—Miguel Schor, Drake University Law School
Comparative constitutionalism, long a backwater among American constitutionalists, is enjoying a resurgence as scholars seek to better understand Trumpism and what it might portend for American democracy. The term autogolpe began to trend when a mob attacked the Capitol after Trump, who knows little about Henry II or Thomas Beckett, harangued his followers to do something about the troublesome congressional certification of the electoral college vote. The term autogolpe is borrowed from the long experience of Latin America with presidents who circumvent institutional restraints to enrich themselves and their cronies. Corrupt demagogues lack a retirement plan and consequently have good reasons to seek to overturn elections to avoid accountability.
Militant democracy is the other comparative constitutional concept that has come into prominence. It is borrowed from German constitutionalism. The idea underpinning militant democracy is that a liberal democracy may take illiberal measures—such as limiting speech and political parties—to prevent anti-democratic forces from using democratic means to overthrow democracy. This, of course, is the path Hitler took to power in Germany. Militant democracy was baked into Germany’s constitutional order as a solution to this particular vice of democracy. Versions of this idea then spread around the globe for functional reasons. Contemporary democracies are more likely to die at the hands of politicians and kleptocratic captains of industry than the military.
Militant democracy as a limit on who may participate in politics has taken a few uncertain steps in the United States. Donald Trump’s second impeachment was obviously not aimed at removing Trump from office but about launching a discussion among American citizens that demagogues are unfit to hold an office of “honor, trust, or profit under the United States.” The attempt to expel Congresswoman Marjorie Taylor Greene, whose political views are deeply antithetical to democracy, provides another example of how militant democracy could be operationalized in the United States.
These steps are tentative and contested for two reasons. The first is politics. The Senate failed to convict Donald Trump by the requisite two-thirds majority. The House is also unlikely to expel Marjorie Greene given that this vote also requires a two-thirds majority. The Republican party does not want to drive away the voters who falsely believe that Trump won the election. In most constitutional democracies, political parties have incentives to marginalize and weed out fringe elements as they wish to win the support of a majority of the electorate. The contemporary Republican party, however, may not face this electoral incentive given the hard facts of contemporary American politics. The extent to which the institutions of government—the Presidency, Senate, House, and Supreme Court—have a Republican (and minoritarian) lean in contemporary America is remarkable. The 2020 election demonstrated that the GOP can win power with a minority of the American voters but cannot do so without Trump’s voters. But if the GOP is unable to rid itself of anti-democratic elements, American democracy may be imperiled.
Second, militant democracy runs counter to contemporary American views of free speech. Militant democracies police the outer bounds of political speech. The United States Supreme Court, on the other hand, began to protect the outer bounds of political speech in the late 1960s in cases such as Brandenburg v. Ohio (1969) and New York Times v. Sullivan (1964). This trend has continued unabated as the Court has expanded protection beyond speech and is increasingly relying on strict scrutiny to forestall government regulation. The Court, for example, broadly protected lying about factual matters in Alvarez v. United States (2012). The Court mused that creating a free speech exception for lies about factual matters would allow the government to create an Orwellian ministry of truth. The Court, however, has a remarkably obtuse grasp of how speech operates in the era of social media. It is Donald Trump, not Congress, who weaponized the presidential bully pulpit into an Orwellian ministry of disinformation. It is not government regulation, but the speech of anti-democratic political actors we need fear.
The view that militant democracy has no home in the United States because of her free speech culture rests on an impoverished understanding of how constitutional designers seek to prevent democratic forces from chipping away at institutions. The most successful—if we measure success in terms of longevity—militant democracy in the world is not Germany but the United States. The framers of Germany’s constitutional order knew from first-hand experience how anti-democratic forces could use speech and elections to destroy democracy. The same cannot be said for the framers of the American constitution. They understandably had no experience or even historical knowledge of how representative, mass democracy might break down. They feared, however, that democratic majorities might enact legislation that harmed the interest of wealthy elites. Consequently, they fashioned what the historian Richard Hofstadter called the constitution against parties.
America’s version of militant democracy is laid out in the Federalist. Madison observes that the “vice” of popular governments is their “propensity” to break down due to the “violence of factions.” He rejects the solution hit upon by contemporary militant democracies, which is to police the anti-democratic abuse of rights as destructive of liberty. The framer’s solution to the “tyranny” of the majority was to systematically undermine the possibility of a responsible government that turns majoritarian wishes into law. The United States consequently has a less democratic government than any of its peer democracies that have been continuously in operation since the 1950s. American constitutionalism is exceptional, comparatively speaking, in the extent to which it divides power spatially, temporally, and substantively.
America’s version of militant democracy is aimed at the wrong target. The German version raises serious issues of liberty, but it is directed at anti-democratic actors. Donald Trump’s lies about the election are at the heart of the evils that militant democracies seek to address and yet are largely protected under contemporary First Amendment doctrine. The American version of militant democracy fears the power of ordinary citizens, not anti-democratic political actors, and consequently seeks to preserve the republic by making governance difficult and opaque. Demagogues, unlike democratic majorities, have a protected place in American democracy.
The complexity of American government is a double-edged sword. Trump was not able to fully consolidate power, but he came close to destroying the republic with his electoral machinations. One should not be sanguine about the future success of American democracy if polarization remains unabated. The one constant in democratic breakdown and erosion around the globe is political polarization. Political disagreement, moreover, has been constitutionalized as courts have become increasingly staffed by conservative judges whose Manichean understanding of constitutional interpretation is deeply destructive of the pluralistic forms of interpretation that underpinned the political construction of the modern American state.
Institutional complexity may have helped save the nation from Trump (or perhaps we need to thank key actors who remained faithful to informal democracy sustaining norms), but the price of complexity is that it renders the government incompetent. The political market for demagogues turns on the demand side for “populist” leaders who promise to run roughshod over institutional restraints. This citizen demand is generated by government incompetence as it fuels the supply side claim made by Donald Trump and elected autocrats around the globe that they alone can fix the nation’s problems. The inability of parties to govern did not fatally undermine the early American republic as little was demanded of the government. That is not the case in twenty-first century America. In a nation facing the challenges of globalization, climate change, illegal migration, a pandemic, and new information technologies, the inability of parties to legislate is a threat to our democracy. The United States, in short, has the world’s oldest militant democracy, but it is poorly designed for twenty-first threats.
Suggested citation: Miguel Schor, Militant Democracy in America, Int’l J. Const. L. Blog, Feb. 16, 2021, at: http://www.iconnectblog.com/2021/02/militant-democracy-in-america/