Renaissance of the Militant Democracy?

BERLIN – We live in an age when autocracies could be ushered in by the most fundamental expression of democratic participation—voting.

Representative Adam Schiff rightly observed in his piece on Lawfare last week that “the same macroeconomic and demographic forces” are at work in Europe and the United States. As societies on both sides of the Atlantic grapple with the populist-fueled threat of “authoritarianization” the question emerges: How to combat parties whose leaders do not explicitly disavow the virtues of democracy but articulate a platform that suggests their willingness to dismantle democratic institutions and norms once they have been voted into power?

It makes sense to take a close look at Germany in this context. Not because it is exceptionally successful at fending off populism—in fact, the right-wing party Alternative for Germany (AfD) is currently polling at around 11 percent—but because the recognition that free democracy cannot be taken for granted is ingrained in the German Constitution. The fragile institutions of the Weimar Republic proved unable to halt the rise of fascism in the 1930s. And Joseph Goebbels, the Third Reich’s propaganda minister, famously derided the German political system for having “provided its mortal enemies with the means through which it was annihilated.”

In response to this dark past, the German Constitution from 1949, the Basic Law, reads like a compendium of lessons learned the hard way. Its authors wanted to ensure that the country would never slide into tyranny again. This key premise is epitomized by the principle of a “militant democracy,” meaning that a robust democracy ought to be able to fight fire with fire in order to persist. Specifically, under this rationale, there need to be hard limits to fundamental rights such as freedom of expression and association if democracy is going to survive attempts at subversion from within.

The most prominent of these instruments is laid down in art. 21 sec. 2 of the Basic Law. This provision stipulates that the Federal Constitutional Court, the Bundesverfassungsgericht, must declare the dissolution of any political party that seeks to undermine or abolish the free and democratic order of Germany or to endanger its existence. Whereas in the United States such a measure would conflict with the First Amendment, the Basic Law grants the German judiciary the authority to preemptively ban parties from the political arena.

Given these extensive judicial powers, is Germany better equipped for dealing with today’s threat of authoritarianization than other Western democracies with a broader understanding of permissible speech and free association, such as the United States? The Federal Constitutional Court’s recent landmark decision on a proposed party ban suggests it is too early to tell. Although the principle of militant democracy is symbolically powerful, its application in practice is marked by judicial circumspection and restraint.

On January 17, the Court ruled that the National Democratic Party of Germany (NPD), an ultranationalist party, did in fact pursue anti-constitutional aims but posed too little a threat to be banned. The Court held that the NPD, which aims to establish an ethnically homogenous Germany, entirely lacked the potential to be ultimately successful and to undermine the free and democratic order.

This marks a deviation from the Court’s earlier case law in that it sets the standard of proof for banning political parties significantly higher. In the only other two instances the Court prohibited a party, dating back to the 1950s, it explicitly did not require an assessment of “potentiality.” This time, however, the judges argued that a ban should only be resorted to as ultima ratio. In the case of a party as marginal as the NPD, the fight against its hateful rhetoric should take place in the public sphere, not in the courts.

In light of the aims of the Basic Law, this reasoning is sound. The judges rightfully recognized that a ban could do as much harm to the legitimacy of the political process as it could offer protection. And by deciding against the ban, they declined to provide further fodder for the populists’ familiar narrative that the establishment systematically suppresses the voice of “the people.”

That said, the new case law will likely complicate party bans in the future, which is a mixed blessing, depending on one’s view of their necessity. Due to the incremental nature of a party’s gains in political power, it will be difficult to determine the point at which an anti-constitutional party does pose a potential threat to the Constitution. And while it indeed seems highly improbable that the NPD will be able to gain significant ground, there are other actors on the far right that cast a much bigger shadow.

Most notably, the AfD, founded only in 2013, has been able to firmly establish itself in the national political spectrum. More restrained than the NPD, AfD officials cautiously tread the fine line between anti-constitutional rhetoric and permissible speech to avoid the scrutiny of the Federal Constitutional Court. Yet, their statements carry ugly undertones and routinely exploit anti-Islam, xenophobic sentiments. The AfD example also demonstrates the speed with which populist movements can gain momentum in today’s volatile political environment. It is disputable whether the recent judicial decision sufficiently considered this factor, as the now stricter standard of proof requiring an assessment of a party’s potentiality seems to preclude efforts to cut off a party at the pass. Should swift action be essential to avert serious damage in the future, then the party ban might turn out to be an ineffective instrument.

A few days after the judgment, Andreas Voßkuhle, the President of the Federal Constitutional Court, attended a live-streamed panel discussion on the NPD decision. Pressed on whether a future ban could be invoked in time to avert disaster, he calmly reiterated the Court’s arguments. Displaying a knack for showmanship, he then turned to gaze directly into the camera. “When push comes to shove, we’ll pull it off in time,” he promised, grinning wryly.

Let’s hope that he is right. In the meantime, the next federal elections on September 24 will serve as a stress test for Germany’s democracy. If moderate political parties and society as a whole prove up to the difficult task of countering right-wing populism, then we will be able to put aside—for now—unresolved questions about how a militant democracy works in practice.