Constraining political extremism and legal revolution

Abstract

Recently, extremist ‘populist’ parties have succeeded in obtaining large enough democratic electoral mandates both to legally make substantive changes to the law and constitution and to legally eliminate avenues to challenge their control over the government. Extremists place committed liberal democrats in an awkward position as they work to legally revolutionize their constitutions and turn them into ‘illiberal democracies’. This article analyses political responses to this problem. It argues that the twin phenomena of legal revolution and illiberal democracy reveal a latent tension between the constitutional commitments to democracy and liberalism, that is, the equal chance to have one’s political goals enacted into law and individual basic rights. Political extremists make the latent tension real when they use the procedures of democratic legal change to abrogate constitutional commitments to liberalism, among other things. Although the two commitments normally coexist side by side, exceptional times raise an existential dilemma for liberal democracies: is it constitutional to democratically amend liberalism out of the constitution? After analysing the moral legitimacy of both the democratic and liberal arguments, this article concludes that liberal constitutionalism is constitutive of genuine democracy. In other words, it is unconstitutional to abrogate basic liberal commitments and it is legitimate to adopt constitutional mechanisms to guarantee liberalism – even if it means constraining democracy to do so. This article then situates ‘constrained democracy’ within the liberal current as a way to conceive of and respond to this pressing problem. It concludes by discussing four constitutional mechanisms – inspired by the German Grundgesetz – to guarantee liberalism: unambiguous lexically prior commitment to liberalism, limits on negative majorities, the eternity clause and party bans. It concludes that constrained democracy is an important constitutional guarantee of liberal democracy and that the four mechanisms, among others, are essential to enact constrained democracy.

Keywords

constitutionalism constrained democracy democracy extremism liberalism militant democracy populism

Introduction: Illiberal and anti-democratic extremism

Populists and extremists have had strong electoral showings in recent years in Europe, Asia and the Americas, both in relatively new democracies like Latvia and the Czech Republic and in more established democracies like Germany and France. In some states – such as Hungary, Poland and Venezuela – parties have obtained a large enough democratic electoral mandate first to legally eliminate avenues to challenge their control over the government and second to legally make substantive changes to the law and to amend their constitutions. The tactics of these political extremists include:¹

Weakening the independence of the judiciary and administration

Extremists have consolidated power by purging officials not already affiliated with their movement and replacing them with loyalists. For example, they have replaced senior judges in high courts by compelling them to step down or altering laws governing judicial retirement. They have similarly purged and replaced figures in the upper echelons of the police, public security organizations, and the public prosecutor, in the tax authorities, and within electoral commissions.

Consolidating power within the executive and/or legislative branches

Extremists have entrenched their control over the government by changing procedures to limit political speech in parliament, such as what may be deliberated or when the opposition may speak. They have employed their newly appointed loyalists in the police, public security organizations, public prosecutor and tax authority to intimidate and threaten opposition politicians and activists with criminal charges. And they have amended the constitution to prevent their loss of power through election (e.g. through gerrymandering and revised voter eligibility laws) and to prevent amendment to the laws they have passed.

Weakening Civil Society’s ability to use the public sphere to react to and check the state

Extremists have done so in a variety of ways, including

curtailing press and media freedoms and cutting public funding of the press and media;

increasing the applicable range of laws related to public security and increasing the discretionary authority of the police and public security forces;

limiting freedoms of assembly and association;

limiting speech rights; and

limiting limiting academic freedom and public funding of academic institutions.

Stoking Exclusionary Sentiments, that is xenophobic, racist, nationalistic, anti-Semitic and/or anti-pluralist sentiments

By consolidating their control over the media, extremists have turned the public sphere – including media and press outlets – into institutions that reinforce and normalize illiberal beliefs. In particular, they have used the media to scapegoat minorities and legitimate their discrimination as well as to scapegoat ‘elites’ (real or imagined).²

It bears repeating that political extremists in power have made these changes legally – that is, in accordance with the laws in effect that govern valid legal and constitutional change.³ Moreover, many of these changes have been broadly popular, at times made even with the express electoral support of an overwhelming majority of citizens. Popular support for political extremism in democratic states provides these parties and movements with the veneer of democratic legitimacy that they need to legally make the illiberal and anti-democratic changes to their laws and constitutions.

Yet, when the substance of these changes is examined, they are also revolutionary. These changes aim to alter the essence of the state and constitution. Specifically, they aim to turn a liberal democratic state into something unrecognizable as such, something illiberal and anti-democratic. Illiberal because they undermine two essential aspects of liberal constitutionalism: civil liberties guaranteed by rights and the separation of powers. Anti-democratic because they undermine an essential aspect of democracy: the future equal chance to participate in elections and hold office.

From the perspective of the liberal democratic state and constitution, then, the dual nature of extremists’ acts are a chimera. Formally legal but substantively revolutionary, they are best characterized as legal revolution.⁴

Yet the undemocratic nature of extremists’ goals, and their movements, has been challenged by the extremists themselves. Although they seek to alter aspects of states typically associated with democracy, they do so with a popular mandate and within the limits of democratic legal change. Hungary’s Fidesz Party is an example of this counterargument. Viktor Orbán, prime minister of Hungary and the leader of Fidesz, has characterized his movement’s goals and their legitimacy as ‘Illiberal Democracy’.⁵ ‘Illiberal’ because it rejects values and ideal associated with the Western tradition of liberal constitutionalism. ‘Democracy’ because these goals and legal changes are mandated by and supported by a majority (and in some cases supermajority) of the electorate. Orbán’s argument, then, is that valid democratic legal change and valid rights of collective self-determination can be independent of liberal constitutionalism. What Orbán means by illiberal democracy is exemplified by the situation following the April 2018 elections. Then, Fidesz obtained 133 out of 199 seats in parliament, giving it the two-thirds supermajority necessary to unilaterally make changes to the constitution.⁶ It intends to use that power to write into the constitution a clause clearly at odds with the protection of basic liberal civil liberties, including dismantling the separation between church and state.⁷ Of course, Fidesz’s supermajority in parliament is due in part to manipulation of the democratic process through something like gerrymandering. But Fidesz is also genuinely popular and its most recent election was categorized by observers as ‘Free’.⁸ Its ability to manipulate the democratic process stems from earlier electoral victories in similarly free democratic elections.

Extremists’ twin aims of legal revolution and illiberal democracy place liberal democracy, not to mention committed liberal democrats, in an awkward position. It is difficult to answer the question of how, or even whether, there is any legitimate political or constitutional response to this problem. This article advances a so far under-examined theoretical response. It defends constrained democracy as a state and constitutional form that defends liberal democracy against this type of political extremism. Constrained democracy is the adoption of constitutional mechanisms that constrain the ability of democratically elected parties to amend liberal constitutionalism out of the constitution legally. Alongside other measures like civic education and social democracy, I argue that constrained democracy is an important tool of constitutional theory and design. Constrained democracy defends liberal democracy against the challenges to the essential core of democracies and their constitutions, such as those brought recently by extremist movements.

This article sketches the framework for a theory of constrained democracy in four main sections. The first section analyses a latent tension between the twin commitments to democracy and to liberalism that make up most constitutions. The nature of this tension, I argue, compels thinkers to decide at least implicitly to prioritize one commitment over the other when extremists use tools for democratic constitutional and legal change to undermine liberal commitments in the constitution – the problem of legal revolution – as they are doing now. It also discusses how these responses have been, in part, determined by arguments about political legitimacy. The second section analyses recent arguments that prioritize the commitment to democracy, a current that I argue divides into two opposed views: militant democrats and procedural democrats. I conclude this section by arguing that neither view has a satisfactory response to the problem of extremism and legal revolution. The third section turns to recent arguments that prioritize the commitment to liberalism. I argue that although liberals defend different responses to the problem of extremism and legal revolution, these responses are not mutually exclusive – they are complementary. I also argue that constrained democracy fits within this liberal current and it too complements responses outlined by other liberals. The fourth section discusses four concrete mechanisms of constrained democracy. Before the conclusion, an excursus responds to the challenge that liberal constitutional mechanisms like constrained democracy cannot actually halt extremist attempts to revolutionize liberal democracy.

I The latent tension between democracy and liberalism

Some liberal democrats, like Müller and Runciman, have responded to the phenomenon of illiberal democracy by arguing that it is a contradiction in terms.⁹ To be authentic, the concept democracy must include liberal constitutional guarantees: individual basic rights and the balance of powers. Accordingly, illiberal democracy cannot exist.

This definition of democracy may be unproblematic in most circumstances. It fails, however, to provide normative clarity about and practical guidance on the problem of legal revolution. The legal use of legislative procedures and constitutional amendments to alter the substance of the constitution, for legal revolution, exposes a problem with defining of democracy in the way that Müller and Runciman do. Defining illiberal democracy as a contradiction in terms fails to make sense of the phenomenon of legal revolution – because a democratic majority or supermajority is able to pursue illiberal legal and constitutional goals without violating the constitution in doing so. To fully appreciate what is happening, one needs to look closer at the relationship between democracy and positive law, and how it enables legal revolution.

When Orbán describes what is happening in Hungary as ‘democratic’, he seems to mean the use of majoritarian procedures for creating and enacting law that are neutral with regard to their output. That is, tools of positive law that empower a democratic majority to translate its will into the laws governing the state. The legal outcome of the use of a majoritarian procedure is politically legitimate because the people expressly willed it, adhering to the decision-making procedures in effect for doing so. Democratic legitimacy demands that a majority (or supermajority) of enfranchised people can use the law to determine its public order. That democratic procedure can legally and legitimately produce an illiberal legal outcome. This is in part because to dictate to voters in advance what the right or wrong candidate or legal goal is would undermine the essence of democracy’s equal chance to have any value or goal prevail in an open electoral competition. This ensures that the laws reflect the legally expressed representation of the will of the people – whatever the content of that will may be. So, for example, although Fidesz’s policies are indeed normatively objectionable, defining them as ‘anti-democratic’ obscures the meaning of the concept ‘democracy’. What a majority of the people legally pursue in government cannot be sensibly described as undemocratic, neither can what an opposition minority be sensibly described as democratic. Disregarding consideration of concrete cases like Fidesz, it is not unreasonable to imagine a thought experiment in which a supermajority of voters knowingly puts an illiberal party into power through a free and fair democratic election and then that party uses their power and mandate to advance an illiberal agenda – and that party remains popular enough to be reelected.

Popular, democratic support for these extremist movements can be the source of this awkward situation. Democracies seem to have the potential to commit suicide willingly and legally by voting away fundamental liberal and democratic commitments and institutions. The twin phenomena of illiberal democracy and legal revolution reveal a latent but deep tension between democracy and liberal constitutionalism. The connection between democratic legitimacy and positive legal procedures empowers a democratic will expressed properly through the legislative institutions of a particular state, to make any change to its laws and constitution – including as we have seen writing the basic commitments of liberal constitutionalism, as well as democracy, out of the constitution entirely. To be sure, liberal constitutionalism and democracy often do not conflict in practice. They have coexisted unproblematically. But they are not the same. And their tension is real.

This latent tension between liberalism and democracy raises the question of ‘how best can liberal democrats respond to the twin goals of political extremists?’ This question turns the latent tension into a dilemma: should democracy or liberalism have lexical priority in constitutional questions? The two main currents in the literature currently that respond to this question are a broadly democratic current and a liberal current. Which current one adopts is shaped, fundamentally, by arguments about the legitimacy of liberal democratic states and constitutions.¹⁰ That is, what makes a liberal democratic state legitimate in the first place in part determines the range of responses that can legitimately be undertaken to the actions of extremists seeking to legally revolutionize that state using its democratic institutions. Analysis of the two currents will clarify what I mean by this relationship.

II The democratic current

For the democratic current, political legitimacy derives from a state’s guarantee of something like the principle of equal chance. The commitment to Equal Chance means that any interest and value has a formally equal possibility to be enacted into law and become the basis for government policy. Similarly, every citizen has the equal chance to compete for public office. Nothing prescribes what interests or values may or may not be enacted. No interests, values or candidates can be disqualified because of what the content of that value is. What determines whether an interest, value or candidate prevails and becomes law or takes office is whether a majority (or supermajority) of the electorate are convinced by that interest, value or candidate. Only the agonistic competition of the electoral process – who is elected and what laws are passed – determines which values or goals actually do become law. Equal Chance is guaranteed by political rights, such as to vote and to compete for office.

There is a divide within the democratic camp, however, between militant democrats and negative republicans,¹¹ on the one hand, and democratic proceduralists and political constitutionalists, on the other.¹² The divide is over whether limits on democratic political rights can be justified and, if so, under what circumstances. Militant democrats argue that, despite the underlying commitment to equal chance, emergencies permit some infringements of basic political rights. On the other side of this divide, procedural democrats and political constitutionalists insist that nothing can justify infringing upon these basic political rights – no matter how poorly they may appear to us to be exercised.

1. Militant democracy

Militant democrats, who form the first democratic subcurrent, build their argument on Loewenstein’s 1937 articles ‘Militant Democracy and Fundamental Rights’.¹³ Müller defines militant democracy as ‘the idea of a democratic regime willing to adopt preemptive, prima facie illiberal measures to prevent those aiming at subverting democracy with democratic means from destroying the democratic regime’.¹⁴ Because it requires the use of what he characterizes as illiberal measures, Müller seems to suggest that militant democracy ultimately cannot be legitimated and can never be more than something like an exceptional, ad hoc practice.¹⁵

Yet some thinkers, most notably Kirshner, have attempted to provide it with substantive legitimation. Defenders of militant democracy agree that political legitimacy rests on a state’s extension of basic political participatory rights (both as the right to vote for candidates/policies and as the right to hold office) to each citizen in order to guarantee the equal chance to realize his or her interests, values and goals in law.¹⁶ In other words, to be legitimate, a state must guarantee to each citizen the right to participate in the political decision-making process. A democratic state’s legitimacy hinges on the guarantee of the formally equal chance to have one’s political goals translated into law and policy.¹⁷ From a democratic perspective, Kirshner argues, this right must be indefeasible.¹⁸

Yet theorists of militant democracy qualify that exceptional circumstances may require suspending political rights – in particular they focus on party bans. Kirshner writes that if anti-democrats appear to be on the cusp of shutting down avenues for democratic political participation – even if they are doing so legally – then the state is justified in securing its democratic institutions even if it means violating its citizens’ right to political participation via mechanisms like party bans.¹⁹ Others involved in discussions about militant democracy – like Rummens, Niesen and Jovanović – debate about exactly when rights may be restricted, how rights can be restricted and what exactly makes their restriction legitimate. Despite such disagreements, there seems to be broad consensus that militant democracy justifies the present infringement of political rights for the sake of the future preservation of democratic institutions and those very same political rights.²⁰ In other words, the essential core of the argument for militant democracy is that the fundamental commitment of the constitution to democratic equal chance must be defended from its enemies, even if doing so requires infringing upon the very basic rights to participation that this commitment gives rise to.

Müller raises the difficulties that theories of militant democracy have in responding to what he calls ‘the democratic paradox’. The paradox is how a democracy can avoid destroying itself when it compromises its commitment to equal chance in order to defend its commitment to equal chance.²¹ Invernizzi Accetti and Zuckerman have criticized theories of militant democracy on precisely these grounds.²² They argue convincingly that militant democracy runs aground on this paradox. It compromises what even its defenders characterize as its fundamental commitment – to political participatory rights and the principle of equal chance – in order to preserve that very fundamental commitment. If political legitimacy is defined by indefeasible political participatory rights, rights that guarantee an equal chance to have one’s beliefs and values enacted into law without regard to the specific content of those beliefs or values, then militant democracy seems to be illegitimate on its own terms. However, if instead militant democrats are actually asserting an underlying source of the legitimacy of the state, that overrides the principle of equal chance, then this needs to be more clearly defined. Justifying the validity of a public authority’s infringement of participatory rights may be a difficult pill to swallow, because it seems to empower a public authority to dictate which interests, goals and candidates are acceptable to a political community, whose identity is publicly defined in terms of the equal chance – equal chance to determine the content of that identity.²³ In the end, militant democracy may be unpalatable because it seems to produce the very problem it aims to solve – except rather than democracy being destroyed from below, by extremist movements, it is destroyed from above, by the public authority.

2. Procedural democracy and political constitutionalism

Proceduralists and political constitutionalists, who make up the second democratic subcurrent, stand in a tradition of thought that extends through the works of Thoma, Kelsen and, more recently, Lefort. Although there are significant differences among the approaches of different procedural democrats and political constitutionalists, they converge on fundamental issues. Like militant democrats, they broadly agree that the principle of equal chance, realized through political participatory rights, determines political legitimacy.

Unlike militant democrats, however, this subcurrent bites the bullet on the democratic paradox. It opposes aspects of liberal constitutionalism that grant a minority the unequal chance to have their interests prevail over the political and legal decision-making process, for example, through the division of powers.²⁴ Constitutional precommitments are illegitimate when they inhibit the legally expressed will of a democratic majority.²⁵ This subcurrent holds that the only legitimate determination of what laws a state should enact is the formal democratic electoral process itself. Certainly, this means that limits on participatory rights like a party ban are illegitimate. Some go further and argue that even institutions like judicial review are illegitimate constraints.²⁶ Bellamy writes that the ‘democratic process is the constitution’ and that ‘the rule of law simply is rule by democracy’.²⁷ In sum, unlike militant democracy, this subcurrent argues no exceptions to the commitment to equal chance are legitimate or permissible.

Accordingly, for this subcurrent, nothing justifies overriding that commitment to the principle of equal chance. Participatory rights are genuinely indefeasible. The state must remain agnostic about the validity of the content of particular political and legal interests and goals – as long as citizens and candidates adhere to the law while seeking to realize them.²⁸ In other words, this is a political commitment to political relativism.²⁹ Taken to its logical conclusion, this subcurrent holds democrats have no valid basis to oppose the illiberal and/or anti-democratic constitutional changes sought by extremists as long as they constitute a legal majority and adhere to the procedures in effect for making and abrogate constitutional law. As Kelsen remarked, despite the risk of democratic suicide and legal revolution, democrats ‘must remain true to their colors, even when the ship is sinking…’³⁰ In a similar vein, Thoma wrote that – in an authentic democracy – what the majority of the people wills and decides to pursue in a legal way cannot be limited, even if its goal is to ‘subvert the basic pillars of the present Constitution’.³¹ The only valid means of opposition to subversive goals is for one to exercise one’s political rights too and hope that democratic values prevail in enough of one’s fellow citizens’ consciences to keep the democratic ship afloat.

Although this subcurrent avoids the problems militant democracy encounters, in the face of phenomenon like illiberal democracy and legal revolution its commitment to the principle of equal chance seems to conclude in a form of political quietism when confronted by the problems of legal revolution and illiberal democracy. An exceptionless commitment to equal chance and political relativism leads proponents of this subcurrent to the conclusion that there is no authority higher than the aggregated will of individual voters. By conceiving of political legitimacy in proceduralist terms, this subcurrent has no recourse against legal revolution and illiberal democracy. In fact, as Thoma seems to suggest, to label what the people accomplish using the procedures in effect for democratic legal change as legal revolution or democratic suicide would be nonsense; the essence of democracy is precisely the right to change anything and everything in the constitution if a people so wills.³²

This quietism is an unsatisfying response to the above-discussed problems extremists present. Constitutional and legal changes enacted in states like Poland, Hungary and Turkey have been brought about using legal means. As Scheppele writes, extremists ‘operate in a world of legalism’.³³ They use their electoral mandates with normal legal procedures to pursue their illiberal agendas.³⁴ They manage to maintain the formal veneer of constitutionalism and democracy as they erase liberal commitments from their constitutions. In 1926, Hitler instructed his followers that ‘the Weimar Constitution dictates the method – but not the goal’.³⁵ Extremists today follow this method faithfully. Legal revolution turns out to be more effective than violent revolution because it can argue it is a legitimate democratic method of legal change, no different than what any other party engages in. The quietism of this proceduralist subcurrent offers no practical response to their tactics.

3. The commitment to equal chance

In sum, although militant democrats and proceduralists disagree on many important issues, they are united by a common belief about what constitutes political legitimacy: the equal chance for each citizen to have his or her values and beliefs heard in the public sphere and potentially enacted into law as well as the equal chance to run for and hold office. To infringe upon this commitment to equal chance, to deprive citizens of their fundamental political rights, would shatter a state’s political legitimacy. Militant democrats conceive of the legitimacy of democratic equal chance as prioritizing the guarantee of democratic participatory institutions in the future – to the point where they justify a public authority’s legal right to compromise individuals’ democratic participatory rights in the present. Procedural democrats and political constitutionalists, on the other hand, conceive of the legitimacy of democratic equal chance as prioritizing individuals’ participatory rights in the present – to the point where they justify the legal right of those citizens to compromise the persistence of those democratic participatory institutions in the future. Yet both stumble over the unique problems that legal revolution and illiberal democracy present to an overriding commitment to democratic equal chance. This suggests that conceiving of the principle of equal chance first and foremost might be the wrong way to go about addressing the problems of extremism.

III The liberal current

Some thinkers, like Ferrara and Scheppele, in discussing the problem of extremism and legal revolution, have adopted a perspective that seems opposed to the fundamentals of the democratic current. Namely, they argue that when the latent tension between liberalism and democracy erupts, basic commitments to liberalism cannot be legitimately overturned no matter how popular proposed legislative changes to overturn them may be.³⁶ As a way to make sense of what these authors argue, they might be theoretically conceived as a liberal countercurrent to the democratic current described above. In the dilemma over whether democracy or liberalism have lexical priority in constitutional questions, this countercurrent holds that legitimacy consists in the prior commitment to liberal constitutionalism. Liberal commitments would take lexical priority over democratic ones when they are in tension. Liberalism takes constitutional form as basic rights guarantees of individual civil liberties, on the one hand, and the separation and balance of powers, on the other.³⁷ To be sure, democratic procedures can and should be erected atop this foundational commitment to liberal constitutionalism.³⁸ But only to supervene on that foundation of liberal constitutionalism. Conceived in this way, the commitments of liberal constitutionalism are constitutive principles for democratic practice. As such, they sit beyond the reach of democratic will. They cannot be legally amended or abrogated.

The illiberal goals of extremists like those discussed above are unconstitutional for the liberal current and cannot become valid law or directives no matter how popular they are or how faithfully extremists adhere to the boundaries of positive legality while seeking to realize those goals.³⁹ Formal democratic electoral support for an agenda does not mechanically translate into its substantive legitimacy or constitutionality. In other words, otherwise positively legal acts can become illegitimate when they seek to abrogate or otherwise compromise the basic commitment to liberal constitutionalism. Lacking constitutionality, the liberal current argues that it is valid to constrain or overturn the democratic decision-making process. Fundamentally illiberal laws and acts can legitimately be nullified and overturned. In sum, when the latent tension between democracy and liberalism erupts – as it has recently with political extremists – liberals have no problem arguing that democracy can legitimately be constrained.

Although this current is united around this basic commitment to liberalism and its relationship to democracy, liberals articulate different mechanisms to respond to the problem of legal revolution and illiberal democracy. For example, Scheppele focuses on judicial review as the appropriate response to extremism’s legal colonization of the legislative branch. The judiciary becomes the guardian of the constitution and defends its fundamental commitment to liberal constitutionalism. It defends reactively against immediate threats, halting substantively unconstitutional legislation to slow and undermine legal revolution. Ferrara, on the other hand, argues the best guarantee of liberal constitutionalism is effective social democracy.⁴⁰ Extremists’ popularity comes from the valid frustrations many voters have with accelerating socio-economic inequality and existing elites’ ability to wield government to serve their own narrow interests. The social democratic response is preventative in the long term, keeping extremism from arising in the first place.

Although liberals like Ferrara and Scheppele advocate different ‘liberal’ mechanisms in response to the problem of extremist legal revolution, they do not amount to opposed subcurrents within the liberal view – as militant democracy and democratic proceduralism did within the democratic current. There is no reason why the liberal current cannot wield all these mechanisms for a multifaceted response to the problems of extremist legal revolution – one both preventative and reactive.

IV Mechanisms of constrained democracy

While social democracy and judicial review have been taken up already by thinkers like Scheppele and Ferrara, I would like to use the remainder of this article to discuss other liberal mechanisms to respond to extremism that have so far received less attention. This section discusses four mechanisms that can be combined with those already discussed. The combination of these mechanisms can be called ‘constrained democracy’. Constrained democracy is the adoption of constitutional mechanisms that constrain the legal ability of democratic parties to amend liberal constitutionalism out of the constitution. Constrained democracy is a more robust liberal response to the threat of extremism than has been taken up so far.

Any defence of constrained democracy requires two questions be answered. First, is constrained democracy legitimate at all? Second, if legitimate in the abstract, which mechanisms of constrained in particular may be adopted? This distinction matters because, even if one finds some of the particular mechanisms objectionable, one can nevertheless agree with the underlying argument that democracy must be constrained under exceptional circumstances.

Regarding the first question, the arguments made by liberals have already provided an argument for why constrained democracy is legitimate in the abstract. Liberal civil liberties are constitutive of any legitimate democratic practice (so when democracy turns against those constitutive principles, it becomes illegitimate). Moreover, the principle of equal chance both relies on a justification that is unconvincing and relies on a form of political relativism that is indefensible. On the one hand, it is not clear why the fact of a majority will should confer legitimacy on some legal or constitutional goal. On the other hand, Rawls and others have convincingly argued that, in a world characterized by the fact of pluralism, a basic commitment to liberal constitutionalism is reasonable. When the tension between democracy and liberalism ceases to be latent, there are compelling reasons to seize the liberal horn of the dilemma and constrain democracy. The legitimacy of any democratic practice hinges on those prior liberal commitments. Liberals’ arguments provide reasons to believe constrained democracy is legitimate in the abstract.

The second question is which mechanisms in particular can liberal democrats legitimately incorporate into liberal democratic constitutions? Liberal democrats should seriously consider the following four mechanisms as essential aspects of liberal democratic constitutional design, alongside other better known mechanisms like judicial review and social democracy. The four mechanisms are (1) clarity in the preamble/constitution about the fundamental commitment of the state and constitution to liberalism; (2) limits on negative votes of no confidence and negative majorities; (3) Guarantee of Constitution, in particular Eternity Clauses – in the case of liberal constitutionalism, the absolute entrenchment of basic rights and the separation of powers; and (4) party bans.

Some thinkers who have analysed militant democracy already discuss the legitimacy of some of these mechanisms. Müller identifies the basic mechanisms of militant democracy as Eternity Clause, Party Ban, Restricted Speech Rights and Civic Education.⁴¹ In their discussions of militant democracy, Kirshner, Niesen, Rummens et al. and Jovanović focus on the party ban in particular. Because constrained democracy adopts similar mechanisms as militant democracy, one might wonder whether constrained democracy is just militant democracy repackaged. There are two ways constrained democracy is relevantly distinct from militant democracy: one theoretical and one rhetorical. First, militant democracy articulates the legitimacy and limits of mechanisms like the party ban in terms of democratic equal chance. For the reasons discussed above, this argument falls into the democratic paradox. As critics have argued, this approach risks turning party bans into anti-democratic political weapons at the discretion of state authorities. Constrained democracy avoids the problems of the democratic paradox because it determines the legitimacy and limits of the same mechanisms in terms of a commitment to liberalism. How it avoids this will be clarified in the discussion of each mechanism.

Second, focusing on the rhetoric of militant democracy, although constrained democracy and militant democracy agree on some of the mechanisms, it seems clear that these mechanisms do not really militate for democracy at all. That is, critics rightly argue that they militate against democracy. Constrained democracy is a more accurate name for how those mechanisms interact with democratic institutions. It is arguable that some of the confusion about whether legal revolution and illiberal democracy are legitimate at all stems from the conceptual confusion that arises from a sense of democracy that seems to include most positively evaluated qualities of Western states. Packing liberalism into a definition of democracy, for example, is conceptually confusing for a variety of reasons. As Gray recently noted, conflating the two is a recent, odd stance – given the long tradition of illiberal (or totalitarian) democracy in the history of political thought.⁴² Pushing back against this rhetoric at a theoretical level can help bring about clarity in our language and ideas about what the most basic commitments of liberal democracy actually are. For these two reasons, adopting ‘constrained democracy’ seems prudent, theoretically and rhetorically.

A. Clarity on fundamental commitment

The preamble or first lines of the constitution itself can be a space in which the fundamental commitments of the state and constitution and their lexical priority are made explicit. That is, the positive laws that make up the written constitution should be explicitly linked to the meta-juridical principles that drove the constitution of the state in the first place and that shape its political identity. Some examples include the US Declaration of Independence, a sort of preamble to the US Constitution, declares that ‘We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness’. The German Grundgesetz declares its fundamental commitment in Article 1 with the words

(1) Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority. (2) The German people therefore acknowledge inviolable and inalienable human rights as the basis of every community, of peace and of justice in the world…⁴³

Reflecting on the above dilemma arising from the latent tension between liberalism and democracy, a preamble or opening text of the constitutions could be written to unambiguously identify that liberal constitutionalism is constitutive of democracy and legitimate democratic government presupposes it (as the Grundgesetz seems to do). Such that, the constitution itself denies the legitimacy of using participatory rights for collective self-determination in order to undermine fundamental aspects of liberal constitutionalism. The preamble or introduction to the constitution can order the state’s commitments and rank liberal constitutionalism, that is, basic civil liberties and the separation of powers, above democratic procedures. It can be used to make it unambiguous whether it is constitutional to democratically amend basic liberal commitments out of the constitution.

B. Limits on negative majorities

Parties with no serious interest in governing – and no hope of realizing their political goals – can obstruct everyday government. In doing so, they wield obstructionism as a legal-constitutional weapon against both their political opponents and liberal democracy in general – undermining effective government and burdening the state and the public with the costs of decapitated, idle government.

Some examples. In Weimar Germany, the Nazi Party and Communist Party – despite being inimically opposed on the ideological spectrum – occasionally cooperated to obstruct Weimar governance and even bring down the governing cabinet after 1929. They did so to prevent the Social Democrats and other centrist parties from effectively responding to the crises wracking Weimar – both in the hope of undermining electoral support for centrists and, by highlighting the flaws of deliberative democracy, to delegitimate liberal democratic government in general. More recently in the United States, the Republican Party has used appropriations bills to hold the state hostage. In 2013, Congressional Republicans sought to defund the Affordable Care Act (in 2011, they threatened to do the same). In late 2018, Trump similarly shut down the government in his Quixotic pursuit of a border wall that the US Congress had declined to fund. In both Germany and the United States, this kind of obstructionism provided a legal-constitutional route to try to ram their legislative goals into law when they had no other hope of accomplishing them through normal legal avenues. While the actors were ultimately unsuccessful in achieving their legislative goals in this way, they still succeeded in undermining public support for the government, in particular the legislative branch, and also frustrated and further polarized the electorate.⁴⁴

Limiting negative majorities can solve this problem. Laws can be rewritten to compel that obstructionism does not happen – that votes of no confidence or appropriations acts fail if there is no workable ‘positive’ alternative. Again, a positive example of this comes from the German Grundgesetz, Article 67.1 which reads

The Bundestag may express its lack of confidence in the Federal Chancellor only by electing a successor by the vote of a majority of its Members and requesting the Federal President to dismiss the Federal Chancellor. The Federal President must comply with the request and appoint the person elected.⁴⁵

Article 67.1 still permits votes of no confidence – but the vote only succeeds if a majority agrees on the successor. In the United States, appropriations, for example, should be separated from partisan legislative activity so that the budget cannot be held hostage for a power to attempt to enact otherwise unattainable legislative goals.⁴⁶

Barring negative majorities from engaging in obstructionism is categorically different from, for example, a veto or voting down a law. The distinction lies in the consequences of the act. The aim of limiting negative majorities is preventing the government from being shut down, so that parties and movements cannot hold the state hostage. If a majority prevents a particular law from passing with a veto or a downvote but does nothing to undermine the normal operations of the government, then falls outside the scope of this limitation.

C. Guarantee of constitution/eternity clause

A Guarantee of Constitution secures those articles that concretize the fundamental commitments of the constitution by locking those commitments in against legal change. The guarantee of constitution takes two forms. In its milder form, a guarantee of constitution makes it more difficult to alter certain articles by requiring that a supermajority, rather than a simple majority, agree on the constitutional amendment sought. Most existing guarantees of the constitution take this form. But requiring a supermajority as a guarantee of constitution works – until it does not. As noted above, it is not an unreasonable thought experiment to imagine a supermajority of voters winning free and fair elections repeatedly while using their control of the government to advance an illiberal legislative agenda. Fidesz’s repeated electoral victories demonstrate how close our present reality comes to this thought experiment. A supermajority is no guarantee of constitutional essentials. If there are indeed constitutional essentials like liberal basic rights, then something stronger is necessary.

A stronger guarantee of constitution is the eternity clause. Rather than allowing the positive legal expression of the fundamental commitments of the constitution to be altered, an eternity clause locks them in against any legal emendation. Article 79.3 of the German Grundgesetz provides an example of this mechanism of constrained democracy. It reads ‘Amendments to this Basic Law affecting the division of the Federation into Länder, their participation on principle in the legislative process, or the principles laid down in Articles 1 and 20 shall be inadmissible’.⁴⁷ It locks in the federation of the German State (balancing power between the German Federal State and the German states [Länder]), the fundamental commitment to human dignity and human rights of Article 1, and the right of resistance to ‘any person seeking to abolish this constitutional order’ of Article 20.⁴⁸

The guarantee of constitution works in conjunction with the first mechanism of constrained democracy: clarity on fundamental commitments. If fundamental liberal commitments are constitutive of liberal democratic states – for example, if basic civil liberties and rights make up the basic structure of liberal democratic public order, without which we are no longer talking about ‘authentic’ democracy – then why not lock in those fundamental liberal commitments with an eternity clause?

Exactly which civil liberties and rights are constitutive and ought to be locked in with an eternity clause? There is not sufficient space here to take this discussion up in full. As a starting point, liberals could consider Articles 3–19 of the Universal Declaration of Human Rights, namely the rights that Rawls argues any decent society must guarantee – but expanded to include freedom of expression.⁴⁹ This set of rights includes the right to life, liberty and security of the person; habeas corpus; privacy; equality and recognition before the law; a nationality; thought, conscience and religion; and the right not to be tortured.⁵⁰

Locking in this list of basic liberal rights with an eternity clause does not preclude other rights from being granted (which can be amended or eliminated because they enjoy a less rigid barrier to emendation or abrogation). Nor does it preclude participatory rights and the equal chance to legally pursue one’s interests through open democratic electoral competition from occurring on top of this foundation of liberal constitutionalism.⁵¹ The guarantee of constitution leaves open a wide range for constitutional change and democratic volition. All this guarantee of constitution precludes is the legal amendment or abrogation of fundamental rights of liberalism.

D. Party ban

Niesen defines the party ban ‘as referring to all juridical forms that effectively prevent the founding and continued operation of political parties, whether in the form of dissolution, substantive registration requirements, temporary suspension, or prohibition of and prosecution for party formation’.⁵² For constrained democracy, a liberal democratic state faced with exceptional circumstances can use party bans without betraying its constitutive principles. What are those circumstances? If a party or movement incorporates a goal or aim that contradicts the fundamental commitments of the constitution – such as the principles laid out in the preamble or those rights and institutions entrenched with an eternity clause – then its participatory rights could be legitimately constrained. Put more concretely, for example, a party whose platform included abrogating liberal civil liberties (or depriving a minority of the population of those civil liberties) is a candidate for a party ban.

Article 21.2 of the German Grundgesetz illustrates this mechanism. It reads

Parties that, by reason of their aims or the behaviour of their adherents, seek to undermine or abolish the free democratic basic order or to endanger the existence of the Federal Republic of Germany shall be unconstitutional. The Federal Constitutional Court shall rule on the question of unconstitutionality.⁵³

Here, parties whose goals are incoherent with the fundamental values of the state⁵⁴ can be ruled to be unconstitutional by the judiciary.

Militant democrats, as discussed above, also defend the validity of the party ban. Yet because the terms of political legitimation that they adopt rest on indefeasible, inalienable participatory rights and equal chance, any use of a party ban must appear to be illegitimate. As discussed above, militant democrats themselves tend to theorize the party ban as an occasionally necessary but nevertheless always illegitimate measure. Considered in this way, party bans are illegitimate by violating equal chance yet may be exceptionally employed. But as noted above, this justification raises reasonable concerns about the legitimacy and limits of party bans because they fall into the democratic paradox.

Party bans can be better legitimated and limited as mechanisms that deny democratic political rights, but do so in order to defend basic liberal constitutional commitments. That is, constrained democracy offers a better legitimation of party bans than militant democracy. Although a party ban does infringe on the principle of equal chance, the prior commitment to liberal civil liberties, which defines political legitimacy according to constrained democracy, can be left untouched. A party can be banned and its views excluded from the legislative agenda without any corresponding violation of their constituents’ individual civil liberties. Political participatory rights are extremely important, to be sure. But their violation can be justified without compromising political legitimacy if legitimacy is defined in liberal terms. Put in starker terms, under constrained democracy it could be possible to ban a Nazi Party and deny its members participatory rights in public institutions for its political goals, even while guaranteeing members of that party their civil rights to hold those views privately.

Rosenblum raised a reasonable concern about party bans being turned against religious parties in the name of secularism and religious freedom.⁵⁵ As I have discussed elsewhere,⁵⁶ party bans conceived in terms of constrained democracy would only apply to parties – religious or otherwise – seeking to abrogate liberal constitutional essentials. This avoids the problem she raises of party bans becoming tools to attack religious parties in the name of secularism.

To be clear. The party ban should be an exceptional measure and one of last resort. But – to paraphrase Rawls – justice does not require liberals to allow others to legally revolutionize the fundamentals of liberal democratic states.⁵⁷ Party bans can be legitimately used to guarantee the basic liberal commitments of states against democratic legal revolution.

Excursus: Constrained democracy, more than a useful fiction

Some may wonder – setting aside the question of the legitimacy of constrained democracy – would the mechanisms outlined above actually impede extremists. That is, so what? Even if the constitution renders legal revolution impossible, a motivated people can still revolutionize the constitution illegally by resorting to outright violence to overthrow the state and constitution. If an illiberal, revolutionary movement has a democratically popular enough base, neither the law nor the constitution can hold it back.

Müller makes a more moderate version of this argument when he argues that it is a ‘useful fiction’ to believe that ‘Weimar had foundered because of the deficiencies of the Constitution (as opposed to a rueful lack of citizens prepared to defend democracy)’.⁵⁸ Critics like Müller and Schwartzberg are correct of course that a regime lacking sufficient citizens committed to its fundamental principles cannot and will not be saved by mere laws – no matter how well designed those laws are.⁵⁹

There is more to the matter, however, than whether well-designed laws can stop a resolute majority. To frame this practical issue in terms of ‘either constrained democracy halts full-blown extremism on its own or it does not’ obscures a valuable role that constrained democracy can play. There are two related ways constrained democracy can contribute to preventing constitutional revolution in the first place.

First, law – especially the constitution – is a normative tool and an indispensable part of civic education. An unambiguous declaration of the fundamental commitments of the constitution and their meta-juridical normative roots will shape how citizens conceive of the legitimacy of their political-legislative goals pursued by parties running for office. I suspect that a problem with the rhetoric of Western liberal democracy is that, by subsuming liberal constitutionalism under the umbrella concept of ‘democracy’, both the latent tension between liberalism and democracy and how liberal principles are constitutive of genuine democracy are lost in the perceived immediate legitimacy of the right to collective self-determination. This kind of democracy would be nothing but a procedure for translating an arbitrary will into law. A constitution decoupled from the constraints of liberalism teaches its citizens, in effect, that will becomes right – as long as a sufficient quantity of wills are agreed – and that a majority may validly command whatever it wills.⁶⁰

I do not think that many democratic theorists today mean ‘democratic procedures decoupled from liberalism’ when they invoke the concept ‘democracy’. Yet when the latent tension between liberalism and democracy becomes real, the rhetoric of democracy seems to drive the discussion in this direction. To keep liberal constitutionalism in sight, Western states and constitutions can clarify their commitments and provide guardrails for majority rule. True, a constitution designed along these lines may not dissuade a hardcore minority of the unconstitutionality of its views. But it will help to shape the views of society more broadly – the same society that the hardcore illiberal minority needs to convince if it hopes to bring about its illiberal goals. That is, constitutional clarity about the priority of liberal constitutionalism is a part of the civic education of citizens in a liberal democracy. Political science has long recognized the role law plays in civic education and the constitution of citizens.⁶¹

Constitutions can be designed to instil different political lessons in their citizenry, values more aligned with norms of pluralism and human rights – and constrained democracy is one way to go about doing this. If constitutions have disorganized, unordered articles that are in tension with one another, citizens and lawmakers may be reasonably confused about what their fundamental commitments are. As a result, a constitution may not be an effective tool for civic education. Citizens may come to believe that a constitution is indeed merely a tool for translating any majority will into law – no matter how illiberal and anti-democratic that will may be. They may come to believe it is their natural right as a democratic people to do so.

If tensions exist among the normative principles and fundamental commitments of a liberal democratic constitution, the law can give rise to confusion within the citizenry about what fundamental commitments a state has, which commitments are even viable, then it will fail in its role as a foundation for civic education.

The second way constrained democracy can help prevent illegal revolution is by providing mechanisms to nip the problem of extremism in the bud, so to speak. Giving an illiberal movement or party free rein to espouse and legally pursue its views in the public sphere, not to mention from within government institutions, amounts to giving that movement the opportunity to normalize and legitimize those views.⁶² Returning to Müller’s argument about the ‘useful fiction’ of Weimar, there is a temporal dimension relevant to the development of extremism in Weimar that he overlooks – but may be crucial to understanding constrained democracy’s potential. The Nazis did not start off with an effective plurality in parliament in 1926. The party had no meaningful political presence in 1926. In the 1928 elections, it received 3% of the vote. In 1930, 18%. In July 1932, 37%. And so on. The party and movement worked hard to win these electoral successes through campaigning, grass-roots organization, demonstrations and political successes, like demonstrating the feeble nature of liberal democracy through its parliamentary actions. The party was permitted to campaign for years as if it were a normal party, with a normal platform, and a normal world view – all completely compatible with normal liberal democracy. It was treated like any normal non-extremist party in Weimar. By tacitly condoning the Nazi agenda, those in power allowed Nazis to normalize their party and values. And they allowed them to manipulate public opinion in their favour. Recently, the same has been argued about the normalization of White far-right nationalism in Western states. To be sure, there were many other factors involved – including luck and violence. But the point is that the absence of any practical response to the Nazi Party – like a party ban – gave it a veneer of legitimacy, which it was able to use to build electoral momentum.

Mechanisms of constrained democracy can help to nip extremist movements in the bud, before they gain popular momentum. To be sure, this is a hypothetical argument. But criticizing mechanisms of constrained democracy for being helpless to prevent the collapse of Weimar in 1933 misses the point of these mechanisms. Had they been deployed as soon as Weimar’s enemies formed into political parties aimed at legal revolution – when they were a small minority – it is not unreasonable to ask whether the outcome might have been different. The argument is not whether constrained democracy could have prevented a legal or illegal Nazi revolution in January 1933. The argument is whether the Nazi Party’s should have been tolerated in 1926. The argument is whether the problems of illiberal extremism and legal revolution should be allowed to fester at all. Constrained democracy answers in the negative: illiberal parties and movements are unconstitutional and there are legitimate mechanisms that can be deployed to guard the state and constitution against them.

Conclusion

Liberal democracy has enemies. Hitler once argued that liberal democratic constitutions only dictated the method, but not the goal. Today, again, extremist movements – using a combination of democratic electoral mandates and positive legal procedures, including constitutional amendment and abrogation – are successfully and legally writing fundamental components of liberal democracy out of their states and constitutions. Enemies of liberal democracy are successfully subverting liberal democratic states and constitutions today. And they are doing so legally.

Extremists’ actions expose a latent tension between democratic and liberal constitutional commitments. The reality of extremists’ democratic legal revolutions in liberal democratic states today forces the need to decide in the above dilemma on whether democracy or liberalism takes priority – whether legal revolution is constitutional or not. The commitment to the principle of equal chance, participatory rights guaranteeing one the opportunity to have one’s values enacted into law, is one answer. The commitment to liberalism, protections of individual civil liberties against political power (even its democratically popular exercise), is the other.

As discussed above, the first response stumbles on the democratic paradox, either by infringing on the very rights it deems fundamental and aims to save or through political quietism. This choice may allow extremists to continue to exploit legality to revolutionize the substance of the constitution. The liberal current has argued that democracy can be legitimately constrained. Liberals recognize already the importance of fortifying liberal constitutionalism against democratic legal revolution. They recognize that democratic legal revolution is unconstitutional. I have argued that a multifaceted response to the threat of extremist legal revolution, both defensive and preventative will be more effective. Constrained democracy provides a wider array of mechanisms to contain extremism’s threat to the constitution without undermining the fundamental commitments of the constitution. The justifications offered by liberal thinkers to limit formally legal but substantively illegitimate political and legal goals apply equally to what I have called constrained democracy. With that in mind, I have discussed the legitimacy of the particular mechanisms of constrained democracy described above: clarity on fundamental commitments, limits on negative votes of no confidence/negative majorities, eternity clauses and party bans.

While it would be better not to have to face this issue at all, the real threat of populist extremism, legal revolution and illiberal democracy makes it unavoidable today. And the limits of democracy and positive law to guarantee liberal democratic states most important commitments seems undeniable as these extremists have legally eliminated avenues to challenge their control over the government and second to legally made substantive changes to their constitutions. To address this pressing problem successfully, committed liberal democrats must reframe their understanding of state and constitutional legitimacy and expand the array of defensive constitutional responses to include what I have called constrained democracy.

Footnotes

ORCID iD

Benjamin A. Schupmann

Notes

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