Is There a Constitutional Duty of Disloyalty? – Constitutional Fidelity of Civil Servants in the Age of Political Extremism

Cheng-Yi Huang

Research Professor at Institutum Iurisprudentiae, Academia Sinica, Taiwan.

Introduction

Constitutional fidelity belongs to the same family as militant democracy. Both are concerned with the continuity of constitutional democracy. Militant democracy leans towards punishment, whereas constitutional fidelity mandates compliance with the existing constitutional order – the former seeks to uproot democracy’s tendency to defeat itself; the latter lays the bedrock on which democracy functions. This post brings the two strands together through the constitutional loyalty of public officials. Constitutions ordinarily require public officials to act impartially, to execute the law faithfully and to respect the constitutional order, not to weaponize impartiality and procedural fairness. Yet, when powerholders deliberately exercise their constitutional authority to maximize their own, or their party’s political interests in ways that are not manifestly unconstitutional, but that nonetheless increase the risk of democratic backsliding, how are public officials to discharge their duty of constitutional fidelity? During Trump’s first term, civil servants in the United States were said to face a “loyalty trap”. Jennifer Nou likewise argues that civil servants may engage in “conscientious and public acts of defiance against political appointees”, a practice that runs straight into the controversies over the “deep state” and the unitary executive theory. More recently, in Trump v. Slaughter, the Supreme Court of the United States strengthened presidential control over agencies, including independent agencies. That decision has reinvigorated debates over whether bureaucrats can remain impartial and expertise-driven by being constitutionally disloyal to abusive political leaders.

On the one hand, asking public officials to rebel against the commander-in-chief of the public administration risks paralyzing government altogether, and most constitutional courts around the world have not gone so far as to confront the question. On the other hand, the fidelity question can easily turn into a kind of “blood” test. Cases on dual nationality illustrate the point. At first glance, it seems obvious that officials holding more than one nationality would find it hard to decide where their loyalty lies. But if a government invokes nationality as an ad hoc reason to exclude a particular group from political participation, it touches the nerve of political equality, the very essence of democracy. Examining dual-nationality cases before the European Court of Human Rights and the Taiwan Constitutional Court, this post argues that the line between loyalty and disloyalty is drawn, and constantly redrawn, by political identity – sometimes in the name of militant democracy. If the loyalty test is not to collapse into xenophobia or political exclusion, we need a theory of constitutional disloyalty for civil servants.

Loyalty and Dual Nationality

The question of loyalty is at its most pressing, and its most clear-cut, in cases of dual or multiple nationality. In Tănase v. Moldova (2010), the European Court of Human Rights held that, in a country that permits dual or multiple nationality, barring candidates who hold such nationality from standing for election is highly restrictive. The Court nonetheless left a narrow space for exceptional historical and social conditions capable of justifying a prohibition, and it reaffirmed that position in Kara-Murza v. Russia (2023). Writing after Tănase, the Venice Commission likewise cautioned that electoral bans tied to dual nationality may entail “discrimination on the ground of nationality that may exceed what is permissible under relevant human rights instruments”.

In a dire geopolitical environment, however – such as the potential conflict across the Taiwan Strait – the Taiwanese government has for some years required Chinese nationals to relinquish their Chinese nationality before assuming any government position. Under Article 21 of the Act Governing Relations between the People of the Taiwan Area and the Mainland Area, Chinese nationals may not run for public office, serve in the government, in educational institutions or in state-owned enterprises, or organise a political party, unless they have held household registration in Taiwan for at least ten years. In Interpretation 618 of 2006, the Constitutional Court upheld that requirement, reasoning that the security of the Taiwan Area, the welfare of its people and the constitutional structure of a free democracy had to be preserved in light of the “status quo of two separate and antagonistic entities” on opposite sides of the Strait, and of the substantial differences between their political, economic and social systems.

The Court also held the ten year period to be proportionate: those coming from the “Mainland Area” (i.e. China) may hold “a different view as to the constitutional structure of a free democracy” and may need time to adapt to and settle into Taiwanese society, while the Taiwanese public in turn needs time to place its trust in a person from the “Mainland Area” who serves as a public functionary.

The Ministry of the Interior now imposes a further burden on those who do clear the ten-year threshold. Under Article 20 of the Nationality Act, a national of the Republic of China (that is, Taiwan) “who acquires the nationality of another country shall have no right to hold government offices”. Chinese nationals must therefore renounce their citizenship of the People’s Republic of China (PRC) before taking office in Taiwan. Yet because China does not recognize Taiwan as an independent state – or as a foreign country at all – it is reportedly all but impossible for Chinese citizens to relinquish their PRC nationality, and thus equally impossible for them to hold public office in Taiwan, however long they have lived there. This application of the statute not only sets Chinese immigrants apart from other immigrants; it also implicitly brands them as potentially disloyal to Taiwan. The measures have attracted considerable support amid mounting military threats from China, but the tug-of-war between the ruling party and the opposition parties has further inflamed the political battle over nationality, identity and loyalty.

The Double Edge of Militant Democracy

As states grow alert to “micro-aggressive” conduct that stops short of open hostilities, the line between war and peacetime grows ever blurrier. As the fear of military invasion and of the collapse of liberal democracies intensifies, militant democracy becomes an increasingly attractive proposition for medium-sized democracies. At the same time, seen from the inside, it grows harder to disentangle ordinary contests between political parties from the threat posed by foreign enemies, since portraying the other side as traitors is a convenient and effective tool of political mobilization. Driven by a perpetual anxiety about survival, people are readier to embrace conspiracy theories and to disparage those whose views differ from their own. Xenophobia has become a flashpoint of debate across the globe, deepening a psychological dissatisfaction with the traditional liberalism that stresses tolerance and value pluralism.

Against this backdrop, militant democracy is championed as a way of rescuing constitutional democracy from crisis. But it cuts both ways. Liberals invoke it to forestall the rise of (ultra-)right-wing extremism, only to find that it may help that very extremism win popular sympathy. Conservatives wield it to demand fidelity to the ruling bloc and to harden the boundaries of political identity.

Public officials sit on the raw nerve of constitutional fidelity. Dual nationality may be the easiest line to draw, but what if a government demands more – an affidavit of political self-cleansing or lustration (no close family members working in the enemy country, for instance), a ban on travel to states designated as hostile, or scrutiny of officials’ political views and affiliations? How should courts respond to a clash between the president or the cabinet and public officials? Can a court define loyalty in constitutional terms?

Conclusion

As Albert O. Hirschman argued, “Loyalty is a key concept in the battle between exit and voice… [I]t is helpful also because it implies the possibility of disloyalty, that is, exit.” The implication is worth pressing. Loyalty is a meaningful commitment only where disloyalty remains genuinely available. Where dissenters can neither exit nor voice, loyalty becomes a hollow demand – obedience under another name – and it corrodes the health of the constitutional democracy it purports to protect.

Constitutional fidelity and a duty of disloyalty are thus not opposites so much as two faces of the same commitment. Working that thought out requires a theory of constitutional disloyalty that specifies three things: its object, its evidence and its form. Its object is the constitutional order rather than the incumbent government.

Militant democracy promises to defend the constitutional order, yet the very instruments of that defence can be turned to entrench the powerful and to recast political opponents as enemies of the state. That ambivalence cannot be designed away; it can only be managed, by holding the object of loyalty to the constitutional order and the evidence of disloyalty to conduct. Mapping its contours is not a thought experiment but work that constitutional lawyers, and constitutional courts, will shortly be asked to do.

Cheng-Yi Huang is a Research Professor at Institutum Iurisprudentiae, Academia Sinica, Taiwan.

Suggested Citation: Cheng-Yi Huang, ‘Is There a Constitutional Duty of Disloyalty? – Constitutional Fidelity of Civil Servants in the Age of Political Extremism’ IACL-AIDC Blog (10 September 2026) Is There a Constitutional Duty of Disloyalty? – Constitutional Fidelity of Civil Servants in the Age of Political Extremism