What is a "militant democracy" and how does it help resist extremists
In Germany, a growing chorus is demanding legal proceedings that might result in a ban on the far-right Alternative für Deutschland (AfD).
Already, the Federal Office for the Protection of the Constitution – a domestic intelligence agency – has labeled the party an extremist organization, which implies that it is unconstitutional.
But in Romania’s recent presidential election, voters rejected a far-right nationalist candidate, suggesting that threats to democracy can be thwarted at the ballot box.
Read more to understand why countering threats to democracy solely through elections is not a sufficient solution in the column by Columbia Law School professor Katharina Pistor: Democracy with muscles: why we shouldn’t fear banning extremist parties.
Pistor warns that Adolf Hitler came to power through democratic means, only to dismantle the system from within.
She reminds us that when Hitler was appointed chancellor the following year, he moved quickly to outlaw competing parties and complete his power grab with the infamous Enabling Act (Ermächtigungsgesetz) of March 24, 1933.
"Henceforth, new laws could deviate from the constitution, and international treaties could be adopted without the participation of the legislature. The rest is history," writes the Columbia Law professor.
Given this context, Germany’s postwar constitution, the Basic Law, was explicitly designed as a "militant constitution" – a term coined by the German jurist Karl Löwenstein, who fled Nazi Germany for the United States.
It enshrined the principle that the internal organization of political parties must themselves be constitutional (Article 21): "Parties that, by reason of their aims or the behavior 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."
Other countries also have such defensive mechanisms on the books.
To some, these might look like a perversion of the very idea of liberal democracy – as a cynical means of eliminating competitors, as Germany’s new chancellor, Friedrich Merz, recently put it.
"But the problem with this argument," Pistor emphasizes, "is that you can beat competitors with democratic means only if they themselves adhere to democratic principles."
She gives the example of a sports team that signaled its willingness to break the rules, and which ignored the referee’s calls, would never be awarded the championship, no matter how enthusiastic its fans were.
"Rules impose constraints on the players to ensure fair play and a legitimate result. That is as true of constitutional democracy as it is of football," concludes the Columbia Law School professor.