Otto Kirchheimer and militant democracy

Democracy will always have enemies who aim to subvert it.Their efforts almost always take one of two forms: coup d'tat and legal revolution.A coup d'tat occurs illegally, usually through the military's intervention.In contrast, legal revolution occurs legally, as democratically elected politicians wield formally valid laws to erode the democratic identity of the constitution.Militant democracy responds to that latter problem of legal revolution.It can be defined as the use of mechanisms of constitutional entrenchment to preemptively deny antidemocrats the legal democratic means to revolutionize a democracy. 1 The challenge of militant democracy lies in an apparent dilemma: the measures it uses to defend democracy also seem to undermine democratic principles.Kirshner (2014) calls this "the paradox of militant democracy." 2 That paradox can be illustrated with reference to the party ban, which Malkopoulou (2019) argues has become synonymous with the term "militant democracy" today (p.2).Although a party ban may prevent antidemocrats from pursuing their political goals using the powers of public office, it hardly seems democratic to deny voters the right to choose a party that they believe best represents their political interests.At the same time, it seems as undemocratic to stand idly by while antidemocrats dismantle democracy.Part of the paradox seems to be that democracy will be degraded no matter what democrats do (Kirshner, 2019, pp.57-58; Rummens, 2019, pp.112-114; Sottiaux & Rummens, 2012, p. 114).It is up to a normative theory of militant democracy to resolve that paradox and show how its measures can be reconciled with the basic values of democracy. 3 Because of that paradox, many scholars and policymakers today have doubts about the legitimacy of militant democracy.Even advocates of militant democracy seem to lack confidence in it, reserving its measures for a last resort against an imminent existential threat. 4However, normative reservations can have practical consequences.They may allow antidemocrats the opportunity to better organize and continue to broaden and mobilize their base.By the time a party ban may be deployed legitimately, according to today's normative theories, antidemocratic movements may be too strong to be stopped by legal sanctions.Mller (2018) summarizes this practical paradox as "countries that can have militant democracy probably do not need it; whereas those that need it, cannot have it" (p.419).He illustrates the paradox by criticizing the "useful fiction" that trying to ban the NSDAP in 1932, when the Nazis had a