Podcast: "Anti-democrats should be prevented from obtaining power”
Benjamin Schupmann on how to make democracy "militant"
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Running for a second term as US president, Donald Trump makes no secret of his intention to join the roster of 21st-century “legal revolutionaries”1.
The system withstood his first term but maybe not his second. In Venezuela, Turkey, and Hungary, the systems buckled under sustained pressure from strongmen Hugo Chávez, Recep Tayyip Erdoğan, and Viktor Orbán. Elections still happen and parliaments, courts, and media are intact but checks and balances to majority dominance have been systematically eroded. Since the turn of the millennium, most cases of democratic backsliding have taken this form rather than through violence. Worst of all, this “illiberal democracy” is popular. In 2022, Orbán secured a fourth consecutive term with 53% of the vote while opinion polls show a third of Americans would prefer a strong unelected leader to a weak elected one and a fifth of French under-35s say they are indifferent to an end to democracy.
"Democratic cannibalism is a perennial problem,” writes Benjamin Schupmann in Democracy Despite Itself: Liberal Constitutionalism and Militant Democracy published today. “It is a question of when, not if, popular anti-democratic movements will erupt from within and try to use legal revolutionary methods to devour democracy. A democratic constitution should be designed to provide democrats with the means to defend it and themselves". To be “militant”2 in their self-defence, Schupmann says democracies need three safeguards:
Unamendable constitutional clauses that prioritise fundamental rights over political claims.
Restricted political rights for parties that threaten those fundamental rights.
A guardian (constitutional court) of these rights independent from the legislative and executive branches.
“Part of the goal of this book is to try to convince democrats that it can be democratic to adopt measures that … at least at first glance, may seem undemocratic,” Schupmann told me in a New Books Network interview. “It can be democratic to deny certain legal changes to the public order if those would make it more illiberal, or to deny a party access to power or the right to stand for election if that party is anti-democratic”.
Entrusting the protection of non-majorities and the system itself to voters is dangerously mistaken, he says. “The US Supreme Court … and other US representatives and leaders are unwilling to hold Trump accountable because they believe that the decision is to be left up to the voters and part of my goal here is to say that that's not the case. Anti-democrats should be prevented from obtaining power because of the destruction that they can cause and the havoc that they can wreak”.
For my Writers’ Writers tip sheet, he chose Sovereignty Across Generations: Constituent Power and Political Liberalism by Alessandro Ferrara (Oxford UP, 2023) and Social Acceleration: A New Theory of Modernity by Hartmut Rosa (Columbia UP, 2013).
On 23 March 1933, Germany's Nazi-led cabinet secured parliamentary passage of an enabling act, which allowed it to enact laws - including those violating the constitution - without approval by the Reichstag or the president. The bill was passed after opposition deputies were prevented from voting and Nazi paramilitaries were stationed in the chamber to intimidate those who remained. The supreme court accepted parliament's will and, ten days later, prominent jurist Heinrich Triepel proclaimed this act of "liberation" and a "legal revolution". Since then, this term has been used to describe the use of legal means to secure majoritarian dominance.
In response to the Nazis' legal rise to power, in a 1937 article, exiled German political scientist Karl Loewenstein coined the term "militant democracy" to describe a system that adopted pre-emptive "illiberal" measures to protect itself.