—Ming-Sung Kuo, Reader in Law at the University of Warwick, School of Law
Populism’s liaison with democracy has a long pedigree. From the emergence of the People’s Party in the United States (US) in the late nineteenth century to the ebb and flow of the Peronist movement in Argentina in the twentieth century, populism has not been alien to comparative politics, even if we do not include in the picture politics that had sung the populist tone before the term ‘populism’ entered the literature. Likewise, constitutional scholars have been no stranger to populism. Noticeably, populism was once embraced by law professors in American elite universities in the name of radical democracy or progressive politics, while signs of the US Supreme Court turning away from liberal causes were becoming clear.
Against this backdrop, constitutional scholars today – with some outstanding exceptions – seem to be evocative of some generational rebellion in their recent rediscovery of populism amid talks of democratic backsliding and constitutional self-defence. Sceptical about the anti-liberal, anti-pluralist traits of populist movements, they see in populism the seeds of the authoritarian turn in constitutional democracies. Seen in this light, populist politics now is a challenge to be answered. In militant democracy constitutional scholars find the answer to the populist challenge.
Finding Militant Democracy Everywhere All at Once
Yet, all talking about constitutional democracy’s self-defence notwithstanding, do we mean the same thing in the name of militant democracy? Consider the following examples.
Example One: In face of the existential threat from its archenemy, China, the suggestion has been made that Taiwan needs to strategize its regulation of online disinformation from the perspective of militant democracy. Set apart from other regulatory approaches, the militant democracy-oriented response would entertain some intolerant attitude towards the disinforming ‘enemy’ from within and without to the extent of defending democracy.
Example Two: To address the propagation of misinformation enabled by social media, the prohibition – and other regulation – of anti-constitutionalist parties at the core of militant democracy have been drawn on as a source of inspiration for regulating such platforms ‘as private actors qua threats to democracy’. With this rehabilitated concept of militant democracy, the limits of tiered scrutiny and narrow tailoring, and the strong aversion to content-based and viewpoint-based regulation in the jurisprudence on the first amendment of the US constitution can be overcome.
Example Three: Having been involved in the insurrectionist attack on the Capitol on 6 January 2021, Donald Trump should be barred from the presidential ballots under section 3 of the fourteenth amendment of the US constitution. Enacted well before the emergence of the concept of militant democracy, the disqualification clause is recast as an instance of American-style militant democracy since anti-democracy politicians, who are ex-convicts of insurrection but have never taken any public office as stipulated under the disqualification clause, can still run for the presidency.
Example Four: In the lead-up to Brazil’s 2022 presidential election and afterwards, the Brazilian judiciary moved aggressively with investigations into fake news, the arrest of a member of the legislature who had advocated for a military dictatorship, the imposition of penalties on online postings against democracy, and the quick declaration of the incumbent’s challenger as the winner of the presidential election. Such judicial moves have been characterized as the comeback of militant democracy in Brazil.
Discovering the Multivalence of Militant Democracy in Constitutional Discourse
The list of examples can go on and on. For present purposes, suffice it to say that the foregoing examples speak to the diverse deployment of militant democracy in the global constitutional landscape. Yet, do we need the concept of militant democracy to account for what has been argued and proposed in each of the examples listed above? Or, to frame the question differently, what is the expected result of constitutional debates being cast in terms of militant democracy?
The first two examples – one drawn from Taiwan and the other from the US – deal with the regulation of online activities. While the first is framed in terms of Taiwan’s existential struggle with an enemy state, the second is centred on the limitation of the categorical, absolutist approach to freedom of speech in the US constitutional doctrine. As constitutional democracies remain embedded in the international system of sovereign states, it is unclear that militant democracy, which is directed at a democracy’s internal enemy that aims to turn democracy on its head by democratic means, would add much to its sovereign toolkit in countering interference from outside, as suggested in the example drawn from Taiwan. Regulating disinformation – as opposed to misinformation – does not require the disseminator from within to be labelled the enemy. As regards the regulation of social media platforms in the second example, it shows how the concept of militant democracy may help recalibrate the doctrinal approach to the first amendment in the US, suggesting some rebalance of freedom of speech and other democratic values.
The third example, drawn from the US debate surrounding Trump’s eligibility for the 2024 presidential election, concerns the disqualification of individuals from specified offices based on their past records. Such a legal provision is anything but novel. In some countries, insurrection is just one of the several disqualifying acts that are deemed as incompatible with the character required of high offices. That said, barring individuals from serving in government for extremist political views, subject to due process of law, is indeed a measure of democratic self-defence inspired by the concept of militant democracy.
As regards the fourth example from Brazil, it attests to some judicial activism, which may or may not be guided by the defence of democracy. To justify their intervention in democratic processes, judges do not need to act in the name of militant democracy. Rather, proportionality balancing spreads around the globe because it provides judges with a doctrinal structure under which to scrutinize the justifiability of restrictive measures taken by public authorities, including those restricting political rights in a democracy.
If my observation above is correct, the appeal to militant democracy in diverse contexts, despite established doctrinal tools available, suggests that militant democracy is more than some concept of democracy that would draw a line under the liberal values of pluralism and tolerance. Rather, it speaks to the multivalent character of current constitutional discourse on militant democracy. Alongside the philosophical debate in constitutional theory, concerning whether a constitutional order pivoted to the idea of militant democracy remains a liberal society, is the increased interest in the literature in what measures militant democracy engenders in constitutional practice – to which the recent US debate surrounding the disqualification clause (Example Three) attests.
Yet apart from the discussion of militant democracy as a theoretical concept of constitutional democracy and as part of the toolkit for democratic self-defence, the rebranding of regulatory intervention (Example One) and judicial activism (Example Four) as instantiations of militant democracy, and the attempted doctrinal recalibration in the name of militant democracy (Example Two) as discussed above, suggest another valence of militant democracy in current constitutional debates. Instead of evoking some fundamental choice over constitutional principles or signifying specific defensive measures, militant democracy in this third valence speaks to a reorientation in constitutional thinking. The recasting of existing doctrines in terms of militant democracy with an eye to rebalancing national security (or public interest in general) and, say, freedom of speech under the doctrine of proportionality marks a new constitutional outlook in the ordering of constitutional democracy – and a militant one at that.
Moving towards a Militant Constitutional Outlook?
To challenges posed by authoritarian populism, constitutional scholars have responded with, inter alia, the rehabilitated concept of militant democracy. The wide appeal of militant democracy today, as evidenced in the diverse examples discussed above, suggests that we need a discriminating approach to it. Militant democracy as (a) theoretical concept, (b) policy measure, and (c) constitutional outlook should be distinguished in analysis amid the talks of democratic self-defence of constitutional orders. Adding to the existing literature of militant democracy as a theoretical concept of constitutional democracy, and as denoting policy measures to defend democracy, the valence of militant democracy as a new constitutional outlook is set to change the dynamics of political life in the constitutionalist state in the most profound way. It suggests dialling down the intensity of proportionality-structured judicial scrutiny of restrictive measures on fundamental rights and political participation, and lowering the threshold of justification for government intervention in general. With the very constitutional democracy at stake, are we ready to embrace a full-fledged militant constitutional outlook in the name of democratic self-defence?
Suggested citation: Ming-Sung Kuo, The State of (Militant) Democracy, Int’l J. Const. L. Blog, Mar. 18, 2026, at: http://www.iconnectblog.com/the-state-of-militant-democracy/