It is one of representative democracy’s longstanding problems that its open, free, and equal process of election and political decision-making can provide the legal means through which anti-democratic movements can subvert democracy. As has been highlighted extensively in the last 15 years, the overarching threat to democracy today does not come from revolutionary movements, seeking to subvert democracy from the outside, but from the gradual erosion of democratic norms and institutions by elected political leaders.Footnote ¹

Consequently, the last 15 years have seen a strong resurgence in discussions on militant democracy. Often drawing on the post-war German-Jewish émigré and constitutional scholar Karl Loewenstein, who with the German Nazi Party’s more or less legal ascendency to power in the 1930s in fresh memory, urged democrats to apply militant, that is undemocratic, means to defend the democratic constitution, contemporary militant democrats have developed multiple ways in which democracy’s foundational principles of freedom and equality can be combined with strong instruments for defending democracy against antidemocrats, who seek to subvert democracy through legal revolution.

Benjamin A. Schupmann’s book Democracy Despite Itself: Liberal Constitutionalism and Militant Democracy is a stimulating and important contribution to this discussion. While some militant democrats might have reservations about restricting the democratic process too much (22–23), Schupmann’s book “develops a new normative theory of militant democracy to give it [that] confidence” (23). Schupmann’s theory consists of an unorthodox combination of John Rawls and Carl Schmitt: Rawls’s political liberalism “holds that basic liberal rights are the sine qua non of democratic constitutionalism” (2) and provides as such the “substantive values” (3) of Schupmann’s theory of militant democracy, while Schmitt’s constitutional theory of the state provides the theory’s militant commitments to defence (3). By drawing on Schmitt’s notion of the state’s constitutional identity, Schupmann claims to solve “the paradox of democracy’s self-defence” (22)—that is, the paradox of defending democracy via undemocratic means—by “focusing on liberalism as the state’s constitutional identity” (23). Hence, the argument goes, it is not undemocratic to defend democracy militantly, insofar as this defence is a way to safeguard the liberal rights of the individual, which are fundamental to democracy (23–26).

At the core of Schupmann’s book are three militant instruments: the unamendability of the constitution, the legitimate use of political rights restrictions, and the constitutional court as a guardian of the constitution. The unamendability of the constitution means that the constitution is in principle inviolable, and hence “because basic liberal rights are essential to democracy, they are normatively inviolable” (137). Such unamendability can according to Schupmann be assured by an eternity clause, whereby amendment of constitutional essentials becomes legally impossible. Such eternity clause, like Article 79.3 of the 1949 German Basic Law, would on the one hand prevent a legal revolution of the constitution such as one experienced by the Weimar Republic. On the other hand, Schupmann argues that an eternity clause would also serve as a normative anchor for evaluating antidemocratic goals, hereby providing a basis for applying political rights restrictions to those who want to change the constitutional essentials. Schupmann acknowledges that democratic theorists tend to be critical of constitutional unamendability, either by referring to the people’s constituent power as integral to democracyFootnote ² or by pointing to multi-track constitutionalism whereby a supermajority in parliament across election periods can get access to constitution-amending powers (138–40). According to Schupmann, these approaches do not recognize that “militant democracy, as a mechanism of constitutional entrenchment, presupposes a clear demarcation between inviolable constitutional essentials and amendable constitutional laws” (139).

Schupmann’s second militant democratic instrument is political rights restrictions. Whereas unamendability safeguards the constitution against antidemocratic legislation, political rights restrictions counter the fact that “antidemocrats can erode the democratic essentials without actually amending the constitution,” insofar as “the mere presence of antidemocrats within democratic institutions can weaken and corrupt democracy” (155). The instrument of restricting political rights in turn “den[ies] antidemocrats the opportunity to engage in direct and indirect legal revolution,” thereby “deny[ing] antidemocrats the legal possession of state power” (155). The 1949 German Basic Law serves again as an example, as its Article 21.1 allows for the dissolution of parties aiming to undermine democracy, and Article 9.2 allows for the dissolution of antidemocratic associations.

Schupmann’s third principle is the notion of a guarding of the constitution, which “is the final authority on constitutionality and defends the constitution against its violation by other constituted powers” (179). In post-war constitutional developments, constitutional courts have often performed the function of reviewing whether ordinary legislation is in accordance with the constitution, and thereby “halt[ing] the legal revolution of democracy” (179). Schupmann points to the German Federal Constitutional Court as the paradigmatic example of such a constitutional guardian.

Taking together, the three militant instruments present a vision of democracy that is highly constrained, or as Schupmann admits in the book’s conclusion, “every aspect of ‘militant democracy’ is highly countermajoritarian” (205). While it is indeed the purpose of Schupmann’s liberal theory of militant democracy to constitutionally entrench a particular liberal understanding of democracy, one could ask whether these instruments might not also be potentially counter-productive on at least two grounds. First, it is part and parcel of the liberal imaginary that political conflicts can be contained and solved solely by law and institutions. Hence, a liberal theory of militant democracy such as Schupmann’s presupposes that threats to democracy can be contained and solved by legal means (an eternity clause on the constitution’s unamendability and the restriction of political rights) and institutions (constitutional courts), instead of acknowledging the sources of democratic dissatisfaction that create the conditions for the rise of antidemocratic sentiments such as increasing economic inequality and democratic regimes’ lack of responsiveness. To counter these tendencies other democratic theorists have developed a so-called social model of militant democracy. Footnote ³

Secondly, beyond designating law as the primary medium through which democracy is to be militantly defended, Schupmann favors elite and countermajoritarian institutions like constitutional courts. As antidemocratic sentiments within established democracies today are also on the rise due to oligarchic capture and increased elite rule, it might be productive to contemplate ways in which the democratic citizenry at large can partake in the defence of democracy.Footnote ⁴

These remarks, though, should not detract from the fact that Schupmann has written a stimulating and important book, which will influence scholarship on militant democracy for years to come.