Tom Ginsburg and Aziz Huq on Democratic Erosion and Militant Democracy

Democratic Erosion and Militant Democracy

In 1937, the German political scientist Karl Loewenstein published a two-part article that coined the term militant democracy.[1]  Concerned with the inadequate democratic response to the rising threat of fascism, he called for a set of legislative and legal techniques that would allow democracy to defend itself against threats that emerge from within. “Constitutional scruples” he noted, “can no longer restrain from restrictions on democratic fundamentals, for the sake of ultimately preserving these very fundamentals.”

Loewenstein went on to catalogue techniques used by inter-war democracies to shield themselves from the rising threats of communism and fascism. These included banning subversive parties and movements; using emergency statutes to cripple threats once they materialized; proscribing private para-military groups, including party militias; preventing the abuse of parliamentary institutions by political extremists; bans on incitement and hate speech, including demonstrations whose only purpose was provocation; and protecting the civil service and armed forces from infiltration.  Many of these institutions informed constitutional design in postwar Europe. The region then abounded with carefully crafted emergency clauses, dignity clauses, unamendable provisions, and party bans.

One of the arguments in our new book, entitled “How to Save a Constitutional Democracy,” published this week, is that our comparative constitutional imagination has not moved on enough since Loewenstein’s time.  Today’s threat to liberal constitutional democracy, at least in its American and European heartland, are not a takeover by an explicitly fascist or overtly anti-democratic party, a military coup, or a communist-style revolution. Instead, the risk is that of slow erosion, with a number of small steps being taken, often through perfectly legal means, to undermine the quality of democracy.  This has significant implications for how we should fill our constitutional toolkit.

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