Krishner W13F

Introduction
A Theory of Militant Democracy: The Ethics of

Combatting Political Extremism
Alexander S. Kirshner
Print publication date: 2014

Print ISBN-13: 9780300188240
Published to Yale Scholarship Online: May 2014
DOI: 10.12987/yale/9780300188240.001.0001
Introduction
Alexander S. Kirshner
DOI:10.12987/yale/9780300188240.003.0001
Abstract and Keywords

This introductory chapter sets out the book's purpose, which is to outline a principled
framework for grappling with popular opposition to representative government. The framework
allows the diagnosis of challenges raised by internal threats to democracy; it also sheds light on
how these problems might be met in ways that are, to the greatest degree possible, consistent
with our reasons for embracing self-government. The chapter also explores an alternative
approach for thinking about threats to representative regimes—one that focuses on the
democracy-preserving potential of judicial review. An examination of this alternative model will
help define the nature of the challenge posed by antidemocrats and the kinds of questions a
theory of militant democracy ought to answer.
Keywords: democracy, representative government, self-government, judicial review, antidemocratic movements
Militant Democracy as Democratic Counterrevolution

“The bill! Or fire and slaughter! The bill! Or fire and slaughter!” This was the ultimatum shouted
by the gang of Nazi brownshirts who surrounded the Kroll Opera House on March 23, 1933.1
The opera house, a grand building, served as the temporary site of the Reichstag after a fire had
destroyed its most recent home. The order of parliamentary business on that March afternoon
was an enabling law that would give the recently appointed chancellor, Adolf Hitler, vast
discretionary powers over the German state. Four hundred and forty-four deputies, over two-
thirds of the elected members of the parliament, voted for the law. Ninety-one deputies voted
against it. Eighty-one deputies did not attend the meeting—some of them were imprisoned,
others feared for their lives.2 Just two weeks earlier, the Nazi Party and its allies in the German
National People’s Party had received a plurality of the votes in a violence-stained national
election. Neither that election nor the legislative vote immediately preceding (p.2) the
dissolution of the Weimar Republic met minimal standards of democratic legitimacy.3
Nonetheless, the Weimar Republic has come to stand for the possibility that a popular majority
might use democratic procedures to demolish a constitutional regime.
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Introduction
Four years after passage of the Enabling Law, Karl Loewenstein, a German legal scholar, coined
the term militant democracy. Loewenstein had witnessed the Nazis’ seizure of power firsthand
and had subsequently fled to the United States. Writing in the American Political Science
Review, he contended that a militant democracy would fight to block the “emergence and rise of
anti-parliamentarian and anti-democratic parties.”4 Like many others who experienced the brunt
of twentieth-century fascism, Loewenstein maintained that the intolerant should be met with
intolerance.5 Respect for the rights of those who preferred to live in nondemocratic regimes—for
the rights, in other words, of antidemocrats—was not an area of concern for Loewenstein.6 He
rejected the constraints implied by what I will refer to as the paradox of militant democracy: the
possibility that efforts to stem challenges to self-government might themselves lead to the
degradation of democratic politics or the fall of a representative regime. Democrats,
Loewenstein held, should not shy from restricting “democratic fundamentals, for the sake of
preserving these very fundamentals.”7 Regimes that collapsed under popular pressure, he
concluded, had “gravely sinned by their leniency.”8
Today the “lesson” of Weimar is ascendant. Few political theorists or democratic polities accept
the idea that a democratic regime should placate its enemies. John Rawls, no radical, wrote that
men need not “stand idly by while others destroy the basis of their existence.”9 Modern
representative regimes or polyarchies enforce measures that limit the purview of extremist
individuals and political organizations—examples include democracies that are consolidated
(Israel) and those that are not (Iraq), wealthy and poor democracies (France and India),
democracies with dramatic histories of (p.3) institutional failure (Germany) and those boasting
remarkable records of political stability (the United Kingdom). Even in countries such as Turkey,
where defensive measures are the source of substantial political dispute, debate generally
revolves around the question of who poses a threat to democracy (the Islamists or the army), not
whether representative government should be defended.10 There is now a growing body of
scholarship dedicated to describing the steps democracies can and arguably should take to
combat popular threats.11
Despite the ubiquity of efforts to counter antidemocrats, our understanding of the normative
issues at stake when democracy is menaced by a popular threat remains relatively inchoate.
Many students of militant democracy, including myself, accept Loewenstein’s central argument
that democrats should stand up for self-government. At the same time, contemporary scholars
intuitively recognize that Loewenstein’s approach lacks a certain nuance; they acknowledge that
there are likely to be some noteworthy drawbacks to overruling laws, banning parties, and
restricting democratic participation.12 In other words, they recognize that in avoiding the Scylla
of Weimar, it is best not to steer into the Charybdis of McCarthyism. Despite this insight, the
nature of the moral costs of militant action and, therefore, the nature of the challenges
associated with safeguarding democracy have remained unclear and underdefined. As a result,
we lack a principled framework for thinking through when defensive action is called for and how
to make good on the damage caused by that action.
Our partial understanding of the normative terrain of militant democracy, I believe, is at least
partly attributable to political theorists’ long-standing passion for debating the normative status
of antidemocratic decisions. Fear of the people—very specifically, the fear that the people will
decide to forsake the institutions of legitimate self-government—is a central and ancient theme
of political philosophy.13 James Madison warned that “when a majority is included in a faction,
(p.4) the form of popular government on the other hand, enables it to sacrifice to its ruling
passion or interest both the public good and the rights of other citizens.”14 And Jean-Jacques
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Introduction
Rousseau inveighed against the Hobbesian prospect “that a whole people [could] alienate its
freedom and subject itself to a king.” Such a decision could only be the work of madmen, and
“madness does not make right.”15 Today this fear of antidemocratic decisions stimulates
arguments about the limits of democratic authority and the legitimacy of judicial review. To be
sure, questions about the moral weight of antidemocratic law and the appropriate institutional
response to such legislation are of both theoretical and practical interest. But, as I will show,
inquiries into the normative status of antidemocratic legislation shift our focus from a critical
reality: antidemocrats, not just antidemocratic laws, threaten democracy.
At its core, therefore, my analysis is motivated by the following observations: antidemocrats

exist, they have legitimate interests in participation, and respecting their interests poses
challenging ethical dilemmas for democrats. In light of those observations, in this book I outline
a principled framework for grappling with popular opposition to representative government. The
framework will allow us to diagnose the challenges raised by internal threats to democracy; it
will also shed light on how these problems might be met in ways that are, to the greatest degree
possible, consistent with our reasons for embracing self-government. The model treats the
defense of representative institutions as a component of a larger and longer-term struggle to
extend democratic forms of governance under less than ideal conditions. That struggle begins
with underground attempts to topple authoritarian regimes, it continues through the transitional
creation of representative institutions, and it includes efforts to maintain and strengthen the
self-governing character of established democracies.
In speaking of a democracy or a representative regime, I am referring to what Robert Dahl

describes as polyarchies. Joshua Cohen and (p.5) Joel Rogers offer a neat summary of Dahl’s
idea: polyarchies are imperfect regimes in which “virtually all citizens have rights of suffrage,
political expression, association and office holding, as well as access to diverse sources of
information; in which elected officials control public policy, and citizens choose those officials
through free and fair elections.”16 To say that a polyarchy is less than ideal and that democracies
can be more democratic implies that democracy is a continuous variable. Because my aim is to
explore a specific political problem—how to respond to popular challenges to democracy—rather
than to vindicate a novel account of self-government, I ground my investigation of threats to
democracy in an account of individuals’ interests in political participation. When I state that a
policy will leave a regime more democratic, I narrowly mean that that regime’s practices and
institutions are more consistent with individuals’ equal claims to participation in a fair political
system. I focus on the right to participate because this right lies at the core of the ethical
dilemmas raised by popular challenges to democracy. Of course, different theories of legitimate
government assign different moral weights to political involvement. And other theorists’
accounts of the right to participate will differ from my own, as they place greater emphasis on
one aspect of participation rather than another. Yet if my arguments are persuasive, my analysis
will effectively map out the normative dilemmas raised by antidemocrats, providing a sound
foundation for other theorists’ consideration of popular challenges to representative government
in the light of their own approach to democracy’s value.
This project mines the experience of those who have sought to establish democratic institutions
in authoritarian regimes. In particular, I explore the writings of the Polish journalist and former
dissident Adam Michnik, as well as the work of other intellectuals allied with the Polish
Solidarity movement. Solidarity’s democratic rebels attempted to force a transformation of the
communist regime without mimicking the authoritarian politics of the ruling (p.6)
“revolutionary” party; they rejected both the perfectionist ambitions of radical revolution and
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Introduction
the perverse means of Leninist vanguardism. To avoid the predictable pitfalls of ideological
rebellion, Solidarity adopted democratic but nonutopian goals and democratic but non-utopian
means for achieving those goals. Their efforts to establish a pluralistic, representative regime
constituted a “self-limiting revolution.”17
The basic structure of the ethical challenge faced by militant democrats parallels the challenge
faced by democratic rebels. Both groups seek to extend democratic institutions despite the
existence and influence of antidemocrats. In both cases, extending democracy may require
undemocratic action. Democratic rebels may have to operate in secret, organize themselves
hierarchically, and make decisions without consulting their supporters. Defenders of democracy
may ban parties, restrict the ability of antidemocrats to hold political office, and overturn
dangerous majority decisions. Finally, both democratic rebels and militant democrats must take
care to limit the harm inflicted by their activities. Of course, the means available to those who
defend representative government differ from the means used by those seeking to establish
representative institutions. But the principles underlying democratic efforts to pursue self-
government can guide democratic efforts to defend that form of government.
The model of militant democracy I outline is composed of three interlocking principles. First,
and most important, all citizens, both democrats and antidemocrats, possess indefeasible rights
to participate. This is the participatory principle of militant democracy. Accepting that opponents
of self-government possess important democratic interests means that those interests must be
taken into account when determining how to respond to antidemocratic action.
Second, exclusionary rules or policies, such as a party ban, should be used only to thwart
antidemocrats from invidiously violating (p.7) others’ rights. This is the principle of limited
intervention. Militant policies should not be employed in the pursuit of an ideal regime; instead,
defensive projects should help attain an intermediate end, an imperfect political system in which
capable citizens can play a meaningful role (that is, a polyarchy). Like democratic efforts to seek
representative government, principled attempts to preserve a legitimate regime should be
restrained or self-limiting. “Pluralist democracy,” Michnik has written, “necessitates compromise
in the face of complex realities. The philosophy of compromise is a philosophy which recognizes
quandaries. The philosophy of radicalism, revolution, demagogy, and violence, by contrast, takes
an easier path, although, as I’ve explained, it produces the guillotine and not democracy.”18
Third, and finally, democrats’ efforts to defend self-government should be shaped by a sense of
the damage likely to result from defensive action. This is the principle of democratic
responsibility. States can do too little to protect democracy, but they can also go too far in
democracy’s name. By implication, defensive practices should be used as often as necessary, but
as infrequently as possible.19 In addition, militant democrats have a responsibility to treat
antidemocrats as future partners in democracy and to rapidly secure the conditions that will
allow all of a polity’s members to participate safely.
Theories of legitimate revolution and theories of militant democracy share a tight familial
relation. John Locke drew attention to the bridge of logic connecting revolution and the defense
of legitimate government in his Second Treatise on Government. In his famous disquisition on
popular resistance, Locke considered whether subjects of an established and legitimate
government must allow that government to be undermined. He bluntly rejected the idea.
Acknowledging the right to establish a good regime without admitting the validity of defending
it would require one to embrace a perverse and dubious logic. “It is in effect no more than to bid
them first be Slaves, and then (p.8) to take care of their Liberty; and when their Chains are on,
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Introduction
tell them, they may act like Freeman.” Concluding that individuals possess a right to resist
tyrants, but not the right to keep prototyrants from seizing power, would require one to sever
the right to resist from its justification. Legitimate resistance is grounded in the import of
certain ends, men’s “Lives, Liberties and Estates.” If those ends warrant revolution, then the
force of logic would lead one to concede that those ends justify defensive resistance. “Men can
never be secure from Tyranny, if there be no means to escape it, till they are perfectly under it,”
Locke argued. Individuals, he concluded, “have not only a right to get out of [tyranny], but to
prevent it.”20
There is, of course, substantial variation among theories of revolution, which affect the shape,
the intensity, and the range of the practices they legitimate. Constructing a theory of militant
democracy therefore requires us to make a choice: which theory of revolution, which method of
rebellion, holds the greatest insight into the ethics of militant democracy? In On Revolution,
Hannah Arendt’s famous meditation on the French and American revolutions, Arendt chided
Joseph de Maistre for his claim that “the counter-revolution will not be a revolution in reverse
but the opposite of revolution.” Arendt described de Maistre’s turn of phrase as “an empty
witticism.”21 The revolutionary movement I return to throughout this work, the Solidarity
movement, fundamentally challenged the ruling communist regime. But the ideologues of
Poland’s revolution were also wary of the dangers resulting from their actions. And one way to
interpret the concept of “self-limiting revolution” is as a theory of regime change that would
indeed be the opposite of revolution, in particular the strain of revolution associated with Lenin
and Robespierre. Solidarity’s approach to the achievement of representative government was
counterrevolutionary in two senses: first, in its skeptical rejection of utopian fundamentalism
and, second, in its avowedly romantic commitment to the pursuit of rights by open and (p.9)
pluralistic means. The three regulatory principles I identify are equally inspired by the ideal of
self-limiting revolution and by the possibility of a democratic counterrevolution.
In the next chapter I further elaborate and defend this self-limiting approach to militant
democracy. But before outlining the rest of this work, I will briefly explore an alternative
approach for thinking about threats to representative regimes—one that focuses on the
democracy-preserving potential of judicial review. An examination of this alternative model will
help us define the nature of the challenge posed by antidemocrats and the kinds of questions a
theory of militant democracy ought to answer.
Beyond Judicial Review: Why Antidemocrats and Not Antidemocratic Decisions Pose
a Threat to Democracy
When political theorists argue about threats to democracy, they typically argue about the
legitimacy of judicial review and limits of democratic authority. By the legitimacy of judicial
review I mean judges’ right to overturn a decision made by an elected, representative body, such
as a legislature, when the decision lies beyond the boundary of the elected body’s authority. By
democratic authority I am referring to the obligation to obey decisions emanating from
representative institutions regardless of whether those decisions are correct or whether
individuals agree with them. Though they diverge on our basic reasons for valuing democracy,
political theorists marching under a diverse array of banners, including proceduralism, dualism,
deliberative democracy, constitutional democracy, and republicanism, agree that antidemocratic
laws lack authority; individuals are not morally obligated to obey decisions that seriously
weaken democracy, and those decisions ought to be overturned by a court.22 Defenders of
judicial review are not specifically interested in the ethics of militant democracy, yet their
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Introduction
investigations of the democratic legitimacy of the (p.10) practice constitute the dominant
normative theory about how to respond to concerted antidemocratic action.
Dworkin’s Approach to Threats to Democracy

Ronald Dworkin offers a well-known defense of judicial review in Freedom’s Law. Dworkin’s
definition of democracy differs from that adopted by other advocates of judicial review. But the
logical structure of his argument is not unique, and we can use his reasoning as a representative
of other court-centric theories. Dworkin articulates a communal ideal of democracy (which he
sometimes refers to as partnership democracy). In a true democracy, individuals will act
“together in a way that merges their separate actions into a further, unified, act that is together
theirs” (italics in original).23 For citizens to embrace this vision of democracy, to embrace the
idea that a decision they disagree with is nonetheless their own, Dworkin contends that citizens
must be moral members of the community.
There are two sets of conditions that make moral membership possible. The first set is
structural. They are historical, political, and sociological features of the polity that allow citizens
to think of themselves as members of that community. The second set of conditions is relational:
“A political community cannot count anyone as a moral member unless it gives that person a part
in any collective decision, a stake in it, and independence from it” (italics in original).24
In the midst of an analysis of the moral relationship between democratic procedures and
outcomes, Dworkin asks his readers to consider the example of a law that “provided that only
members of one race were eligible for public office.”25 For our purposes, it is important that
within the literature on judicial review, Dworkin’s hypothetical is not remarkable. In a recent
book, for example, Corey Brettschneider works through “a case in which a majority
disenfranchised one quarter of the population.”26 If faced with these sorts of antidemocratic
decisions, Dworkin argues, a court with the appropriate legal authority (p.11) should strike
down the laws and that there would be no reason to regret if it did so. A law that invidiously
restricts individuals’ ability to seek office is inconsistent with and undercuts the basic conditions
of legitimate government. Comparing the two possible outcomes, one in which members of one
race are not allowed to hold public positions with one in which they are, we can appreciate the
clarity of Dworkin’s logic. The court’s decision is justified because it preserves the conditions of
a communal or partnership democracy.27 I emphasize the remedial element of this argument
because, as I will show, Dworkin’s defense of judicial review depends on the idea that the law in
question was not passed by people who reject the value of partnership democracy—that is,
antidemocrats.
Dworkin’s Theory of the Problem

When Dworkin discusses legislation that threatens democracy, he is exploring cases in which
antidemocratic measures have become law despite the fact that the people are not opposed to
self-government. To see why this characterization makes sense, consider the following scenario.
Imagine, following Dworkin, that a regime enacted a statute that stripped African Americans or
Jews of their eligibility for political office. Presumably this law would have been passed by no
fewer than a majority of the members of the legislature. For our thought experiment to be
credible, we probably need to assume that a significant group of those legislators prefer
excluding African Americans or Jews from political office to not excluding them. I think it is also
safe to assume that some sizable percentage of the population, although perhaps not a majority,
supports the law and harbors some significant distaste for African Americans or Jews. If the
preceding assumptions are plausible, then the passage of antidemocratic legislation may be a
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Introduction
manifestation of a deeper problem: the existence of a relatively large group of citizens who are
committed to a set of unreasonable and antidemocratic beliefs. We are left then with the
following (p.12) question: Why would these racist antidemocrats abide by a court’s decision?
Consider the following nonhypothetical example. In 1951 South Africa’s National Party passed a
law removing colored voters in the Cape Province from the general voting rolls. The South
African Appeals Court invalidated the law, ruling that the bill had not been passed with the
required two-thirds supermajority needed to amend an entrenched element of the constitution.
Faced with this impressive bout of judicial intransigence, the National Party added new judges
to the court and temporarily altered the structure of the senate so that it could meet the two-
thirds requirement.28 These institutional maneuvers allowed the National Party to achieve its
goal, to disenfranchise colored voters. If the South African example is not a wild aberration, if it
is plausible that groups with sufficient political influence to pass seriously discriminatory
legislation can overcome a judicial decision hindering their efforts, then we may conclude that in
some cases safeguarding democracy will require more than invalidating suspect laws. Focused
almost exclusively on the relationship between legislatures and courts, defenses of judicial
review do not grapple with the possibility that antidemocratic laws may be formulated by
individuals who reject some or many of the foundational principles of democratic practice.
To be clear, my claim is not that courts could not conceivably preserve democracy by
overturning legislation. One can imagine conditions in which radically racist laws might be
formulated by members of a true democracy, a moral community. The majority in the legislature
might have been mistaken or subject to a fleeting passion. Members of the majority, on this
account, might not have intended to disqualify African Americans or Jews. Alternatively, one
might argue that if the majority did intend to disqualify members of those groups, the majority
could be made to realize its error. Radical inconstancy of this sort is not unknown in political life.
In 438 BC, for (p.13) example, the Athenians decided to exterminate the adult male population
of Mytilene, a rebellious city within the Delian League. The day after making this murderous
choice, the people of Athens famously changed their minds and launched a fleet of ships to
prevent the impending massacre. The case for judicial intervention is especially strong in the
context of this sort of capricious decision: by overturning the racist decision, the court will bring
the people back to their collective senses.29
One can also envision a scenario in which it is not the people who are racist antidemocrats, but
rather their representatives. On this view, by overturning the law, the court gives the broader
populace the opportunity to coordinate its resistance against these public officers.30 Both
scenarios, one in which the people mistakenly pass a law and one in which the people’s elected
agents go rogue, make sense of the possibility that legislation, not antidemocrats, threatens
democracy.
Dworkin’s argument is open to an alternative interpretation. A regime in which a legislature

bans members of a particular racial or religious group from holding office might not be, in
Dworkin’s terms, a genuine moral community. This inference is made plausible by his discussion
of the Jewish citizens of Nazi Germany. “German Jewish people were not moral members of a
political community that tried to exterminate them, though they had votes in the elections that
led to Hitler’s Chancellorship, and the Holocaust was therefore not part of their collective self-
government, even if a majority of Germans would have approved it.”31 On this view, democratic
legislation banning a group from holding office is actually a contradiction in terms; Dworkin’s
hypothetical involving a race’s eligibility for public office illustrates that there are theoretical
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Introduction
limits to democratic authority, not that decisions of this sort could legitimately be made in a self-
governing polity. Within true moral communities, the courts can play a legitimate role at the
margins of democracy, hemming in the legislature on (p.14) matters such as the legality of flag
burning and the appropriate role of corporations as political financiers. Yet, Dworkin might
reasonably contend, his theory is not really concerned with cases in which many individuals
dispute the rights of others to seek public office.
What is at stake here is not whether Dworkin has justified judicial intolerance of immoral
legislation. Instead, my aim has been to illustrate that the court-centric model is not intended to
address the challenges posed by individuals who reject democracy. With that thought in mind,
the model I develop will address those challenges. As both the South African and German
experiences indicate, by the time democracy’s opponents have the institutional wherewithal to
pass sweeping antidemocratic legislation, it may well be too late for democracy. Take the
archetypical case of Weimar Germany. In the period leading up to the passage of the 1933
Enabling Act, communities were forced by brownshirts to listen to Hitler’s campaign speeches.
The Communist Party was banned by executive order, and tens of thousands of communists were
arrested. Social Democratic politicians were intimidated, beaten, jailed, and murdered.
Concentration camps such as Dachau were established to imprison political dissenters. Even
unorganized opposition to the Nazi Party was met with furious violence.32 In sum, legislation of
the sort discussed by Dworkin can be a lagging indicator of antidemocrats’ de facto power.
Accordingly, in this work I will not investigate the legitimacy or authority of immoral law.
Instead, I focus on a different problem: antidemocrats’ efforts to gain a foothold in
representative bodies, to stymie representative institutions, and to unfairly undermine other
citizens’ ability to participate in the political process.
Defenders of judicial review might object that courts do effectively intervene against local- or
state-level legislatures when those bodies represent significant numbers of antidemocrats. The
model here would be the U.S. Supreme Court’s role in expanding voting rights in the United
States. Throughout the twentieth century, the Court (p.15) repeatedly overturned
discriminatory practices at the state level. Yet in many cases the bigots who conceived these
practices resisted the Court’s rulings, whether by rejecting the legitimacy of its decisions or by
finding novel ways to achieve the same antidemocratic ends. Effective implementation of the
Court’s decisions depended and continues to depend on the national government’s ability and
desire to force the states to obey.33 In Dworkin’s terms, we might say that the national
democratic polity, which is a moral community, imposes democracy on the local polity, which is
not a moral community.
This final example actually begs the question. The challenging questions related to the
establishment of Southern democracy have relatively little to do with the paltry legitimacy of the
laws used to keep African Americans from voting. Instead, the difficult questions have a great
deal to do with the steps national democracies should take to constrain local antidemocrats.
Should the federal government have excluded Southern racists from voting, from running a
political party, from holding office? If so, for how long? Must the national government aim only
to ensure that local political rules are fairly enforced—for example, one man, one vote—or
should it also require that the prerequisites of full democracy be met—for example, equal
economic and social resources for affecting political outcomes? If not, why not? These are the
types of questions that a theory of militant democracy, a theory of the steps democracies should
take to protect themselves, must address.
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Introduction
Dworkin’s Theory of the Solution

The problem Dworkin addresses is antidemocratic legislation. Judicial review is an impressively
elegant solution to this problem. This is no backhanded compliment. To appreciate the
attractions of this strategy, consider how relying on judges to overturn antidemocratic laws
efficiently resolves three thorny questions about the defense of democracy:
(p.16) Question 1:
When should militant action be taken?

Answer:
When antidemocratic legislation is passed—for example, legislation limiting office holding

to one race.
Question 2:
How should democracy be defended?

Answer:
The legislation should be invalidated.

Question 3:
Who should take this action?

Answer:
Members of the judiciary.
Not only can the proponent of judicial review answer these three questions, but by defending
the practice she deftly sidesteps the paradox of militant democracy—the possibility that efforts
to defend representative regimes will undermine those regimes. As a manifestation of
democratic intolerance, judicial review itself poses relatively little threat to democracy. Lacking
the ability to enforce their decisions or seize the political initiative independently, the courts are,
in Alexander Hamilton’s famous words, “the least dangerous” branch.34 Judges can get decisions
wrong and thereby make a regime less legitimate. But in the enviable moral communities
imagined by Dworkin, individuals are fully committed to representative government and to each
other’s political rights. In that kind of community, it is hard to imagine that a flawed legal ruling
would spell the end of self-government. Earlier I suggested that an antidemocratic majority
could outflank an obstinate court. If that assertion is true, then a moral community should
certainly be able to overcome an antidemocratic court.
Unfortunately, once we exit the safe harbor provided by a narrow focus on antidemocratic
legislation, we are swept out toward the paradox of militant democracy. On the first question—
when should democrats undertake militant action—we now have to consider whether defensive
policies are necessary before a suspect law has been passed. Moving away from the legislative
standard will require democrats to make difficult decisions about whether a range of
antidemocratic activities warrants an intolerant response. Democrats (p.17) will have to face
the possibility of taking hazardous defensive action in cases where it is unnecessary.
Similar dynamics are in play with respect to the second and third questions: How should
democracy be safeguarded, and who should safeguard it? Let’s return once again to Dworkin’s
example. Imagine a sizable group of citizens who are committed to excluding members of
certain races from holding political office. On balance, would it be democratic for the legislature
Page 9 of 17
Introduction
to hinder these racists by, for example, stopping them from receiving public funds or even from
voting? What steps should be taken to ensure that efforts to stop the racist group from gaining
power are not simply attempts by a legislative majority to exclude their political competition?
Would our answers to these questions change if it were not the legislature but members of the
executive branch who were charged with making these decisions? Should the populace at large
take the defense of democracy into its own hands? Each of these questions raises the possibility
that action taken to strengthen democracy may have the effect of weakening it.
The work a theory of militant democracy needs to do is now coming into view. We require a
framework for evaluating the difficult political judgments that democrats face when they
confront antidemocrats. In this book I contend that the dilemmas raised by those who oppose
democracy will be more tractable if we treat defensive policies as efforts to augment the
democratic character of flawed regimes, instead of as attempts to preserve a perfect moral
community or any other idealized status quo. Conceptualizing militant democracy in this way
allows us to look to those, like Adam Michnik, who have given considerable thought to the
paradoxes involved with establishing representative institutions in the face of antidemocratic
resistance. Building on Michnik’s insight, in the next chapter I outline a principled framework
for democracy’s defense—the self-limiting theory of militant democracy. As I show in later
chapters, this framework allows us to identify the kinds of normative problems posed by (p.18)
antidemocrats and to evaluate how we might best respond to those problems.
From Lone Actors to Existential Threats to Self-Government

The normative challenges posed by antidemocratic movements depend on the size and political
influence of those movements. Large antidemocratic organizations may require a more extreme
response than small, less influential organizations. In each case democrats will face a different
version of the paradox of militant democracy, a different way, in other words, in which both
action and inaction may leave a regime less legitimate. The complexity of these dilemmas has
led some political theorists, such as Nancy Rosenblum, to doubt whether we can define a single
set of regulatory principles to examine the ethics of democracy’s defense.35 To demonstrate that
the self-limiting model can coherently identify and address a range of those challenges, chapters
3–6 examine a diverse set of cases, ranging from situations in which antidemocratic movements
are relatively immature but can still bleed legitimacy from a regime, to instances in which
antidemocratic groups have broad support and representative government is unconsolidated and
under threat.
In chapter 3 I apply the self-limiting framework to cases in which relatively small groups of
antidemocrats exercise their political rights in a manner that infringes on other citizens’ ability
to participate. In these situations, managing the paradox of democracy can be vexing. Almost
any general restrictions on the right to participate may do more harm than good, even though
the democratic harms inflicted by antidemocrats may be both serious and real. Contextualizing
this abstract problem, I explore a situation in which the British National Party used internal
party regulations to exclude nonwhite British citizens from the organization. I defend two
claims. First, democrats (p.19) should use the background institutions of representative
democracy to discourage antidemocratic action. By background institutions I refer to the
intricate regulatory structures—ranging from rules about how parties are funded to rules about
who can be a candidate for political office—that give shape and form to every representative
regime. Eschewing neutrality, democrats should tilt the democratic playing field toward
democracy. Second, I argue that democrats will have greater success crafting normatively
attractive militant policies if they carefully consider who the appropriate subjects of defensive
Page 10 of 17
Introduction
action are. Rather than treating all parties and all participants as if they play the same role in
the democratic process, regulations will generate the least normative harm when they focus on
influential parties and influential political entrepreneurs.
My account of when militant activity is legitimate focuses on whether individuals have violated
others’ right to participate. Chapter 4 explores alternative justifications for limiting individuals’
ability to participate. I treat two of the most commonly offered rationales for militant sanctions:
that individuals or parties reject democracy and that members are opposed to or threaten a
fundamental element of a regime’s identity—such as its religious or ethnic identity. Examining
arguments offered by scholars such as Nancy Rosenblum, Peter Singer, and Stephen Holmes, I
show why banning a party for either of those reasons will render a regime less democratic. By
implication, I contend that sanctions are democratically legitimate only when individuals violate
others’ rights (or will do so imminently).
Chapter 5 shifts our focus away from extremist groups that do not pose a fundamental threat to
representative regimes toward relatively influential antidemocratic movements. In this chapter I
examine a distinctive aspect of the dilemmas raised by serious popular challenges to democracy:
antidemocratic groups can capture representative institutions and thwart efforts to respond to
antidemocratic action after it occurs. These groups pose a comprehensive threat to democracy;
they (p.20) have the capacity and intent to block challenges in the present and shut down
normal avenues of democratic opposition in the future. It is in these cases that the familial
relation between legitimate revolution and military democracy is particularly apparent.
Focusing on the political crisis triggered by the rise of the Islamist Turkish Welfare Party in the
1990s, I consider whether the ascendance of a putatively antidemocratic party justifies
preventive militant actions—that is, the limitation of a group’s political rights before a rights
violation is imminent. On the basis of the participatory principle, I argue that preventive
intervention cannot be democratically legitimate. By democratically legitimate I mean consistent
with the ideal that individuals should have a say in the decisions that affect them. Nonelected
militant democrats, such as the Turkish generals and judges I discuss in chapter 5, cannot
coherently justify why they, in particular, possess the right to intervene in the democratic
process. Yet, referring to the example of those who take it on themselves to establish
democracies, I maintain that when faced by a comprehensive threat to representative
government, democrats can eschew the legitimacy of democratic procedures for the value of
democratic ends. In some difficult cases, interventions made substantially in advance of a rights
violation may be democratic even if they are illegitimate.
Finally, in chapter 6 I turn to Weimaresque situations in which the number and influence of
antidemocrats are so significant that representative government can be preserved only through
substantial restrictions on individuals’ ability to participate. In these circumstances, the critical
question is not whether democracy should be defended, but how far one can go in democracy’s
name. To investigate this scenario, I explore the example of America’s Reconstruction. In the
aftermath of the Civil War, the members of the Reconstruction Congress feared that if
Southerners were allowed to participate fully, they would undermine the foundations of
legitimate government in the United States. Accordingly, the Congress established military (p.
21) governments throughout the South and excluded Southern representatives from the
legislature. Applying the self-limiting model, I illustrate why Congress’s policy of conditioning
restrictive measures on Southerners’ acceptance of the rules of the democratic game
successfully alleviated some, though not all, of the normative challenges posed by Southern
Page 11 of 17
Introduction
antidemocrats. I also argue that a more extreme response to Southern intransigence would have
been self-defeating.
Having described the general structure and aims of the project, I want to outline its limits
briefly. With the exception of the first two chapters, the theoretical work in this book is grounded
in the analysis of cases, cases in which democrats have struggled to preserve the democratic
characters of their regimes. This approach provides insight into how antidemocrats challenge
representative government, the difficulties democrats face in responding to those challenges,
and the uncertainty—does group X threaten democracy?—that pervades political action. At the
same time, this work does not explore each and every instance in which representative
government has been or could be threatened; rather, I have chosen cases that reveal the ethical
structure of the dilemmas democrats face, and of democratic practice more generally.
The existing research on militant democracy is focused largely on surveying and defending
particular institutional responses to threats to representative government—for example, judicial
review, party bans, and emergency legislation. My work takes a decisively different approach. I
do not focus on one institution or policy. Instead, I investigate the norms that should guide states
whenever they limit antidemocrats’ ability to participate. There are numerous other ways to
defend democracy. Governing effectively, educating children to be responsible citizens, refusing
to join coalitions with antidemocrats, and publicly confronting arguments grounded in
intolerance are just a few of the strategies states and individuals can use to defend the (p.22)
primacy of self-government. With the exception of good governance, each of these policies is
debatable in its own right and is worthy of extended discussion. But I concentrate on restrictive
measures because they raise the most troublesome normative questions about the legitimacy of
militant democracy.
A noteworthy implication of this approach is that I do not directly investigate emergency

powers, an institution that has attracted a surge of recent scholarship.36 By emergency powers I
mean the special institutional prerogatives that democracies can use when they face urgent and
exceptional challenges, such as an attack from abroad. As a general matter, militant democracy
is not usefully categorized as being exceptional. The evaluation of emergency measures will
share the same structure as the evaluation of militant measures: we need to use measure X to
preserve regime Y, but will employing measure X actually undermine regime Y? Despite this
important similarity, citizens who reject democracy are not akin to foreign enemies; successfully
defending democracy depends not on defeating antidemocrats, but on reincorporating them into
the political community. As a result, the protection of representative institutions is by its nature
a long-term political project. In this respect, militant democracy is less like a response to a
foreign attack than like an attempt to meet a perennial challenge—such as climate change.
Furthermore, the institutions of militant democracy affect the very basic mechanisms of self-
government, notably, how elections are contested and who can seek political office. These
institutions shape the enduring identity of the political community. Of course, there may well be
cases in which particular threats to democracy warrant resort to exceptional institutional tools.
But the use of those tools must be part of a broader effort to defend representative institutions,
and it must be justified on the basis of its consistency with the broader ends of militant
democracy.
Finally, I want to address why I offer a specifically democratic account of the challenges posed
by antidemocrats. It is a long-standing (p.23) criticism of democracy that democratic regimes,
because they are open, facilitate their own demise. Individuals who are committed to democratic
Page 12 of 17
Introduction
practice and principles, it is said, must forbear as antidemocratic groups tear down self-
governing regimes. “It will always be one of the best jokes of democracy,” the Nazi propagandist
Joseph Goebbels once observed, “that it gives its deadly enemies the means to destroy it.”37 Karl
Loewenstein validated this vein of thought when he demanded that legitimate regimes suspend
their adherence to democratic principles so that they might successfully fortify themselves.
In the simplest terms, this project inquires into the validity of this accusation. As should already
be clear, I argue that the defense of democracy can be justified and carried out in accordance
with democratic principles, the abstractly justified norms that ground the legitimacy of
democratic forms of government. Efforts to establish representative government require citizens
to confront antidemocrats. Those efforts bring into sharp relief the inadequacy of the idea of
democratic passivity. The writings of members of these democratic movements thus serve as a
natural referent for this work.
Why not just approach these questions from a broader perspective than democracy, in other
words, from the perspective of justice?38 This work, for example, does not explore questions
related to transitional justice: whether it is legitimate to exclude individuals from the political
arena not because they threaten democracy, but because they contributed to or benefited from
the maintenance of the former regime. To be clear, I will rely on an account of democracy that
takes self-government as intrinsically valuable, as a necessary component of any persuasive
account of justice. And for the most part, the moral issues surrounding militant democracy turn
on questions about democratic rights. Accounts of the democratic thing to do and the just thing
to do will overlap. But there are certainly situations in which moral considerations related to
democracy and those related to justice (p.24) pull in conflicting directions. America in the
aftermath of the Civil War was one such case. In that instance, I will argue, members of the
Reconstruction Congress faced a tragic choice: they could pursue democracy by finding ways to
allow Southern antidemocrats to participate or they could pursue justice by excluding those
antidemocrats. But they could not pursue both. Eschewing a broader frame, and assiduously
concentrating on questions related to democracy, I hope to provide a richer and more accurate
account of the trade-offs that the defense of democracy may require. For example, distinguishing
between the imperatives of justice and the value of democratic practice allows us to specify the
daunting costs and risks associated with political disenfranchisement, even if there are
conditions in which disenfranchisement might reasonably be employed as a means of seeking
justice.
It is worth specifying how the conclusions I reach might be biased by my focusing on democracy
rather than justice. The concept of a self-limiting revolution turns on the idea that individuals
cannot be secure in their basic personal and social interests without political liberty, the right,
broadly speaking, to participate. A crucial element of the argument for a self-limiting revolution
and of the argument I will press in this work is that opponents of democracy possess morally
important interests and, as a result, participatory rights. Though this work explores the
justification of radical measures such as the banning of parties and the forceful removal of an
elected head of government, its perspective is intentionally conservative and non-utopian. For
the purposes of this book, the wages of referring to a narrowly democratic principle is that I will
systematically recommend overly restrained modes of militant democracy. Caveat lector. This
books maps out the normative and analytical issues raised by popular threats to democracy. But
to the degree that the conclusions I reach are too conservative, I will have defined a theoretical
baseline on which others may build.
Page 13 of 17
Introduction
(p.25) Conclusion
The debate over how democracies should respond to popular threats predates the collapse of the
Weimar Republic; it is literally as old as democracy itself.39 The self-limiting theory of militant
democracy contributes a novel answer to this venerable and pressing question. As long as we
treat antidemocrats as rights holders, the paradox of militant democracy, like the paradox of
tolerance described by Leszek Kolakowski, which serves as an epigraph to this book, cannot be
resolved. As a result, ethical action in the face of a threat to democracy depends on democrats’
willingness to acknowledge the paradox of militant democracy and to manage its costs. Such an
acknowledgment signals an understanding that the true aim of militant democracy is not the
defeat of antidemocrats, but the achievement of a more democratic regime.
Notes:
(1) . Gilbert Fergusson, “A Blueprint for Dictatorship: Hitler’s Enabling Law of March 1933,”
International Affairs 40, no. 2 (1964): 250.
(2) . Richard Evans, The Coming of the Third Reich: A History (New York: Penguin Press, 2003),
350–54.
(3) . There is some debate about whether the parliamentarians who voted for the law were
coerced into doing so. There was, however, no uncertainty about whether the Nazi Party would
have accepted a negative vote. Moreover, the voting process was characterized by significant
levels of violence and intimidation. On the question of why the center parties voted for the
Enabling Law, see Ivan Ermakoff, Ruling Oneself Out: A Theory of Collective Abdications
(Durham, NC: Duke University Press, 2008).
(4) . Karl Loewenstein, “Militant Democracy and Fundamental Rights, I,” American Political
Science Review 31, no. 3 (1937): 424.
(5) . As another émigré, Karl Popper, wrote: “We should therefore claim, in the name of
tolerance, the right not to tolerate the intolerant. We should claim that any movement preaching
intolerance places itself outside the law, and we should consider incitement to intolerance and
persecution as criminal, in the same way as we should consider incitement to murder, or to
kidnapping, or to the revival of the slave trade.” Karl Popper, The Open Society and Its Critics
(Princeton, NJ: Princeton University Press, 1950), 546.
(6) . In the next chapter I define antidemocrats as individuals who prefer a political regime that
lacks basic prerequisites of polyarchy—such as universal suffrage—to a regime that satisfies
those prerequisites.
(7) . Loewenstein, “Militant Democracy and Fundamental Rights, I,” 432.
(8) . Karl Loewenstein, “Militant Democracy and Fundamental Rights, II,” American Political
Science Review 31, no. 4 (1937): 653.
(9) . John Rawls, A Theory of Justice (1971; repr., Cambridge, MA: Belknap Press of Harvard
University Press, 1995), 218.
(10) . I use representative as a synonym for democratic throughout this work.
Page 14 of 17
Introduction
(11) . See the insightful legal analysis offered by Issacharoff, who focuses on the “institutional
considerations that either do or should govern restrictions on political participation, with
particular attention to how these have been assessed by reviewing courts.” Samuel Issacharoff,
“Fragile Democracies,” Harvard Law Review 120, no. 6 (2007): 1405–67; Giovanni Capoccia,
Defending Democracy: Reactions to Extremism in Interwar Europe (Baltimore: Johns Hopkins
University Press, 2005); Nancy L. Rosenblum, On the Side of the Angels: An Appreciation of
Parties and Partisanship (Princeton, NJ: Princeton University Press, 2008), chap. 9; Thomas
Christiano, “Commentary: Cannibal Democracies,” Cardozo Journal of International and
Comparative Law 7 (1999): 473–78; Raphael Cohen-Almagor, “Disqualification of Political Parties
in Israel: 1988–1996,” Emory International Law Review 11, no. 1 (1997): 67–109; Ermakoff,
Ruling Oneself Out; Gregory H. Fox and Georg Nolte, “Intolerant Democracies,” Harvard
International Law Journal 36, no. 1 (1995): 1–70; Patrick Macklem, “Militant Democracy, Legal
Pluralism, and the Paradox of Self-Determination,” International Journal of Constitutional Law 4,
no. 3 (2006): 488–516; Yigal Mersel, “The Dissolution of Political Parties,” International Journal
of Constitutional Law 4, no. 1 (2006): 84–113; Peter Niesen, “Anti-Extremism, Negative
Republicanism, Civic Society: Three Paradigms for Banning Political Parties,” German Law
Journal 3, no. 7 (2002), www.germanlawjournal.com/index.php?pageID=11&artID=164,
accessed October 1, 2012; Markus Thiel, ed., The “Militant Democracy” Principle of Modern
Democracies (Farnham, UK: Ashgate, 2009).
(12) . See, for example, Issacharoff, “Fragile Democracies,” 1411.
(13) . Plato, The Republic, ed. G. R. F. Ferrari, trans. Tom Griffith (Cambridge: Cambridge
University Press, 2000), 565c–566b, pp. 279–80.
(14) . James Madison, “Federalist 10,” in The Federalist, ed. Jacob E. Cooke (Middletown, CT:
Wesleyan University Press, 1961), 60.
(15) . Jean-Jacques Rousseau, “The Social Contract,” in The Social Contract and Other Later
Political Writings, ed. Victor Gourevitch (Cambridge: Cambridge University Press, 1997), bk. 1,
chap. 4, pp. 44–48.
(16) . Joshua Cohen and Joel Rogers, “Directly Deliberative Polyarchy,” in Philosophy, Politics,
Democracy: Collected Essays by Joshua Cohen (Cambridge, MA: Harvard University Press,
2009), 181; Robert Dahl, Democracy and Its Critics (New Haven, CT: Yale University Press,
1989).
(17) . The term was coined by Jacek Kuroń. Martin Malia, “Poland: The Winter War,” New York
Review of Books, March 18, 1982, www.nybooks.com/articles/6682, accessed June 15, 2009.
(18) . Adam Michnik, “Towards a Civil Society: Hopes for Polish Democracy: Interview with Erica
Blair (John Keane),” in Letters from Freedom: Post–Cold War Realities and Perspectives, ed.
Irena Grudzińska Gross, trans. Jane Cave (Berkeley: University of California Press, 1998), 11.
(19) . Ian Shapiro suggested this formulation to me during a conversation in October 2009.
(20) . I am grateful to Ruth Grant for bringing this passage from the Second Treatise to my
attention in November 2011. John Locke, Two Treatises of Government, ed. Peter Laslett
(Cambridge: Cambridge University Press, 1988), 411.
(21) . Hannah Arendt, On Revolution (New York: Viking, 1963), 18.
Page 15 of 17
Introduction
(22) . On proceduralism see On proceduralism see Michael Walzer, “Philosophy and Democracy,”
Political Theory 9, no. 3 (1981): 384. On dualism see Corey Brettschneider, Democratic Rights:
The Substance of Self-Government (Princeton, NJ: Princeton University Press, 2007). On the
concept of constitutional democracy see Walter Murphy, “Constitutions, Constitutionalism, and
Democracy,” in Constitutionalism and Democracy: Transitions in the Contemporary World, ed.
Douglas Greenberg (Oxford: Oxford University Press, 1993), 3–25. On deliberative democracy
see Cohen and Rogers, “Directly Deliberative Polyarchy,” 216. And on republicanism see Cass R.
Sunstein, “Beyond the Republican Revival,” Yale Law Journal 97 (1988): 1539–90.
(23) . Ronald Dworkin, Freedom’s Law: The Moral Reading of the American Constitution
(Cambridge, MA: Harvard University Press, 1997), 20.
(24) . Ibid., 24.
(25) . Ibid., 17.
(26) . Brettschneider, Democratic Rights, 13.
(27) . This was an attractive interpretation of Dworkin’s argument offered by Stephen Macedo in
spoken comments at the American Political Science Association (Toronto, September 2009).
(28) . See B. Beinart, “The South African Appeal Court and Judicial Review,” Modern Law Review
21, no. 6 (1958): 587–608.
(29) . Thucydides, History of the Peloponnesian War, ed. M. I. Finley, trans. Rex Warner (New
York: Penguin Books, 1980), 3.1–50, pp. 194–223. See the discussions in Jon Elster, Ulysses
Unbound: Studies in Rationality, Precommitment, and Constraints (Cambridge: Cambridge
University Press, 2000), 122; and Donald Kagan, The Peloponnesian War (New York: Viking
Penguin, 2003), 107–12.
(30) . Along these lines, Karl Loewenstein thought it possible that judicial review or another
delaying mechanism might have preserved the French Third Republic: “The indecent haste with
which the Third Republic rushed to its suicide may be understood in view of internal and
external pressure. Had a more complicated and rigid procedure been provided for, with
considerable delays before final action, perhaps the national spirit of democratic France would
have reasserted itself.” Karl Loewenstein, “The Demise of the French Constitution of 1875,”
American Political Science Review 34, no. 5 (1940): 895.
(31) . Dworkin, Freedom’s Law, 23.
(32) . Evans, The Coming of the Third Reich, 346–49.
(33) . Michael Klarman, “The White Primary Rulings: A Case Study in the Consequences of
Supreme Court Decisionmaking,” Florida State University Law Review 29 (2001): 55–107. See
also Gerald Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? (Chicago:
University of Chicago Press, 1991).
(34) . Alexander Hamilton, “Federalist 78,” in The Federalist, ed. Jacob E. Cooke (Middletown,
CT: Wesleyan University Press, 1961), 522.
(35) . Rosenblum, On the Side of the Angels, 415.
Page 16 of 17
Introduction
(36) . See Bruce Ackerman, Before the Next Attack: Preserving Civil Liberties in an Age of
Terrorism (New Haven, CT: Yale University Press, 2006); Giorgio Agamben, State of Exception,
trans. Kevin Attell (Chicago: University of Chicago Press, 2005); and John Ferejohn and Pasquale
Pasquino, “The Law of the Exception: A Typology of Emergency Powers,” International Journal of
Constitutional Law 2, no. 2 (2004): 210–39.
(37) . Quoted in Gregory H. Fox and Georg Nolte, “Intolerant Democracies,” Harvard
International Law Journal 36 (1995): 1.
(38) . Though many readers and colloquium participants have raised this question, I am
especially grateful to Ryan Pevnick for pressing me to answer it.
(39) . In ancient Greece the practice of ostracism was used to defend democratic regimes
against popular antidemocratic elites. Sara Forsdyke, Exile, Ostracism, and Democracy: The
Politics of Expulsion in Ancient Greece (Princeton, NJ: Princeton University Press, 2005).
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Introduction

A Theory of Militant Democracy: The Ethics of

Print publication date: 2014

Abstract and Keywords

Keywords: democracy, representative government, self-government, judicial review, antidemocratic movements

Militant Democracy as Democratic Counterrevolution

At its core, therefore, my analysis is motivated by the following observations: antidemocrats

In speaking of a democracy or a representative regime, I am referring to what Robert Dahl

Dworkin’s Approach to Threats to Democracy

Dworkin’s Theory of the Problem

Dworkin’s argument is open to an alternative interpretation. A regime in which a legislature

Dworkin’s Theory of the Solution

When should militant action be taken?

When antidemocratic legislation is passed—for example, legislation limiting office holding

How should democracy be defended?

The legislation should be invalidated.

Who should take this action?

Members of the judiciary.

From Lone Actors to Existential Threats to Self-Government

A noteworthy implication of this approach is that I do not directly investigate emergency

(7) . Loewenstein, “Militant Democracy and Fundamental Rights, I,” 432.

(10) . I use representative as a synonym for democratic throughout this work.

(12) . See, for example, Issacharoff, “Fragile Democracies,” 1411.

(21) . Hannah Arendt, On Revolution (New York: Viking, 1963), 18.

(24) . Ibid., 24.

(25) . Ibid., 17.

(26) . Brettschneider, Democratic Rights, 13.

(31) . Dworkin, Freedom’s Law, 23.

(32) . Evans, The Coming of the Third Reich, 346–49.

(35) . Rosenblum, On the Side of the Angels, 415.

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