A Rothbardian Analysis of the South Korean Constitutional Crisis

On April 4, 2025, South Korean President Yoon Seok-yeol was formally removed from office after the Constitutional Court found him guilty of leading an illegal pro-government coup on December 3, 2024. Having lost the presidency, Yoon will now be tried for treason in a regular criminal court—a separate institution from the Constitutional Court—where he faces either the death penalty or life imprisonment. Western liberal media outlets have praised these developments as a testament to the strength and maturity of South Korea’s democratic system. They argue that South Korea is a politically advanced nation, capable of dealing with any wrongdoing or abnormality through constitutional procedures and democratic deliberation, serving as a model for Western democracies.

Indeed, since the 1990s, South Korea has widely been regarded as a leading example of democracy, highly respected by Western nations. Yet I argue that this case reveals not a robust demonstration of constitutionalism but rather its deep fragility. Far from celebrating a “victory” for constitutional democracy, this situation in South Korea actually underscores a nightmare scenario for constitutionalism.

The Constitutional Crisis in South Korea: A Brief Summary

Throughout the 20th century, the South Korean people waged a pro-democracy movement against a succession of illegal military regimes armed with tanks and guns. By the late 1980s, they successfully toppled the military government and amended the constitution. Unlike numerous non-Western nations that descended into perpetual political upheaval after ousting authoritarian regimes, South Korea managed to establish a lasting democratic order. The Economist Democracy Index and the V-Dem Democracy Index—today’s most trusted measures of democracy—have consistently ranked South Korea as one of the most democratic countries in Asia for the past decade, placing it in the global top 15–20. At one point, it rivaled established democracies in Europe and North America, even surpassing some, like Italy, Australia, Canada, and the United States. South Koreans refer to the post-1987 constitution—which introduced direct presidential elections—as the “1987 System,” and many take pride in how this system emerged from their struggle against a military regime.

The high level of constitutional democracy attained by a non-Western nation has often been used to show that constitutionalism and democracy are universal, ideal systems for humanity. However, South Korea’s events last year demonstrated how constitutionalism can fail when President Yoon Seok-yeol, who professed to follow Ludwig von Mises, declared a state of emergency to “eliminate communists and defend freedom,” invoking the very powers that the constitution grants. I do not highlight President Yoon’s coup attempt simply to show the failure of constitutionalism: it can be written off as the act of a historically rare “madman.” No system may be able to respond well to such a crazy person. Moreover, his coup, under the guise of constitutional authority, was thwarted within two hours by a constitutionally empowered National Assembly that nullified martial law. Indeed, one could say the same constitution that triggered the crisis ended it. Where is the problem, then?

The real trouble emerged in the aftermath: the series of severe and repeated failures by South Korea’s constitutional and political apparatus. These failures laid bare the brittleness of a constitutional system. Here are the key events in the three months following the state of emergency:

1. An impeachment motion against President Yoon passed, removing him from office, and elevating the Prime Minister—akin to the U.S. Vice President’s succession—to Acting President.
2. Under South Korea’s constitution, a specialized Constitutional Court addresses constitutional matters. It comprises nine justices: some appointed by the president, some elected by the National Assembly, and others nominated by the chief justice of the Supreme Court.
3. Impeached on charges of insurrection, Yoon now faced a trial in the Constitutional Court. However, because three of its justices elected by the National Assembly were vacant due to prior political turbulence, only six justices remained—fewer than required by law to commence proceedings.
4. As the constitution grants the National Assembly authority to elect those three vacant seats, it attempted to fill them. But formally, the President (or Acting President) must sign off on these appointments. This step is meant to be a ceremonial approval, similar to a constitutional monarchy, rather than a genuine veto.
5. After Yoon was impeached, the Prime Minister (as Acting President) and his ruling People Power Party, which supported Yoon’s coup and opposed impeachment, refused to appoint the three new justices chosen by the National Assembly—an overtly unconstitutional move.
6. The Democratic Party, which holds a majority in the Assembly, responded by impeaching the Prime Minister as well. The next in the line of succession, the Finance Minister, did appoint certain judges(recommended by Yoon’s party), but again refused to seat those nominated by the opposition, prompting yet another impeachment.
7. The Constitutional Court, not yet fully functional, attempted to resolve the political chaos by ruling on the Prime Minister’s impeachment. While the Court declared the Prime Minister’s refusal to appoint justices was unconstitutional, it deemed it insufficient grounds for removal, ultimately reinstating him.
8. Once back in office, the Prime Minister continued to withhold appointments for the opposition’s chosen justices, deliberately delaying President Yoon’s impeachment proceedings. The apparent plan was to hold out until 2027, when Yoon’s term would end, effectively usurping power unconstitutionally.
9. In a final attempt to break the deadlock, the opposition-led National Assembly threatened to abolish the entire executive branch by impeaching all its members, thereby establishing legislative rule.
10. Facing mounting pressure, the undermanned Constitutional Court finally held a hearing with only eight judges, ultimately voting unanimously to remove President Yoon Seok-yeol from office.

Though it sounds like a contrived plot, this strange series of events is not an exaggerated worst-case hypothetical but a real situation unfolding in South Korea (with minor abstractions and omissions).

To summarize:

1. Using constitutionally sanctioned powers, the regime’s leader launched a pro-government coup.
2. Opponents of the regime countered the coup, also relying on constitutional powers.
3. Yet afterward, the president’s supporters openly flouted the constitution, seizing power illegally.

At first, both sides followed “the rules,” but once one side decided to ignore them, the constitutional structure offered no further mechanism. The only remaining path was a raw power struggle.

The Constitution Is Not an Automaton—It Is Enforced by People

Statists often argue that government is necessary to prevent criminal wrongdoing by individuals and private groups. But who, then, watches the government? The leading mainstream answer has been “the constitution,” which supposedly limits government power. Yet the constitution is ultimately written and enforced by the government itself. If a private individual announced they would draft their own murder or robbery statutes and then monitor themselves to ensure compliance, we would laugh at the absurdity. Why should we treat governments any differently?

Many libertarians reject giving the state any such privileged exemption. As Murray Rothbard famously observed in Anatomy of the State, it is self-defeating to entrust one agency with not only the authority to govern but also the ultimate power to interpret its own constitutional limits. He Says,

This danger is averted by the State’s propounding the doctrine that one agency must have the ultimate decision on constitutionality and that this agency, in the last analysis, must be part of the federal government. For while the seeming independence of the federal judiciary has played a vital part in making its actions virtual Holy Writ for the bulk of the people, it is also and ever true that the judiciary is part and parcel of the government apparatus and appointed by the executive and legislative branches. Black admits that this means that the State has set itself up as a judge in its own cause, thus violating a basic juridical principle for aiming at just decisions.

and,

Smith noted that the Constitution was designed with checks and balances to limit any one governmental power and yet had then developed a Supreme Court with the monopoly of ultimate interpreting power. If the Federal Government was created to check invasions of individual liberty by the separate states, who was to check the Federal power? Smith maintained that implicit in the check-and-balance idea of the Constitution was the concomitant view that no one branch of government may be conceded the ultimate power of interpretation: “It was assumed by the people that the new government could not be permitted to determine the limits of its own authority, since this would make it, and not the Constitution, supreme.”

The moment government monitors go astray, there is no recourse through ordinary rules. The constitution, far from ensuring our protection, merely subjects us to the will of those who enforce it. When that small group wields all legislative, executive, and judicial power, they inevitably oversee themselves. Once they abandon adherence to the constitution, legal forms of resistance are powerless. In this sense, the constitution fails as a safety mechanism and ends up as a fragile construct that functions only so long as “luck” and “good faith” last.

How might a constitutionalist respond? One counterargument is that South Korea’s case is “extreme” or “abnormal” and therefore no basis for broader critique. This is reminiscent of leftist attempts to dismiss North Korea as irrelevant to discussions of socialism. Singling out inconvenient examples as aberrations merely “immunizes” a favored theory from contradiction—a hallmark of pseudoscience in traditional philosophy of science.

Another tactic is to propose more stringent constitutional constraints that reduce government power to forestall such crises in the future. Yet history suggests otherwise. The expansion of government power has typically proceeded by transforming once-unconstitutional measures into legitimate functions of the state. According to Rothbard,

All Americans are familiar with the process by which the construction of limits in the Constitution has been inexorably broadened over the last century. But few have been as keen as Professor Charles Black to see that the State has, in the process, largely transformed judicial review itself from a limiting device to yet another instrument for furnishing ideological legitimacy to the government’s actions. For if a judicial decree of “unconstitutional” is a mighty check to government power, an implicit or explicit verdict of “constitutional” is a mighty weapon for fostering public acceptance of ever-greater government power.

Even Friedrich Hayek, the intellectual giant of the Austrian School, ended up endorsing conscription and certain forms of welfare within a constitutionally limited government. Such expansions demonstrate that tightening a constitution cannot ward off every eventuality; new loopholes, fueled by human creativity, invariably appear. We are left with an endless cycle of amending the constitution after each new breakdown—slamming the stable door after the horse has already bolted.

Ultimately, what is needed is not a patchwork fix but a wholesale transformation. As Rothbard insisted, the constitution is the greatest illusion of our supposed freedom. We must recognize its impotence in restraining the state and abandon the tyranny it facilitates. If there is a lesson to be drawn from the South Korean crisis, it is that constitutionalism’s vaunted safeguards are neither automatic nor fail-proof. The time has come to consider bolder alternatives that do not hinge on the goodwill of those who wield power, but which are rooted in genuine liberty for all.

[related article: The Political Crisis in South Korea and the Failure of Beltway Libertarians]