Making Militant Democracy Democratic: The Case for Legislatures

• In Event: Courts in Transition, Courts in Crisis

Abstract

Starting with Italy and Germany in the late 1940s, a growing number of emerging and "fragile" democracies has embraced the notion of "militant democracy," that the government should take preemptive action against political actors that threaten the nation's political order or constitutional identity. A democracy's "very existence," argue militant democrats, sometimes necessitates anticipatory state suppression of groups, such as fascist and communist parties, that seek to use the democratic process and democratic rights as a "Trojan horse" for subverting a nation's constitutional government and core values (Karl Loewenstein, "Militant Democracy and Fundamental Rights," APSR (1937)).

Today, more than one-fourth of national constitutions and a higher proportion of new constitutions contain militant democratic provisions. These provisions usually take the form of restrictions on freedom of association. In particular, they empower the government, or even impose a positive duty on it, to target political parties and other organizations that promote political violence, advocate secession or annexation, or espouse beliefs that are anti-democratic or contrary to human dignity.

To date, the bulk of skepticism and criticism directed toward militant democracy has focused on the concern that it will be used to achieve ends that are substantively undemocratic, or illiberal. These critics say that militant democracy threatens pluralism, opening the door for arbitrary and authoritarian suppression of unpopular groups, including ethnic and religious minorities. While I share this concern that militant democracy is susceptible to substantive abuse, this paper instead focuses on militant democratic procedure. Recognizing that militant democratic provisions are increasingly prevalent in the constitutions of emerging democracies and accepting for the sake of argument that such provisions are sometimes essential, this paper argues for rethinking the way governments identify and suppress undemocratic groups.

Based on a survey of contemporary national constitutions, this paper first identifies three general categories of militant democratic procedural approaches, which I respectively label the judicial model, the legislative model, and the electoral commission model. Descending from the 1949 German Basic Law (Grundgesetz), the judicial model is the most popular model of militant democracy. It assigns courts the duty of identifying extreme political actors that threaten the political system. Next, the legislative model assigns the national legislature the duty of singling out and suppressing extremists, usually through ordinary legislation. Last, the electoral commission model gives an independent election-monitoring agency the obligation and power to identify and ban extremists from the nation's democratic process.

Of these three models, the judicial model has been the most popular among comparative constitutional scholars. Dissenting from this widespread view, this paper makes the case for the legislative model instead. To start with, it is far from clear, especially in emerging democracies, that courts are impartial institutions or that they are specially endowed with the characteristics that scholars commonly attribute to them -- independence, competence, integrity, coherence, and the like. In the realm of militant democratic action, there is no reason to think that courts are inherently better than other political institutions or that they will necessarily do a better job. Advocates for the judicial model apparently assume that courts will have a Western-liberal judico-political orientation and that, if they exercise militant democratic powers at all, they will do so judiciously and with due regard for minority rights. In the fragile and transitional nations where the need for militant democracy is most acute, however, it is doubtful that courts will live up to scholars' high expectations. The paper proceeds through several normative and practical critiques of the judicial model, including that courts are less democratically accountable than legislatures, courts do not have any special competence to evaluate the future dangerousness of political groups, and courts are often less representative of minority groups than legislatures.

In making the positive case for legislatures, this paper draws on Tocqueville's conception of political judgment and on the aspirational constitution of Rwanda, drafted in the aftermath of that nation's genocide. Much as the Grundgesetz provided a judicial-centric template for militant democracy in the twentieth century, the Rwandan constitution offers a normatively attractive, legislative-centric alternative for the twenty-first. If the aspirational potential of Rwanda's post-genocide constitution were realized, it would provide a militant democratic model more respectful of pluralism and solicitous of human rights than the judicial model that presently prevails.

Author

• Austin Nelson, The University of Texas at Austin