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
Personally, the 14 amendment is clear as could be, beside it is sheer common sense and ... it is about time to understand that MORE is expected from the President , NOT LESS! In my opinion, much too much blah blah blah, not enough brain power! Deplorable! ( Same logic for the SUPREME COURT of the United States)
The problem with militant democracy is that it has no constituency. The paradox at its heart proves that. If it were to have a constituency, it would be judges, and it would need a strong, explicit underpinning in a given nation’s constitution to develop it.
The reality is that your preferred mechanism, the 14th amendment, is too vague to provide it.
I didn’t read the entire article, but recently Josh Blackman had a piece in the Volokh Conspiracy blog about the ‘Jefferson Davis horrible.’ Or, the case that Davis was eligible for the presidency after the civil war. Essentially, as I recall, it revolves around whether the president is an officer of the United States. There are plausible arguments that he is not. The wording of the 14th amendment is problematic from that perspective. It begins by enumerating two elected offices, then electors for president, and then the officers etc under the United States.
If the framers of the amendment had intended it to apply to the presidency, they could easily have added it to that first list of elected offices. But they didn’t. I’m not familiar with the legislative history in this regard, so feel free to enlighten me.
For whatever reason, the dissents in the Colorado case didn’t contest that the presidency was an office under the United States, but that won’t stop the Supreme Court.
This lack of clarity will prevent militant democracy from gaining any true constituency in the United States. Instead, it will correctly be perceived as a Trojan horse for leftism, as the original version was all but explicitly intended to be. Popper, to whom the concept owes much, was much more explicit about his intent to tolerate the left but not the right.
Your piece proves this double standard is alive and well by your endorsement of the banning of the SRP and your finger wagging over the KPD. You say the latter was a fringe movement without popular support, and say little but strongly imply that the SRP represented a true threat to repeat the procedure of 1933. Thus, one was justified, the other was hysteria.
I had never heard of the party, but according to Wikipedia, they never held seats in the Bundestag, and peaked at about 40k members. By contrast, the KPD is one of the most historically significant communist parties in the West, and of course West Germany was riven for many years by terrorist acts by communist groups, such as the Red Army Faction and it splinter and sub-groups. They also earned 5.7% of the vote in the first national election before repression began. Not huge, but bigger than the SRP.
As always, the only question that matters is ‘who decides’? The correct answer, as libertarians like me have screamed for decades, is almost always ‘no one.’ By the way, I know what it’s like to have no constituency for your position, and it sucks, but I’ve gotten used to it.
People will always figure out whose thumb is on the scale. The only safe option in the long run is to remove it. As a civilization, for about 80 years now, have been consuming the capital we accrued over the preceding 100 years, approximately. We’re going to have to get back to building eventually, or it will collapse again. That can’t be allowed to happen. The answers exist, but I’m long past believing that any significant fraction of the electorate will ever agree with me.
But your cure is worse, for the reasons I’ve discussed. That’s not because I have any love for Donald Trump. On a personal level, nothing would make me happier than for him to be disqualified from election. There are strong arguments in favor of that being the case, as made by renowned FedSoc scholars such as Will Baude.
I have, much to my dismay, been developing (as they say) a strange new respect for Gavin Newsom over the past year or so. This was not least encouraged by his reaction to rumblings that the Colorado victory might be repeated in California, when he said that the way to beat Trump was at the polls. This, I can’t believe I have to say, is correct.
Go do the work of beating Trump like you would any other Republican. Then, maybe especially even if you lose, feel free to have at him. It doesn’t have to be a choice between enforcing our laws and banana republic tactics against the opposition.
The problem with the Nazis in 1933 is not that they were the largest (though not nearly the majority) party in the Reichstag. It’s that everyone rolled over for them afterward. Hindenburg signed the Reichstag Fire Decree and the Enabling Act.
For good or ill, and based on what happened in his first term, we know that no one is simply going to roll over.
I feel like Seattle's culture - you aren't an asshole for doing assholey things; you're an asshole for complaining about other people doing assholey things - has infected the whole country. It was shocking to me when I moved here in 1995, but now it's everywhere.
I hadn't really thought about it before, but it's of course a mechanism employed by the powerful to keep power against the less-secure, and Seattle has always been a town dominated by concentrated power, from Weyerhaueser and Boeing, through Starbucks and Microsoft, to Amazon. And now the whole country.
I enjoyed this! In my own piece on Colorado, I made a similar argument-that we are the hope that we've been waiting for and we need to take ownership of our democracy. We are coming and acting and voting to save ourselves.
While I understand this arguement, I worry about the lengths of which "anti-democratic" can be stretched, especially when Americans (and the Americans in those institutions) clearly don't have a consensus on democracy. Is democracy simply just "fair" interest group competition? Or is militant democracy that (liberal democracy), plus an increase in ruke of law? Or something more (like acknowledging structural bias as Schattschneider does)? Really, I don't disagree with the argument of an increased state capacity to self-regulate to preserve liberal democracy and yes - axiology should be more widely used, but I'm not sure ostracism is the best way to handle extremist (just inviting radicalization with that when there are better institutional solutions like the elimination of winner take all politics).
Also, just like the paradox of populism (e.g., Laclau), the social biases and multiple traditions of democracy (beyond liberal democracy - participatory, egalitarian, [neo]republicanism) means simply extreme variability. Just like nativist populism can simply be enacted by appeals to "the people", illiberal interests can be enforced by appeals to democracy. Just another rhetorical decice for elites to mobilize with. And moreover, a vague concept for elites to enforce.
I don't know if I fully understand how it will work it makes sense that those who openly dismiss all inconvenient laws, have been found to have broken many laws, and express intent to flout the fundamental rule of law including the constitution would be prohibited by law from being in charge of enforcement of the law.
We have the constitution because our system doesn't view law as purely subject to political preference of elected officials.
So it's almost an inevitable type of law one would make--a law that demands obedience to existing law before eligibility to take such power.
Even if you think the law is fully political it's an expression of certain ideas and norms. They will be subject to political negotiation. but perhaps one needs such a starting point to defend a liberal democratic system.
The notion that we are arguing whether to obey the plain meaning of Constitutional text crafted to protect said Constitution from an oath-breaking, fascistic, insurrectionist coup-plotter because doing so would be undemocratic, only to enable democracy's destruction via a counter-democratic Electoral College victory is insane. I expect as much these days from Republicans - making sense comes second to making noise - but from Democrats as well? I'm amazed at how effective MAGA tactics are. Just as fearing Putin's response to perceived escalations caused us to move too ineffectively with support for Ukraine, so too is fear of MAGA and Republicans as a whole causing us to hesitate in defense of our own country.
Democracy always needs defending; it is messy and imperfect. Demagogues are given long leashes in a democracy-Here in Iowa, Haley is even talking about Trumps words being dangerous. However, pushing back against Trump does not work. Trumpers have mastered a political Jujitsu, using every D argument against them. In the case of Colorado, win or lose, Trump was using the court case to his advantage.
I understand that the average voter may not be versed in the history of the GOP, and may feel that there is merit in letting Trump take his chances in an election, insurrection or no. However.
At this point I consider anyone of any standing who functions as an apologist for the Republican Party to be beyond the pale and not deserving serious consideration. The current iteration of the party is the fruit of a poison tree that was planted in the era of Massive Resistance, in a ground made fertile by hundreds of years of racial subjugation and decades of capitalist exploitation. Their project has always always always been anti-democratic. Their explicit aim is to subvert democracy and reshape the government into a mere enabler of Oligarchy. And if that means making common cause with white supremacist Christian Nationalists (as it ever has), so be it. They use “freedom” to mean the freedom of Capital to extract labor, wealth and creativity from the 99%. Nothing they say, however couched in the vocabulary of the founders it may be, is to be trusted. If there are any remaining who believe themselves to be genuine old-fashioned conservatives, they must either be naive to the point of idiocy (Susan Collins?) or living in profound denial (Liz Cheney). And I include among the liars and enablers all the reactionary “centrist” liberals like Chait and company.
Thank you for so patiently, steadily, and urgently laying this all out for us month after month.
Lowenstein's notion of a militant democracy is solid and certainly needed in these times. That his book appeared a year after Karl Popper published "Open Society" makes me wonder if they knew of one and another. Did they share their ideas? In any case it is clear they shared concerns that were produced by the failures of democracy in Europe which preceded the war.
Thank you, Thomas. Fascinating and (as usual) beautifully written. Two points:
1. It should come as no surprise when Republicans pick which parts of the Constitution they choose to honor and obey, and which they ignore. Jews, Christians, and Muslims do that every day with regard to their holy books. Republicans do it more, these days, because their party has deteriorated completely, and is now a governing party hostile to government itself. So why *would* they see themselves bound by the Constitution?
2. James Bennett, formerly editor of the NY Times Op-Ed page, recently published a ten-billion-word essay in The Economist (okay, it was around 18K words) about his experience there. You had to wade through the first 10,000 words before encountering the word "lie." He is critical of the Times' reporters and editors (mostly liberals) for not respecting Trump's MAGA fans' opinions. But their opinions are based on an unending stream of lies--from Trump, Republican Senators and Congresspeople, Fox News, etc. Why *should* they be respected? They should be reported on, yes, but not granted the status of "a different, but valid, way of looking at things."
3. BONUS THIRD THING: What would Ross Douthat or Shadi Hamid say if the majority of U.S. Christians voted to round up all America's Jews and ship them to Israel? "The people have spoken"?
"He is critical of the Times' reporters and editors (mostly liberals) for not respecting Trump's MAGA fans' opinions. But their opinions are based on an unending stream of lies--from Trump, Republican Senators and Congresspeople, Fox News, etc. Why *should* they be respected? They should be reported on, yes, but not granted the status of 'a different, but valid, way of looking at things'."
This is such a great question and not one I've seen a comprehensively satisfying answer to!
I would love our author here to tackle that gigaword-length essay in the Economist about the elite wokesters of the NYT in a future post!
The fact that we have constitutional rights means that the government, even as a reflection of the people's will, cannot do some things. The mere existence of the Constitution is a limit on pure democratic expression.
The Right had little concern for the people's choice when they wanted to lock up Hillary Clinton (it was part of the Trump platform) during the campaign or to deny Obama's legitimacy by denying his citizenship. And let's not forget Bush v. Gore and every Electoral College victory in spite of a popular vote loss, the way all Republican presidential victories have been obtained in the past 30 years, with the lone exception of 2004.
Then, of course, there's all that insurrecting and couping that has brought us to this point in the first place. There has to be consequences and recourse if we have any hope to remain a *(classically) liberal* democracy.
Professor Zimmer, another well laid out discussion of where we find ourselves and why.
“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?“
To Mr. Douthat, is American democracy what Trump said it was? Full of fake electors, lies about vote counts? Violence when someone doesn’t like the outcome?
“Must we not let the people decide?”. Since when? When was the last time a republican presidential candidate won the popular vote? Which party “won” an election in the courts?
No, Mr. Asshat, our court system, when unimpeded by a political agenda works. You simply don’t like it when it goes against your “conservative” opinion.
Precisely. As stated by Professor Zimmer and other comments here, they are constantly engaged in a form of cherrypicking about what matters and when. They only want the voters to decide, if those voters are their voters and they win. They are "pro-life" but only care about potential births, and once you're born they would rather you die of starvation than receive a dollar of public assistance. They are pretending to be on crusade to "protect the children" while constantly creating the kinds of social and economic circumstances that endanger more children's mental and physical well being.
It's just constant, non stop gaslighting everyone else that they actually have any core values and principles except that they want to have POWER over everyone else, and they are increasingly willing to do or say anything to get it and keep it, despite being rejected by the majority of voters.
Personally, the 14 amendment is clear as could be, beside it is sheer common sense and ... it is about time to understand that MORE is expected from the President , NOT LESS! In my opinion, much too much blah blah blah, not enough brain power! Deplorable! ( Same logic for the SUPREME COURT of the United States)
The problem with militant democracy is that it has no constituency. The paradox at its heart proves that. If it were to have a constituency, it would be judges, and it would need a strong, explicit underpinning in a given nation’s constitution to develop it.
The reality is that your preferred mechanism, the 14th amendment, is too vague to provide it.
I didn’t read the entire article, but recently Josh Blackman had a piece in the Volokh Conspiracy blog about the ‘Jefferson Davis horrible.’ Or, the case that Davis was eligible for the presidency after the civil war. Essentially, as I recall, it revolves around whether the president is an officer of the United States. There are plausible arguments that he is not. The wording of the 14th amendment is problematic from that perspective. It begins by enumerating two elected offices, then electors for president, and then the officers etc under the United States.
If the framers of the amendment had intended it to apply to the presidency, they could easily have added it to that first list of elected offices. But they didn’t. I’m not familiar with the legislative history in this regard, so feel free to enlighten me.
For whatever reason, the dissents in the Colorado case didn’t contest that the presidency was an office under the United States, but that won’t stop the Supreme Court.
This lack of clarity will prevent militant democracy from gaining any true constituency in the United States. Instead, it will correctly be perceived as a Trojan horse for leftism, as the original version was all but explicitly intended to be. Popper, to whom the concept owes much, was much more explicit about his intent to tolerate the left but not the right.
Your piece proves this double standard is alive and well by your endorsement of the banning of the SRP and your finger wagging over the KPD. You say the latter was a fringe movement without popular support, and say little but strongly imply that the SRP represented a true threat to repeat the procedure of 1933. Thus, one was justified, the other was hysteria.
I had never heard of the party, but according to Wikipedia, they never held seats in the Bundestag, and peaked at about 40k members. By contrast, the KPD is one of the most historically significant communist parties in the West, and of course West Germany was riven for many years by terrorist acts by communist groups, such as the Red Army Faction and it splinter and sub-groups. They also earned 5.7% of the vote in the first national election before repression began. Not huge, but bigger than the SRP.
As always, the only question that matters is ‘who decides’? The correct answer, as libertarians like me have screamed for decades, is almost always ‘no one.’ By the way, I know what it’s like to have no constituency for your position, and it sucks, but I’ve gotten used to it.
People will always figure out whose thumb is on the scale. The only safe option in the long run is to remove it. As a civilization, for about 80 years now, have been consuming the capital we accrued over the preceding 100 years, approximately. We’re going to have to get back to building eventually, or it will collapse again. That can’t be allowed to happen. The answers exist, but I’m long past believing that any significant fraction of the electorate will ever agree with me.
But your cure is worse, for the reasons I’ve discussed. That’s not because I have any love for Donald Trump. On a personal level, nothing would make me happier than for him to be disqualified from election. There are strong arguments in favor of that being the case, as made by renowned FedSoc scholars such as Will Baude.
I have, much to my dismay, been developing (as they say) a strange new respect for Gavin Newsom over the past year or so. This was not least encouraged by his reaction to rumblings that the Colorado victory might be repeated in California, when he said that the way to beat Trump was at the polls. This, I can’t believe I have to say, is correct.
Go do the work of beating Trump like you would any other Republican. Then, maybe especially even if you lose, feel free to have at him. It doesn’t have to be a choice between enforcing our laws and banana republic tactics against the opposition.
The problem with the Nazis in 1933 is not that they were the largest (though not nearly the majority) party in the Reichstag. It’s that everyone rolled over for them afterward. Hindenburg signed the Reichstag Fire Decree and the Enabling Act.
For good or ill, and based on what happened in his first term, we know that no one is simply going to roll over.
I feel like Seattle's culture - you aren't an asshole for doing assholey things; you're an asshole for complaining about other people doing assholey things - has infected the whole country. It was shocking to me when I moved here in 1995, but now it's everywhere.
I hadn't really thought about it before, but it's of course a mechanism employed by the powerful to keep power against the less-secure, and Seattle has always been a town dominated by concentrated power, from Weyerhaueser and Boeing, through Starbucks and Microsoft, to Amazon. And now the whole country.
I enjoyed this! In my own piece on Colorado, I made a similar argument-that we are the hope that we've been waiting for and we need to take ownership of our democracy. We are coming and acting and voting to save ourselves.
While I understand this arguement, I worry about the lengths of which "anti-democratic" can be stretched, especially when Americans (and the Americans in those institutions) clearly don't have a consensus on democracy. Is democracy simply just "fair" interest group competition? Or is militant democracy that (liberal democracy), plus an increase in ruke of law? Or something more (like acknowledging structural bias as Schattschneider does)? Really, I don't disagree with the argument of an increased state capacity to self-regulate to preserve liberal democracy and yes - axiology should be more widely used, but I'm not sure ostracism is the best way to handle extremist (just inviting radicalization with that when there are better institutional solutions like the elimination of winner take all politics).
Also, just like the paradox of populism (e.g., Laclau), the social biases and multiple traditions of democracy (beyond liberal democracy - participatory, egalitarian, [neo]republicanism) means simply extreme variability. Just like nativist populism can simply be enacted by appeals to "the people", illiberal interests can be enforced by appeals to democracy. Just another rhetorical decice for elites to mobilize with. And moreover, a vague concept for elites to enforce.
I don't know if I fully understand how it will work it makes sense that those who openly dismiss all inconvenient laws, have been found to have broken many laws, and express intent to flout the fundamental rule of law including the constitution would be prohibited by law from being in charge of enforcement of the law.
We have the constitution because our system doesn't view law as purely subject to political preference of elected officials.
So it's almost an inevitable type of law one would make--a law that demands obedience to existing law before eligibility to take such power.
Even if you think the law is fully political it's an expression of certain ideas and norms. They will be subject to political negotiation. but perhaps one needs such a starting point to defend a liberal democratic system.
The notion that we are arguing whether to obey the plain meaning of Constitutional text crafted to protect said Constitution from an oath-breaking, fascistic, insurrectionist coup-plotter because doing so would be undemocratic, only to enable democracy's destruction via a counter-democratic Electoral College victory is insane. I expect as much these days from Republicans - making sense comes second to making noise - but from Democrats as well? I'm amazed at how effective MAGA tactics are. Just as fearing Putin's response to perceived escalations caused us to move too ineffectively with support for Ukraine, so too is fear of MAGA and Republicans as a whole causing us to hesitate in defense of our own country.
Thank you Professor Zimmer, dedicated supporters of our Democracy like you give me hope.
Democracy always needs defending; it is messy and imperfect. Demagogues are given long leashes in a democracy-Here in Iowa, Haley is even talking about Trumps words being dangerous. However, pushing back against Trump does not work. Trumpers have mastered a political Jujitsu, using every D argument against them. In the case of Colorado, win or lose, Trump was using the court case to his advantage.
I understand that the average voter may not be versed in the history of the GOP, and may feel that there is merit in letting Trump take his chances in an election, insurrection or no. However.
At this point I consider anyone of any standing who functions as an apologist for the Republican Party to be beyond the pale and not deserving serious consideration. The current iteration of the party is the fruit of a poison tree that was planted in the era of Massive Resistance, in a ground made fertile by hundreds of years of racial subjugation and decades of capitalist exploitation. Their project has always always always been anti-democratic. Their explicit aim is to subvert democracy and reshape the government into a mere enabler of Oligarchy. And if that means making common cause with white supremacist Christian Nationalists (as it ever has), so be it. They use “freedom” to mean the freedom of Capital to extract labor, wealth and creativity from the 99%. Nothing they say, however couched in the vocabulary of the founders it may be, is to be trusted. If there are any remaining who believe themselves to be genuine old-fashioned conservatives, they must either be naive to the point of idiocy (Susan Collins?) or living in profound denial (Liz Cheney). And I include among the liars and enablers all the reactionary “centrist” liberals like Chait and company.
Thank you for so patiently, steadily, and urgently laying this all out for us month after month.
Recommending these.
Senator Sheldon Whitehouse
The Scheme : The Court Capture Speeches
https://youtube.com/playlist?list=PLhyg5hj7I21i1Aqcaym9TRFrpWjPN9_ms
Proposed measures for improving US democracy
https://www.citizensforethics.org/reports-investigations/crew-reports/democracy-reform-blueprint-accountable-inclusive-ethical-government/
https://www.citizensforethics.org/reports-investigations/crew-reports/improving-our-democracy/#issue2
Lowenstein's notion of a militant democracy is solid and certainly needed in these times. That his book appeared a year after Karl Popper published "Open Society" makes me wonder if they knew of one and another. Did they share their ideas? In any case it is clear they shared concerns that were produced by the failures of democracy in Europe which preceded the war.
Thank you, Thomas. Fascinating and (as usual) beautifully written. Two points:
1. It should come as no surprise when Republicans pick which parts of the Constitution they choose to honor and obey, and which they ignore. Jews, Christians, and Muslims do that every day with regard to their holy books. Republicans do it more, these days, because their party has deteriorated completely, and is now a governing party hostile to government itself. So why *would* they see themselves bound by the Constitution?
2. James Bennett, formerly editor of the NY Times Op-Ed page, recently published a ten-billion-word essay in The Economist (okay, it was around 18K words) about his experience there. You had to wade through the first 10,000 words before encountering the word "lie." He is critical of the Times' reporters and editors (mostly liberals) for not respecting Trump's MAGA fans' opinions. But their opinions are based on an unending stream of lies--from Trump, Republican Senators and Congresspeople, Fox News, etc. Why *should* they be respected? They should be reported on, yes, but not granted the status of "a different, but valid, way of looking at things."
3. BONUS THIRD THING: What would Ross Douthat or Shadi Hamid say if the majority of U.S. Christians voted to round up all America's Jews and ship them to Israel? "The people have spoken"?
"He is critical of the Times' reporters and editors (mostly liberals) for not respecting Trump's MAGA fans' opinions. But their opinions are based on an unending stream of lies--from Trump, Republican Senators and Congresspeople, Fox News, etc. Why *should* they be respected? They should be reported on, yes, but not granted the status of 'a different, but valid, way of looking at things'."
This is such a great question and not one I've seen a comprehensively satisfying answer to!
I would love our author here to tackle that gigaword-length essay in the Economist about the elite wokesters of the NYT in a future post!
The fact that we have constitutional rights means that the government, even as a reflection of the people's will, cannot do some things. The mere existence of the Constitution is a limit on pure democratic expression.
The Right had little concern for the people's choice when they wanted to lock up Hillary Clinton (it was part of the Trump platform) during the campaign or to deny Obama's legitimacy by denying his citizenship. And let's not forget Bush v. Gore and every Electoral College victory in spite of a popular vote loss, the way all Republican presidential victories have been obtained in the past 30 years, with the lone exception of 2004.
Then, of course, there's all that insurrecting and couping that has brought us to this point in the first place. There has to be consequences and recourse if we have any hope to remain a *(classically) liberal* democracy.
Defending democracy seems both necessary and productive - a way to live and a way to dream.
Professor Zimmer, another well laid out discussion of where we find ourselves and why.
“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?“
To Mr. Douthat, is American democracy what Trump said it was? Full of fake electors, lies about vote counts? Violence when someone doesn’t like the outcome?
“Must we not let the people decide?”. Since when? When was the last time a republican presidential candidate won the popular vote? Which party “won” an election in the courts?
No, Mr. Asshat, our court system, when unimpeded by a political agenda works. You simply don’t like it when it goes against your “conservative” opinion.
Precisely. As stated by Professor Zimmer and other comments here, they are constantly engaged in a form of cherrypicking about what matters and when. They only want the voters to decide, if those voters are their voters and they win. They are "pro-life" but only care about potential births, and once you're born they would rather you die of starvation than receive a dollar of public assistance. They are pretending to be on crusade to "protect the children" while constantly creating the kinds of social and economic circumstances that endanger more children's mental and physical well being.
It's just constant, non stop gaslighting everyone else that they actually have any core values and principles except that they want to have POWER over everyone else, and they are increasingly willing to do or say anything to get it and keep it, despite being rejected by the majority of voters.
My worry exactly...what will we do if republican led states reject the will of their voters & give their electoral votes to Trump?