For a Chastened Militant Democracy

Miles Maftean
1 August 2018

American democracy is in crisis, and if the latest headlines are to be believed, the cause of this crisis is a breakdown of civility, which can refer to anything from violent clashes between opposing groups to public shaming of government officials. Many leading commentators now call regularly for a return to civility in order to harmonize our disagreements. Polarization in politics is nothing new, but the “populist wave” of recent years has pushed ordinary differences to the extreme, presenting them as existential and irreconcilable. The question of what should be tolerated in a liberal democracy has become central. As Karl Popper argued in his seminal work The Open Society and Its Enemies, intolerance should not be tolerated, particularly when citizens express an intention to denigrate subsets of a population, or the democratic way of life itself. We expect democratic regimes to defend itself—and its citizens—from such extreme political action. But what does it mean for a democratic state to defend itself?

 

The heart of the matter is the fact that democratic norms, procedures, and institutions can be used to affirm values and achieve goals that are incompatible with democracy. Today’s extremists often claim that they are simply exercising their rights to speech, expression, and association. But this is, of course, a familiar story. Hitler’s rise to power in inter-war Germany is the classic example of far-right extremists exploiting the structural vulnerabilities of democracy.

 

The lesson many post-war European states have gleaned from this period is that democracy requires additional safeguards in order to defend itself. Today, many democratic regimes have institutionalized mechanisms which constrain or fully forbid extremist political action, preemptively restricting antidemocratic movements in the name of protecting civil and political freedoms. These sorts of mechanisms are what has been called a “militant democracy.” As the German legal theorist Karl Loewenstein argued, democracies should be equipped with the following tools for combating antidemocratic extremism: banning parties and militias, restricting rights of assembly and free speech, denying certain individuals access to public office, and even revoking the citizenship of the most dangerous offenders. The doctrine of militant democracy became institutionalized as a constitutional category in many European states after World War II, particularly those that at one point had been taken over by extreme political movements (cf. the Italian constitution of 1948, the French Constitution of 1958, the Spanish Constitution of 1978, and the West German Basic Law of 1949). More recently, there have been attempts to address the populist crisis of pluralist democracy by revitalizing the use of militant measures against those who oppose the rule of law.

 

The question today is whether militant democracy can be a viable option for a democratic state’s self-defense. As the current crisis in many ways mirrors the past crises militant democracy was designed to prevent—and the instruments remain at our disposal—it is worth asking how militant democracy might be employed to combat political extremism today. I will first highlight its application in Germany and other European democracies, before examining whether such a doctrine might be applicable in the United States.

 

A Paradigm Shift in Militant Democracy

 

The experience of Nazism in Europe revealed that democracy as a procedural arrangement may lack sufficient defenses against a party in power that is determined to destroy democratic principles and institutions. This can be done, apparently, in a procedurally legitimate way. The general argument for militant democracy is that these measures can be used to protect democracy from this sort of dismantling of democratic institutions from within. But in order to target extremist action, the state first has to define what is considered illegitimate, necessitating a positive vision of democracy underpinned by norms and values.

 

One overarching norm that can be used to legitimate militant democracy is that of toleration—individuals, groups, associations, and political parties must accept the moral and political equality of all citizens. Taking toleration as the basic norm of democratic regimes allows for democratic states to pass laws restricting the political action of those who do not accept this equality. The tolerance paradox, then, only holds if we presuppose that tolerance means accepting everything—but it requires fighting against something, not remaining indifferent. The German model is a paradigmatic example of militant democracy. It places restrictions on the democratic rights of individual extremists, namely by limiting speech and expression: making it illegal to display symbols of the Nazi era, for example, and prosecuting Holocaust deniers (as do a dozen other European countries). Furthermore, Germany has adopted the legal concept of Volksverhetzung, or incitement to hatred, which applies to anyone who denigrates an individual or a group based on their ethnicity or religion, or who rouses hatred or promotes violence. This allows the state to also ban extremist political parties and associations: the 1952 ban of the Communist Party, the 1956 ban of a neo-Nazi Socialist Reich party, and the 2003 ban of the Turkish Welfare Party that was later upheld by the ECHR are such examples.

 

This militant stance has equipped states with an active role and substantive baseline by which to decide what actions are deemed legitimate in a democratic state. It also is about how individuals express their differences as well. Tolerance also requires the defense against illegitimate ways of expressing differences. The criteria for judging speech to be illegitimate, for example, are much more expansive than in the US. It certainly curtails extremist action from entering the democratic arena more so than it does in the US, thereby making viewpoints more centrist. However, the question still remains as to whether Germany—or other European states—are actually better equipped to deal with different forms of extremism, such as right-wing and left-wing extremism and Islamic fundamentalism today in comparison with those states that do not have such constitutional measures. The evidence suggests that it does not.

 

For instance, Germany’s constitutional court rejected a ban in 2017 against the neo-Nazi NPD party on the grounds that it was too weak to pose a real threat to democracy, despite its call to eliminate democratic freedoms in order to establish an authoritarian state defined around an ethnic “national community.” In what is commonly referred to as the “potentiality concern,” the ability to carry out such threats is the pivotal factor in deciding whether the ban is legitimate, which stands in stark contrast to the jurisprudential position of the Court in the 1950s, which carried out several party bans. The court argued that more concrete evidence is required in order to establish that an extremist party poses an imminent threat, countering the more militant attitude of the Bundesrat, which had called for the NPD to be banned immediately. Still, when pressed to answer whether a future ban would be able to combat such imminent threats to thwart a democratic disaster, the President of the Federal Constitutional Court Andreas Voßkuhle wryly answered, “When push comes to shove, we’ll pull it off in time.” Unfortunately for Mr. Voßkuhle and the FCC, the opportunity may have already passed.

 

As European countries move towards a more cautious and restrictive interpretation of militant democracy, right-wing political violence is on the rise, and far-right extremist parties have seen historic electoral success. The anti-immigration, anti-Muslim Alternative for Germany Party is now the third largest party in the Bundestag. France’s Front National was in second place in the 2017 presidential elections, and Jobbik is now the second largest party in Hungary. While the Netherlands’ Party for Freedom has not risen to quite the same heights, all these parties have seen increasing acceptability of their ideas. The historical example of Nazism, does not seem to help with today’s situation because the potentiality concern no longer applies—if we cannot define extremist action as imminently threatening democracy, militant measures cannot be used. As Cas Mudde has argued, extremists today are not focused on toppling democracy, but rather on using democratic institutions to realize their substantive vision of democracy. These parties do not preach anti-Semitism, as fascist parties have in the past, and accept democracy as an institutional arrangement. Their vision of democracy is based on a “Europeanness” which centers on a xenophobic ideology, and paints the current problems currently faced by democracies (whether migration, terrorism, or economic stagnation) as issues of security.

 

Still, it remains possible to accept democratic procedures in a way that challenges democratic principles. More specifically, these parties pose a direct challenge to democratic fundamentals such as minority rights, pluralism, the rule of law, and the protection of vulnerable populations. Militant democracy is capable of upholding these principles, provided governments and courts remain committed to them. In today’s context, however, this virtue of militant democracy increasingly risks becoming a vice in states where far-right parties have already acceded to power. In these states, such as Poland and Hungary, the techniques of militant democracy have been turned on their head, giving rise to what one might call a “militant illiberal democracy.” In Poland, the ruling Law and Justice (PiS) party has invoked militant democracy in order to crack down on anti-government demonstrations, which it has deemed “a call for breaking democracy and disrespecting the law.” Just last month, Poland’s interior ministry asked the supreme court for the right to take over and replace the board members of the opposition movement Citizens of Poland (Obywatele RP), arguing that its rallies against far-right parties and the PiS government amount to “inciting unlawful activities.” Whether militant democracy in Poland will not become a weapon against democratic principles now depends on a decision from the high courts. But should the defense of democracy end here, left in the hands of self-proclaimed illiberal democracies, or does it require looking elsewhere?

 

Such trends apparently call for a chastened version of the model of militant democracy. The understanding of militant democracy inspired by the extremist movements of the 1930s cannot address today’s far-right parties, and may ultimately put new tools at their disposal. But what can be salvaged from the notion of militant democracy is the idea that fighting right-wing extremism requires a substantive vision of democracy and its values of human dignity, moral equality, and toleration. Rather than distinguish simply between democratic and anti-democratic parties—based on their potential to overthrow the democratic order—a revitalized concept of militant democracy would seek to identify and restrict actions that go against democratic values rather than the danger posed to the democratic system.

 

European democracies have historically been open to the idea of limiting democratic rights in order to protect the core of liberal democracy. To ensure democracies do not backslide into authoritarianism, democratic institutions should no longer remain neutral but be guided by positive, substantive norms that are being stampeded on by extremist political actors. A paradigm shift occurs in militant democracy when it aims to protect the democratic values underlining the institutional arrangement, one that builds parameters which cannot be infringed upon, thus substantiating certain action as illegitimate: the criminalization of legitimate opposition, the disenfranchisement of certain groups based on religious or ethnic grounds, the denial of equality and dignity of human beings, and the coercion of individuals in the name of faith or certain national ideals. Thus, extremists—radical Islamists, white supremacists, or National Socialists—should be excluded from pursuing their political aims because they are incompatible with the values of democracy: tolerance, equality, respect, and reciprocity. This form of militant democracy necessitates the ability for democracies to counter actions that oppose democratic values.

 

In the European context, where national provisions of militant democracy often fail, a new form of transnational militant democracy—such as that advocated by Jan-Werner Muller and Ulrich Wagrandl—may be required to put such a model into practice. Some European democracies, such as Hungary, have a stranglehold on democratic institutions, which ensures that power is solidified and centralized, diminishing the ability of legitimate opposition to carry any meaningful force for change. For instance, when Prime Minister Viktor Orbán expanded the Hungarian constitutional court in 2010 from eight to 15 members, he centralized power in the judiciary by appointing judges who would be loyal to him and by passing constitutional amendments that further shrunk the competencies of the Constitutional Court. The Orbán government’s redrawing of parliamentary districts in 2010 further institutionalized that his party would have an advantage, reshaping democratic institutions in an unfair manner, and undermining core democratic values of equality.

 

The European Union has the power to enforce that its member states should adhere to democratic standards. According to Article 7 of the Lisbon Treaty, the EU can punish member states by suspending their voting rights when serious violations occur in regards to the commitment to uphold the fundamental values of the EU: respect for human dignity, freedom, democracy, equality, the rule of law, and respect for human rights. This is the route by which the EU can act militantly, and seems poised to do so, stripping member states of their voting rights. In April, the European Parliament called for the use of Article 7 following Orbán’s actions regarding the Constitutional Court, corruption charges, and the restrictions on media, non-government organizations, and research institutions. Likewise, in June, Poland was put in the dock by its fellow EU member states in an unprecedented hearing over the country’s alleged failure to respect democratic norms. The implementation of this model of militant democracy can be seen in light of these developments: EU member states have a commitment to uphold democratic values, and only when these states fail to live up to these standards does militant democracy step in to secure the transnational democracy it shares.

 

In this light, the values-based paradigm shift in this model of militant democracy attempts to contain Member States—or individuals and groups domestically—before they can undermine the democratic values underlying the system. In addition to the collective action this model can take, it also gives ample room to target individuals and groups domestically via the European Court of Human Rights. At the level of individual rights, militant democratic action can be justified via Article 17 of the Convention—the prohibition on the abuse of rights and freedoms guaranteed in the Convention—which was the rationale behind the ban of the Turkish Welfare Party by the ECHR. In addition, freedom of speech and association does not protect individuals who engage in Nazi or radical Islamist propaganda, or hate speech, as they go against the values underpinning the Convention. The implementation of such a model of militant democracy is not only available in the form of legal instruments, but it also has a sound justification by necessitating the protection of democracy’s underlying values.

 

A Model of Militant Democracy in the US?

 

What, if anything, can be learned from this European context for addressing the rise of political extremism in the US? If the premise of militant democracy is that some action is so intolerant that a tolerant liberal-democratic state should not allow it to take place, then militant democracy may be difficult to put into practice in the US. The idea that a state can limit the fundamental rights of its citizens because they threaten a “democratic way of life” is largely seen as illegitimate within the American democratic tradition. For most Americans, protecting democracy requires upholding the fundamental rights of all individuals regardless of the content of their speech. Democratic rights are understood as protective devices that shield individual autonomy from governmental interference. Targeting certain groups based on their political ideology not only has little support, it also has practically no constitutional or legal basis. The American model has the virtue of upholding political equality, combined with the vice of tolerating a greater range of viewpoints that denigrate this equality.

 

I find that there are two issues with implementing militant democracy in the US. First, American democracy is more hostile to its basic principles. Part of this hostility lies in the fear of the “tyranny of the majority” expressed in The Federalist Papers and Tocqueville’s Democracy in America. But Americans are also less likely than Europeans to think of democracy as a specific set of substantive values. The lack of consensus on a set of values that underpin democratic rights is what underlies America’s “absolutist” understanding of free speech, which allows for neo-Nazis to openly march through American cities. As a result, Americans constantly find themselves embroiled in debates over who has a right to speak. Take the current debate over “safe spaces” at American universities, essentially a question of whether it is legitimate to deny certain speakers the opportunity to appear on campus. Republican-led state legislatures have responded with laws that make such “safe space” policies illegal on the grounds that they disregard free speech.

 

This is not to say that militant democracy has no place in American history. On the contrary, particularly in times of violent conflict, the American military state has seen it fit to call for exceptional measures of repression. For example, in a recent article by Udi Greenberg, he shows how the maintenance of American power relied on a militarized logic of militant democracy that undermined democratic freedom rather than enhanced it. Militant democracy, in the American context, allowed for the categorization of American citizens of German, Japanese, and Italian origin as external threats. After the Second World War, militant democracy remained an option for state power, with international conflicts necessitating the suspension of some rights on American citizens. This was reasserted after the September 11 terrorist attacks, where both the Republican-led Administration of the George W. Bush era and the Democratic Administration of the Barack Obama era called for preventive arrests and deportations. Donald Trump’s categorization of immigrants as an inherent threat—and the subsequent of their legal rights under his “zero tolerance” policy—suggests that this American tradition of militant democracy is alive and well.

 

Here, we find the most insurmountable obstacle to militant democracy: this model for defending democratic values and institutions requires a substantive commitment to these norms and institutions in the first place. A militant democracy approach centered around defending democracy’s underlying values—equality, liberty, respect and reciprocity, toleration—can provide the basis for a principled approach to determining what actions are acceptable in a democracy. Recent events in Hungary, Poland, and the US, however, suggest that without a commitment to these values, militant democracy is more likely to threaten democratic institutions than protect them.

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