Constitutionalism as a Mindset: The Unstated Premises of Karl Loewenstein’s Militant Democracy

Today’s critics of Karl Loewenstein’s notion of militant democracy argue that it veered dangerously between a genuine theory of democratic defence and an inadvertent apology for authoritarianism. For Loewenstein advocated the unabashed use of illiberal measures to contain the internal enemies of democratic states. This article contends that this critique misses the mark. His claim was bolder and even more controversial. For he believed that the only authentic form of democracy was liberal constitutionalism – a regime type pivoted not on popular sovereignty and parliamentary supremacy, but on the balance and mutual control between the various state agencies – and that other forms should be restructured through some sort of ‘disciplined’ government. For democratic institutions to function properly, he thought, the establishment of specific procedures and rules is hardly enough, as democracy requires a broader political-constitutional culture on which these institutions structurally depend. In so arguing, the article brings to light the basic, mostly unstated premises of Loewenstein’s theory. It discusses his conception of the constitution and his critique of unbound parliamentarism to show that the core of his original proposal was his understanding of constitutionalism as a mindset shared by a country’s elites and population.