–Tom Ginsburg and Aziz Huq, The University of Chicago Law School
In 1937, the German political scientist Karl Loewenstein published a two-part article that coined the term militant democracy. Concerned with the inadequate democratic response to the rising threat of fascism, he called for a set of legislative and legal techniques that would allow democracy to defend itself against threats that emerge from within. “Constitutional scruples” he noted, “can no longer restrain from restrictions on democratic fundamentals, for the sake of ultimately preserving these very fundamentals.”
Loewenstein went on to catalogue techniques used by inter-war democracies to shield themselves from the rising threats of communism and fascism. These included banning subversive parties and movements; using emergency statutes to cripple threats once they materialized; proscribing private para-military groups, including party militias; preventing the abuse of parliamentary institutions by political extremists; bans on incitement and hate speech, including demonstrations whose only purpose was provocation; and protecting the civil service and armed forces from infiltration. Many of these institutions informed constitutional design in postwar Europe. The region then abounded with carefully crafted emergency clauses, dignity clauses, unamendable provisions, and party bans.
One of the arguments in our new book, entitled “How to Save a Constitutional Democracy,” published this week, is that our comparative constitutional imagination has not moved on enough since Loewenstein’s time. Today’s threat to liberal constitutional democracy, at least in its American and European heartland, are not a takeover by an explicitly fascist or overtly anti-democratic party, a military coup, or a communist-style revolution. Instead, the risk is that of slow erosion, with a number of small steps being taken, often through perfectly legal means, to undermine the quality of democracy. This has significant implications for how we should fill our constitutional toolkit.
Consider first the techniques associated with the militant democracy paradigm. Most of them place significant power in the hands of government to restrict associational rights. The assumption of a benevolent government that will only use the techniques of restraining speech and restricting parties against true enemies of democracy seems quite far-fetched in our current political moment. Instead we see the techniques being used to target political and religious minorities. For example, European human rights law has upheld bans on minority religious practices even as it upholds the use of Christian symbols. Antiterrorism measures, in particular France’s extensive use of emergency powers after a series of attacks in Paris, have led to the closure or close surveillance of many mosques and Islamic associations. So far, we see little evidence to credit European governments with the wisdom or insight to pursue militant democracy measures when and only when they would be effective. To the contrary, the proposals being floated—such as the idea mooted recently in Germany of banning talk shows to stem anti-immigrant discourse—are likely to be quite counterproductive.
Not only is the potential for misuse quite real, but militant democracy has failed to prevent the rise of significant far-right parties in most European democracies. While it has been used against hate-filled preachers like Abu Hamza, Geert Wilders and Marie Le Pen have risen to lead the second largest political forces in their respective countries. Skilled politicians like these can easily use “dog whistles” that allow them to avoid prosecution under hate speech bans, which instead are deployed in sometimes frivolous ways that do little to mitigate the harms of such speech. These leaders do not call for the abolition of democracy. They do, however, more subtly attack liberalism and its commitment to the protection of religious and ethnic minority rights. In this way. Militant democracy may preserve the ballot but reinforce illiberal strands of policy-making. And somewhat paradoxically, the use of militaristic rhetoric may feed the narrative of populists who paint the continent as being under siege from hostile forces who have corrupted elites.
In any case, the militant democracy paradigm does not make sense for a polarized political environment with a bimodal distribution of preferences. As the recent Bavarian regional elections show, populist groups continue to secure significant (if still minority) public support. Militant democracy is designed to address a different risk—the possibility of a small, ideologically extreme group, or vanguard taking power and then curtailing majority rule. But in the current moment, most democracies find themselves quite polarized, and not facing quite that risk. Instead, militant democracy might exacerbate current risks. It is a mode of constitutional design that empowers a majority to restrain its opponents. As such, it raises the stakes of majority control, when in fact the opposite is needed. Instead of allowing the repression of political minorities, constitutional design in our era should focus instead on creating institutions that motivate centrist coalitions.
In our book, we explore a range of alternative approaches to the present constellation of anti-democratic risk. One of our ideas, drawing on the work of David Fontana, is to create rights for the political opposition. For example, we think that new constitutions should provide that the opposition can chair certain committees in the legislature, or perhaps have a certain number of cabinet posts, as a way to encourage political moderation. Giving minority legislators a power to demand information from the government would be an especially useful check in presidential systems that experience frequent one-party rule. Super-majority rules for appointments to the highest court, as is found in Germany and as recently abolished in the United States (through the filibuster’s elimination), encourage the selection of moderate candidates. We also think there is merit in formalizing the position of leader of the opposition, as a way of recognizing the constitutional value of a loyal opposition in service of democracy.
It is forgotten today that Loewenstein called proportional representation “the gravest mistake of the democratic ideology” because it allowed anti-democratic parties to enter the political arena. We don’t agree with that assessment, which seems to argue for majority-based district systems that are themselves subject to manipulation. Perhaps the better principle is a higher-order one, which is to favor electoral systems and coalition rules that encourage centrism. In presidential systems, two-round voting can allow the rejection of candidates who might win under plurality rules. Parliamentary rules that allow for a constitutional monarch or president to exercise some discretion can help shut out the agents of erosion, and encourage what Loewenstein called a common front in defense of democracy.
We think that going forward, our field should focus on how constitutional design and jurisprudence can help democracy to save itself from the slow process of death by a thousand cuts. The first step is to recognize that the techniques that worked yesterday may no longer work tomorrow.
How to Save a Constitutional Democracy is available now.
Suggested Citation: Tom Ginsburg and Aziz Huq, Democratic Erosion and Militant Democracy, Int’l J. Const. L. Blog, Oct. 18, 2018, at: http://www.iconnectblog.com/2018/10/democratic-erosion-and-militant-democracy
 Karl Lowenstein, Militant Democracy and Fundamental Rights I, 31 AM. POL. SCI. REV. 417 (1937); Militant Democracy and Fundamental Rights II, 31 AM. POL. SCI. REV. 638 (1937).
 David Fontana, Government in Opposition, 119 Yale L.J. (2009), available at: https://digitalcommons.law.yale.edu/ylj/vol119/iss3/3
 Loewenstein, Militant Democracy and Fundamental Rights I, at 424.