As is well known, a number of European countries – Germany first and foremost – have a tradition of “militant democracy”/wehrhafte Demokratie, the idea being that to protect democracy from anti-democratic actors and associations, sometimes democratic rights (such as freedom of speech and freedom of association) have to be restricted. The US is commonly said to have no such tradition, confirming a general impression that in the “land of the free” freedom of speech, freedom of association, etc. are construed in a much more libertarian fashion. Yet it is the US which has given the world an expression which without further argument sums up all the illiberal pitfalls associated with militant democracy: “McCarthyism.” And on closer inspection it might turn out that the US has simply dealt with anti-democratic challenges in similar ways – but without a conceptual framework of militant democracy.
The course is situated at the intersection of comparative constitutional law, comparative politics, sociology, history, and, not least, normative political theory. In it we intend to accomplish three goals:
We will re-visit the general theoretical challenges associated with democracy-protection, especially the “democratic paradox” (bearing in mind the possibility that there might not be general theoretical solutions here at all; John Rawls once spoke of a “practical dilemma which philosophy alone cannot resolve”).
Second, we will briefly trace the history of militant democracy, which, as it happens, is a very American-German story: it was a Weimar exile, Karl Loewenstein, who first put forward the idea in a series of ground-breaking articles in the American Political Science Review in the mid-1930s; it was in West Germany that a constitutional court first adopted the doctrine.
Third, we will compare how somewhat similar challenges to democracy are addressed in the US and Europe (with potentially further comparisons in Africa and the Middle East, Israel in particular). We will go beyond some of the obvious and large questions such as “can parties be banned/criminalized?” and, for instance, look at the protection of individual voting rights as well as the limits to how suspects in cases of political extremism can be investigated by the state. We will also ask whether terrorist organizations should be fought in a “militant democracy”-paradigm and whether secularism should be protected through militant democracy measures (a highly contested issue in France, Turkey, and, at the European level, in decisions of the European Court of Human Rights). Finally, following on from this, we shall examine whether supranational organization such as the EU ought to have a role in democracy protection.
Jan-Werner Müller, ‘Militant Democracy’, in: Michel Rosenfeld and András Sajó (eds.), The Oxford Handbook of Comparative Constitutional Law (New York: Oxford UP, 2012), 1253-69.