– Ursus Eijkelenberg, Assistant Professor of Constitutional Law Amsterdam Centre for Constitutional Culture and Democratic Governance University of Amsterdam[i]
This is the second post of a Symposium on Militant Constitutionalism, comprised of 10 pieces. You can access the introductory post here.
“When things go wrong, it’s never that we’ve been traveling in the wrong direction, or have gone too far in what may once have been the right direction. It’s always that we’ve not gone far enough.”
This observation by neuroscientist and philosopher Iain McGilchrist aptly captures the conventional constitutionalist response to the current rule of law crisis. In recent decades, a growing number of liberal constitutional democracies have been challenged by and succumbed to antiliberal populists with counterconstitutional ambitions. As a result, questions are raised about the effectiveness of the prevailing post-war paradigm of constitutional consolidation, in which legal instruments and institutional bulwarks are regarded as the most effective safeguards against constitutional-democratic decay.
These developments called for a moment of introspection within constitutional scholarship: a willingness to critically reassess post-war constitutionalist dogmas as a first step toward reinvigorating the constitutional imagination. While some scholars have been willing to consign the ‘end of history’ desideratum to the Wunderkammer of Western intellectual history, others work arduously to resuscitate and bolster the post-war and post-historical constitutionalist ethos. One of the central concepts capturing this latter impulse is militant constitutionalism.
On the basis of a brief genealogy of militant constitutionalism, this post argues that, despite the conceptual novelty, militant constitutionalism largely rearticulates and reinforces the logic, mechanisms, and sentiments of the post-war paradigm of constitutional consolidation. Militant constitutionalism, therefore, is not a departure from liberal-legalist orthodoxy, but rather its culmination. In line with McGilchrist’s apothegm, advocates of militant constitutionalism maintain that when things go wrong, we’ve simply not gone far enough.
Liberal legalism and three theories of constitutional consolidation
In the post-war period, constitutional scholarship sought to solve a seemingly insoluble problem: the consolidation of constitutional democracy. Constitutional consolidation (Lat: consolidare, to make solid) refers to the process of rendering constitutions stronger, solid, more certain and stable. In response to the traumatic failure of Weimar and the apparent dangers of democratic excess, post-war consolidation was conceived as an essentially legalistic enterprise: law was to bolster constitutional democracies in order to make them impervious to political actors and movements intent on their destruction.
This legalistic conception of consolidation became fully entrenched after the Cold War as a result of liberalism’s hegemony and the ‘third wave of democratization’, and it aligns closely with the emergence of what Paul Blokker labels ‘liberal legalism’: ‘a distinctive liberal understanding of the law, or better still, a specific combination of liberalism and legalism’. This notion is rooted in what Judith Shklar called ‘ideological legalism’ and John Gray later described as ‘legalist liberalism’. Liberal legalism essentially entails three interrelated processes: first, it advances a reconfiguration of the relationship and balance between law and politics, not only by keeping law ‘apart from politics as much as possible’ and ‘representing law as a free standing institution’, but more fundamentally by regarding politics ‘as inferior to law’. Second, it grounds law in abstract universalist principles and fosters the progressive expansion of the legal sphere through an ongoing process of constitutionalization. Third, and as a consequence of the previous, liberal legalism produces increasing degrees of depoliticization by absorbing political questions and conflicts into the legal domain. These intertwined processes, which form the foundational pillars of post-war liberal-legalist orthodoxy, have conditioned the logic of constitutional consolidation that prevailed since. This logic, which essentially revolves around the neutralization of the political by the legal, has found its expression in three theories: militant democracy, liberal (or legal) constitutionalism, and, most recently, militant constitutionalism.
Militant democracy was conceived by Karl Loewenstein in 1937 in response to the democratic paradox: the possibility of subverting democracy by democratic means. It builds on the presumption that democracy is inherently dangerous (for democracy) and aims to prevent democratic suicide by addressing an apparent democratic naïveté – as Joseph Goebbels tauntingly proclaimed: “Aus der demokratischen Dummheit ließ sich vortrefflich Kapital schlagen”. Militant democratic regimes comprise pre-emptive legal instruments (most notably party bans) to confront (anti)democratic adversaries before they acquire power, and they do so ‘even at the risk and cost of violating fundamental principles’. For when democracy is ‘at war at the inner front’, Loewenstein maintained, ‘legality takes a vacation’. To save democracy from itself, that is, (anti)democratic adversaries are confronted with the force of law and their political challenges are drawn into the legal sphere. Besides pre-emptive legal intervention, however, Loewenstein also tentatively advanced a more comprehensive idea of consolidation: liberal democratic institutions needed ‘to be stiffened and hardened when confronted by movements intent upon their destruction’. In the end, Loewenstein came to redefine democracy in congruence with the dogmas of liberal legalism: ‘the application of disciplined authority [law], by liberal-minded men, for the ultimate ends of liberal government: human dignity and freedom’.
Alongside militant democracy, the ‘democratic debacle’ of Weimar and the ‘third wave’ expansion of liberal democracy to post-authoritarian states also engendered a more comprehensive paradigm shift in constitutional theory and practice. In the mid- to late-twentieth century, the political conception of constitutionalism became eclipsed by a legal conception. Legal constitutionalism – also known as ‘liberal’ or ‘new’ constitutionalism – operates at a more structural level than militant democracy, but comprises, again, a law-centric notion of consolidation. In institutional terms, legal constitutionalism consists of three central features: a written constitution with higher law status, entrenched by means of substantial amendment thresholds and/or eternity clauses; rights catalogues both integrated into a written and superior constitution and formalized in international treaties; a judicial body with final decision-making power designated as guardian and interpreter of constitutional norms and rights. By shifting emphasis from the political to the legal, by advancing the notion of superior and apolitical law, by expanding the realm of law through constitutional – often universalistic rights-based – adjudication, and by prioritizing legal over political institutions as the legitimate agencies of constitutional authority, the legal conception of constitutionalism became a central manifestation of post-war consolidation. Legal constitutionalism, in short, sees to legally solidify and stabilize the constitutional order by making it, to greater or lesser extent, impermeable to politics.
Militant constitutionalism: old wine, new bottle?
Militant constitutionalism is the latest proto-theoretical expression of post-war constitutional thought. It is a reflexive concept which rearticulates and reconfirms the dogmas of liberal-legalist orthodoxy in the face of a new threat: the rise to power of antiliberal populist movements and parties with counterconstitutional ambitions. Militant constitutionalism comes in different forms – maximalist v. minimalist; defensive v. offensive – but in general terms it presents both a revision and an amalgam of preceding post-war theories. It is a revision of militant democracy in the sense that it no longer relies on pre-emptive or ex ante legal intervention in the political sphere to prevent actors or parties from gaining power and instead focuses on ‘mechanisms of constitutional self-defense institutions’ once antidemocratic or illiberal actors seize (a considerable amount of) power.
In a way, the rise of militant constitutionalism entails the decline of militant democracy, as it concedes that pre-emptive legal limitations on political actors and organizations partaking in democratic competition no longer suffice. Paradoxically, the rise of this new concept seems to imply that antidemocratic and antiliberal forces are to some extent no longer subversive enough – in a way, they have become too democratic. As they adapt to democratic institutions, abide by the rules of the game, and in so doing achieve considerable political success, antiliberal populists render ineffective the militant democracy formula devised to challenge explicitly antidemocratic ideologies such as fascism. Facing a more implicit and more democratic enemy, militant constitutionalism maintains that constitutional democracies need to bolster their ‘legal guardrails’ to contain the ambitions of those who succeeded in obtaining power by democratic means.
The prominence of this new notion of constitutional consolidation shows that there is a shift of focus, as Jorieke Manenschijn notes, ‘from democratic backsliding […] to rule of law backsliding’. This shift, however, does not only stem from the fact that militant democracy ‘struggles to provide an adequate answer to rule of law backsliding’. Rather, the shift of focus from democracy to the rule of law and constitutionalism is an inevitable outcome of two interrelated processes intrinsic to post-war liberal legalist orthodoxy: the reconfiguration and hierarchization of the relationship between law and politics (constitutionalism and democracy), and the progressive expansion of the legal sphere through an ongoing process of constitutionalization. In other words, the shift from democratic to constitutional militancy pertains to a qualitative and quantitative dimension: in the post-war period, both the importance and the volume of (constitutional) law has drastically increased. Militant constitutionalism is the conceptual manifestation of the (pre)dominance of law in both theory and practice, and the concept attests to the fact that law has become the sovereign legitimating language. The fact that democracy has been conceptually discarded demonstrates its more general devaluation.
However, in the shift of focus from democratic competitors to power-holders and from pre-emptive legal intervention to legal guardrails, militant constitutionalism also merges some of the central elements of previous post-war theories. It adopts the emotive and combative component of militant democracy (militancy) but substantively advances mechanisms that are at the heart of legal constitutionalism. Militant constitutionalism advocates forms of super-entrenchment through eternity clauses and intricate tiered amendment formulae, it deems necessary strong constitutional courts empowered to effectively constrain majoritarianist politics or even supermajoritarianist politics in relation to ‘unconstitutional constitutional amendments’, and it stresses the importance of human rights catalogues, formalized either constitutionally or in treaties, as legal frameworks that allow national, supranational and international courts to preserve, as András Sajó maintains, ‘the stability of the constitutionalist liberal order’.
At the same time, militant constitutionalism also presents a widening of legal constitutionalism’s scope, as it explores a more diverse set of constitutional and institutional design options that might contribute to the preservation of the constitutional order, which fundamentally revolve around limiting the competences and prerogatives of political power-holders – through term limits, electoral rules, decree powers, autonomous agencies, veto points, multi-layered constitutions, etc. In relation to evolutionary constitutions, moreover, militant constitutionalism advances a process of legal formalization and codification – often in constitutional and hence entrenched form – of informal rules and conventions. This, again, is an expression of the belief that formal, written and superior constitutional law is the most suitable instrument to protect and bolster constitutional democracies against the excesses of democratic politics.
In addition to reaffirming the logic and mechanisms of post-war consolidation, militant constitutionalism also echoes familiar sentiments – an explicit distrust in democratic politics. This sentiment is articulated in the writings of some of its main advocates. Take for example the title of Benjamin Schupmann’s recent book on this topic: ‘Democracy despite itself’, which insists on the inherently suicidal nature of democracy. In a similar vein but more outspoken in this regard is András Sajó – flagbearer of the new concept. The opening line of his foundational chapter on militant constitutionalism states: ‘Democracy is one of the gravest threats to democracy’.
In general, the parallels between Sajó’s and Loewenstein’s mode of thought are striking. Moving beyond his earlier adaptation of Loewenstein’s critique of the ‘emotionalism of the awakened masses’; in a recent blog post titled ‘Militant Rule of Law’, Sajó, very much in the spirit of Loewenstein, warns that ‘legality kills us’, implying that adherence to the rule of law ultimately frustrates the realization of the rule of law. Like Loewenstein, he too believes that, when there is ‘war at the inner front’, legality ought to take a vacation. But it is not only – or primarily – legality which Sajó wishes an extended vacation; above all, it is ‘a considerable number of citizens of plebiscitary leader democracies [who] do not find the legalized turpitude morally troubling and don’t resent the abuse of the rule of law’. According to Sajó, it is morally “ambiguous” but democratically engaged citizens who pose an existential threat to constitutional democracy. In this view, the people need to be protected against the people. Or to use Sajó’s moralistic distinction between ‘good’ and ‘bad’ democrats – apparently moralistic distinctions are not an exclusive trait of populists – ‘democracy cannot be sustained when people believe that they are still good democrats even as they work to undermine it’. Who, then, according to Sajó, is to protect the good people against the bad people, substantive democracy against formal democracy, the rule of law against the rule by law? For this, Sajó turns to the usual suspects: ‘It is the legal profession (eminently, but not exclusively, judges) that is called to uphold the rule of law’. Here, too, we are witnessing Loewenstein’s reincarnation, who a century prior redefined democracy as ‘the application of disciplined authority, by liberal-minded men, for the ultimate ends of liberal government: human dignity and freedom’. It shows that liberal legalist orthodoxy is revitalized in the 21st century, and it has found its expression in the (not-so-)new concept militant constitutionalism.
Not far enough?
Like its conceptual predecessors, militant constitutionalism builds on a number of questionable assumptions. One of the inherent premises of militant constitutionalism is that constitutions and legal guardrails can safeguard constitutional democracy against antiliberal populists with counterconstitutional ambitions. Yet developments across multiple states have demonstrated the limitations of such legalistic strategies. In light of this, a number of scholars have come to recognize that ‘law has only a weak role in preventing a breakdown of constitutional democracy’ and conceded that ‘there is only limited empirical evidence for constitutional rules being systematically able to prevent politicians from undermining their country’s constitutional orders’.
More importantly, underlying the premise that militant constitutionalism can serve as remedy is the implicit (and therefore under-examined) assumption that the remedy (law) is not part of the problem in the first place. Before presenting militant constitutionalism as solution, it might be prudent to engage seriously with two rather inconvenient contentions: first, that increasing degrees of juridification of politics inevitably lead to increasing degrees of politicization of law. It raises the question whether extensive juridification could itself be a contributing factor in the intensified political contestation of the rule of law. A second and related contention is that antiliberal populists may at least in part be driven by what Paul Blokker calls ‘legal resentment’ and that populism could be, to use Cas Mudde’s words, ‘an illiberal democratic response to undemocratic liberalism’.
In this light, it is rather remarkable that advocates of militant constitutionalism express little interest in the causes and nature of antiliberal populism. As Schupmann discloses in the preface to his book, ‘the trend of rising populism and corresponding democratic decline, led many to inquire into the nature of populism, its causes, and its relation to democracy. What is most urgent is not understanding the nature of the actor attacking democracy […] The most urgent questions revolve around how democracy’s design allows for its subversion by antidemocrats […] and what measures can be taken to better defend democracy against such threats in the future’. The consequence of this disinterest in understanding the causes and nature of the threats against which democracy is to defend itself is obvious: at best, militant constitutionalism can offer symptomatic treatment; at worst, it ends up contributing to the instability of democracy itself.
Given the explicit disregard for causes, it is not only surprising but misguided and potentially harmful that advocates of militant constitutionalism keep portraying democracy as the gravest threat to democracy. Recent developments in Poland and Hungary seem to point in a different direction: since antiliberal populists anchor their legitimacy claims in popular sovereignty, they are ultimately weakened and defeated at the ballot box – much less by constitutional constraints or in a court of law. Hence, instead of persisting in presenting democracy as an existential threat to constitutional democracy, it may be more appropriate for the defenders of constitutional democracy to praise it for what it really is: its ultimate guarantee.
What is more, the Polish case shows that one of the main problems at this point is precisely that legal guardrails thwart efforts to restore the rule of law, resulting in a deadlock that incentivizes revolutionary rather than evolutionary pursuits. The result of Donald Tusk’s attempts at reappropriating the state by ‘using decisionist means comparable with PiS’s own in order to cleanse politicized institutions’ – a strategy which he labels ‘militant democracy’ – is not only that ‘various institutions are recognized by only one side of Poland’s political divide’, but, as Stanley Bill and Ben Stanley argue, that it leads to a vicious cycle in which ‘winners claim unfettered rights – justified by precedent and exceptional necessity – to reshape institutions in their image’. The double-edged nature of legal constraints, and its implications for both (theorizing) constitutional militancy and the ongoing politicization of law, should therefore not be dismissed too readily. Developments in Hungary speak to the same point: Tisza’s constitutional majority has been widely celebrated precisely because it enables the party to circumvent most legal constraints. It shows that advocates of robust legal guardrails are faced with a conundrum: how to justify their circumvention in one instance while urging respect for them the next?
The point here is not that constitutional democracies need to remain defenseless or that legal safeguards should be abandoned altogether, nor that militant democracy and all its subsequent theoretical iterations emerged without historical justification. The point here is that legalistic consolidation should be critically (re-)examined and that theories and practices of constitutional consolidation should be reconceived and reimagined beyond the law. For although it may be tempting to double down in times of crisis, ever more legal guardrails will not enhance the durability of constitutional democracy – much like the structural integrity of a building is not improved, and may even be weakened, by endless shoring. More support structures should not be mistaken for greater structural soundness. The current crisis seems to suggest that it is time to take McGilchrist’s observation seriously: while we may not have been traveling in the wrong direction, we might have gone too far in what may once have been the right direction.
Suggested citation: Ursus Eijkelenberg, Symposium on Militant Constitutionalism Part II: Not Far Enough? Militant Constitutionalism and the Limits of Legal Consolidation, Int’l J. Const. L. Blog, June 11, 2026, at https://www.iconnectblog.com/symposium-on-militant-constitutionalism-part-ii-not-far-enough-militant-constitutionalism-and-the-limits-of-legal-consolidation/
[i] This blog post is the product of a draft paper presented at the workshop on militant constitutionalism. The arguments in this post serve as basis for my paper on the drawbacks of legal consolidation. For more information: u.eijkelenberg@uva.nl