Benjamin A. Schupmann

Democracy’s enemies do not sit idle – so why should its defences? With Democracy despite Itself, I aim to revive ‘militant democracy’, the idea that a democratic state should adopt strong mechanisms of constitutional entrenchment to defend itself against internal antidemocrats who aim to subvert it using legal democratic means. The threat of a legalistic attack on democracy is not hypothetical: recent history is rife with examples of democracies around the world – such as Turkey, Hungary, India, the United States, Israel and Venezuela – being subverted by popularly elected antidemocrats who subsequently used their legal powers to dismantle democratic norms and institutions in pursuit of so-called ‘illiberal democracy’. My reply first reconstructs the motivation and structure of Democracy despite Itself. It then responds to concerns that Niesen raises in his review: that this model overprotects basic liberal rights, particularly property rights, thereby risking the entrenchment of a capitalist market order. Second, that it underprotects political rights, thereby allowing a majority to abrogate formal democratic procedures. Third, that militant democracy may not be practically effective against antidemocratic parties whose power rests on a strong base oriented primarily by unspecific resentment, such as the authoritarian-populist party Alternative für Deutschland (AfD).

What recourse do democrats have if a present generation uses democratic legal procedures to abrogate constitutional essentials, dissolving past commitments and denying future generations the fundamental freedoms and equalities it currently enjoys? In Sovereignty across Generations, Alessandro Ferrara responds to this issue by re-examining key concepts related to democracy, including sovereignty, constituent power, liberalism and constitutionalism. This review analyses Ferrara’s theory of ‘sequential sovereignty’, which reconceives ‘the people’ as a body spanning generations and grounds it in the ideal of vertical reciprocity. Ferrara provides a sound normative framework for understanding transgenerational obligations and the unamendability of constitutional essentials. However, this review also identifies some limits to Ferrara’s approach: his focus on implied unamendability risks creating a dissonance between legality and legitimacy, and his reluctance to fully engage with ‘containment’ creates a blind spot in democracy’s self-defence. The review concludes that explicit unamendability and containment are consistent with Ferrara’s theory of sequential sovereignty and provide a better safeguard for democracy across generations.

This article critically examines Busk's Democracy in Spite of the Demos, which critiques the “categorical imperative of democracy.” Although Busk effectively challenges the commitment to value-neutral democratic procedures as the foundation for legitimate law, his alternative, curtailing powerful interests ability to manipulate voters using “socially necessary delusions,” risks establishing elite rule. This article instead proposes basic liberal rights as the normative foundation for legitimate public order and militant democracy as its most effective institutional safeguard, arguing that this combination better realizes human emancipation.

Is a devoted Nazi or a zombie bureaucrat a greater moral and political problem? Because the dangers of immoral fanaticism are so clear, the dangers of mindless bureaucracy are easy to overlook. Yet zombie bureaucrats have contributed substantially to the greatest catastrophes of the 20th century, doing so seemingly oblivious to the monstrous qualities of their actions. Hannah Arendt’s work on thoughtlessness raises a dilemma: if Eichmann, the architect of the Nazi Final Solution, truly was a thoughtless ‘cog’, lacking in intentionality, can one really hold him morally accountable for the evil qualities of his acts? This article relates Arendt’s ‘thought’ and Strawson’s and Bilgrami’s discussion of ‘reactive attitudes’ and Sartre’s concept of ‘bad faith’. To find a basis for moral accountable in seemingly thoughtless cases like Eichmann’s. Although Arendt’s Eichmann is an extreme example, finding a basis to hold him accountable is valuable because ‘little Eichmanns’ will persist as long as impersonal forces structure and depress reactive attitudes.

Recently, extremist ‘populist’ parties have succeeded in obtaining large enough democratic electoral mandates both to legally make substantive changes to the law and constitution and to legally eliminate avenues to challenge their control over the government. Extremists place committed liberal democrats in an awkward position as they work to legally revolutionize their constitutions and turn them into ‘illiberal democracies’. This article analyses political responses to this problem. It argues that the twin phenomena of legal revolution and illiberal democracy reveal a latent tension between the constitutional commitments to democracy and liberalism, that is, the equal chance to have one’s political goals enacted into law and individual basic rights. Political extremists make the latent tension real when they use the procedures of democratic legal change to abrogate constitutional commitments to liberalism, among other things. Although the two commitments normally coexist side by side, exceptional times raise an existential dilemma for liberal democracies: is it constitutional to democratically amend liberalism out of the constitution? After analysing the moral legitimacy of both the democratic and liberal arguments, this article concludes that liberal constitutionalism is constitutive of genuine democracy. In other words, it is unconstitutional to abrogate basic liberal commitments and it is legitimate to adopt constitutional mechanisms to guarantee liberalism – even if it means constraining democracy to do so. This article then situates ‘constrained democracy’ within the liberal current as a way to conceive of and respond to this pressing problem. It concludes by discussing four constitutional mechanisms – inspired by the German Grundgesetz – to guarantee liberalism: unambiguous lexically prior commitment to liberalism, limits on negative majorities, the eternity clause and party bans. It concludes that constrained democracy is an important constitutional guarantee of liberal democracy and that the four mechanisms, among others, are essential to enact constrained democracy.