That a popular candidate could be disqualified from running and removed from the ballot might, at first glance, seem at odds with the very idea of democracy. For that reason, despite his evident role in instigating an insurrection, many Republican senators demurred and chose not to impeach former President Donald J. Trump on 13 January 2021. There was no need, they thought. The American voters had already passed judgment. Trump would now fade away.
Three years later, with Trump still fully in control of the Republican Party and poised to regain the Presidency, the US Supreme Court decided per curiam that Courts cannot declare a candidate ineligible for public office under the “insurrection clause” of the Fourteenth Amendment. Moreover, the Supreme Court’s scheduled hearing of Trump’s executive immunity claim seems intended to guarantee that the federal January 6 case will occur too late to influence or interfere with the 2024 US Presidential Election.
In these and other cases, we can see that, despite the existence of constitutional mechanisms to disqualify antidemocrats from obtaining power, elected representatives, judges, and other officials are reluctant to use them.
At first glance, there seems to be something principled about their reluctance: what is democracy if not an equal chance to see one’s preferred candidate elected into public office; and what are political rights if not the right to choose one’s values freely, even if that choice may seem “wrong” to others? As long as someone adheres to the legal democratic procedures in effect for pursuing their goals, are their views not as valid as anyone else’s?
Democracy seems to mean that every member should have their interests and values considered equally, through value-neutral majoritarian procedures. Everything should in principle be “on the agenda” when it comes to these procedures, to ensure that the electorate holds final authority over decision-making.
A measure like political disqualification seems to undermine the essence of democratic equal chance—even when used to stop an unambiguous enemy of democracy. So many today, across the political spectrum, express reservations about using such measures, arguing that the decision can only be left to voters to decide.
That view is mistaken, however. Elected and appointed leaders, not to mention democratic citizens, can be more confident in their defence of democracy. Constitutional mechanisms that limit value-neutral procedures, including disqualification, can be consistent with our most fundamental ideals of democracy.
The near collapse of democracy during the interwar period provides some insight into why that may be. It highlighted two related problems with conceiving of democracy merely as a value-neutral procedure. First, although value-neutral procedures are indeed important to democracy, they are insufficient. Liberal constitutionalism—human rights, the separation of powers, and the rule of law—is as essential. Without it, majority or even supermajority rule can become tyrannical and as oppressive as a dictatorship. So-called “illiberal democracy” is a contradiction in terms. A state must also guarantee basic rights, separate and balance its powers, and adhere to the rule of law to be considered a legitimate democracy.
Second, the interwar period exposed the limits of traditional methods of constitutional entrenchment, such as supermajoritarian thresholds. Those methods assume most citizens are fundamentally committed to democracy. That assumption proved wrong. Many citizens are at best weakly committed to democratic principles. Some are illiberal and antidemocratic. Others prioritize partisan interests over democratic principles. Antidemocrats can exploit a complacent or self-interested majority and turn democracy’s value-neutral procedures against its constitutional essentials, leading to democratic suicide.
Post-war constitutions, such as the German Basic Law, were designed with that historical lesson in mind. Among other things, they adopted what is known as “militant democracy” to defend themselves. A militant democracy is a democracy that adopts stronger forms of constitutional entrenchment, in particular explicit unamendability of basic rights, procedures to disqualify parties and candidates, and a more robust role for constitutional courts to check legislative and executive abuses of power, all to prevent democracy’s legal revolution. Militant measures limit political rights to protect democratic constitutional essentials against legal yet illegitimate changes.
Systematically demonstrating an intent to use one’s political rights to overturn democratic constitutional essentials may justify disqualification: a party becomes a candidate for disqualification if its internal structure is antidemocratic or if it endorses abrogating or derogating human rights; an individual becomes a candidate for disqualification if he knowingly assists an insurrection and in so doing violates his oath of public office.
Democrats can be confident in pursuing disqualification in these circumstances. Although some may believe disqualification pre-empts a legitimate democratic choice, the truth is that disqualification may secure the possibility for democratic choosing to happen in the first place.
Of course, it would be better to simply defeat antidemocrats at the ballot box. Yet history shows this does not always work. Democratic backsliding in countries like Hungary and India underscores the inadequacy of a passive defence of democracy. According to Freedom House, 2024 marked the eighteenth consecutive year that democracy declined worldwide. If democrats will not act to defend democracy, then who will?
One lesson from the COVID-19 pandemic is that states adopting multiple levels of defence fared best, notably New Zealand and South Korea. The reason is clear: every defensive measure has inherent weaknesses and blind spots. Relying on a single measure dramatically increases the risk of a threat breaking through, no matter how robust that measure is. Conversely, the layering and networking of different defence mechanisms generates a cumulative effect, significantly reducing the risk of a public health disaster.
Just as a single measure is inadequate in public health, democracy’s self-defence also requires a layered approach. Key strategies include promoting civic education in democratic values and tackling inequality through economic redistribution and strengthened social safety nets. However, it is militant democracy alone that addresses the problem of antidemocrats using legal revolutionary methods to subvert democracy. This recognition is reflected in the design of many post-war constitutions, which were written with the threat of legalistic antidemocrats in mind.
Militant measures work best when executed in a timely and decisive manner, as soon as a party or candidate reveals its true colours. It is far easier to disqualify a marginal antidemocratic party—as West Germany did in 1952 and 1956—than a popular one.
However, militant measures should be used in any case, whether a party is popular or not. It is far better to take action against antidemocrats, even if doing so is countermajoritarian, than it is to passively stand by, as if democratic suicide were democratically kosher.
In the end, what matters is the recognition that democracy extends beyond value-neutral majoritarian procedures. Human rights, the separation of powers, and the rule of law are the bedrock of any functioning democratic society. Today, the phenomena of democratic backsliding and “illiberal democracy” highlight the urgency of learning from democracy’s history. Militant democracy, including its disqualification mechanisms, is vital for countering the legal revolution of our democratic constitutional essentials and preventing democracy’s self-cannibalization. While their deployment must be judicious, measures of militant democracy are both legitimate and indispensable for guaranteeing democracy’s survival.
Featured image by Cyrus Crossan via Unsplash.
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