Militant Democracy vs Donald Trump

Democracy is fated to fight those who assault it with one hand tied behind its back, lest it become that which it seeks to defeat. But fight it must – or it will perish

On December 19, the Colorado Supreme Court decided that under the insurrection clause in Section 3 of the 14^th Amendment to the U.S. Constitution, Donald Trump is disqualified from holding office, ineligible to become president again, and therefore should also not be listed on the Republican presidential primary ballot in the state of Colorado.

The Supreme Court will probably overrule this decision – maybe on procedural grounds; or maybe because they disagree on substance with any of the three assessments the Colorado Supreme Court has made: that Trump did indeed take part in an insurrection, that Section 3 of the 14^th Amendment indeed applies to the presidency, that a person ruled ineligible for the office of president should not appear on a primary ballot.  

It is rather unlikely, therefore, that this decision will have any immediate impact in practice. And yet, this is a big deal. The discussion about what happened here and what should happen next reveals a lot about prevailing attitudes towards democracy, the Trumpist threat, and how it should be handled. Ideally, it should spark a serious reflection on democratic self-defense, and where the limits of that lie.

Unfortunately, the discourse surrounding this decision and its broader implications is a complete mess. Let’s ignore the aggressive Trumpist propaganda coming from the Republican Party – it is as predictable as it is meritless. On the non-MAGA part of the political spectrum, the fault lines have been well established since the question of whether or not Donald Trump should face legal consequences was forcefully put on the agenda by the January 6 Committee in the summer of 2022. On one side, centrist or center-right commentators like Damon Linker and elite conservative voices like Ross Douthat have been adamant that this is “breathtakingly foolish” at best, a catastrophe for the Republic at worst. On the other, there are people who are convinced enforcing criminal law and the constitution is legally justified and politically necessary – a position I share – even if it would certainly not magically solve all problems American democracy faces. Trumpism is a much more fundamental political and societal issue, and putting Trump behind bars or barring him from holding office ever again will not make the radicalizing anti-democratic forces that have fueled his rise go away. But acknowledging that doesn’t mean the courts shouldn’t be involved in the defense against the Trumpian assault.   

I do believe there is ample room here for reasonable, good-faith people to disagree about many aspects and dimensions of this Colorado ruling and the prospects of defending American democracy via legal prosecution of Donald Trump more broadly. But the court’s decision has predictably sparked an absolute shit show of a discussion. Emblematic of the rather embarrassing quality of a lot of the immediate reaction by America’s Very Serious Commentators was Jonathan Chait’s contention that the decision was wrong because Trump had actually *not* taken part in an “insurrection,” but merely in what Chait suggested was more precisely described as an “attempt to secure an unelected second term.” Well, if that doesn’t clear things up! Chait, a columnist for New York Magazine, has been one of the country’s most famous opinionists for quite some time. And this was just punditry at its worst: Empty wordplay, silly sophistry in defense of a premise that is never seriously scrutinized, cynical debate-club cosplay instead of an actual argument.

A lot of people seem to settle on some variant of “Well, ok, legally this might be correct, but the Court should still not have made that decision” – because they deem it “undemocratic,” or assess the political risks as too high, or expect too much of a rightwing backlash. Before we delve deeper into the political dimension and whether or not this decision is normatively good from a (small-d) democratic perspective, let’s at least pay attention to what people who make that kind of argument are actually saying. Because the position they take differs quite significantly from how we usually treat the constitution. The rules and restrictions laid out in the constitution aren’t usually seen as optional. It’s hard not to notice that conservatives, especially, seem to be regarding some parts of the constitution a lot more binding than others, and are rather quick to accept that the 14^th Amendment, perhaps the Reconstruction amendments more generally, might be discarded for political reasons. Disparaging anyone who takes the constitutionally prescribed mechanisms for defending self-government seriously as hopelessly naïve is not a savvy take – it’s just cynical.

The political and democratic stakes

Let’s turn to the broader political implications of this decision and to the question of whether or not this is actually good for American democracy? I’m inclined to discard any firm predictions about who will be helped and who will be hurt by what the Colorado Supreme Court decided, politically and electorally. Is this good for Trump, because it will unite Republicans even more behind him, mobilize the base even further? Is it bad for Trump, because a sizable portion of Republican voters outside MAGA circles care about constitutional provisions after all? Or, how about this: Wouldn’t barring Trump from running actually increase the likelihood of a Republican victory in the 2024 election? The available evidence is not clear, the picture is murky. That means there is definitely considerable risk this might help rather than hinder Trumpism’s return to power. Then again, since January 6, and especially since the January 6 Committee referred Trump to the Department of Justice for criminal prosecution last December, the discussion has disproportionally focused on the risk of doing something and tended to neglect the considerable dangers of doing nothing.

Beyond the question of who will be helped in an immediate political and electoral sense, the same is true for the broader discussion over how to assess the legal offensive against the ex-president normatively, as either good or bad (or anything in between) from a democratic perspective. The case against holding Trump accountable in Court rests on the very real dangers of acting in this way – but it doesn’t pay enough attention to the dangers of inaction. Although “inaction” is not even the right term: Not holding Trump accountable in court for his role in the attempt to nullify a democratic election, not enforcing the constitutional provisions against him *is* an active decision. And that action also has consequences. The courts deciding against Trump might indeed undermine whatever trust in the judicial system remains on the Right. But how much is “trust in the institutions” worth if it is entirely conditional on those institutions not getting in the way of the reactionary political project? What if “upholding trust in the institutions” and “upholding the rule of law and the pillars of constitutional government” are in direct conflict? And is it just the conservative trust we should be worried about? What about the numerical majority of the electorate and their relationship with the system if they realize that the institutions tasked with defending democratic self-government are impotent and/or unwilling to fulfill that task?

We have been hearing for many months now that prosecuting Trump “crosses a dangerous line,” and now the Colorado Supreme Court’s decision also does. But it is not the January 6 Committee or the Department of Justice or judges in Colorado that put the Republic in dangerous, uncharted territory. Trump did that, and Republicans did that when they refused to hold him accountable even after the violent attack on the Capitol. That’s when the lines were crossed. The question ever since has been whether or not anyone can and will enforce consequences for that line-crossing. If not, then it just becomes a blueprint for future action.

The fundamental reality of American politics is that the last transfer of power was not peaceful, because the guy who was voted out of office engaged in a multi-level campaign to nullify the election result that culminated in a violent assault of his supporters on the Capitol – an attempted auto-coup that, had it been successful, would have ended constitutional government in the United States. If that doesn’t have any legal, constitutional consequences for the man at the center of it all, it would not only prove that the president is above the law, that a powerful politician is beyond reproach if they have enough of a radical following that is willing to threaten violence; it would demonstrate to everyone in America that you don’t have to accept election results you don’t like. If the system doesn’t find a way to penalize this, these attempts to undermine elections and the transfer of power by an array of pseudo-legal tricks, flat-out illegal tactics, and a hefty dose of violent intimidation would be established as a permanent temptation. They would become a fixture in American politics.

The courts vs democracy?

Is American democracy now “whatever the Colorado Supreme Court says it is,” as conservative New York Times opinion columnist Ross Douthat criticized? Does this decision not diminish popular self-government by taking power away from the electorate, is it not wholly undemocratic? Must we not let the people decide? Frankly, I find all this “let the people decide” talk remarkably backwards. The people decided in November 2020: Trump lost, and attempted an auto-coup in response. That is the sole reason why the insurrection clause in the 14^th Amendment comes into play at all: January 6 was the anti-democratic part. In Colorado, the system didn’t conduct an unjustified pre-emptive strike – it responded.

But the accusation from not just elite conservatives like Douthat, but many people who consider themselves to be moderates, part of the center, goes well beyond this particular decision by a court in Colorado. They reject the entire framework of describing Trump and his enablers in the Republican Party as a threat to democracy – and consequently reject the idea that the system is justified in treating the ex-president and MAGA extremists accordingly. This general contestation manifested, for instance, in the visceral reactions from Douthat and others to Biden’s “soul of the nation” speech in Philadelphia in September 2022 in which the president outlined the choice Americans faced as one between democracy and MAGA authoritarianism.

The critique of the idea that American politics was defined by a conflict between democratic and anti-democratic forces – the former uniting behind the Democrats and against MAGA candidates across the country, the latter dominating the Republican Party – peaked around the 2022 midterm elections. One prominent voice in the camp of those who opposed what they diagnosed as liberal or leftwing “alarmism” was Shadi Hamid, who has since become a columnist and a member of the Editorial Board at the Washington Post. Hamid offered what he called “democratic minimalism” as an alternative framework. “Democracy,” Hamid argued, “is a mechanism for regulating conflict through elections. It requires no commitment to specific substantive ends.” It should therefore be “de-coupled from the liberal and progressive outcomes that liberals and progressives think it should produce,” and instead conceptualized as “a system and means of governing and rotating power *with no prejudice to substantive ideological outcomes.*” In essence, Hamid demanded we regard democracy as just a set of procedures, not as something that entails any substantive commitments. In practical terms, this would reduce democracy to, first and foremost, elections – and since there are, in this understanding, by definition no bad outcomes resulting from democratic procedures, any election result would therefore also have to be considered good from a democratic point of view.  

This discussion is highly relevant as we are entering a presidential election year. Because the struggle over the role of the courts is not confined to just the question of what price Trump should have to pay for January 6 – it also necessarily, as the Colorado decision demonstrates, concerns the question of what role they should play in the fight against Trumpism going forward. If Trump is someone who has proven he will abolish democratic self-government as soon as he gets the chance, and the Republican Party is willing to support him in that authoritarian endeavor, should the system not urgently mobilize all the resources it has at its disposal to neutralize this threat? But if Hamid is right, then that’s entirely the wrong question to ask, even a dangerous one: According to Hamid and Douthat, if Americans were to make Trump president again via an election, then that is not only something all (small-d) democrats need to accept, but consider a normatively positive democratic outcome.

The problem with such an approach of stripping substantive commitments away and leaving only procedures in place is that it reduces “democracy” to something that has not been accepted as democratic in decades. Democracy does not just mean elections. In widely accepted parlance today, democracy is defined, as a minimum, as a system of institutionalized popular sovereignty that plays by majoritarian rules and treats all citizens as equals. An election outcome that undermines that system – because it empowers forces that are explicitly vowing to install minority dominance via autocratic rule, for instance – is therefore very much not good for democracy. These are not hypothetical scenarios: Many autocrats got to power by legal, democratic and/or constitutional means and then set out to transform the system into something that was no longer democratic. Think Victor Orbán in Hungary today, as an example.

Militant democracy in the twenty-first century

What we need – what the Colorado decision should spark – is a serious conversation about how democracy can protect itself against those who explicitly set out to destroy it without running the risk of becoming that which it seeks to defeat in the process. It is true that democracy indeed needs to tread carefully in fighting back against the forces of authoritarianism. If it stays committed to what distinguishes it, democracy is basically fated to fight with one hand tied behind its back. But it must not mean that it can’t fight back at all – or it will perish.

This challenge is not new – it is as old as modern mass democracy itself. Since the near-demise of democracy in Europe in the interwar period, this discussion has crystallized around the concept of “militant democracy.” The term itself was coined and popularized by German constitutional lawyer and political scientist Karl Loewenstein (1891-1973) in the late 1930s. Loewenstein emigrated from Germany to the United States after Hitler took power in 1933 before returning to West Germany after the Second World War. In the immediate post-war period, the idea of a “militant democracy” captured the prevailing mood in many European countries and proved extremely influential in West Germany especially, where it shaped the Basic Law, the country’s new constitution, and was officially endorsed by Germany’s Federal Constitutional Court.

For Loewenstein, as for many of his contemporaries, the key question emanating from the rise of Nazism and, to a lesser extent, Communism in the interwar period was how democracy could be better equipped to withstand the totalitarian assault. The Weimar Republic had evidently failed in that regard, it had proved incapable of defending itself against the onslaught of extremist movements and parties that were making use of the very democratic features of Weimar’s constitution to bring the hated Republic down. Writing in 1946, Loewenstein argued that

“Totalitarian dictatorship arose not because of the satanic power of superior leaders – after all, genius is limited in numbers even among the strong men of our period – but because a lenient and generous liberal democracy granted the same political rights to movements, parties, and persons that were admittedly anti-democratic as to those faithful to democratic principles.” (Political Reconstruction, 1946, p. 127)

As an overall interpretation of why Weimar fell, this doesn’t hold up – the story is, how could it not be, more complex than that, and any explanation certainly has to center on why there were, by the early 1930s, so few people left who were “faithful to democratic principles.” But Loewenstein is correct in his diagnosis that “Not even the blunt admission that, once in power, they would destroy democracy – a promise literally kept – barred totalitarian parties from parliamentary bodies which they openly despised.” Thinking about the lessons from the Weimar experience, Loewenstein was adamant:

“This must not happen again. Political democracy can no longer tolerate political groups, parties, movements whose admitted and implied aim is to annihilate it. The inescapable lesson of the past is that political democracy must rigorously deny its enemies the democratic privileges.” (Political Reconstruction, 1946, p. 127)

Loewenstein was particularly worried about the return of anti-democratic forces in “defeated nations” – those countries in which democracy had already fallen once before: “In allowing such forces to regroup themselves and to gather new strength political democracy would commit suicide. It will endure only if it becomes militant.”

It will endure only if it becomes militant.

Loewenstein was not blind to the somewhat paradoxical nature of what he was suggesting: “Obviously here appears a conflict with a basic tenet of liberal tradition” Yet he insisted:

“It must become militant. Its principles and institutions need conscious legislative protection against its internal enemies. Antidemocratic propaganda may still be protected by freedom of political opinion, but only as long as it abstains from consolidating itself into an organization for the attainment of its aims.” (Political Reconstruction, 1946, p. 128)

That’s what it all boiled down to for Loewenstein, the central lesson from the rise of totalitarianism in the interwar period. Anti-democratic groups “must be denied the right of organization and participation in the government. In a democratic state their members must be ineligible for election or appointment to office.”

Democracy against itself?

Since the minute the term was coined, political scientists, philosophers, constitutional lawyers, and everyone else thinking about the past, present, and future of democracy have debated the pitfalls and dangers of “militant democracy.” Was this not obviously the path to democracy undermining itself by engaging in this kind of illiberal self-defense?

As the paradigmatic case, the archetype of a “militant democracy,” (West) German history since 1949 has provided evidence for both defenders and critics of Loewenstein’s vision. Germans tend to speak proudly of their “wehrhafte Demokratie” – a fortified democracy capable of fighting back and enacting preemptive measures to hinder enemies of the constitutional order before they even have the chance to wield power. In practice, Germany’s Basic Law allows, for instance, for groups or parties to be declared “hostile to the constitution” and therefore be surveilled by the state or, at the extreme end, even outlawed.

The history of banning political parties is probably the most salient dimension of Germany’s “militant democracy” for the current discussion over the Trumpian threat. As the Federal Constitutional Court puts it: “While the state should have as little influence as possible over their actions, a militant democracy must be able to combat anti-constitutional parties.” Both the legislative bodies as well as the Federal Government can ask the Court to ban a party; but the decision ultimately rests with the judges.

That these parties “seek to undermine or abolish the free democratic basic order or to endanger the existence of the Federal Republic of Germany” is a necessary, but not a sufficient condition for a ban. Before a party can be outlawed, two further conditions must be met: The party “must also take an actively belligerent, aggressive stance vis-à-vis the free democratic basic order”; and, crucially, “specific indications are required which suggest that it is at least possible that the party will achieve its anti-constitutional aims.”

As of 2023, the Federal Constitutional Court has twice banned a party: the Sozialistische Reichspartei (SRP), an explicitly fascist party that proudly claimed the tradition of Hitler’s NSDAP, in 1952; and the Kommunistische Partei Deutschlands (KPD), a communist party, in 1956. In the twenty-first century, there have been two attempts to prohibit the far-right Nationaldemokratische Partei Deutschlands (NPD). But both times, the Constitutional Court decided against it: On procedural grounds in 2003; and in 2017 because the Court found there was no indication that the NPD, while clearly aiming at destroying the democratic order, “would succeed in achieving its anti-constitutional aims.” No imminent threat, no party ban.

What are we to make of Germany’s record as a “militant democracy” and the specific mechanism of pre-emptively banning an anti-democratic party before it has a chance to destroy the constitutional order? Most observers regard the banning of the openly fascist SRP in 1952 as wholly justified, and I agree. But the ban of the communist KPD is a completely different matter. The KPD was certainly hostile to the constitutional order. But there is no plausible case to be made that it constituted an eminent threat and had any realistic chance of bringing democracy down. It was a fringe party; its prohibition can only be explained in the context of the early Cold War and as an excess of anti-communist hysteria. The decision was heavily criticized even at the time and its successor parties have not been subjected to bans. In fact, it has now been over 67 years since a party was prohibited – this particular instrument has been used rarely, the government has proven extremely reluctant and hesitant to seek a ban, and the Court has certainly not, contrary to what critics of “militant democracy” feared, acted as a henchman for an executive eager to eliminate political opposition.

There are no easy lessons to be drawn from this – or any – history. The instruments that make a democracy “militant” in the sense Loewenstein envisioned must evidently be handled with great care, lest the defense of democracy turn the system into something other than democratic. And the German “model,” to the extent it is one, could not simply be transplanted to America: It arose under specific political circumstances. And it reflected a distinct historical context in which political elites prioritized stability above all else and favored an elite-dominated, top-down model of democracy, with strong political institutions, but rather limited democratic participation. This is not the kind of egalitarian, pluralistic democracy that should serve as a vision in the twenty-first century.

But there has been a lot of attention recently in the English-speaking world for the concept of “militant democracy,” and how it might be adapted to face new challenges, especially those associated with rightwing populism. In that sense, the MAGA movement and its leader are exactly what the current debate over “militant democracy” is about. In another, Trump specifically is actually not really the kind of threat Loewenstein worried about: He probably would have considered Trump an easy case, in terms of justifying harsh action, as he is already guilty of a violent assault on the constitution. “Militant democracy” is, at its core, concerned with pre-empting the rise of extremists to power, with figuring out the boundaries of what constitutes a legitimate pre-emptive action against such threats *before* they even get to be in a position to do what Trump did.  

In many ways, the United States constitution already provides the kinds of weapons for self-defense that Weimar did not have at its disposal. That is what the insurrection clause in the 14^th Amendment is. Is it the right weapon to use, right at this moment? Trump could not be more explicit about his desire to erect an autocracy – and he has tried before. If the leader of a radicalizing, increasingly fascistic movement can attempt to nullify the results of a democratic election and end constitutional government via a multi-level, multi-month coup attempt that ultimately led to a violent insurrection and then just return to power four years later, without ever facing any real consequences and while explicitly declaring his intent establish a vindictive autocracy, democracy will not persist.

These are the stakes that must inform the discussion over how to respond to the Trumpist threat. And that is where decades of debate over the concept of “militant democracy” should be useful: As a reminder that democracy must always exercise restraint in self-defense – but it must be equipped and willing to fight.

What if a decision like the one the Colorado Supreme Court just issued were to lead to a terrible “backlash” – to a violent response by Trump loyalists and MAGA fanatics? That is a distinct possibility. But let’s acknowledge that this isn’t an argument about the decision being “undemocratic” or the courts taking power away from the people. That’s just an indication of how severe the danger already is. And it’s at least as plausible to count that as an argument in favor of the system fighting back with everything the constitution offers: If Trump weren’t an imminently dangerous figure, if there weren’t, to paraphrase the German Constitutional Court, concrete indications that it is very much possible he will achieve his anti-constitutional aims, there would be no need to mobilize the system against him. But that is simply not the situation in which we find ourselves, less than one year out from the next presidential election.