underscores that democracy and the liberal constitutional order have to be defended in election cycles, certainly, but also relentlessly in our everyday lives: in universities and institutions, in public debates and private exchanges alike.
One should be reminded that “nothing builds identity like one’s own success” (James Fowkes and Michaela Hailbronner 2019, p. 507). A country’s success in fending off populists by democratic means (i.e. elections, grassroots movements) is definitively a socially superior solution to fighting these forces with legalistic means. Ironically, it is very likely that the Romanian illiberal candidate would have been beaten at the polls had the elections not been cancelled. However, especially when the threat takes the shape of extremism that goes well beyond the regular populist playbook – in Romania, one candidate’s absurd narratives mingled religiosity with esoterism, self-help with ultranationalist and fascist rhetoric in an obnoxious pot-pourri that is difficult to describe under the usual populist label – pre-emptively defending the constitutional order even at the expense of a severe loss of legitimacy can be justified. After all, in such delicate situations, courts find themselves in double-bind positions and it is not at all obvious why they would be ready to self-inflict reputational damage if they had not taken the view that there is something of great significance that they must defend. Populists will not vanish overnight as a consequence of militant constitutionalism. But we will have gained time, time to become other-wise(r). And, if such supplementary time should prove of no avail, let us cross that bridge when we get there (something, incidentally, very much in keeping with Romanian culture).
Suggested citation: Alexandra Mercescu, Symposium on Militant Constitutionalism Part V:“Crossing that bridge when we get there”: Militant Constitutionalism in Romania as Strategic Time Buying, Int’l J. Const. L. Blog, June 14, 2026, at https://www.iconnectblog.com/symposium-on-militant-constitutionalism-part-vcrossing-that-bridge-when-we-get-there-militant-constitutionalism-in-romania-as-strategic-time-buying/