Benjamin A. Schupmann’s Democracy despite Itself offers a precise and compelling contribution to the militant democracy literature, examining how basic liberal rights can be undermined in democratic conditions as well as reflecting on the constitutional measures that might check this tendency. At a time when the limits of executive power, the independence of the judiciary, and the inviolability of basic liberal rights seem increasingly in doubt within many liberal democracies, the book’s relevance is as undeniable as it is disconcerting.
Schupmann’s general aim is to articulate what he calls a liberal normative theory of militant democracy. This means identifying and justifying “measures of entrenchment” that democracies can use to defend against “illiberal antidemocrats, who revolutionize democracy through legal and democratic methods.” Instead of viewing “political participatory rights” as a sine qua non of democracy that must be guaranteed, Schupmann contends that it is instead liberal rights which “ought to be guaranteed and defended through constitutional entrenchment” (pp. 2–3). This resolves a paradox in the militant democracy literature: namely, that the principal method of democratic self-defense—restricting political rights (i.e., the party ban)—is itself anti-democratic. For Schupmann, democracy’s essence lies rather in basic liberal rights, which he believes must be protected by “adopting three principal mechanisms of militant democracy in democratic constitutions: explicit unamendability, political rights restrictions, and the guardianship of a constitutional court” (p. vii).
The book’s first two chapters stress the need for a normative democratic theory that responds effectively to the contemporary phenomenon of legal revolution, which arises “when formally valid legal procedures are used to alter the substance or identity of the constitution” (p. 1). For Schupmann, existing theories of militant democracy are unsuited to this task because they do not recognize illiberalism as a threat to democracy and thus cannot “recognize the dangers of populism and ‘illiberal democracy’” (pp. 53–54, 57–60); because they recommend militant democratic measures as last resorts and thus act only when it is already “too late” (pp. 70–73); and because they fail to think beyond party bans as measures for democratic self-defense (pp. 73–75).
In addition to drawing inspiration from the German Basic Law, Schupmann constructs his alternative liberal theory of militant democracy through engagement with John Rawls and Carl Schmitt. In Chapter Three, he draws from Rawls’s hypothetical constructivist proceduralism (i.e., the famous veil of ignorance) to argue that it is possible to identify “basic liberal rights” as “markers of normative certainty” through use of universally accessible “practical reasoning” (p. 89). Utilizing Rawls’s differentiation between “the electorate” and “the people,” Schupmann maintains that these basic liberal rights are “essential for democratic legitimacy”—meaning not only that they are “authoritative and binding,” but also that they “normatively trump the exercise of political rights” (p. 91) and in fact “should be depoliticized” altogether (p. 94). This argument indicates that those who do politicize basic liberal rights are not using practical reason appropriately—and thus can be “contained” as “unreasonable” actors (pp. 99–102). It also provides Schupmann with his rationale for defining basic liberal rights as “objective normative limits on procedures of legal change” in democratic states (p. 104).
To justify “the use of the militant measures” that Rawls “stopped short of endorsing” (p. 105), Schupmann turns in Chapter Four to the Nazi jurist Carl Schmitt. Building on his 2017 book Carl Schmitt’s State and Constitutional Theory: A Critical Analysis (Oxford University Press), Schupmann begins with Schmitt’s Hobbesian concern that unchecked politicization undermines the authoritative bases for resolving disagreements. To alleviate this problem, he argues that constituent assemblies can invoke the “juristic fiction of ‘the people’” to ground “the authority of the state and constitution” while also reconciling this authority “with the normative ideal of democracy” (pp. 123, 127). The idea, more simply, is that organized minorities can construct constitutions and attribute them “to the will of […] members after the fact” by offering “a binary choice of ‘yes or no’ to the electorate” (p. 127). This establishes the unamendable basis of a constitution that, according to Schmitt, can be legitimately defended against politicization through militant measures. Schupmann’s claim, then, is that “while Rawls demonstrates how practical reason generates the authority of liberal norms, Schmitt establishes the state’s authority to defend those norms” (p. 134).
In the remainder of the book, Schupmann defends three militant constitutional measures: explicit unamendability, political rights restrictions, and a guardian of the constitution. Chapter Five argues that the unamendability of basic liberal rights should be explicit in the written constitution, as this “anchors the fundamental values and identity of the constitution in positive law” (p. 147) and hitches legality to legitimacy. Chapter Six insists that political rights restrictions be used to contain antidemocrats long before they constitute an “imminent threat to a democratic state’s survival” (p. 66). Referencing German jurist Otto Kirchheimer, Schupmann contends “that the relevant criterion for detecting a threat” is that an organization’s “ideals, however abstract or concrete, [have] motivated its members to act against the constitution” (p. 162). To respond to such nascent threats, Schupmann argues not just for party bans, but also for “restricting messages in the public sphere intended to delegitimize democracy” and imposing “limits on the freedom of assembly and public demonstrations” (p. 174). Chapter Seven further discusses the role of the guardian of the constitution, stressing that its “powers of oversight” over statutes and democratic political contestation must be “passive” and “negative,” “limited to striking down the positive legislative actions of other branches when they conflict with the constitution” (pp. 197–199).
Democracy despite Itself is commendable on many grounds. The book is rigorous, accessible, and comprehensive, above all in articulating its reservations about prevailing tendencies within militant democracy and democratic theory scholarship. In addition, it features frequent and well-chosen empirical examples that help clarify the political stakes of the theoretical argument. Schupmann is also attentive and fair in presenting counterarguments, meaning that critics of militant democracy will find his account both generative and difficult to dismiss. Finally, Schupmann’s prioritization of liberal basic rights to resolve militant democracy’s normative paradoxes is creative and constitutes a clear as well as politically salient contribution to scholarship on the subject.
At the same time, Democracy despite Itself would perhaps have benefited from more direct discussion of how this remains an account of militant democracy, instead of militant liberalism. This is because the constitutional regime that Schupmann envisions is built on (both Rawlsian and Schmittian) skepticism toward the idea that citizenries can be relied on to protect liberalism through democratic procedures. Such skepticism informs his advocacy that democracy be chained to liberalism via constitutional unamendability, as well as the book’s endorsement of an expansive and proactive approach to suppressing the political rights of “detected” illiberal actors and organizations. Considering these aspects of Schupmann’s account, it is difficult to avoid the suspicion that a “militant” attitude toward liberalism might require stunting democracy and thus slipping into a “paradox” analogous to the one militant democrats traditionally face. In short, given that the book seems to focus on enshrining the authority of liberalism, Schupmann could have more thoroughly explained his claim that liberalism is “a constitutive feature of democracy” (p. 205)—and, consequently, that this book is in fact about securing democracy despite itself, rather than securing liberalism despite (or even against) democracy. Even in the latter case, though, at a time when basic liberal rights seem under profound if not unprecedented stress, it is difficult to deny the persuasiveness, appeal, and importance of Schupmann’s argument for their de-politicization.
