–Corrado Caruso, Full Professor of Constitutional and Public Law, University of Bologna
–Michał Stambulski, Assistant Professor in Legal Theory, Erasmus University Rotterdam
This is the introductory post of a Symposium on Militant Constitutionalism, comprised of 10 pieces.
This blog symposium seeks to analyse the idea and practice of militant constitutionalism from both descriptive and normative perspectives. It asks: how should constitutional democracies defend themselves against political actors who seek to erode the rule of law while continuing to claim democratic legitimacy? In Europe, classical theories of militant democracy, developed in response to interwar fascism, focused on restricting, through legal tools and political mobilisation, the electoral opportunities available to openly anti-democratic movements. Contemporary populist and illiberal actors, however, rarely reject democracy outright. Instead, they seek to reshape constitutional orders from within, using the language and instruments of law itself. This introductory post argues that, while militant democracy operates primarily through political exclusion enabled by higher legal norms, contemporary democracies increasingly rely on courts, legal professions, and supranational institutions to constrain authoritarian projects. Notwithstanding these institutional dynamics, aimed at building barriers against constitutional backsliding, our claim is that such safeguards remain insufficient to fully prevent democratic and constitutional erosion. Without social anchoring and civic mobilisation, the defence of constitutional democracy risks becoming politically fragile and vulnerable to populist accusations of elitism and lack of democratic legitimacy.
Self-Defence of Democracy
The term “militant democracy” was introduced by Karl Loewenstein in his two-part article Militant Democracy and Fundamental Rights (1937). Loewenstein, a lawyer from an assimilated Jewish family who was forced to flee Nazi Germany, approached the analysis of fascism and rising authoritarianism as a fundamental challenge to both political and constitutional theory. He defined authoritarianism as a replacement of constitutional government by what he termed an “emotional government”, in which political legitimacy grounded in legal procedures and the rule of law is supplanted by emotional mobilisation and the identification of citizens with those in power. In this account, the substantive content of propaganda or the narratives invoked to dismantle democratic order are of secondary importance. Anticipating later scholarship on populism, Loewenstein argued that both authoritarianism and fascism should be understood not as coherent ideologies, but as a political technique. At the same time, this technique is inherently parasitic: it exploits democratic tolerance toward competing political positions and abuses the modern linkage between legitimacy and the will of the masses. Therefore, democratic institutions may come to tolerate movements that manipulate collective emotions for dismantling the democratic order itself.
If the threat to democracy lies in the techniques through which it is attacked and eroded, contemplating the means of its self-defence becomes particularly urgent. For this reason, Loewenstein advocated a model of democracy that is not purely permissive, but capable of defending itself against forces seeking to undermine it. In his account, this required the introduction of legal and constitutional safeguards designed to limit the participation of anti-democratic actors in the political process. Such measures included restrictions on political parties that reject democratic principles, limitations on certain forms of political expression aimed at dismantling the constitutional order, and institutional mechanisms enabling the state to act preventively rather than merely reactively. Loewenstein argued that the emotional mobilisation employed by anti-democratic movements depends on a sustained presence in the public sphere and access to opportunities for political action. The militant democratic instruments he described therefore sought to reduce the political opportunity structures available to authoritarian actors. Implemented primarily through legislation, these measures positioned law as a tool for restricting rights, limiting access to democratic institutions, and constraining anti-democratic mobilisation. This way of thinking was subsequently translated into an institutional framework that emerged in the second half of the twentieth century as a response to the collapse of democratic regimes during the interwar period and the experience of totalitarianism in Europe.
Since Loewenstein’s original formulation[1], two broader dynamics can be observed. The first is the “populisation” of opponents of liberal democracy, understood as the acceptance by such actors of the procedural rules of democratic life combined with a rejection of its liberal component. As Theodor W. Adorno already noted in 1967, radical right-wing movements differ from classical fascism in that they accept democracy as a foundational societal principle. At the same time, they present themselves as the true bearers of democracy, claiming to represent “the people” in a Manichean struggle against corrupt domestic or transnational elites. Consequently, contemporary authoritarian movements do not seek the outright abolition of democracy, at least at the procedural level, but rather erode its quality and undermine its foundational principles in the name of an imagined “true” democracy. This shift suggests that the primary contemporary threat is not classical fascism, but illiberalism, which seeks to transform constitutional democracy into a hybrid regime, i.e., a system hollowed out of its substantive values while maintaining electoral procedures.
The second dynamic is the expansion of constitutional and international law concerning fundamental principles of political order. The growth of human rights frameworks and the entrenchment of the rule of law, particularly in the European context, have rendered contemporary constitutional systems far more complex, multi-layered, and embedded in dense interactions with other jurisdictions and international bodies. As a result, contemporary populist actors typically do not reject liberal constitutional structures outright. Instead, once in power, they seek to appropriate and reshape them, preserving their formal features while gradually hollowing out the liberal values and institutional safeguards on which they rest. Such illiberal regimes often invoke legal categories to reshape the rules governing public life. These transformations typically preserve the formal mechanisms of democratic elections and the basic structure of representative democracy, while simultaneously modifying constitutional order to minimise the possibility of alternation in power and to expand executive authority at the expense of the judiciary.
The adoption of populist logic by authoritarian actors, together with their strategic appropriation of the language of constitutionalism, requires a revision of Loewenstein’s original framework. In Loewenstein’s time, the anti-democratic objectives of such movements were often openly articulated during electoral mobilisation. As a result, it was relatively easy to identify those actors whose participation in the democratic process posed a threat to democracy itself and to justify their exclusion on that basis. Contemporary authoritarian populists, however, typically present themselves as defenders of democracy, popular sovereignty, constitutional values, or even the rule of law. Their anti-democratic ambitions often become fully visible only after they have gained access to state power. Consequently, the central challenge is no longer limited to restricting the political opportunities available to openly anti-democratic actors. It also involves developing institutional mechanisms capable of containing forms of mobilisation that formally embrace democratic legitimacy while undermining the rule of law from within.
The Rise of Militant Constitutionalism
As a response rule-of-law backsliding, the concept and practices of militant constitutionalism have emerged, which can be understood as judicially driven forms of constitutional action through which courts actively constrain populist and illiberal political projects in the name of safeguarding constitutional democracy and the rule of law. Its objective is to exclude from the legal order those laws and governmental measures that undermine the rule of law and weaken constitutional guarantees. By depriving such measures of legal effect, courts seek to reduce the institutional capacities and legal opportunities available to actors engaged in democratic backsliding, thereby limiting their ability to use the law itself as a tool of constitutional erosion.
Militant constitutionalism is relocating the defence of democracy from parliament to the courtroom. It operates across both domestic and international judicial arenas. Drawing on the hierarchical structure of legal systems and the primacy of rule-of-law principles, courts can invalidate or reject legislation that advances authoritarian projects. Courts are no longer merely neutral arbiters of legal disputes; they become active guardians of democratic order. Faced with what they identify as the first step of authoritarian backsliding, courts increasingly intervene in what might traditionally be considered the political sphere. This judicial activism reflects a paradox: in order to preserve democracy, courts may adopt progressive and interventionist approaches that challenge classical notions of the separation of powers. Thus, courts assume a dual function, both conservative, in protecting existing constitutional frameworks, and progressive, in defending liberal-democratic values against emerging autocratic threats.
Adopting a militant constitutionalist perspective is ultimately a decision made by judges. Faced with a range of legally defensible courses of action, judges may choose interpretations that range from relatively formalistic to more activist approaches. Such choices are made under conditions in which considerations of professional career, institutional position, and commitment to the values of the rule of law intersect. The consequences of this are twofold. First, doctrinal legal knowledge and professional ethics acquire particular significance. In recent years, one can observe not only judicial mobilisation but also a broader epistemic mobilisation within the legal profession. Legal scholars, professional associations, and judicial networks have sought to develop and disseminate doctrinal arguments and ethical justifications capable of supporting militant constitutionalist positions. The defence of constitutional democracy thus increasingly depends not only on legal institutions themselves but also on the professional communities that generate and legitimise legal knowledge.
Second, areas that were previously insulated from ordinary partisan politics, such as judicial appointments, judicial governance, and disciplinary procedures, become increasingly politicised. If militant constitutionalism depends on judges’ willingness to adopt interpretations that constrain authoritarian tendencies, political actors have strong incentives to shape the composition of the judiciary by favouring candidates perceived as loyal to more formalistic understandings of adjudication. Similarly, if militant constitutionalism relies on professional norms and ethical commitments, disciplining judges who embrace such positions becomes an attractive political strategy. This dynamic is evident, for example, in Poland, where disciplinary mechanisms were instrumentalised to discourage judges from relying on European legal standards in resisting changes to the judiciary, and in Italy, where recent proposals concerning judicial appointments have been criticised as attempts to increase political control over the judicial branch.
Militant constitutionalism also shifts the centre of gravity of democratic defence from direct opposition to processes of containment and limitation. This defence typically arises when populist actors are already in power, rather than in opposition. Consequently, courts must confront not only the substance of governmental measures but also the claim of democratic legitimacy derived from electoral support. Beyond the European context, after his tariff policies were struck down by the Supreme Court, the US president Donald Trump described the judges as “unpatriotic and disloyal to the Constitution.” Such reactions illustrate a broader pattern in which judicial intervention is reframed as an undemocratic obstruction of the popular will. Courts are thus placed in a structurally precarious position: while formally tasked with upholding constitutional limits, they are simultaneously exposed to political narratives that cast them as illegitimate actors opposing democratically elected authority. In other words, legal resistance to rule-of-law backsliding can itself be mobilised as evidence of the allegedly elitist, technocratic, and exclusionary character of judicial power. Rather than merely constraining populist mobilisation, militant constitutionalism may inadvertently provide additional fuel for it, reinforcing the very narratives of popular disenfranchisement and elite domination on which contemporary populism thrives. Also, unlike militant democracy, which is largely confined to the nation state, militant constitutionalism operates across multiple levels of governance, particularly within the European Union. Individual national courts in Member States, when faced with direct attacks on their constitutional order or the capture of higher courts through ideologically aligned appointments linked to the ruling majority, may refer legal questions to European courts, while citizens can rely on systems of international complaints. This multilevel architecture expands the resources available for the defence of constitutional democracy, but it also creates new vulnerabilities. The involvement of supranational institutions can reinforce populist narratives portraying constitutional constraints as the product of distant, technocratic, and insufficiently accountable elites. As a result, resistance to democratic backsliding may be reframed not only as judicial obstruction of the popular will, but also as external interference by actors lacking direct national democratic legitimacy. In this way, the transnational character of militant constitutionalism can become a further source of political contestation and a powerful target for anti-elitist mobilisation.
Socialising Constitutional Self-Defence
We argue that militant constitutionalism differs from militant democracy and that, although both forms of democratic self-defence may operate together, they are oriented towards different objectives and rely on distinct mobilisation logics. Whereas militant democracy seeks primarily to reduce the political-electoral opportunity structures available to anti-democratic actors, militant constitutionalism aims to reduce their legal-institutional opportunity structures for shaping the constitutional order, including the distribution of rights and the division of powers. The former depends largely on legislative measures, which require parliamentary majorities and what Loewenstein described as an “anti-fascist bloc” capable of adopting and sustaining militant democratic mechanisms. In contemporary terms, its effectiveness depends on political and party mobilisation. Militant constitutionalism, by contrast, depends on the willingness of judges to adopt militant interpretations and on the availability of doctrinal resources capable of justifying such decisions. Its effectiveness therefore rests on the mobilisation of legal knowledge and professional ethics within the legal community. These two logics may coexist, but they may also come into tension. When they coexist, militant constitutionalism can reinforce militant democracy by providing legal justification and judicial enforcement for measures adopted through parliamentary majorities. At the same time, militant democratic measures can create the political conditions necessary for courts to act in defence of democracy. In such cases, democratic self-defence operates through mutually reinforcing processes of political and legal mobilisation. Yet much contemporary militant constitutionalism emerges precisely where this alignment is absent. Courts often operate in contexts where the political opportunity structures of anti-democratic actors are expanding. Therefore, judges may find themselves resisting parties or leaders whose electoral support is growing and whose democratic mandate appears increasingly robust. Under such conditions, democratic legitimacy can be mobilised against constitutional constraints themselves, and judicial intervention can be portrayed as an attempt to frustrate the will of the people.
For this reason, militant constitutionalism should not be understood exclusively as a legal project. To remain effective, its legal dimension must be complemented by a social one. Democratic self-defence requires not only courts capable of constraining authoritarian actors but also citizens capable of mobilising in support of constitutional principles. Such a social dimension should seek to generate, within everyday political life, forms of collective action, civic engagement, and symbolic identification that can counterbalance the energies mobilised by populist movements. Territorial autonomies, including municipalities, regions, and federal entities, can play a particularly important role by promoting alternative policies, legal narratives, and democratic practices. The mass constitutional protests witnessed in recent years in Poland, the mobilisation in defence of the rule of law in Hong Kong, resistance to legislation targeting civil society organisations in Georgia, regional legal activism during recent constitutional and institutional referendums in Italy demonstrate that constitutional democracy cannot be defended by courts alone. Ultimately, the long-term success of militant constitutionalism depends on its capacity to become socially embedded and politically resonant. Without a corresponding mobilisation of citizens, legal institutions risk fighting a defensive battle that they cannot win on their own.
Suggested citation: Corrado Caruso, Michał Stambulski, Symposium on Militant Constitutionalism Part I: Introduction. From Militant Democracy to Militant Constitutionalism: Rethinking Democratic Self-Defence in the Age of Populism, Int’l J. Const. L. Blog, June 10, 2026, at: http://www.iconnectblog.com/symposium-on-militant-constitutionalism-part-i-introduction-from-militant-democracy-to-militant-constitutionalism-rethinking-democratic-self-defense-in-the-age-of-populism/
[1] It should be noted, however, that Loewenstein was not the first to reflect on mechanisms of political self-preservation. Earlier, in a more historically and legally oriented analysis that extended beyond democratic regimes, Carl Schmitt re-constructed the concept of dictatorship. For Schmitt, dictatorship emerges as a mechanism aimed at preserving the political order in moments of existential crisis, suspending ordinary legal constraints to safeguard the unity of the polity.