Otto Kirchheimer and Militant Democracy

• In Event: Democracy and the Rule of Law: Lessons from the Weimar Republic

Abstract

Democracy will always have enemies who aim to subvert it. Their efforts almost always take one of two forms: coup d’état and legal revolution. A coup d’état occurs illegally, usually through the military’s intervention. Legal revolution occurs legally, as democratically elected politicians wield formally valid laws to erode the democratic identity of the constitution.

Militant democracy responds to that latter problem of legal revolution. It can be defined as the use of mechanisms of constitutional entrenchment to preemptively deny anti-democrats the legal democratic means to revolutionize a democracy.

However, the challenge of militant democracy lies in an apparent dilemma: the measures it uses to defend democracy also seem to undermine democratic principles. Kirshner calls this “the paradox of militant democracy” (Kirshner 2014). That paradox can be illustrated with reference to the party ban, which Malkopoulou (2019) argues has become synonymous with the term “militant democracy” today: Although a party ban may prevent anti-democrats from pursuing their political goals using the powers of public office, it hardly seems democratic to deny voters the right to choose a party that they believe best represents their political interests. At the same time, it seems as undemocratic to stand idly by while anti-democrats dismantle democracy. Part of the paradox seems to be that democracy will be degraded no matter what democrats do (Rummens 2019). It is up to a normative theory of militant democracy to resolve that paradox and show how its measures can be reconciled with the basic values of democracy.

Because of that paradox, many scholars and policymakers today have doubts about the legitimacy of militant democracy. Even advocates of militant democracy seem to lack confidence in it, reserving its measures for a last resort against an imminent existential threat (Niesen 2012, Kirshner 2014, Jovanović 2016, Rijpkema 2018). Their normative reservations have practical consequences, however. They may allow anti-democrats the opportunity to better organize and continue to broaden and mobilize their base. By the time a party ban may be deployed legitimately, according to today’s normative theories, antidemocratic movements may be too strong to be stopped by legal sanctions. Müller summarizes this practical paradox as “countries that can have militant democracy probably do not need it; whereas those that need it, cannot have it” (Müller 2018). He concretizes that problem by criticizing the “useful fiction” that trying to ban the NSDAP in 1932, when the Nazis had a 37% plurality of the vote, could have saved the Weimar Republic.

Although the Frankfurt School jurist Otto Kirchheimer (1905-1965) did not take up the concept “militant democracy” directly, he did discuss the constitutionality of some of its principal mechanisms, namely unamendability and political rights restrictions. Buchstein has argued that Kirchheimer can be considered an early advocate of militant democracy because he recognized its potential to help advance political goals of the left (2018). Besides being of historical interest, Kirchheimer’s discussion may help to resolve some of militant democracy’s ongoing paradoxes.

This paper argues that Kirchheimer’s discussion of political rights restrictions in the early and mid- twentieth century may help resolve that practical paradox of militant democracy. This paper unpacks two of his arguments in particular. First, how Kirchheimer defended resetting the criterion for detecting an unconstitutional organization, from the illegality or imminence of a threat posed by an organization to the relationship between an organization’s political goals and its members’ concrete actions. Second, on that basis, Kirchheimer defended the legitimacy of deploying political rights restrictions early, as soon as a threat could be legally identified. If political rights restrictions can be deployed early, they may circumvent that paradox.

This paper unpacks Kirchheimer’s discussion in six sections. The first summarizes some of Kirchheimer’s Weimar-era observations about the difficulties that Weimar democracy had in defending itself. The second analyzes Kirchheimer’s discussion of the Federal Constitutional Court’s adoption of a new criterion for detecting threats to democracy. The third analyses how that new criterion normatively grounds deploying political rights restrictions sooner. The fourth discusses other practical or “tactical” reasons Kirchheimer offered for deploying political rights restrictions sooner. The fifth discusses how Kirchheimer’s approach helps to resolve the practical paradox of militant democracy. The sixth and final section summarizes how, although Kirchheimer had reservations and concerns about the use of political rights restrictions, the fall of Weimar through legal revolutionary mechanisms nevertheless led him to recognize the importance of equipping democracy to defend itself.

Author

• Benjamin A. Schupmann, Yale-NUS College