A Theory of Militant Democracy: The Ethics of Combatting Political Extremism 9780300189858

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A Theory of Militant Democracy

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A Theory of

Militant Democracy The Ethics of Combatting Political Extremism ALEXANDER S. KIRSHNER

New Haven & London

Copyright © 2014 by Alexander S. Kirshner. All rights reserved. This book may not be reproduced, in whole or in part, including illustrations, in any form (beyond that copying permitted by Sections 107 and 108 of the U.S. Copyright Law and except by reviewers for the public press), without written permission from the publishers. Yale University Press books may be purchased in quantity for educational, business, or promotional use. For information, please e-mail [email protected] (U.S. office) or [email protected] (U.K. office). Set in Janson type by IDS Infotech, Ltd., Chandigarh India. Printed in the United States of America. Library of Congress Cataloging-in-Publication Data Kirshner, Alexander S. A theory of militant democracy: the ethics of combatting political extremism / Alexander S. Kirshner. pages cm. Includes bibliographical references and index. ISBN 978–0–300–18824–0 (pbk.: alk. paper) 1. Radicalism—Case studies. 2. Right and left (Political science)—Case studies. 3. Political participation—Case studies. 4. Democracy—Case studies. I. Title. HN49.R33K57 2013 303.48’4—dc2 2013007339 A catalogue record for this book is available from the British Library. This paper meets the requirements of ANSI/NISO Z39.48–1992 (Permanence of Paper). 10 9 8 7 6 5 4 3 2 1

For Judith and Jules my parents

The problem of the antinomy inherent in the principle of tolerance is eternal and eternally unresolved: how to preach and practice tolerance toward ideas and movements which are intolerant. We act against our basic tenet if we silence these ideas and movements by force; we also act against our principle if we tolerate them, for we thus enable them to triumph and destroy the principle of tolerance in social practice. And it is cold comfort under the circumstances to hope that this contradiction will be solved in the process of historical development, either because, having slaughtered all the enemies of tolerance, we shall be able to apply it boundlessly; or else because these movements will in the course of time discard their intolerance. —Leszek Kołakowski, “In Praise of Inconsistency” We shouldn’t fight for a perfect society that’s free of conflicts, but for a conflictual society in which conflicts can be resolved within the rules of the democratic game. —Adam Michnik, interview by Daniel Cohn-Bendit, 1987

Contents

Acknowledgments ix

one Introduction 1 two The Self-Limiting Theory of Militant Democracy 26 three Political Regulation in Defense of Democracy 61 four Justifying the Exclusion of Antidemocrats 86

Contents five On Preventive Intervention 107 six Political Exclusion and the Limits of Militant Democracy 141 Conclusion 164

Notes 169 Bibliography 189 Index 201

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Acknowledgments

This book was written in New Haven, Paris, New York, Berlin, and Abu Dhabi and completed in Durham, North Carolina. In each locale, I have been fortunate to have inspiring mentors, demanding interlocutors, and generous friends. At Yale, where the book began its life, I was privileged to join a vibrant political science community and to work with a terrific set of scholars. Ian Shapiro’s wisdom, his constancy, and his uncommon ability to recognize which questions really matter and which kinds of answers are persuasive made him an ideal supervisor for my project. I was similarly fortunate to work with Bruce Ackerman. Many of the arguments examined in the book were forged in response to his questions and challenges. The seriousness and evident sense of joy he brings to thinking and argumentation remain a model for me. Bryan Garsten’s knife-sharp critiques and his equally impressive comfort with theoretical nuance fundamentally shaped this project. Sue Stokes was generous with valuable suggestions and timely support. Both Hélène Landemore and Paulina Ochoa

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Acknowledgments Espejo generously read entire versions of the project and provided essential comments. At Yale I benefited from the invaluable friendship and compelling conversation of Omri Boehm, Ulrika Carlsson, Steven Engel, Dominika Koter and Rob Becker, Philipp Nielsen, Andrea PozasLoyo, Nassos Roussias, Matthew Shaw, Paolo Spada, Abbey Steele, Shatema Threadcraft, and Ezer Verba. It is difficult to imagine what this project would have looked like without this group or without the mattress on which Omri always let me crash. In New York Philipp Nielsen, Shatema Threadcraft, and Michał Wawrzoniak proved to be ideal Bobst Library conversation partners. In an act of heroism, Philipp Nielsen read a working draft of this book, and his comments vastly improved the final product. At NYU Abu Dhabi I was fortunate to join an engaging and diverse group of social scientists. I owe special thanks to Ivan Szelenyi, Saglar Bougdaeva, Mario Chacon, Chetan Dave, Georgi Derluguian, Mitch Duneier, Roger Friedland, Jeff Jenson, Peng Lu, Becky Morton, Abdul Noury, Sana Odeh, and Daniel Vaughn. At Duke my luck has continued. I have been fortunate to be welcomed into another lively community of political scientists. Special thanks are owed to Steve Engel, Andrea Pozas-Loyo, and Thomas Donahue. They read late versions of key chapters and provided essential guidance for how to revise them. I would also like to acknowledge the scholars who helped me with constructive suggestions at different stages of the process: Akhil Amar, Seyla Benhabib, Corey Brettschneider, Bonnie Honig, Samuel Issacharoff, Karuna Mantena, Andrew Rehfeld, Nicholas Sambanis, and Steven Smith. This project would not have existed without Ted Piccone. I became interested in popular challenges to democracy while working for Ted at the Open Society Institute and the Democracy Coalition Project. That was almost a decade ago, but he has continued to be a mentor and a friend.

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Acknowledgments I am grateful to Bill Frucht and Jaya Chatterjee for their expert efforts in shepherding this project to completion at Yale University Press. The book also benefited from the suggestions offered by the anonymous reviewers of the work. Erik Carlson provided critical assistance in bringing this project to completion. Last but not least, I would like to thank some close friends and my family, which, happily, has grown significantly since I began this project. Thanks to Amina and to the fellas: Ben, Bill, Chris, and Dan. A huge thanks to my sister Jessica and her family: Dan, Rebecca, and Evan. I am grateful especially to my parents, Judith and Jules. I count on their advice, encouragement, and love every day. Finally, thanks are owed to my wife, Hélène. She is my heart. A version of chapter 5 was published as “Proceduralism and Popular Threats to Democracy” in the Journal of Political Philosophy (December 2010).

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Introduction

Militant Democracy as Democratic Counterrevolution “The bill! Or fire and slaughter! The bill! Or fire and slaughter!” This was the ultimatum shouted by the gang of Nazi brownshirts who surrounded the Kroll Opera House on March 23, 1933.1 The opera house, a grand building, served as the temporary site of the Reichstag after a fire had destroyed its most recent home. The order of parliamentary business on that March afternoon was an enabling law that would give the recently appointed chancellor, Adolf Hitler, vast discretionary powers over the German state. Four hundred and forty-four deputies, over two-thirds of the elected members of the parliament, voted for the law. Ninety-one deputies voted against it. Eighty-one deputies did not attend the meeting—some of them were imprisoned, others feared for their lives.2 Just two weeks earlier, the Nazi Party and its allies in the German National People’s Party had received a plurality of the votes in a violence-stained national election. Neither that election nor the legislative vote immediately preceding

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Introduction the dissolution of the Weimar Republic met minimal standards of democratic legitimacy.3 Nonetheless, the Weimar Republic has come to stand for the possibility that a popular majority might use democratic procedures to demolish a constitutional regime. Four years after passage of the Enabling Law, Karl Loewenstein, a German legal scholar, coined the term militant democracy. Loewenstein had witnessed the Nazis’ seizure of power firsthand and had subsequently fled to the United States. Writing in the American Political Science Review, he contended that a militant democracy would fight to block the “emergence and rise of anti-parliamentarian and antidemocratic parties.”4 Like many others who experienced the brunt of twentieth-century fascism, Loewenstein maintained that the intolerant should be met with intolerance.5 Respect for the rights of those who preferred to live in nondemocratic regimes—for the rights, in other words, of antidemocrats—was not an area of concern for Loewenstein.6 He rejected the constraints implied by what I will refer to as the paradox of militant democracy: the possibility that efforts to stem challenges to self-government might themselves lead to the degradation of democratic politics or the fall of a representative regime. Democrats, Loewenstein held, should not shy from restricting “democratic fundamentals, for the sake of preserving these very fundamentals.”7 Regimes that collapsed under popular pressure, he concluded, had “gravely sinned by their leniency.”8 Today the “lesson” of Weimar is ascendant. Few political theorists or democratic polities accept the idea that a democratic regime should placate its enemies. John Rawls, no radical, wrote that men need not “stand idly by while others destroy the basis of their existence.” 9 Modern representative regimes or polyarchies enforce measures that limit the purview of extremist individuals and political organizations—examples include democracies that are consolidated (Israel) and those that are not (Iraq), wealthy and poor democracies (France and India), democracies with dramatic histories of

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Introduction institutional failure (Germany) and those boasting remarkable records of political stability (the United Kingdom). Even in countries such as Turkey, where defensive measures are the source of substantial political dispute, debate generally revolves around the question of who poses a threat to democracy (the Islamists or the army), not whether representative government should be defended.10 There is now a growing body of scholarship dedicated to describing the steps democracies can and arguably should take to combat popular threats.11 Despite the ubiquity of efforts to counter antidemocrats, our understanding of the normative issues at stake when democracy is menaced by a popular threat remains relatively inchoate. Many students of militant democracy, including myself, accept Loewenstein’s central argument that democrats should stand up for self-government. At the same time, contemporary scholars intuitively recognize that Loewenstein’s approach lacks a certain nuance; they acknowledge that there are likely to be some noteworthy drawbacks to overruling laws, banning parties, and restricting democratic participation.12 In other words, they recognize that in avoiding the Scylla of Weimar, it is best not to steer into the Charybdis of McCarthyism. Despite this insight, the nature of the moral costs of militant action and, therefore, the nature of the challenges associated with safeguarding democracy have remained unclear and underdefined. As a result, we lack a principled framework for thinking through when defensive action is called for and how to make good on the damage caused by that action. Our partial understanding of the normative terrain of militant democracy, I believe, is at least partly attributable to political theorists’ long-standing passion for debating the normative status of antidemocratic decisions. Fear of the people—very specifically, the fear that the people will decide to forsake the institutions of legitimate selfgovernment—is a central and ancient theme of political philosophy.13 James Madison warned that “when a majority is included in a faction,

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Introduction the form of popular government on the other hand, enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens.”14 And Jean-Jacques Rousseau inveighed against the Hobbesian prospect “that a whole people [could] alienate its freedom and subject itself to a king.” Such a decision could only be the work of madmen, and “madness does not make right.”15 Today this fear of antidemocratic decisions stimulates arguments about the limits of democratic authority and the legitimacy of judicial review. To be sure, questions about the moral weight of antidemocratic law and the appropriate institutional response to such legislation are of both theoretical and practical interest. But, as I will show, inquiries into the normative status of antidemocratic legislation shift our focus from a critical reality: antidemocrats, not just antidemocratic laws, threaten democracy. At its core, therefore, my analysis is motivated by the following observations: antidemocrats exist, they have legitimate interests in participation, and respecting their interests poses challenging ethical dilemmas for democrats. In light of those observations, in this book I outline a principled framework for grappling with popular opposition to representative government. The framework will allow us to diagnose the challenges raised by internal threats to democracy; it will also shed light on how these problems might be met in ways that are, to the greatest degree possible, consistent with our reasons for embracing self-government. The model treats the defense of representative institutions as a component of a larger and longer-term struggle to extend democratic forms of governance under less than ideal conditions. That struggle begins with underground attempts to topple authoritarian regimes, it continues through the transitional creation of representative institutions, and it includes efforts to maintain and strengthen the self-governing character of established democracies. In speaking of a democracy or a representative regime, I am referring to what Robert Dahl describes as polyarchies. Joshua Cohen and

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Introduction Joel Rogers offer a neat summary of Dahl’s idea: polyarchies are imperfect regimes in which “virtually all citizens have rights of suffrage, political expression, association and office holding, as well as access to diverse sources of information; in which elected officials control public policy, and citizens choose those officials through free and fair elections.”16 To say that a polyarchy is less than ideal and that democracies can be more democratic implies that democracy is a continuous variable. Because my aim is to explore a specific political problem—how to respond to popular challenges to democracy— rather than to vindicate a novel account of self-government, I ground my investigation of threats to democracy in an account of individuals’ interests in political participation. When I state that a policy will leave a regime more democratic, I narrowly mean that that regime’s practices and institutions are more consistent with individuals’ equal claims to participation in a fair political system. I focus on the right to participate because this right lies at the core of the ethical dilemmas raised by popular challenges to democracy. Of course, different theories of legitimate government assign different moral weights to political involvement. And other theorists’ accounts of the right to participate will differ from my own, as they place greater emphasis on one aspect of participation rather than another. Yet if my arguments are persuasive, my analysis will effectively map out the normative dilemmas raised by antidemocrats, providing a sound foundation for other theorists’ consideration of popular challenges to representative government in the light of their own approach to democracy’s value. This project mines the experience of those who have sought to establish democratic institutions in authoritarian regimes. In particular, I explore the writings of the Polish journalist and former dissident Adam Michnik, as well as the work of other intellectuals allied with the Polish Solidarity movement. Solidarity’s democratic rebels attempted to force a transformation of the communist regime without mimicking the authoritarian politics of the ruling

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Introduction “revolutionary” party; they rejected both the perfectionist ambitions of radical revolution and the perverse means of Leninist vanguardism. To avoid the predictable pitfalls of ideological rebellion, Solidarity adopted democratic but nonutopian goals and democratic but nonutopian means for achieving those goals. Their efforts to establish a pluralistic, representative regime constituted a “self-limiting revolution.”17 The basic structure of the ethical challenge faced by militant democrats parallels the challenge faced by democratic rebels. Both groups seek to extend democratic institutions despite the existence and influence of antidemocrats. In both cases, extending democracy may require undemocratic action. Democratic rebels may have to operate in secret, organize themselves hierarchically, and make decisions without consulting their supporters. Defenders of democracy may ban parties, restrict the ability of antidemocrats to hold political office, and overturn dangerous majority decisions. Finally, both democratic rebels and militant democrats must take care to limit the harm inflicted by their activities. Of course, the means available to those who defend representative government differ from the means used by those seeking to establish representative institutions. But the principles underlying democratic efforts to pursue self-government can guide democratic efforts to defend that form of government. The model of militant democracy I outline is composed of three interlocking principles. First, and most important, all citizens, both democrats and antidemocrats, possess indefeasible rights to participate. This is the participatory principle of militant democracy. Accepting that opponents of self-government possess important democratic interests means that those interests must be taken into account when determining how to respond to antidemocratic action. Second, exclusionary rules or policies, such as a party ban, should be used only to thwart antidemocrats from invidiously violating

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Introduction others’ rights. This is the principle of limited intervention. Militant policies should not be employed in the pursuit of an ideal regime; instead, defensive projects should help attain an intermediate end, an imperfect political system in which capable citizens can play a meaningful role (that is, a polyarchy). Like democratic efforts to seek representative government, principled attempts to preserve a legitimate regime should be restrained or self-limiting. “Pluralist democracy,” Michnik has written, “necessitates compromise in the face of complex realities. The philosophy of compromise is a philosophy which recognizes quandaries. The philosophy of radicalism, revolution, demagogy, and violence, by contrast, takes an easier path, although, as I’ve explained, it produces the guillotine and not democracy.”18 Third, and finally, democrats’ efforts to defend self-government should be shaped by a sense of the damage likely to result from defensive action. This is the principle of democratic responsibility. States can do too little to protect democracy, but they can also go too far in democracy’s name. By implication, defensive practices should be used as often as necessary, but as infrequently as possible.19 In addition, militant democrats have a responsibility to treat antidemocrats as future partners in democracy and to rapidly secure the conditions that will allow all of a polity’s members to participate safely. Theories of legitimate revolution and theories of militant democracy share a tight familial relation. John Locke drew attention to the bridge of logic connecting revolution and the defense of legitimate government in his Second Treatise on Government. In his famous disquisition on popular resistance, Locke considered whether subjects of an established and legitimate government must allow that government to be undermined. He bluntly rejected the idea. Acknowledging the right to establish a good regime without admitting the validity of defending it would require one to embrace a perverse and dubious logic. “It is in effect no more than to bid them first be Slaves, and then

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Introduction to take care of their Liberty; and when their Chains are on, tell them, they may act like Freeman.” Concluding that individuals possess a right to resist tyrants, but not the right to keep prototyrants from seizing power, would require one to sever the right to resist from its justification. Legitimate resistance is grounded in the import of certain ends, men’s “Lives, Liberties and Estates.” If those ends warrant revolution, then the force of logic would lead one to concede that those ends justify defensive resistance. “Men can never be secure from Tyranny, if there be no means to escape it, till they are perfectly under it,” Locke argued. Individuals, he concluded, “have not only a right to get out of [tyranny], but to prevent it.”20 There is, of course, substantial variation among theories of revolution, which affect the shape, the intensity, and the range of the practices they legitimate. Constructing a theory of militant democracy therefore requires us to make a choice: which theory of revolution, which method of rebellion, holds the greatest insight into the ethics of militant democracy? In On Revolution, Hannah Arendt’s famous meditation on the French and American revolutions, Arendt chided Joseph de Maistre for his claim that “the counter-revolution will not be a revolution in reverse but the opposite of revolution.” Arendt described de Maistre’s turn of phrase as “an empty witticism.”21 The revolutionary movement I return to throughout this work, the Solidarity movement, fundamentally challenged the ruling communist regime. But the ideologues of Poland’s revolution were also wary of the dangers resulting from their actions. And one way to interpret the concept of “self-limiting revolution” is as a theory of regime change that would indeed be the opposite of revolution, in particular the strain of revolution associated with Lenin and Robespierre. Solidarity’s approach to the achievement of representative government was counterrevolutionary in two senses: first, in its skeptical rejection of utopian fundamentalism and, second, in its avowedly romantic commitment to the pursuit of rights by open and

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Introduction pluralistic means. The three regulatory principles I identify are equally inspired by the ideal of self-limiting revolution and by the possibility of a democratic counterrevolution. In the next chapter I further elaborate and defend this self-limiting approach to militant democracy. But before outlining the rest of this work, I will briefly explore an alternative approach for thinking about threats to representative regimes—one that focuses on the democracy-preserving potential of judicial review. An examination of this alternative model will help us define the nature of the challenge posed by antidemocrats and the kinds of questions a theory of militant democracy ought to answer.

Beyond Judicial Review: Why Antidemocrats and Not Antidemocratic Decisions Pose a Threat to Democracy When political theorists argue about threats to democracy, they typically argue about the legitimacy of judicial review and limits of democratic authority. By the legitimacy of judicial review I mean judges’ right to overturn a decision made by an elected, representative body, such as a legislature, when the decision lies beyond the boundary of the elected body’s authority. By democratic authority I am referring to the obligation to obey decisions emanating from representative institutions regardless of whether those decisions are correct or whether individuals agree with them. Though they diverge on our basic reasons for valuing democracy, political theorists marching under a diverse array of banners, including proceduralism, dualism, deliberative democracy, constitutional democracy, and republicanism, agree that antidemocratic laws lack authority; individuals are not morally obligated to obey decisions that seriously weaken democracy, and those decisions ought to be overturned by a court.22 Defenders of judicial review are not specifically interested in the ethics of militant democracy, yet their investigations of the democratic legitimacy of the

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Introduction practice constitute the dominant normative theory about how to respond to concerted antidemocratic action.

Dworkin’s Approach to Threats to Democracy Ronald Dworkin offers a well-known defense of judicial review in Freedom’s Law. Dworkin’s definition of democracy differs from that adopted by other advocates of judicial review. But the logical structure of his argument is not unique, and we can use his reasoning as a representative of other court-centric theories. Dworkin articulates a communal ideal of democracy (which he sometimes refers to as partnership democracy). In a true democracy, individuals will act “together in a way that merges their separate actions into a further, unified, act that is together theirs” (italics in original).23 For citizens to embrace this vision of democracy, to embrace the idea that a decision they disagree with is nonetheless their own, Dworkin contends that citizens must be moral members of the community. There are two sets of conditions that make moral membership possible. The first set is structural. They are historical, political, and sociological features of the polity that allow citizens to think of themselves as members of that community. The second set of conditions is relational: “A political community cannot count anyone as a moral member unless it gives that person a part in any collective decision, a stake in it, and independence from it” (italics in original).24 In the midst of an analysis of the moral relationship between democratic procedures and outcomes, Dworkin asks his readers to consider the example of a law that “provided that only members of one race were eligible for public office.”25 For our purposes, it is important that within the literature on judicial review, Dworkin’s hypothetical is not remarkable. In a recent book, for example, Corey Brettschneider works through “a case in which a majority disenfranchised one quarter of the population.”26 If faced with these sorts of antidemocratic decisions, Dworkin argues, a court with the appropriate legal authority 10

Introduction should strike down the laws and that there would be no reason to regret if it did so. A law that invidiously restricts individuals’ ability to seek office is inconsistent with and undercuts the basic conditions of legitimate government. Comparing the two possible outcomes, one in which members of one race are not allowed to hold public positions with one in which they are, we can appreciate the clarity of Dworkin’s logic. The court’s decision is justified because it preserves the conditions of a communal or partnership democracy.27 I emphasize the remedial element of this argument because, as I will show, Dworkin’s defense of judicial review depends on the idea that the law in question was not passed by people who reject the value of partnership democracy—that is, antidemocrats.

Dworkin’s Theory of the Problem When Dworkin discusses legislation that threatens democracy, he is exploring cases in which antidemocratic measures have become law despite the fact that the people are not opposed to self-government. To see why this characterization makes sense, consider the following scenario. Imagine, following Dworkin, that a regime enacted a statute that stripped African Americans or Jews of their eligibility for political office. Presumably this law would have been passed by no fewer than a majority of the members of the legislature. For our thought experiment to be credible, we probably need to assume that a significant group of those legislators prefer excluding African Americans or Jews from political office to not excluding them. I think it is also safe to assume that some sizable percentage of the population, although perhaps not a majority, supports the law and harbors some significant distaste for African Americans or Jews. If the preceding assumptions are plausible, then the passage of antidemocratic legislation may be a manifestation of a deeper problem: the existence of a relatively large group of citizens who are committed to a set of unreasonable and antidemocratic beliefs. We are left then with the following 11

Introduction question: Why would these racist antidemocrats abide by a court’s decision? Consider the following nonhypothetical example. In 1951 South Africa’s National Party passed a law removing colored voters in the Cape Province from the general voting rolls. The South African Appeals Court invalidated the law, ruling that the bill had not been passed with the required two-thirds supermajority needed to amend an entrenched element of the constitution. Faced with this impressive bout of judicial intransigence, the National Party added new judges to the court and temporarily altered the structure of the senate so that it could meet the two-thirds requirement.28 These institutional maneuvers allowed the National Party to achieve its goal, to disenfranchise colored voters. If the South African example is not a wild aberration, if it is plausible that groups with sufficient political influence to pass seriously discriminatory legislation can overcome a judicial decision hindering their efforts, then we may conclude that in some cases safeguarding democracy will require more than invalidating suspect laws. Focused almost exclusively on the relationship between legislatures and courts, defenses of judicial review do not grapple with the possibility that antidemocratic laws may be formulated by individuals who reject some or many of the foundational principles of democratic practice. To be clear, my claim is not that courts could not conceivably preserve democracy by overturning legislation. One can imagine conditions in which radically racist laws might be formulated by members of a true democracy, a moral community. The majority in the legislature might have been mistaken or subject to a fleeting passion. Members of the majority, on this account, might not have intended to disqualify African Americans or Jews. Alternatively, one might argue that if the majority did intend to disqualify members of those groups, the majority could be made to realize its error. Radical inconstancy of this sort is not unknown in political life. In 438 bc, for

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Introduction example, the Athenians decided to exterminate the adult male population of Mytilene, a rebellious city within the Delian League. The day after making this murderous choice, the people of Athens famously changed their minds and launched a fleet of ships to prevent the impending massacre. The case for judicial intervention is especially strong in the context of this sort of capricious decision: by overturning the racist decision, the court will bring the people back to their collective senses.29 One can also envision a scenario in which it is not the people who are racist antidemocrats, but rather their representatives. On this view, by overturning the law, the court gives the broader populace the opportunity to coordinate its resistance against these public officers.30 Both scenarios, one in which the people mistakenly pass a law and one in which the people’s elected agents go rogue, make sense of the possibility that legislation, not antidemocrats, threatens democracy. Dworkin’s argument is open to an alternative interpretation. A regime in which a legislature bans members of a particular racial or religious group from holding office might not be, in Dworkin’s terms, a genuine moral community. This inference is made plausible by his discussion of the Jewish citizens of Nazi Germany. “German Jewish people were not moral members of a political community that tried to exterminate them, though they had votes in the elections that led to Hitler’s Chancellorship, and the Holocaust was therefore not part of their collective self-government, even if a majority of Germans would have approved it.”31 On this view, democratic legislation banning a group from holding office is actually a contradiction in terms; Dworkin’s hypothetical involving a race’s eligibility for public office illustrates that there are theoretical limits to democratic authority, not that decisions of this sort could legitimately be made in a self-governing polity. Within true moral communities, the courts can play a legitimate role at the margins of democracy, hemming in the legislature on

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Introduction matters such as the legality of flag burning and the appropriate role of corporations as political financiers. Yet, Dworkin might reasonably contend, his theory is not really concerned with cases in which many individuals dispute the rights of others to seek public office. What is at stake here is not whether Dworkin has justified judicial intolerance of immoral legislation. Instead, my aim has been to illustrate that the court-centric model is not intended to address the challenges posed by individuals who reject democracy. With that thought in mind, the model I develop will address those challenges. As both the South African and German experiences indicate, by the time democracy’s opponents have the institutional wherewithal to pass sweeping antidemocratic legislation, it may well be too late for democracy. Take the archetypical case of Weimar Germany. In the period leading up to the passage of the 1933 Enabling Act, communities were forced by brownshirts to listen to Hitler’s campaign speeches. The Communist Party was banned by executive order, and tens of thousands of communists were arrested. Social Democratic politicians were intimidated, beaten, jailed, and murdered. Concentration camps such as Dachau were established to imprison political dissenters. Even unorganized opposition to the Nazi Party was met with furious violence.32 In sum, legislation of the sort discussed by Dworkin can be a lagging indicator of antidemocrats’ de facto power. Accordingly, in this work I will not investigate the legitimacy or authority of immoral law. Instead, I focus on a different problem: antidemocrats’ efforts to gain a foothold in representative bodies, to stymie representative institutions, and to unfairly undermine other citizens’ ability to participate in the political process. Defenders of judicial review might object that courts do effectively intervene against local- or state-level legislatures when those bodies represent significant numbers of antidemocrats. The model here would be the U.S. Supreme Court’s role in expanding voting rights in the United States. Throughout the twentieth century, the Court

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Introduction repeatedly overturned discriminatory practices at the state level. Yet in many cases the bigots who conceived these practices resisted the Court’s rulings, whether by rejecting the legitimacy of its decisions or by finding novel ways to achieve the same antidemocratic ends. Effective implementation of the Court’s decisions depended and continues to depend on the national government’s ability and desire to force the states to obey.33 In Dworkin’s terms, we might say that the national democratic polity, which is a moral community, imposes democracy on the local polity, which is not a moral community. This final example actually begs the question. The challenging questions related to the establishment of Southern democracy have relatively little to do with the paltry legitimacy of the laws used to keep African Americans from voting. Instead, the difficult questions have a great deal to do with the steps national democracies should take to constrain local antidemocrats. Should the federal government have excluded Southern racists from voting, from running a political party, from holding office? If so, for how long? Must the national government aim only to ensure that local political rules are fairly enforced— for example, one man, one vote—or should it also require that the prerequisites of full democracy be met—for example, equal economic and social resources for affecting political outcomes? If not, why not? These are the types of questions that a theory of militant democracy, a theory of the steps democracies should take to protect themselves, must address.

Dworkin’s Theory of the Solution The problem Dworkin addresses is antidemocratic legislation. Judicial review is an impressively elegant solution to this problem. This is no backhanded compliment. To appreciate the attractions of this strategy, consider how relying on judges to overturn antidemocratic laws efficiently resolves three thorny questions about the defense of democracy: 15

Introduction Question 1: When should militant action be taken? Answer: When antidemocratic legislation is passed—for example, legislation limiting office holding to one race. Question 2: How should democracy be defended? Answer: The legislation should be invalidated. Question 3: Who should take this action? Answer: Members of the judiciary. Not only can the proponent of judicial review answer these three questions, but by defending the practice she deftly sidesteps the paradox of militant democracy—the possibility that efforts to defend representative regimes will undermine those regimes. As a manifestation of democratic intolerance, judicial review itself poses relatively little threat to democracy. Lacking the ability to enforce their decisions or seize the political initiative independently, the courts are, in Alexander Hamilton’s famous words, “the least dangerous” branch.34 Judges can get decisions wrong and thereby make a regime less legitimate. But in the enviable moral communities imagined by Dworkin, individuals are fully committed to representative government and to each other’s political rights. In that kind of community, it is hard to imagine that a flawed legal ruling would spell the end of self-government. Earlier I suggested that an antidemocratic majority could outflank an obstinate court. If that assertion is true, then a moral community should certainly be able to overcome an antidemocratic court. Unfortunately, once we exit the safe harbor provided by a narrow focus on antidemocratic legislation, we are swept out toward the paradox of militant democracy. On the first question—when should democrats undertake militant action—we now have to consider whether defensive policies are necessary before a suspect law has been passed. Moving away from the legislative standard will require democrats to make difficult decisions about whether a range of antidemocratic activities warrants an intolerant response. Democrats

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Introduction will have to face the possibility of taking hazardous defensive action in cases where it is unnecessary. Similar dynamics are in play with respect to the second and third questions: How should democracy be safeguarded, and who should safeguard it? Let’s return once again to Dworkin’s example. Imagine a sizable group of citizens who are committed to excluding members of certain races from holding political office. On balance, would it be democratic for the legislature to hinder these racists by, for example, stopping them from receiving public funds or even from voting? What steps should be taken to ensure that efforts to stop the racist group from gaining power are not simply attempts by a legislative majority to exclude their political competition? Would our answers to these questions change if it were not the legislature but members of the executive branch who were charged with making these decisions? Should the populace at large take the defense of democracy into its own hands? Each of these questions raises the possibility that action taken to strengthen democracy may have the effect of weakening it. The work a theory of militant democracy needs to do is now coming into view. We require a framework for evaluating the difficult political judgments that democrats face when they confront antidemocrats. In this book I contend that the dilemmas raised by those who oppose democracy will be more tractable if we treat defensive policies as efforts to augment the democratic character of flawed regimes, instead of as attempts to preserve a perfect moral community or any other idealized status quo. Conceptualizing militant democracy in this way allows us to look to those, like Adam Michnik, who have given considerable thought to the paradoxes involved with establishing representative institutions in the face of antidemocratic resistance. Building on Michnik’s insight, in the next chapter I outline a principled framework for democracy’s defense—the self-limiting theory of militant democracy. As I show in later chapters, this framework allows us to identify the kinds of normative problems posed by

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Introduction antidemocrats and to evaluate how we might best respond to those problems.

From Lone Actors to Existential Threats to Self-Government The normative challenges posed by antidemocratic movements depend on the size and political influence of those movements. Large antidemocratic organizations may require a more extreme response than small, less influential organizations. In each case democrats will face a different version of the paradox of militant democracy, a different way, in other words, in which both action and inaction may leave a regime less legitimate. The complexity of these dilemmas has led some political theorists, such as Nancy Rosenblum, to doubt whether we can define a single set of regulatory principles to examine the ethics of democracy’s defense.35 To demonstrate that the selflimiting model can coherently identify and address a range of those challenges, chapters 3–6 examine a diverse set of cases, ranging from situations in which antidemocratic movements are relatively immature but can still bleed legitimacy from a regime, to instances in which antidemocratic groups have broad support and representative government is unconsolidated and under threat. In chapter 3 I apply the self-limiting framework to cases in which relatively small groups of antidemocrats exercise their political rights in a manner that infringes on other citizens’ ability to participate. In these situations, managing the paradox of democracy can be vexing. Almost any general restrictions on the right to participate may do more harm than good, even though the democratic harms inflicted by antidemocrats may be both serious and real. Contextualizing this abstract problem, I explore a situation in which the British National Party used internal party regulations to exclude nonwhite British citizens from the organization. I defend two claims. First, democrats

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Introduction should use the background institutions of representative democracy to discourage antidemocratic action. By background institutions I refer to the intricate regulatory structures—ranging from rules about how parties are funded to rules about who can be a candidate for political office—that give shape and form to every representative regime. Eschewing neutrality, democrats should tilt the democratic playing field toward democracy. Second, I argue that democrats will have greater success crafting normatively attractive militant policies if they carefully consider who the appropriate subjects of defensive action are. Rather than treating all parties and all participants as if they play the same role in the democratic process, regulations will generate the least normative harm when they focus on influential parties and influential political entrepreneurs. My account of when militant activity is legitimate focuses on whether individuals have violated others’ right to participate. Chapter 4 explores alternative justifications for limiting individuals’ ability to participate. I treat two of the most commonly offered rationales for militant sanctions: that individuals or parties reject democracy and that members are opposed to or threaten a fundamental element of a regime’s identity—such as its religious or ethnic identity. Examining arguments offered by scholars such as Nancy Rosenblum, Peter Singer, and Stephen Holmes, I show why banning a party for either of those reasons will render a regime less democratic. By implication, I contend that sanctions are democratically legitimate only when individuals violate others’ rights (or will do so imminently). Chapter 5 shifts our focus away from extremist groups that do not pose a fundamental threat to representative regimes toward relatively influential antidemocratic movements. In this chapter I examine a distinctive aspect of the dilemmas raised by serious popular challenges to democracy: antidemocratic groups can capture representative institutions and thwart efforts to respond to antidemocratic action after it occurs. These groups pose a comprehensive threat to democracy; they

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Introduction have the capacity and intent to block challenges in the present and shut down normal avenues of democratic opposition in the future. It is in these cases that the familial relation between legitimate revolution and military democracy is particularly apparent. Focusing on the political crisis triggered by the rise of the Islamist Turkish Welfare Party in the 1990s, I consider whether the ascendance of a putatively antidemocratic party justifies preventive militant actions—that is, the limitation of a group’s political rights before a rights violation is imminent. On the basis of the participatory principle, I argue that preventive intervention cannot be democratically legitimate. By democratically legitimate I mean consistent with the ideal that individuals should have a say in the decisions that affect them. Nonelected militant democrats, such as the Turkish generals and judges I discuss in chapter 5, cannot coherently justify why they, in particular, possess the right to intervene in the democratic process. Yet, referring to the example of those who take it on themselves to establish democracies, I maintain that when faced by a comprehensive threat to representative government, democrats can eschew the legitimacy of democratic procedures for the value of democratic ends. In some difficult cases, interventions made substantially in advance of a rights violation may be democratic even if they are illegitimate. Finally, in chapter 6 I turn to Weimaresque situations in which the number and influence of antidemocrats are so significant that representative government can be preserved only through substantial restrictions on individuals’ ability to participate. In these circumstances, the critical question is not whether democracy should be defended, but how far one can go in democracy’s name. To investigate this scenario, I explore the example of America’s Reconstruction. In the aftermath of the Civil War, the members of the Reconstruction Congress feared that if Southerners were allowed to participate fully, they would undermine the foundations of legitimate government in the United States. Accordingly, the Congress established military

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Introduction governments throughout the South and excluded Southern representatives from the legislature. Applying the self-limiting model, I illustrate why Congress’s policy of conditioning restrictive measures on Southerners’ acceptance of the rules of the democratic game successfully alleviated some, though not all, of the normative challenges posed by Southern antidemocrats. I also argue that a more extreme response to Southern intransigence would have been self-defeating. Having described the general structure and aims of the project, I want to outline its limits briefly. With the exception of the first two chapters, the theoretical work in this book is grounded in the analysis of cases, cases in which democrats have struggled to preserve the democratic characters of their regimes. This approach provides insight into how antidemocrats challenge representative government, the difficulties democrats face in responding to those challenges, and the uncertainty—does group X threaten democracy?—that pervades political action. At the same time, this work does not explore each and every instance in which representative government has been or could be threatened; rather, I have chosen cases that reveal the ethical structure of the dilemmas democrats face, and of democratic practice more generally. The existing research on militant democracy is focused largely on surveying and defending particular institutional responses to threats to representative government—for example, judicial review, party bans, and emergency legislation. My work takes a decisively different approach. I do not focus on one institution or policy. Instead, I investigate the norms that should guide states whenever they limit antidemocrats’ ability to participate. There are numerous other ways to defend democracy. Governing effectively, educating children to be responsible citizens, refusing to join coalitions with antidemocrats, and publicly confronting arguments grounded in intolerance are just a few of the strategies states and individuals can use to defend the

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Introduction primacy of self-government. With the exception of good governance, each of these policies is debatable in its own right and is worthy of extended discussion. But I concentrate on restrictive measures because they raise the most troublesome normative questions about the legitimacy of militant democracy. A noteworthy implication of this approach is that I do not directly investigate emergency powers, an institution that has attracted a surge of recent scholarship.36 By emergency powers I mean the special institutional prerogatives that democracies can use when they face urgent and exceptional challenges, such as an attack from abroad. As a general matter, militant democracy is not usefully categorized as being exceptional. The evaluation of emergency measures will share the same structure as the evaluation of militant measures: we need to use measure X to preserve regime Y, but will employing measure X actually undermine regime Y? Despite this important similarity, citizens who reject democracy are not akin to foreign enemies; successfully defending democracy depends not on defeating antidemocrats, but on reincorporating them into the political community. As a result, the protection of representative institutions is by its nature a long-term political project. In this respect, militant democracy is less like a response to a foreign attack than like an attempt to meet a perennial challenge—such as climate change. Furthermore, the institutions of militant democracy affect the very basic mechanisms of self-government, notably, how elections are contested and who can seek political office. These institutions shape the enduring identity of the political community. Of course, there may well be cases in which particular threats to democracy warrant resort to exceptional institutional tools. But the use of those tools must be part of a broader effort to defend representative institutions, and it must be justified on the basis of its consistency with the broader ends of militant democracy. Finally, I want to address why I offer a specifically democratic account of the challenges posed by antidemocrats. It is a long-standing

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Introduction criticism of democracy that democratic regimes, because they are open, facilitate their own demise. Individuals who are committed to democratic practice and principles, it is said, must forbear as antidemocratic groups tear down self-governing regimes. “It will always be one of the best jokes of democracy,” the Nazi propagandist Joseph Goebbels once observed, “that it gives its deadly enemies the means to destroy it.”37 Karl Loewenstein validated this vein of thought when he demanded that legitimate regimes suspend their adherence to democratic principles so that they might successfully fortify themselves. In the simplest terms, this project inquires into the validity of this accusation. As should already be clear, I argue that the defense of democracy can be justified and carried out in accordance with democratic principles, the abstractly justified norms that ground the legitimacy of democratic forms of government. Efforts to establish representative government require citizens to confront antidemocrats. Those efforts bring into sharp relief the inadequacy of the idea of democratic passivity. The writings of members of these democratic movements thus serve as a natural referent for this work. Why not just approach these questions from a broader perspective than democracy, in other words, from the perspective of justice?38 This work, for example, does not explore questions related to transitional justice: whether it is legitimate to exclude individuals from the political arena not because they threaten democracy, but because they contributed to or benefited from the maintenance of the former regime. To be clear, I will rely on an account of democracy that takes self-government as intrinsically valuable, as a necessary component of any persuasive account of justice. And for the most part, the moral issues surrounding militant democracy turn on questions about democratic rights. Accounts of the democratic thing to do and the just thing to do will overlap. But there are certainly situations in which moral considerations related to democracy and those related to justice

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Introduction pull in conflicting directions. America in the aftermath of the Civil War was one such case. In that instance, I will argue, members of the Reconstruction Congress faced a tragic choice: they could pursue democracy by finding ways to allow Southern antidemocrats to participate or they could pursue justice by excluding those antidemocrats. But they could not pursue both. Eschewing a broader frame, and assiduously concentrating on questions related to democracy, I hope to provide a richer and more accurate account of the trade-offs that the defense of democracy may require. For example, distinguishing between the imperatives of justice and the value of democratic practice allows us to specify the daunting costs and risks associated with political disenfranchisement, even if there are conditions in which disenfranchisement might reasonably be employed as a means of seeking justice. It is worth specifying how the conclusions I reach might be biased by my focusing on democracy rather than justice. The concept of a self-limiting revolution turns on the idea that individuals cannot be secure in their basic personal and social interests without political liberty, the right, broadly speaking, to participate. A crucial element of the argument for a self-limiting revolution and of the argument I will press in this work is that opponents of democracy possess morally important interests and, as a result, participatory rights. Though this work explores the justification of radical measures such as the banning of parties and the forceful removal of an elected head of government, its perspective is intentionally conservative and nonutopian. For the purposes of this book, the wages of referring to a narrowly democratic principle is that I will systematically recommend overly restrained modes of militant democracy. Caveat lector. This books maps out the normative and analytical issues raised by popular threats to democracy. But to the degree that the conclusions I reach are too conservative, I will have defined a theoretical baseline on which others may build.

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Introduction

Conclusion The debate over how democracies should respond to popular threats predates the collapse of the Weimar Republic; it is literally as old as democracy itself.39 The self-limiting theory of militant democracy contributes a novel answer to this venerable and pressing question. As long as we treat antidemocrats as rights holders, the paradox of militant democracy, like the paradox of tolerance described by Leszek Kołakowski, which serves as an epigraph to this book, cannot be resolved. As a result, ethical action in the face of a threat to democracy depends on democrats’ willingness to acknowledge the paradox of militant democracy and to manage its costs. Such an acknowledgment signals an understanding that the true aim of militant democracy is not the defeat of antidemocrats, but the achievement of a more democratic regime.

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two

The Self-Limiting Theory of Militant Democracy

Self-Limiting Revolution In the previous chapter I argued that when political theorists discuss threats to democracy, they focus on legislation. As a result, their normative inquiries shed relatively little light on the following question: How should democrats respond to antidemocratic action that does not take the form of a statute? Answering that question requires an open-ended approach, one that will allow us to recognize the legitimate claims of antidemocrats and to grapple with the costs of actively protecting democracy. In this chapter I outline three principles that I use to assess the defense of representative government. Together, these principles constitute a self-limiting theory of militant democracy. The idea of a self-limiting theory of militant democracy is drawn from the theory of “self-limiting revolution” formulated by intellectuals aligned with the Polish labor movement Solidarity. In this chapter I pay special attention to the essays of one prominent member

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Self-Limiting Theory of Militant Democracy of Solidarity, the historian and journalist Adam Michnik. Participants in democratic revolutions aim to unseat antidemocrats and to establish representative institutions. But if revolutionaries lose sight of their own fallibility and pursue a form of political utopia at the expense of the rights of their fellow citizens, they can set back the pursuit of legitimate government. As I argued in chapter 1, defenders of democracy, like democratic rebels, aim to achieve representative regimes in which individuals can safely pursue their political ideals, and they also face the danger that their activities will be self-defeating. Because of this parallel, Michnik’s analysis and reanalysis of the ethics of struggling for self-government shed light on the ethics of defending it. To be clear, Michnik’s considerable intellectual and moral authority does not validate the approach I defend, but that approach is thoroughly informed by his account of what it means not just to fight for democracy, but to fight well. Building on my discussion of Michnik’s essays, the chapter’s next sections provisionally define and defend the self-limiting approach to militant democracy. It is made up of three principles. The first, the participatory principle, is that all individuals, including antidemocrats, possess an equal claim to participation in democratic decision making. This principle is the normative core of the self-limiting theory. And antidemocrats’ serious moral interests in participation are the crux of the arguments advanced in this book. The second principle, that of limited intervention, indicates when states might legitimately restrict political participation. I contend that exclusionary rules or policies, such as a party ban, should be used only to block antidemocrats from violating the rights of others. Restrictions on participation should not be employed when opponents of democracy pursue antidemocratic ends but are unlikely to achieve them. Nor should those policies be used in the name of achieving an ideal or fully realized democracy. The final principle, that of democratic responsibility, treats the course and the structure of a militant project. Efforts to defend democracy

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Self-Limiting Theory of Militant Democracy should reflect the distinctive risks and costs associated with limiting participation. If democrats fail to acknowledge the toll of militant action, they will undertake defensive projects too frequently. Their efforts may do more to harm individuals’ capacity to govern themselves than if militant action had not been taken at all. I will spell out these principles using an interest-based account of the right to participate. Because the self-limiting framework is meant to be compatible with a broad range of moral justifications of democratic practice, my account of the interests grounding the self-limiting theory synthesizes the concerns of existing defenses of democracy’s value. It must be admitted that I do not elaborate a pathbreaking justification of the right to participate. But this is because my aim is to illuminate a challenging practical problem. The framework of principles I identify should therefore be judged by their usefulness in critically evaluating how democrats should respond to various actual threats to representative government. In this respect, the self-limiting theory will be fully fleshed out and vindicated in the case-based chapters that follow.1

Adam Michnik and the Ethics of Democratic Revolution Among political theorists, the Solidarity movement is best known for its members’ efforts to develop a democratic civil society, an independent societal arena that would counterbalance the repressive ambitions of Poland’s communist state. But the topics addressed by the intellectuals associated with Solidarity, in particular the members of the Workers’ Defense Committee (KOR), extended to the value of democracy and the characteristics of a democratic form of rebellion.2 For Adam Michnik, communist Poland amounted to an apartheid state and a concentration camp.3 By contrast, he regarded democracy, a political system in which individual rights are respected and laws are passed by elected representatives, as a highly valuable if frustratingly

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Self-Limiting Theory of Militant Democracy unjust and imperfect state of affairs. The aim of the democratic opposition, Michnik contended, was to create space for a political system that reflected Poland’s political and social pluralism and allowed Polish citizens to settle their disagreements peacefully. “Conflicts are genuine only when genuinely expressed,” he explained. “This is what our society is fighting for: to name things by their proper names, to articulate conflicts as conflicts.”4 Michnik did not expect regime change to usher in a harmonious utopia. His essays and arguments are not peopled by caricatures. Neither the supremely virtuous dissident nor the perfectly wicked apparatchik occupies the foreground. Instead, we are confronted by a politics played out among normal citizens. He acknowledges the flaws of his heroes and the possibility that villains might, under the right circumstances, be capable of praiseworthy compromise. Political autonomy, he recognized, entails the collective right to do wrong; in a democracy, Michnik wrote, we are enabled “to do good and evil, as we choose.”5 On its own, however, Michnik’s pluralistic conception of democratic politics would not serve as an adequate blueprint for the ethical defense of a popular regime. The troubling term in militant democracy is not democracy, but militancy. Both those who hope to establish democracy and those who hope to defend it confront common moral and practical hazards. In meeting the challenges posed by antidemocrats, there is always the risk that democrats will become fanatics, pressing too far in the name of self-government, and finally razing what they intended to protect. It is in negotiating this danger that Michnik’s work serves as a particularly effective guide. Michnik rarely constructed his arguments for representative government without a counterbalancing inquiry into the darker elements of democratic partisanship (or indeed the darker elements of ideological partisanship of all sorts). Standing up to the communist state, one endangered oneself, one’s friends, one’s family, and those

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Self-Limiting Theory of Militant Democracy one represented.6 The acceptance of these risks required a deep belief in self-government. But even the well-meaning are intellectually and morally fallible, capable of both error and evil. Echoing Kołakowski, Michnik maintained that an unyielding dedication to one’s ideals would inevitably dissolve into an authoritarian drive for ideological consistency: “We should sometimes consider our situation, our infirmities and our miseries from the perspective of dangers and not solely from demands and goals,” he argued.7 One of the ways in which a democratic rebellion might turn in on itself is if its leaders fall prey to the spirit of political Manichaeism. Polish democrats, Michnik feared, might come to see their oppressors not merely as political opponents or even criminals, but as individuals unworthy of basic respect. As early as 1979, a decade before the transition, Michnik wrote about the destructive character of democratic fundamentalism in an essay entitled “Maggots and Angels,” in which he defended the intellectuals, or maggots, who had emigrated or compromised with the authoritarian government. The brief tract drew out the perverse qualities of a situation in which principled opponents of the communist regime fantasized about persecuting those who were insufficiently committed to democracy.8 Moreover, Michnik observed, the sheer number of Poles who had collaborated with the communist government rendered the political exclusion of former communists unfeasible and undemocratic.9 Achieving a legitimate political system required the Polish opposition to come to terms with the reality that their enemies were their fellow citizens. “It is worth remembering we live in a society where hundreds of thousands of people belong to the Communist party,” Michnik contended. “We must learn to live with them and teach them to live with us. We must learn the difficult art of compromise, without which authentic pluralism will not be possible.”10 In the aftermath of Poland’s transition from communism, Michnik’s concern about this strain of democracy-oriented fanaticism

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Self-Limiting Theory of Militant Democracy made him a controversial figure. Publicly championing a “Spanishstyle” conciliatory approach to members of the former regime, he opposed efforts to gain revenge or engage in forms of political exclusion (though, understandably, he would not go so far as to forgive).11 In practice, allowing members of the former regime, veteran opponents of democracy and skilled authors of repression, to participate and even flourish after the fall of communism meant that an imperfect democracy seemed to have been won at the cost of justice. “If I took a stand against lustration and decommunization, I did so in spite of my own feelings and sentiments,” Michnik admitted. “I was fully convinced that a revolution that seeks historical justice consistently and wishes to execute it properly nevertheless ends up with the execution of a monarch, as in Britain; with the guillotine, as under the Jacobins; or with simple terror, as under the Bolsheviks. In a nutshell, begotten of freedom, it ends up in dictatorship.”12 Persuasive evidence that engaged pursuit of a defensible ideal could lead to the perversion of that ideal was not hard for Michnik to light upon. Idealistic antiheros are the outstanding figures of his writing. The partisans of the French Revolution, the classic examples of idealism gone cannibalistic, are recurring subjects of analysis. But Michnik also found more immediate exemplars of self-defeating and corrupted idealism. These local precedents included the Polish national icon General Józef Piłsudski. The general, a hero of the First World War and a onetime social democrat, helped found Poland’s democratic Second Republic in 1918. Piłsudski eventually grew tired of the republic’s ineffectiveness, its instability, and its right-wing governments. Less than four years after its inception, the general led a coup, toppling the already foundering regime and imprisoning many of his former supporters.13 Finally, of course, Michnik had an intimate familiarity with Eastern Europe’s Marxist governments. Those regimes had sacrificed basic political rights in the name of a more perfect future. And they exemplified how ideological

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Self-Limiting Theory of Militant Democracy commitments that had once inspired individuals to confront repressive states could in turn be used to justify new and disturbing incarnations of tyranny.14 “Moral absolutism,” Michnik argued, “is a great strength for individuals and groups struggling against dictatorship.”15 But absolutism is not a democratic attitude. Accordingly, despite Solidarity’s members’ brave commitment to achieving self-government, its politics were purposefully antiutopian. To determine the concessions they would demand and to regulate the means they would use to win those concessions, intellectuals associated with the labor organization, including Michnik and Jacek Kuron´, devised the notion of a selflimiting revolution.16 It was a theory of revolution suitable for men, not saints. A self-limiting revolution would not fully transform society’s social fabric or even its political power structure. The movement aimed to achieve tangible evolutionary gains in individuals’ ability to make decisions about the issues that affected their lives. If democracy at the level of the state was out of reach, then a democratic society would be built among the people out of doors, from the bottom up. And once the transformation of the state became a possibility, the leaders of Poland’s democratic movement did not hold out for a political promised land. Solidarity’s revolutionary goal was the achievement not of a new society, but of a society in which manifestly imperfect people could pursue their competing ideals in a nonrevolutionary, democratic manner.17 The central dilemma animating Michnik’s writing on rebellion closely tracks the dilemma faced by the militant democrat: How can one fight antidemocrats in a way that does more good than harm? Michnik did not draw up a series of regulatory principles. He was not out to construct a “theory” of anything. Instead, his writing describes an ethic of democratic rebellion, an ethic that emphasized two concerns: the importance of a pluralistic, open, and untidy form of representative government and the need for democrats to embrace a

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Self-Limiting Theory of Militant Democracy nonutopian conception of democratization, a conception of democratization fitted for a citizenry with an aptitude for both virtue and corruption. The next two sections of this chapter outline why Michnik’s twin concerns should inform the militant defense of democracy.

The Participatory Principle and the Rights of Antidemocrats The value of the right to participate, the liberty to play a role in political life and to contribute in the making of important communal decisions without fear of reprisal, was central to the ambitions of the Solidarity movement. It is at the heart of questions addressed by a theory of militant democracy. To consider when and, just as important, how a government should defend individuals’ ability to participate, we need to gain some leverage on the following questions: What harm is caused when opponents of self-government impede the participation of others? Under what conditions can governments legitimately restrict political participation? To what extent are governments and citizens obliged to respect the rights of those who would use representative institutions to undermine democracy? To answer these questions, we require some sense of why political participation matters. In this section I offer an interest-based account of the right to participate, an account describing the morally important benefits the right secures. By participation I mean not just voting, but office holding, speaking, and associating with others.18 For Michnik it was evident that members of the Communist Party possessed democratic rights; after the transition to democracy, they would be members of the political community. In the final part of this section, I will argue that Michnik was right—antidemocrats have legitimate and basic claims to participation.

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Self-Limiting Theory of Militant Democracy Before moving forward, I need to outline a set of background arguments and assumptions.19 First, I assume that a person’s interests deserve the same moral consideration as any other person’s—that is, the same interest requires the same consideration. Second, I assume that adult citizens are competent but imperfect. By competent I mean that these individuals are capable of reflection about the dictates of morality and the common good and that they are also the most reliable guardians of their interests, projects, and plans.20 By imperfect I mean that individuals are fallible, capable of shortsightedness, narcissism, and all manner of evil. Third, I assume that to be legitimately authoritative, a political system’s basic institutions and rules must, in principle, be justifiable to all reasonable members of the community. Fourth, I assume that among the competent, there is considerable and endemic disagreement about how to characterize and to respond to the vast majority of political issues they face. The political issues to which reasonable disagreement extends include most matters of moral and political import. But because I am interested in what it means to behave democratically when political institutions are challenged, I will also stipulate that reasonable disagreement does not extend to the relative superiority of democracy, as, ideally, a fair system of allocating opportunities to exercise political power.21 If these assumptions do not hold, then the conclusions I reach are necessarily suspect. It is trivial but true that if one accepts the preceding assumptions, one is well on one’s way to acknowledging both that democratic political systems can be legitimately authoritative and that other forms of political organization generally cannot (there may be exceptions during moments of state failure, natural disaster, and the like). Political communities face questions of pressing import, and members of those communities will harbor good-faith disagreements about the best answers to those questions. In the face of this disagreement, a method of decision making that is justifiable to all reasonable members of the community is required. Decisions that are not made

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Self-Limiting Theory of Militant Democracy by means of such a procedure are imposed and illegitimate. Those who impose such decisions have no right to do so, and those subject to the decision have been imposed on and harmed. Because I have assumed that reasonable disagreement does not extend to the legitimacy of a broadly defined set of democratic procedures, those procedures can be employed as a legitimate means for making decisions about which there is widespread good-faith disagreement. This justification of democracy treats the practice of selfgovernment as an intrinsic element of a just society. By intrinsic I mean that the motivating conception of justice cannot feasibly be achieved without democratic institutions and that shifts away from democratic practice will, in general, reduce a regime’s legitimacy. Critically, this account of democracy does not imply that democratic procedures are required to determine what is or is not democratic. If that were true, democratic principles could not be revolutionary principles. Democrats in authoritarian regimes, democrats like Adam Michnik, must have a sense of democracy’s value to see those practices as an ideal worthy of rebellion. Indeed, what it means to say that democracy is intrinsically valuable is that self-rule is not simply a means to an end, but an end itself.22 By contrast, if democracy’s value or the value of the right to participate is purely instrumental, then the use of democratic institutions will be justified only in cases in which they reliably secure some other valued end—such as nondomination, utility, or an equitable distribution of wealth. If limiting an individual’s right to participate is likely to secure the relevant end, then limiting that right will be justified. Taking a distinctive approach to the challenges posed by opponents of self-government, proponents of narrowly instrumental conceptions of democracy will consider how the acts of antidemocrats affect their favored end. If antidemocratic acts increase utility, for example, those acts warrant not sanction but praise. Theories of this sort are not fundamentally concerned with democracy. As a result, they do not

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Self-Limiting Theory of Militant Democracy provide the most fruitful starting point for considering how democrats should respond to the challenges posed by antidemocratic groups.

The Interests Grounding the Right to Participate Why is the right to participate a key element of any formula of any government that would gain the assent of reasonable citizens? Because the liberty to participate advances interests that underwrite individuals’ fundamental well-being. The duty to respect the participatory rights of others depends on the idea that when those rights are not respected, the basic interests of affected individuals will predictably and unjustifiably suffer. It is the avoidance of that suffering that would lead reasonable members of the community to embrace this right. To understand the effect of laws and activities that restrict participation, we need a better grip on the interests at stake. I divide the basic interests that ground the right into two categories—active and passive. By active interests I mean the ways in which individuals suffer if they fail to participate effectively in the political process, whether that failure is voluntary or not. The satisfaction of passive interests, by contrast, depends merely on having the option to participate effectively. For example, consider a case in which I am disenfranchised because the rest of the community takes me to be an idiot. Being deemed inferior harms my passive interests even if I never intended to vote. The prime example of an active interest is the likelihood that one’s basic causes or concerns will be harmed if one does not participate. As Charles Beitz argues, “The basic idea is that citizens might reasonably refuse to accept institutions under which it was predictable that their actual interests—that is, the satisfaction of their needs and the success of their projects—would be unfairly placed in jeopardy.”23 Generally, we expect political participants to be flawed and somewhat selforiented; we believe they will give priority to their own approach to 36

Self-Limiting Theory of Militant Democracy the common good and their own projects. Even under the best of circumstances, participants are unlikely to defend the concerns of nonparticipants adequately; differences in experience, principle, and psychological makeup mean that every individual is likely to be the most faithful interpreter of what she requires to lead a valuable life. As a result of these tendencies, individuals who do not participate may not be able to advance their basic concerns and projects.24 There is a second-order, or indirect, way in which political rights protect one’s basic causes: they allow individuals to defend their rights, including the right to participate. So, for instance, if a group seeks to undercut my rights, participatory or otherwise, I can speak out, organize, protest, and, of course, attempt to pass legislation securing my claims. Moreover, the political process itself is used to determine which of the rights the community will recognize, as well as the practical contours of those rights. Some people believe that the right to property is a natural right, a right possessed by individuals on the basis of their nature and not because they are granted this right by the legal system. But the way in which that right is instantiated, whether, for example, the government can tax one’s property at death or remove it under the guise of eminent domain, depends in part on the game of politics itself. In this important respect, individuals’ ability to defend their full portfolio of rights rests on the right to participate.25 Another important kind of active interest is the side effects of the political process. The exemplary side effect of participation is the cultivation of civic virtue. The achievement of virtue is an indirect benefit of participation because one can develop this quality only by pursuing some other important end through the political process. I cannot become more virtuous by doggedly seeking to become virtuous. Instead, as I struggle to achieve some other valuable end, I may develop the ability to master my passions or come to appreciate the innate worth of democratic compromise. Insofar as playing a role

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Self-Limiting Theory of Militant Democracy in the game of democracy is the only way to achieve this kind of indirect benefit, then those who do not participate will lose out.26 One could identify many other potential active interests that are advanced by political participation. For example, when individuals are systematically absent from democratic life, the overall debate about which course society should take may suffer. The ideas and opinions of the excluded will receive less weight than the judgments of others. The resulting loss might be deliberative: if groups are absent, a society’s decision-making apparatus may not consistently “track relevant interests and ideas,” thereby undermining the overall legitimacy of the political system.27 The loss might also be epistemic; the answers a society arrives at may not track the truth as well if relevant groups do not participate. The other interests that are advanced through the political process are passive. Equal recognition is one of the two most important of these concerns.28 When individuals are disenfranchised, they are being treated as if they are not as capable and not as worthwhile as other members of the political community. Narrowly, this exclusion may cause emotional or psychological harm. More broadly, radical disrespect of this kind may influence individuals’ pursuit of their political and nonpolitical ends. For instance, those who face discrimination may be less likely to apply for or be accepted by certain schools and employers.29 Citizens who are effectively disenfranchised should not recognize the decisions emanating from political institutions as their own, nor should they identify with the political community. Acknowledging other citizens’ right to share in the task of determining a society’s common goals is simply the paradigmatic way in which members of a political community validate each other’s equal standing.30 A second and closely related passive interest is the contribution to one’s well-being of conceiving of oneself as an author of one’s life. Traditionally this interest has been connected to the value of personal

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Self-Limiting Theory of Militant Democracy autonomy, the notion that individuals can be effective agents, that one’s choices matter, not just with respect to their outcomes, but also because the making of those choices gives shape to one’s identity and self-constitution. The ability to participate politically allows individuals to weigh in on issues of lasting import. I can decide the projects, missions, and movements that I will throw myself into. Perhaps just as important, I can switch positions. We rightly regard this interest as passive because the choice to participate or not, to canvas for votes on a rainy day or to stay at home and drink a cup of tea, is of fundamental import in politics. The interest in self-governance is not satisfied solely through participation, but even, at a minimum, by the option to participate. Of course, even those who lack effective rights to participate can make fateful political decisions. Adam Michnik’s example attests to this. Opponents of nondemocratic regimes must determine whether to publish a critical essay, to contest an unfair election, to join a protest or even an insurgency. But nondemocratic regimes create uncertainty about what is and isn’t allowed. And they attach oppressive costs to a vast array of political activities, generating an intense, narrowing pressure. In the face of this pressure, many if not most individuals will cede their political autonomy, in effect surrendering a portion of themselves. The freedom to choose is thus an essential interest protected by the right to participate. The interests I have described ground individuals’ rights to participate, and they can be consistently satisfied and protected only through a democratic political process. Restricting a group’s access to the political arena seriously jeopardizes its well-being. And given the basic interests at stake, individuals have a duty to respect each other’s ability to engage in meaningful political activity. If I violate your rights to participate, I harm and wrong you. Throughout the remainder of this book, when I refer to actions that make a regime more or less democratic, I am narrowly referring

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Self-Limiting Theory of Militant Democracy to the degree to which political institutions promote individuals’ right to participate. This characterization is not meant to imply that political involvement is the only value that democrats should care about. But the interests advanced by participation are, nonetheless, at the heart of the questions raised by democracy’s opponents. Accordingly, the relative health of the right to participate, the degree to which individuals can advance their interests through a fair political process, is the correct standard by which to judge efforts to defend democracy.31 Naturally, members of a society have different interests at stake, depending on the question raised. Should we then really speak of an equal right to participate? Some questions addressed by political institutions, such as whether smoking is allowed in public parks, will have a greater influence on the lives of discrete minorities, like park users. In this case it may be appropriate to manipulate the set of eligible voters or give different weights to individuals’ votes so that the decision-making procedure gives due consideration to the opinions of the affected. But questions involving the steps a regime should take to defend itself affect the entire political system and therefore concern each member of the political community. By implication, all members have a roughly equivalent interest in the kind of regime they live in.32

Do Antidemocrats Posses a Right to Participate? Adam Michnik argued that opponents of Polish democracy should be included in the democratic process. Was he right? Do antidemocrats possess a right to participate? By antidemocrats, I mean individuals who prefer a political regime that lacks basic prerequisites of polyarchy—such as universal suffrage—to a regime that satisfies those prerequisites.33 In this section I consider two argumentative strategies for denying that opponents of democracy have a right to participate. One strategy turns on the deficiencies of antidemocrats’ preferred 40

Self-Limiting Theory of Militant Democracy political system; the other treats antidemocrats’ unwillingness to acknowledge the legitimate claims of their fellow citizens. When political theorists discuss unreasonable or antidemocratic citizens, they often make use of pantomime villains: the worst of the worst, thoroughly evil types like Nazis or members of the Ku Klux Klan. Do Nazis have a right to participate? We might begin from the hypothesis that individuals cannot advance legitimate democratic interests when they attempt to close off avenues of participation.34 I will challenge this claim later in this chapter, but for the sake of argument, let us assume that it holds. If we accept the assumption, we might indeed conclude that Nazis lack political rights. Why is that? In our collective imaginations, Nazis are ascetics, individuals whose lives are focused on one goal: the destruction of legitimate institutions and just societies. And if antidemocrats’ sole political priority is antidemocratic revolution, then it stands to reason that they have no legitimate interests in the political process. I find the idea of the ascetic antidemocrat cartoonish and implausible. Citizens who reject democracy, even Nazis and Klansmen, possess a broad portfolio of concerns and preferences, many of which have nothing to do with their favored regime type. Imagine, for instance, that in a particular country, many farmers hate democracy. These antidemocratic agriculturalists prefer to live under an authoritarian government. Because they earn their living raising crops, they probably also believe that it would be in the best interests of the political community if the state increased its support for the production of corn-based food and energy products. There is nothing especially illegitimate about farmers’ pursuing government subsidies for agricultural production. Showing that individuals have no defensible interest in undermining representative institutions does not demonstrate that antidemocrats have no legitimate projects that might be advanced in the democratic process. If all this is plausible, if democracy’s opponents have a variety of interests and concerns, then one will not be

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Self-Limiting Theory of Militant Democracy able to deny their claims simply by pointing out that their preferred political system is objectionable. So far, it would seem, it makes sense to treat antidemocrats as rights holders.35

Reciprocity and the Claim to Participation Antidemocrats who participate in the democratic process appear to have a shockingly underdeveloped sense of reciprocity. And people are often puzzled by the claim that they have a duty to respect the rights of those who would deny them the very same rights. 36 One reciprocity-based argument against the participation of antidemocrats holds that when opponents of democracy take part in the democratic process, they are not really committed to obeying the outcomes of that process. Antidemocrats who play the game of democracy, on this view, act deceptively or in bad faith. By implication, democrats need not respect the rights of antidemocrats. As I argue at some length in chapter 4, the argument from bad faith fails. Those who oppose democracy are not offered a choice about the kind of regime they would like to live in. As a result, citizens cannot assume that democratic participation signals acceptance, and antidemocrats cannot be accused of acting in a deceptive manner when they play the game of democracy. The logic here is illustrated by the following example. Imagine that I am forced to sign a contract with my employer. I might try to improve my lot by bargaining over the terms of this arrangement. But if I later break this coercive contract, my employer cannot complain that I have acted in bad faith or acted deceptively because I had haggled for a better deal. I never agreed to the contract in the first place. The same logic holds for antidemocrats in representative regimes: they are coerced, if justifiably, into playing the game of democracy. For our present purposes, however, it is important that even scholars who make the argument from bad faith still acknowledge that antidemocrats possess basic democratic interests. Democrats, the bad-faith argument goes, are simply released from their duty to 42

Self-Limiting Theory of Militant Democracy respect the rights of antidemocrats as a result of antidemocrats’ disingenuous actions. There is, however, another important reciprocity-based argument we need to investigate, a second way to contend that those who detest democracy possess no legitimate interests in participation. The beliefs of antidemocrats stand in serious tension with the reciprocity-based arguments that are often used to ground democratic legitimacy, justice, and morality more generally.37 Given this tension, one might argue that those who reject others’ legitimate claims lack meaningful political rights. I will explore the feasibility of this argument by briefly examining Joshua Cohen’s influential reciprocity-based conception of deliberative democracy. In an early iteration of his theory, Cohen argues that participants in an ideal deliberative procedure share “a commitment to coordinating their activities within institutions that make deliberation possible and according to norms that they arrive at through their deliberation. For them, free deliberation among equals is the basis of legitimacy.”38 In later works Cohen endorses a stronger principle of reciprocity-based public reason: participants in the ideal procedure “are reasonable in that they aim to defend and criticize institutions and programs in terms of considerations that others, as free and equal, have reason to accept, given the fact of reasonable pluralism and on the assumption that those others are themselves concerned to provide suitable justifications.”39 Plainly, antidemocrats are not committed to these liberal-egalitarian ideas; indeed, they reject them. On these terms, opponents of democracy are unreasonable; they are unwilling to offer or abide by reasons that other suitably motivated citizens could accept. In Cohen’s idealized situation, the unreasonable are simply not present. Can we therefore infer that antidemocrats have no claim to participation? It seems unlikely. We have to be careful as we move from Cohen’s abstract conception of political discourse to the real-life

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Self-Limiting Theory of Militant Democracy circumstances in which those who reject democracy are subjects of political concern. Cohen’s conception of deliberative democracy is an ideal; political institutions in his view become more legitimate as they more closely approximate the ideal. But we should not assume that because antidemocrats are, by definition, absent from a model deliberative procedure, they therefore lack a right to participate. In defending Rawls’s notion of an overlapping consensus, Cohen suggests that arriving at reasonable agreements depends on the exclusion of the unreasonable. Yet he also holds that “the exclusion is of a special kind. It does not amount to a deprivation of liberties or of what are conventionally understood to be the advantages of social cooperation. Instead, exclusion lies in the fact that the agreements used to justify the exercise of power depend on norms, values, and ideals that are rejected by some people whose views will as a consequence not belong to an overlapping consensus.”40 In other words, antidemocratic views are not given weight in the justificatory process that identifies rights and just institutions. But there is no reason to surmise that the substantive outcomes of that ideal process would include the denial of rights to people who hold unreasonable views. Indeed, the unreasonable are not deprived of their liberties, because reasonability is not the relevant qualification for possessing rights. For Rawls, a capacity for moral reflection, not reasonability, was the benchmark for rights holders.41 And even antidemocrats are likely to be endowed with this capacity. Accordingly, participants in a justificatory procedure will regard antidemocrats as free and equal and as potential political participants. Cohen’s discussion of laws that infringe on religious liberty supports my reading of his work. Religiously motivated laws lack democratic legitimacy, in Cohen’s view, because their justification depends on moral or religious philosophies that those who do not subscribe to those philosophies could reasonably reject. When individuals are forced to follow laws they were given no reason to accept,

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Self-Limiting Theory of Militant Democracy Cohen argues, “we have denied them full membership by failing to provide a justification for the exercise of collective power by reference to considerations that all who are members of the sovereign body that authorizes the exercise of power and who are subject to that power, and are prepared to cooperate on reasonable terms, can accept. There are many ways to exclude individuals and groups from The People, and this surely is one.”42 Though he regards the passage of religiously inspired law as exclusionary and unreasonable, at no point does Cohen suggest that those who favor exclusionary laws should themselves be removed from the democratic arena. Holding unreasonable positions or exercising one’s political rights in ways that are inconsistent with a reciprocal vision of political legitimacy just does not leave one bereft of legitimate interests and, therefore, of rights.

A Final Example I want to offer a final hypothetical example to support Michnik’s argument that antidemocrats possess a right to participate. The argumentative force of the hypothetical example relies on what I believe is a widely shared intuition about democratic legitimacy. Imagine that you are the successful leader of a movement to topple an authoritarian government. After you have spent many years in prison and organizing underground efforts to build a democratic society, the leaders of the undemocratic regime have decided that they can no longer keep the lid shut on your movement. You and your fellow democratic partisans are finally in a position to establish representative institutions. There is only one problem. Many citizens—say, a quarter of the adult population—prefer authoritarianism to democracy; these individuals prospered under the old system, and they have no desire to live in a representative polity. Given the opportunity, they would push for a return to dictatorship. For the sake of argument, assume that you have access to a technology that will allow you to reliably distinguish those who oppose democracy from those who do not. There is no 45

Self-Limiting Theory of Militant Democracy threat that you will mistakenly accuse democrats of being antidemocrats. If you believe that the right to participate depends on one’s acceptance of the moral legitimacy of democracy, then it would be normatively unproblematic to disenfranchise a quarter of the adult population. On this view, antidemocrats have the same claim to participation as those who are not affected by a political decision: no claim at all. There would be no loss of legitimacy if your movement, now in control of the government, shut out this large segment of the community. Indeed, imagine that your new regime met all the other possible conditions of a perfect democracy (whatever perfection consists of). If we admit that antidemocrats lack a right to participate, we are also committed to the view that this polity is a perfect democracy. My own intuition is that a regime that has disenfranchised a quarter of its adult population is not fully democratic; antidemocratic citizens would be justified in complaining because they were being forced to obey political outcomes that they had no possibility of influencing. Yet my intuition makes sense only if I believe that opponents of democrats possess basic democratic interests and therefore a right to participate. And if antidemocrats have morally important interests at stake in the political process, they have a claim to advance those interests. When they are unreasonably excluded, they have been harmed and wronged. As a result, the regime is less legitimate. It is important to note that treating antidemocrats as if they possess democratic rights does not mean that they are immune to regulations or efforts aimed at limiting their ability to undermine a representative regime. It means that democrats will reject the conceptual possibility of a democratic apartheid—a situation in which a group of competent adults is unconditionally and indefinitely excluded from the political process. It also means that we have to take the interests of democrats and antidemocrats into account when determining the most democratic course of action; thinking through whether a defensive policy is

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Self-Limiting Theory of Militant Democracy justified, we have to consider the costs of action and inaction. In the rest of this work, I will treat antidemocrats as if they possess the interests described above. As will become clear, acknowledging antidemocrats’ interests in participation fundamentally shapes answers to questions about when and how the militant defense of democracy should be undertaken.

The Principle of Limited Intervention When should democrats go militant? Throughout this book I will evaluate many arguments about the need for the state to curtail political participation, and I will advance a few such arguments myself. In this section I will defend a prima facie claim that builds on the participatory principle: individuals do not have the right to unjustifiably keep others from advancing their most basic interests. Not surprisingly, I focus on a particular version of this claim: that the right to participate does not extend to activities that violate the core political rights of others. (I refer to the principle as prima facie because I will outline an exception to it in chapter 5.) Furthermore, citizens are not obligated to respect political activities that violate others’ rights, and governments may justifiably restrict those activities. In sum, the aim of militant efforts should be to secure conditions that allow all citizens to participate safely.43 This is the principle of limited intervention. This principle of intervention is limited or self-limiting; it implies that policies that restrict antidemocrats’ equal right to participate cannot be justified in the name of achieving an ideal regime. My working assumption is that the kinds of regimes in which militant policies might be employed are actually existing and substantially imperfect representative regimes or polyarchies. The principle of limited intervention envisages restrictions on participation that respond to or head off rights violations, leaving both antidemocrats

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Self-Limiting Theory of Militant Democracy and democrats able to pursue their political ends safely within the context of a polyarchy. This position raises an important question. Many political theorists believe that individuals’ interests in participation would be best advanced in an ideal democracy, a society in which individuals possess perfectly equal political resources and treat their fellow citizens with a great measure of respect. If our central concern is the advancement of participatory interests, why shouldn’t the leaders of a stable and consolidated polyarchy employ repressive and exclusionary measures if they believe the participation of certain individuals stands in the way of a polity in which citizens can fully satisfy their participatory interests?44 At the end of this section (under “Why a Principle of Limited Intervention?”), I will argue that because of both the fallibility of democrats and the moral claims of their opponents, the use of exclusion for utopian ends is unlikely to advance individuals’ interests in participation. For Michnik, the aim of self-limiting revolution was an imperfect, pluralist, representative regime. He and his colleagues viewed the unbridled pursuit of an ideal regime as dangerous and potentially self-defeating. Like the partisans of self-limiting revolution, militant democrats should embrace a second-best ideal: polyarchy.45 No one, of course, should mistake polyarchy for fully democratic government. Democrats should continue to strive for a more perfect regime by working in the context of representative institutions, by mobilizing in the public sphere, or by engaging in justified civil disobedience. But if the principle of limited intervention holds, militant democrats will not treat political exclusion, full or partial, as a means of realizing a democratic utopia.

When Is It Legitimate to Limit Participation? It bears explaining why forms of participation that are typically covered by political rights are not so covered when those activities curtail others’ ability to advance basic political interests. Consider a 48

Self-Limiting Theory of Militant Democracy school board election. Imagine that I have children in the school system and that I take the election very seriously, reading up on the candidates and engaging in extensive, in all likelihood punishingly extensive, political deliberations with my peers. What if I cast a thousand ballots and everyone else casts a single vote? In this case there is no question that I am advancing important active and passive interests through my participation. Yet I believe that other members of the community would be justified in complaining about my outrageous political advantage and that my ballots should not be counted. Why is that so? Perhaps the concerns of the other voters in this election simply outweigh my own? Taken together, their interests in the outcome and in being treated as equal members of the community probably exceed mine. Now imagine that three-quarters of the community were granted extra votes, and the remaining quarter of the community were stuck with just one vote each. In this case my earlier arithmetic might not hold—the interests of advantaged members of the population might indeed outweigh, in some numerical sense, the interests of the disadvantaged. A more fundamental reason the right to participate does not generally afford the advantage of extra votes is that the interests of the disadvantaged are likely to suffer if part of the community is granted extra voting power. Those with a thousand votes are likely to advance their own causes and projects at the expense of others. And precisely because a certain group of voters is now politically disempowered, members of that group will have greater difficulty rectifying a setback to their interests. If single-vote members ask why their interests should carry less weight, we would be unable to offer them a reasoned response. Both harmful and invidious, the diminution of one’s group’s political status would leave the polity less legitimate and less democratic. The example of a school board election gone awry is silly. But the principle is not. Throughout this work the reader will encounter

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Self-Limiting Theory of Militant Democracy instances in which antidemocrats use the common instruments of democracy—speech making, partisan mobilization, and legislative action—to undercut participation. As I argue in the next chapter, if members of an important political party exclude citizens on the basis of their race, unreasonably limiting the ability of those citizens to satisfy core interests, then the party members’ activities are not due respect. How can we tell whether a particular activity or policy violates an individual’s right to participate? Would a policy requiring citizens to vote on a particular day or through the mail meet this standard? As Thomas Christiano argues, we can identify unjustified limitations on political rights by focusing on whether rules limit the ability of citizens to advance the core or central interests that the right protects. My active interest in advancing my projects or concerns is not substantially jeopardized by a restriction on when I can vote (even if this arrangement does pose an inconvenience). Indeed, the establishment of constitutive procedural rules, rules setting out how the political process will function, is necessary for me to exercise my rights. By contrast, a blanket restriction on my ability to vote sets back basic or core interests.46 At the margins it may prove difficult to distinguish between the core and periphery of the right to participate. One heuristic for determining whether core interests are at stake is to consider whether individuals can effectively challenge the offending rule or activity through the democratic process. Disenfranchisement, for example, not only harms me, but it also limits my ability to rectify the harm done. Another familiar way to identify a limitation that violates the core of a right is to consider whether reasonable people could agree that citizens could no longer satisfy their basic democratic interests.47

An Alternative Standard for Militancy: Intent to Harm Jeremy Waldron has outlined a competing conception of the boundary of the right to participate and of the justification of state intervention. In an essay on the relation between interests and rights, 50

Self-Limiting Theory of Militant Democracy Waldron suggests that it would be legitimate to ban the speeches of Nazis who propose “to make inflammatory speeches calling for the suppression of another group of people (call them Communists).” Waldron stipulates that in this hypothetical example, “there is a real danger” that the Nazis’ speeches will be successful and cause Nazi supporters to attack and suppress the communists. But he insists nonetheless that we do not need to take this fact into account when considering whether to tolerate the Nazis. The Nazis, he argues, are not exercising their rights by seeking to suppress members of society. “To count as a genuine exercise of free speech, a person’s contribution must be related to that of his opponent in a way that makes room for them both. . . . The speeches [the Nazis] claim the right to make are calculated to bring an end to the form of life in relation to which the idea of free speech is conceived. We may ban their speeches, therefore, not because we think we can necessarily safeguard more rights by doing so, but because in their content and tendency the Nazis’ speeches are incompatible with the very idea of the right they are asserting.”48 If Waldron’s argument were persuasive, we would have to admit that seeking to harm others, not actually doing so, is the essential boundary of the right to participate. Merely joining an antidemocratic party or protesting against the claims of other members of society would place one beyond the democratic pale. But there is a problem with Waldron’s argument. What makes this hypothetical tick, what gives it intuitive grip, is the evident tendency of the Nazi speeches in question, not their content. We may silence the Nazis in this case not because they are acting hypocritically, but because of “the real danger” that they will cause a rights violation. Consider the case of a professor of economics; call him Habsburg. Imagine that he teaches at a leading American university. Professor Habsburg is an elitist. He believes that democracy is an inefficient and unproductive way of organizing political power. He joins a monarchist

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Self-Limiting Theory of Militant Democracy party and speaks out against popular self-rule, ridiculing the principles most closely associated with the practice. Though there is little chance Habsburg’s diatribes or his other political activity will succeed, his real intention is to persuade others to join his pursuit of nondemocracy. His actions are aimed to close off the freedoms he is taking advantage of, to bring an end to a democratic form of life. In Waldron’s view, if the state banned Habsburg’s speeches, the professor could not claim, in response, to be exercising his fundamental political rights. Waldron’s argument is kept in place by a single argumentative buttress: if individuals have an interest in free speech and free participation, then they cannot have an interest in achieving a society in which citizens may not speak or participate freely. There exists, therefore, a direct relationship between our reasons for acknowledging a right and the extent of that right. By implication, one’s pursuit of nondemocracy should not be accorded the same democratic weight as one’s pursuit of other ends. In this case I think Waldron takes too narrow a view of the concerns advanced by political action. First, it is possible to have legitimate interests in living in a nondemocratic regime. Perhaps such a regime is more consistent with one’s religious beliefs or political skills; one might feel more at home in a nondemocracy. More important for our purposes, Habsburg may have a variety of legitimate interests at stake in his pursuit of nondemocracy. For example, he exercises his political autonomy by considering what the best form of government would be and acting on it. And he may benefit from working with others to achieve ends they all value. It is gratingly hypocritical when the Habsburgs of the world complain about censorship. But in a scenario such as this, a scenario in which Habsburg’s antidemocratic aims are unlikely to be achieved, the claim that other members of society no longer have a duty to acknowledge his political interests gets the balance wrong, placing too

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Self-Limiting Theory of Militant Democracy much emphasis on the professor’s hypocrisy and not enough emphasis on what Waldron refers to as “the idea of the right” to participate. The idea of the right, as I understand it, is grounded in the respect owed to individuals and by implication to their basic interests. A society does not have much to gain by limiting acts of participation that advance core democratic interests but do not infringe on the rights of others. If this is correct, a state might legitimately restrict the Nazis’ efforts to foment violence while allowing Professor Habsburg to catalog publicly democracy’s many disappointments.

Why a Principle of Limited Intervention? The principle I have outlined in this section requires that we make room for people who are not violating others’ rights, but who may thwart efforts at further democratic reform and potentially threaten popular government at some later time. In what follows I offer three arguments for this conservative principle. Each argument assumes that antidemocrats have serious moral interests and strong claims to participation. And each argument relies on contingent facts about the world, such as individuals’ cognitive limitations and their inability to advance the interests of others reliably. Though contingent, these facts help justify the right to participate. The limitations on militant democracy are thus cut from the same normative fabric as the participatory principle.49 The first argument for a bounded or limited principle of intervention is that antidemocrats’ legitimate interests are likely to suffer if they are fully or partially excluded from the political process. A central element of the justification of the right to participate is the likelihood that individuals’ well-being will not be adequately defended by others. This claim is especially likely to hold in the cases under discussion in this work, cases in which one set of citizens is considering infringing, or has found it necessary to infringe, on the political rights of other citizens. The groups in question tend to be distinguished by more 53

Self-Limiting Theory of Militant Democracy than their attitudes about self-government—perhaps they hail from different regions of the polity, have a different ethnic identity, or possess different religious convictions. It is also likely that there will be a significant degree of enmity or friction among the relevant factions. Under these circumstances, the possibility of effective virtual representation—whereby the included act as responsible trustees for the interests of the excluded—may be limited. Second, even if antidemocrats oppose efforts to strengthen the institutions of polyarchy, we have little reason to believe that their disenfranchisement will be an effective or feasible path toward a stable, fully democratic regime. Those who are not excluded will disagree about the set of institutions and practices that actually constitute the best form of government. They will even disagree about what would constitute a marginally more democratic regime. Even if there were consensus on these issues, it is not clear how the remaining participants would go about achieving those goals or how long it might take to get there. Finally, on the basis of the participatory principle, we can assume that the path of democratic reform should reflect the needs, interests, and projects of those who are subject to those reforms. As long as opponents of democracy have rights to participate, their legitimate projects and concerns should, paradoxically, also shape efforts to achieve a more democratic community. If antidemocrats are silenced, democratic reforms are unlikely to reflect their interests. Taken together, the poor prospects for effective virtual representation and the uncertainty surrounding the claim that defensive disenfranchisement will lead to attractive political reforms suggest why it is reasonable to endorse limited aims for militant democracy. The costs and dangers of restricting individuals’ ability to participate will outweigh the expected gains associated with efforts to achieve a perfect regime. Militant policies should be aimed at stabilizing and defending polyarchies in which individuals can safely participate and

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Self-Limiting Theory of Militant Democracy in which further democratic reforms might be legitimately pursued. Polyarchy, on this account, is not merely second best; it is the crucial institutional setting in which citizens can advance multiple and conflicting political ideals.

The Principle of Democratic Responsibility The previous section considered when states should intervene in defense of democracy. This section considers how they should do so. I begin from the following premise: because all competent adult citizens, even antidemocrats, possess important interests in participation, defensive programs that restrict participation are unlikely to be normatively costless and may themselves pose a serious threat to democracy. Previously, I referred to this dynamic as the paradox of militant democracy. For efforts to defend self-rule to be truly democratic, democrats will have to manage the paradox, taking these costs into account and making efforts to minimize them. This is the principle of democratic responsibility. Militant policies will prove costly for two reasons: because there is a risk of error and because some justifiable defensive policies may infringe on individuals’ core political rights. The first source of cost is straightforward miscalculation. As Michnik readily acknowledged, democrats are imperfect. And in some percentage of cases, those who truly aim to defend democracy will establish restrictive policies when no rights violation is occurring or when a violation could be rectified without employing restrictive measures. They may impose measures that are too broad in their effect, and they may keep these measures in place for too long. (I discuss why the possibility of error does not damn the case for intervention in the next chapter.) The second source of cost is the imprecision, the bluntness, of the tools available to militant democrats. When an antidemocratic party is banned, for example, its members may be kept from violating

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Self-Limiting Theory of Militant Democracy other’s rights. But they may also be unable to pursue their legitimate interests. Furthermore, reasonable restrictions, such as a ban on speeches that explicitly threaten electoral violence, will be open to legal interpretation. As a result, those restrictions may cause individuals not to make other legitimate, if offensive, public pronouncements. In other words, designing measures that actually limit or prevent rights violations may require more than simply banning the offending practice. If justified measures keep citizens from advancing core democratic interests, those policies will prove democratically costly. How should recognizing the potential costs of defensive action affect militant projects? First, policy makers and politicians should publicly acknowledge the damage caused by defensive action, signaling to both democrats and antidemocrats that the aim of these policies is to secure democracy and not to exclude. Second, the institutional shape of defensive efforts should reflect their costs. For a militant project to be minimally legitimate, officials must establish mechanisms for challenging whether the use of defensive policies is justified and for investigating whether the policies are fairly applied. Institutional mechanisms for combatting misuse and misapplication reflect the idea that if individuals do not conduct defensive projects in democratic ways, their regime may not remain particularly democratic. Finally, recognition of the costs of militant projects should also shape the policies democrats endorse in the aftermath of defensive action. Bonnie Honig captures the meaning of this form of political responsibility in an aphorism: “Acting for the best in a tragic situation includes remaining around for the cleanup.”50 After a democrat has intervened, after a party has been banned, or after an election has been canceled, democrats must fight for policies consistent with the principle that the excluded retain a full claim to a role in the political process.

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Why a Principle of Democratic Responsibility? Why must democrats acknowledge the cost of defensive action and choose the course of action that minimally infringes on individuals’ ability to play a role in democratic life? Because the aim of militant democracy is not to exclude antidemocrats, but to head off rights violations and allow all individuals to advance their basic interests. Consider a scenario in which members of an extremist party have engaged in sporadic electoral violence, violence that has kept some people from going to the polls. In addition to applying the normal criminal penalties, one might think that the antidemocratic activity could be further curbed by not allowing the extremist party to contest elections. But perhaps the violence would simply abate without the use of defensive policies. If we fail to assess the harm incurred by banning the extremist organization, we will misconstrue the moral costs of policy choices and systematically endorse defensive actions when a more passive strategy might have been wiser. Imagine an alternative scenario. In this case, the leaders of a political party have publicly called for their supporters to attack members of other parties. There are a variety of steps a regime could take to challenge the group in question. For the sake of argument, I will assume that some or any of these measures could contribute to the abatement of the intimidation. These steps include permanently or conditionally disenfranchising party members, banning the party, restricting the party from receiving public funding, and sanctioning party officeholders by removing them from office. If policy makers consider the cost of intervention, they will select the least intrusive policy. If they ignore the damage that can be done in democracy’s name, they are likely to choose a more forceful policy, one that leaves the regime relatively less democratic and relatively less legitimate. Taking account of the toll of defensive policies, however, is not sufficient to guarantee the acceptability of a militant project. Public

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Self-Limiting Theory of Militant Democracy acknowledgment of the harm caused by militant action communicates to opponents and to supporters of the policy that the aim of the project is not to exclude opponents or seize power. This achieves three ends. First, as I indicated earlier in this chapter, antidemocrats have a basic interest in being recognized as full citizens. Admitting that defending democracy can be harmful reinforces the idea that antidemocrats retain democratic rights. Second, admission of the costs of defensive action clearly signals that political exclusion is not the ultimate aim of militant democracy; this kind of signal can facilitate citizens’ ability to hold their representatives to account. Third, the stability of a political regime depends, in part, on individuals’ beliefs about the future of that regime.51 An admission of the costs of militant democracy may reinforce affected groups’ expectations that they will be able to fully participate in the future. Finally, if democrats fail to grapple with the full costs of militant projects, they are unlikely to act with the requisite urgency to ensure that those who are affected are reincorporated as full members of the community. This urgency is required because militant policies do not have fixed normative costs. Rather, over time many policies that were justifiable in the short term, if kept in place, will sap legitimacy from the regime. For instance, for key political players there may be increasing returns to restrictive policies. “In an increasing returns process,” Paul Pierson explains, “the probability of further steps along the same path increases with each move down that path. This is because the relative benefits of the current activity compared with other possible options increase over time.”52 The longer a particular prohibition is kept in place, in other words, the harder it may be to remove. In the case of Reconstruction, which I discuss at length in chapter 6, the Congress did not allow Southern states to seat representatives for an extended period. The longer Southern voters could not hold members of Congress to account, the greater the likelihood that those officials

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Self-Limiting Theory of Militant Democracy would come to depend on and entrench the prerogatives they had gained as a result of the exclusion. Militant policies also have cumulative costs. The right to free expression is democratically valuable, in part, because individuals require access to information to make meaningful political decisions. It is surely undemocratic for a government to limit speech a few weeks before an election. But, ceteris paribus, it is worse to do so an entire year before the poll. The longer communication is restricted, the less likely it is that individuals will have the data they need to make informed choices and the less legitimate the regime will be. Similarly, the longer a group of individuals does not fully participate in the political process, the more likely it is that policies will be created that do not reflect its preferences and views. The upshot of increasing returns and cumulative costs is that militant democrats have a responsibility to treat antidemocrats as future partners in democracy. If democrats do not rapidly secure conditions that will allow all citizens to participate safely, then militant efforts may prove self-defeating.

Conclusion This chapter has outlined the elements of the self-limiting theory of militant democracy. Using Adam Michnik’s writing on democratic rebellion as inspiration, I outlined three regulatory norms—the participatory principle, the principle of limited intervention, and the principle of democratic responsibility—that constitute the selflimiting framework. Citizens’ basic interests in political participation are the focal point of this approach; these interests justify militant democracy and define the aims and the limits of any defensive project. Taken together, the three principles suggest that militant democrats not only have a duty to defend democracy; they also have a duty to repair it.

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Self-Limiting Theory of Militant Democracy Most discussions of militant democracy concentrate on large-scale, majoritarian challenges to representative government. I treat existential threats to democratic practice in chapters 5 and 6. But in the next chapter I begin to draw out the implications of the self-limiting framework by exploring cases in which citizens engage in action that, while antidemocratic, does not put the stability of the democratic system at risk. In these cases societies must find ways to challenge the intolerant without abrogating their rights. I argue that they can do so by biasing the rules of democracy against the intolerant.

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Hateful Speech and Hateful Parties Membership of the BNP is strictly defined within the terms of, and our members also self-define themselves within, the legal ambit of a defined “racial group” this being “Indigenous Caucasian” and defined “ethnic groups” emanating from that Race. —British National Party Constitution, eighth edition, 2004

Nick Griffin is a graduate of the University of Cambridge, and he is frequently described as the modern face of Britain’s extreme right. He is also the author of “Who Are the Mindbenders?” an essay that investigates a decidedly old-fashioned topic: Jewish influence over the media. On June 7, 2009, the party Griffin leads, the British National Party (BNP), won two seats in an election to the European Parliament. Soon after, Britain’s Equality and Human Rights Commission (EHRC) sent the BNP a letter informing the party that its membership rules violated Britain’s Race Relations Act. The commission requested the BNP to amend its constitution. At first the BNP refused to comply. Is it really democratic, Griffin asked, for a government

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Political Regulation in Defense of Democracy body to interfere with the internal organization of a political party and define what kinds of parties may compete for political power? Isn’t it up to the people themselves, through the democratic process, to determine which parties and programs will succeed, and which will fail? Ultimately, the EHRC took the BNP to court, and this legal action curbed the BNP’s intransigence. Griffin relented, clipping the offending membership rules from the party’s constitution. At no point did the EHRC contend that members of the BNP were guilty of violent or criminal offenses. Nor did the commission argue that the party posed a clear and present danger to Britain’s political institutions. Rather, the BNP was sanctioned because its membership rules were invidiously exclusionary. By the EHRC’s lights, the BNP’s nonwhite constituents could not depend on their newly elected European representatives to provide them with basic services. The party’s rules harmed its constituents and diminished the legitimacy of Britain’s democracy.

In Defense of Discriminatory Electoral Rules In the previous chapter I outlined a framework for regulating the militant defense of democracy. The framework can be used to think through the dilemmas democracies confront when they face existential threats. In this chapter, however, I explore cases in which individuals infringe on other citizens’ right to participate but do not threaten the regime. I address two questions: First, what kinds of activities impinge on individuals’ political rights? Second, how can the state respond to those activities and still make room for antidemocrats? Applying the self-limiting framework, this chapter sketches an answer to these questions. I use the word sketch advisedly. A speech bemoaning the political power of Jewish nationalist organizations will have one set of meanings and effects in Israel and another in Germany. In these kinds of cases, context matters. A series of precise dictates

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Political Regulation in Defense of Democracy about how to manage antidemocratic activity in any polity would outstrip the capacity of the self-limiting framework. Nonetheless, my aim in this chapter is to map general considerations that should shape responses to opponents of democracy. Scholars in the main line of contemporary liberal and democratic thought, such as John Rawls and Ronald Dworkin, argue that representative regimes should shy from restricting intolerant political activity that is nonviolent and that generally falls within the penumbra of individuals’ rights to expression and political association.1 Silencing and marginalizing the intolerant predictably diminishes the legitimacy of democratic institutions. Moreover, restrictive policies also harm the tolerant by paternalistically limiting their ability to hear all sides of the debate.2 If and when the antidemocrats pass objectionable legislation, such as a law restricting the franchise, judges can play the democratic heavies, standing up for democracy by striking down the aberrant law while minimizing the restrictions on citizens’ right to participate. For Dworkin, permitting divisive political activity is simply the price we pay for political institutions making legitimate claims on democrats, but also on those who reject democratic norms. On this view, Nick Griffin’s critique of the state’s legal attack on his party was entirely correct. It is precisely because the Nick Griffins of the world can participate, can make their positions known and form parties with whom they wish, that they may be required to obey the law. The standard approach to political tolerance is premised on two important assumptions. First, it assumes that if the groups cannot form a legislative majority, they cannot seriously infringe on the political rights of others.3 Second, perhaps moved by the American government’s disproportionate response to communist activism in the twentieth century, liberal accounts of political tolerance tend to assume that the only way to challenge the intolerant is through criminal restrictions or legal gag rules, restrictions and rules that smother

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Political Regulation in Defense of Democracy citizens’ ability to advance core political interests. Mere political expression and action, according to this standard approach, pose little threat to democratic practice. And if the possible responses to antidemocratic activity will inevitably cause disproportionate harm, then it follows that antidemocratic activity must simply be tolerated.4 In this chapter I reconsider both of these assumptions and the conclusion they support. In the next section, “Toleration and Harmful Participation,” I suggest that there is a range of democratic action that is neither legislative in character nor violent, but that still violates citizens’ basic democratic rights. Exploring an argument outlined by the democratic theorist Thomas Christiano, I illustrate that even on the terms of a staunch defender of political tolerance, when individuals diminish others’ right to participate, whether through acts of legislation, expression, or association, the case for passive tolerance is dramatically weakened. In the section titled “A Bias toward Democracy,” I outline an approach for quelling harmful antidemocratic activity in a way that is responsive to antidemocrats’ right to participate. Representative democracies are given their shape by a bewildering array of rules, rules that touch on every aspect of democratic activity. To cite just a few examples, these rules define who can run for political office, how parties are funded, and how money can be used to influence the political process. The diversity of these regulatory structures means that responses to antidemocratic activity need not take the form of categorical restrictions on political practice. Instead of sanctioning all plausibly antidemocratic speech, a state might choose to focus on the words of political candidates or their surrogates. Given their versatility, the background rules of representative government, I argue, should be biased or tilted against those who take antidemocratic action. In the final section of the chapter, “Influential Parties, Not-SoInfluential Parties, and Militant Regulations,” I illustrate the kinds of

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Political Regulation in Defense of Democracy considerations that should guide the design of biased democratic institutions. Using the example of political parties, I argue that militant regulations should distinguish among organizations that play different roles in the political process. Eschewing “one size fits all,” democracies should impose stricter regulations on political parties as they gain influence. Rules of this sort might allow democrats to combat harmful antidemocratic activity. But just as important, they can limit the normative toll of militant democracy.

Toleration and Harmful Participation When are individuals harmed by antidemocratic behavior? Is the passage of antidemocratic legislation the fulcrum of democratic forbearance, the most reliable sign that democrats should move from a position of tolerance to intolerance? To answer these questions, I examine Thomas Christiano’s treatment of them in his analysis of political authority, The Constitution of Equality. I discuss Christiano’s work for two reasons: first, because he offers a particularly clear and well-reasoned justification for defining legislation as the brink of democratic tolerance, and, second, because his account of the democratic interests of antidemocrats informs my own. Christiano’s central contention is that just political institutions will publicly embody individual equality. To meet this standard, Christiano argues, societies must respect the political liberties of all citizens. Like other citizens, the intolerant possess a bundle of valuable interests that are furthered by the opportunity to express themselves—interests in expression, true and justified belief, free association, and equality. Given the moral significance of these interests, if the intolerant are not allowed to exercise their political rights, they are illegitimately reduced to the status of inferiors. “Society,” Christiano demands, “must respect the freedoms of expression, association, and conscience

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Political Regulation in Defense of Democracy and the democratic rights of persons even when they use them to oppose public equality.”5 Christiano’s account of when to restrict the participation of antidemocrats is broadly consistent with what I have called the principle of limited intervention. When individuals pursue antidemocratic ends, but core democratic interests are not threatened, democrats can defend themselves by exercising their own political rights. They can protest, organize, and vote against the objectionable policies. They can employ the state’s expressive and educational powers to combat arguments inconsistent with citizens’ equality—for example, by establishing public holidays celebrating civil rights leaders and civic education programs.6 If a society restricts participation when a more democratic response is possible, its efforts will have been selfdefeating, inflicting unnecessary damage on its political institutions. But what about cases in which citizens’ core political rights are violated? Christiano admits that some form of censure might be called for in these cases. But he also argues that only legislation can cause this type of damage. For Christiano, when a legislature speaks, it speaks for everyone—this is the unique source of its political authority. As a result, only the legislature can undermine the public equality of political institutions. “Such society wide rejections of public equality,” he remarks, “do constitute genuine threats to equality.”7 By implication, no other form of political activity—no speech, no protest, no forms of association—can seriously affect my ability to regard political institutions as authoritative, as appropriately reflective of our common moral equality. And that is why only the decisive act of passing substantively undemocratic legislation and only the legislature rate censorship. “By contrast, individual efforts to argue against public equality or its implications or to organize on the basis of a rejection of public equality do not yet carry the implication that ‘we’ are rejecting public equality.”8 In this important respect, Christiano is following the well-trod theoretical path I described in the

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Political Regulation in Defense of Democracy introduction to this work—threats to democracy arise not from antidemocrats, but only from antidemocratic legislation. As you might expect, I think this approach to democratic tolerance places too great a weight on the singular status of democratic legislation. Even if one accepts the unique ability of the legislature to formulate authoritative legislation, one need not conclude that only the legislature can undermine the authority of those institutions. It is not terribly challenging to think up realistic situations in which nonlegislative action genuinely threatens the legitimacy of political institutions. Consider the case of Americanistan. In this society there is an intolerant party—let us call them the Southern Democrats, or Dixiecrats. The Southern Democrats are one of the main players in the country’s political life, but there are other parties, two of which are larger. As part of their platform, the Dixiecrats reject the equal status of certain members of their political community—whom we can refer to, for convenience, as African Americans. Though the Dixiecrats do not constitute a majority in the national legislature and cannot pass patently racist laws, members of the party still exert influence on policy by means of legislative coalitions. Aggravating the situation, party leaders have made a pact among themselves to refuse to compete for African American votes and to keep African Americans from voting in their primary elections. In areas where the Dixiecrats are the dominant party, almost always winning elections, African American constituents are substantially deprived of their effective ability to participate. Despite the lack of legislation, African Americans would justifiably conclude that Americanistan’s political institutions do not reflect their moral equality. In this hypothetical, the Dixiecrats would, of course, claim to be exercising their political liberties. But contra Christiano, this would seem to be a case in which passivity in the face of intolerant action poses a serious danger to the legitimate authority of democratic institutions.9

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Political Regulation in Defense of Democracy I think Christiano has two ways to respond to this challenge. He might admit that action should be taken but deny that the Dixiecrats were truly exercising valuable political rights. One could argue, for instance, that the harm caused by the Southern Democrats is akin to criminal violence or fraud and is therefore exceptional.10 According to this account, what distinguishes protected political activity from criminal action is whether individuals’ interests in participation are illegitimately limited. I don’t find such an argument especially problematic. But if the argument is right, we would probably be better off forgoing the process of categorizing political action as protected association or criminal activity, focusing instead on whether harm is caused and whether that harm is justified. Christiano might also contend that the terrible situation in Americanistan would be unlikely to afflict an ideally democratic regime. Ideally, neutral political rules would be enforced in such a way that one party could not dominate a particular geographic area.11 Excluded from one party, African Americans could simply join another without gravely affecting their democratic interests. In other words, in an ideal world, the Dixiecrats, if they existed at all, could not block the core political interests of African American voters. Unfortunately, no such ideal system exists. Real democracies, or polyarchies, actually feature citizens who oppose the rights of others; these regimes are marked by sharp and unjustifiable inequalities in people’s ability to participate. And political entrepreneurs frequently take advantage of this state of affairs. Because of these nonideal qualities, the sharp distinction between legislation and other types of political action probably cannot be sustained when discussing real-world politics. If this claim holds, then what ought to trigger defensive measures is not legislation but any activity that violates citizens’ core rights or, in Christiano’s terms, undermines “the public embodiment of equality of institutions.”12

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A Bias toward Democracy Nonlegislative action can harm citizens’ core democratic interests. When those interests are compromised, states should move against the intolerant. States might do so by reflexively imprisoning, disenfranchising, or censoring the guilty parties and their supporters. But these policies would be unacceptable. They would fail to reflect antidemocrats’ important moral interests in participation—a defining feature of the self-limiting theory of militant democracy. Defending democracy requires making every effort to have our cake and eat it too. Accordingly, states should search for ways to respond to the intolerant while protecting their right to participate. I propose one strategy for addressing this problem. Avoiding blanket restrictions on political practice, states can nonetheless discourage political actors from undermining democratic institutions. Such a system can be achieved by biasing the background institutions of democracy against those who engage in antidemocratic activity. One might wonder how governments might bias democratic institutions in a manner that respects the interests of democrats and antidemocrats alike. The intuition behind this concern is relatively straightforward. Imagine a simple case in which a group is deciding what to do. These individuals plan to use a simple majority vote to make their decision. Imagine further that a segment of the group’s members hold antidemocratic or otherwise disturbing views. If we relied on these simple facts, it would appear that any method for biasing the process would require us to disenfranchise members of the antidemocratic group—for example, by not counting their votes or not counting their votes equally. This simple model of democratic politics, however, does not provide a sufficient guide for thinking about the complex set of institutions that gives form to modern representative government.

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Political Regulation in Defense of Democracy Democratic processes are complex social constructions that can take multiple different forms. The term democracy is popularly associated with the idea of unconstrained collective choice. But political competition in modern democracies takes place against the backdrop of a wide variety of constitutive rules. In a limited sense these rules constrain choice, yet they are also the essential tools we use to manage political competition. Democracy requires binding guidelines about how to count votes and how many positions should be voted for. We also must determine what counts as a vote, what we consider political speech, what constitutes a political party, which parties can form a government, who can run for office, what information those individuals must disclose, and what is required to get one’s candidate listed on a ballot.13 The background rules of representative government are frequently biased in recognizably undemocratic ways. Consider the following example. In 1965 the Congress of the United States passed the Voting Rights Act. The federal government would now attempt to ensure that African Americans could actually exercise their right to participate. In response, opponents of black participation, opponents of democracy, deployed a variety of strategies to maintain their political superiority. Officials in Mississippi combined predominantly white and black counties into larger electoral districts, ensuring in the process that whites would remain the majority in these new, more capacious territories. The designers of these institutions assumed that African Americans would be able to vote in large numbers and that each voter would have the same number of votes. Nonetheless, the electoral system was tilted deliberately against African Americans. They could cast ballots, but their ability to influence government policy and thereby advance their interests in participation was severely limited.14 Mississippi’s racist institutional entrepreneurs acted undemocratically, but not because they favored biased institutions. The background rules of democracy should be biased; they should discourage efforts to gain or maintain political power in ways that violate

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Political Regulation in Defense of Democracy individuals’ basic political rights. The Voting Rights Act itself is a compelling example of a democratically biased set of rules—section 5 requires that certain southern states submit any institutional change related to voting for approval by either a federal district court or the Department of Justice. The states bear the burden of demonstrating that the proposed changes do not “deny or abridge the right to vote on account of race, color, or membership in a language minority group.” Given the particular federal structure of the United States, these rules are extraordinary. But they are justifiable because they discourage efforts to attack and undermine a particular group’s political rights and because the rules still leave space for racists to participate. Consider another example of this type of policy, one discussed by Samuel Issacharoff in his essay “Fragile Democracies.” The state of Israel distinguishes between official political parties and parties that can seek election to the Knesset. Racist organizations can register as parties, but they cannot offer candidates for office. As Issacharoff observes, this approach creates “a political space in which it is possible to organize a party around ideas, even if reprehensible ones, while at the same time denying such a party the right of representation in the Knesset.”15 Issacharoff suggests that these policies may raise fewer moral red flags than laws that effect general restrictions on expression, association, and political participation. This chapter can be read as an attempt to make good on Issacharoff’s suggestion. Properly designed, biased policies can be normatively acceptable even if a general restriction on the right to express odious ideas might not be.

Influential Parties, Not-So-Influential Parties, and Militant Regulations So far, I have outlined an approach to antidemocratic action that emphasizes the vigorous protection of democratic interests—those of both democrats and antidemocrats. I now explore the moral claims of

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Political Regulation in Defense of Democracy political parties, illustrating how regulations might be biased in ways that are consistent with a self-limiting approach to militant democracy. Parties constitute the main site of militant democratic regulation. In the name of democracy, parties are investigated, infiltrated, delisted, and outlawed. To date, the normative literature on political parties, and the regulation of political parties, has been dominated by two different schools of thought.16 Scholars in the first group emphasize the instrumental role parties play in political systems that instantiate respect for individuals’ common political equality. From this perspective, invasive regulations on parties, militant or otherwise, are justified just in case they help maintain a fair political system. Scholars in the second group delineate the intrinsic value of partisan activity. They believe that joining a party advances citizens’ interests in much the same way as joining a private association. For that reason, proponents of the intrinsic view are sensitive to the moral costs of regulations; they worry that regulations interfere with citizens’ ability to shape their own political organizations. Members of both schools recognize that partisan activity can have both instrumental and intrinsic value (even if they place different emphasis on which quality predominates). But few scholars acknowledge the variation among parties or how this variation might affect their moral status. In this respect, the normative study of political parties is afflicted by a conceptual monism—a party is always just a party. The persuasiveness of both approaches, as well as their stances on the costs of regulation, waxes and wanes in line with the influence of the groups in question. When parties are influential—when their organization, policies, and platform significantly affect all members of society—instrumental concerns predominate, and the case for restrictive regulation reaches its zenith. When a party is not influential— when it is small or functions largely to express a particular political perspective—the intrinsic benefits of political partisanship come

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Political Regulation in Defense of Democracy to the fore. By implication, regulations will carry a greater democratic cost when they affect small parties than when they affect large parties. A defensibly biased system of political regulations will take these differences into account. To be consistent with the self-limiting theory, therefore, weak parties ought to be accorded substantial leeway in determining how candidates will be selected, what the party’s program will be, and who can be a member of that party. As the parties extend their influence, they should be subject to stronger and more intrusive regulation that ensures that all citizens’ democratic interests are protected.

Why Parties Matter: The Instrumental View Parties are cogs within an elaborate political contraption that should be designed to generate legitimate decisions, or so the instrumentalist argues. Parties allow individuals to overcome a variety of collective action problems; they aggregate support for particular policies within the government, they motivate voters to elect new governments, and they help citizens predict the in-office behavior of particular candidates. If representative government is valuable because it is consistent with a form of equal respect, then parties, as necessary elements of that process, are valuable as instruments toward reaching that end.17 As long as intrusive rules help parties fulfill their core function, the instrumentalist says, those regulations are not only justifiable but necessary. Parties cannot be meaningfully distinguished from formal democratic institutions—such as a legislature—and they should be regulated as such. The logic of the preceding claims holds even if the rules infringe on the aims or the plans of party members. Few would deny that parties’ capacity to fulfill their instrumental role depends on their being granted a measure of independence. Yet all members of a polity have an interest in the effective functioning of the democratic 73

Political Regulation in Defense of Democracy process. Accordingly, each member has a vested democratic interest in the structure of any political party that affects that process. As Charles Beitz argues, “Considerations of freedom of association ought not to operate as a bar to state regulation of internal party competition when this regulation is necessary to ensure that party competition satisfies the aims of fair access to the political arena.”18 This instrumental perspective finds its quintessential institutional expression in article 21 of the German Basic Law (Grundgesetz): “Political parties participate in the forming of the political will of the people. They may be freely established. Their internal organization must conform to democratic principles. They have to publicly account for the sources and use of their funds and for their assets.” Reflecting the constitutional role of the party within German democracy, the German Federal Constitutional Court has, in the past, described Germany as a party-state (Parteienstaat). Not surprisingly, the German government heavily regulates partisan activity in the name of fair political competition and the stability of democracy itself.19 The assumption powering the instrumental approach to political regulation is that parties facilitate the overall fairness of the democratic process. It is certainly true that influential parties, like the Republican and Democratic parties in the United States or the Christian Democrats and Social Democrats in Germany, are located at the center of democratic life, influencing how power is gained and how it is used. With respect to these parties, the instrumentalists’ concerns and claims are persuasive. If these organizations are unfair, discriminatory, or inequitable, the political system as a whole will suffer from each of these vices. By implication, these parties are rightly subject to extensive oversight and regulation. In many democracies, however, there are parties lacking either the size or the strategic opportunities to play a critical role in the political life of the larger community. (Small parties can hold outsize influence if they can become pivotal supporters of a governing majority.) Fringe

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Political Regulation in Defense of Democracy parties may be driven by a single issue, and their leaders may not possess the ambition to hold high office. Alternatively, some organizations do advance fully developed conceptions of the public good; they simply lack the political clout to translate that comprehensive view into policy. Organizations on the periphery of the political stage are not usefully thought of as being indistinguishable from democratic institutions. Their activities and form will not substantially affect the overall legitimacy of a political system. Consider a polity in which many heterogeneous parties compete for power. Imagine further that one fringe party selects its leader through a hereditary system. The organization’s antidemocratic structure would not substantially affect any particular individual’s ability to join a party that selected its leader democratically. There would be little to gain by forcing the party to elect its leadership. The upshot is that the instrumental argument for regulation is weak when parties lack influence. To the degree that there are countervailing reasons not to regulate parties, those reasons will loom largest as the force of the instrumental argument recedes. In the next section I spell out those countervailing reasons.

Why Parties Matter: The Intrinsic View In “Federalist 50,” James Madison surmised that “an extinction of parties necessarily implies either an universal alarm for public safety, or an absolute extinction of liberty.”20 The godfather of American constitutionalism was almost certainly correct. But imagine that we invented a technology allowing us to resolve our collective action problems without political parties. Imagine further that in this new world, our political system would be no less fair and no less equal. Would we have any reasons, related to the practice of democracy, to choose the old system? To answer affirmatively, we would have to believe that party membership is valuable in itself. Defenders of the 75

Political Regulation in Defense of Democracy intrinsic view believe this to be true; they see parties as providing distinctive opportunities to realize active democratic interests—such as the development of democratic skills and dispositions. Those defending the intrinsic value of political parties tend to conceptualize partisan activity as akin to engagement in a civic association. By civic association I mean a nongovernmental organization that individuals choose to join. Of course, civic associations can be defended on the basis of their instrumental contributions to a legitimate representative system—for example, associations’ organizational and educational capacities make political systems more representative and less tyrannical.21 Yet at least since Tocqueville, political theorists have argued that committed participants in associational life accrue valuable benefits. Nancy Rosenblum proposes that participation in civic associations cultivates a form of political virtue: “I have come to think that generous freedom of association for groups and shifting involvements by individuals offer the best chance of correcting and containing the vices that subvert the general moral climate of democracy in everyday life.”22 By throwing oneself into organizational life or moving from one associational community to another, one gains confidence in the worth of political autonomy and pluralism. Participants may be more likely to embrace the practices and underlying values of democracy, and this transformative effect is an end in itself (though it may benefit the democratic system in the long run). In other words, the benefits of association are plausibly democratic but not solely because the political system is either more fair or more equal. Yet parties are not merely civic associations. The intrinsic defense of political organizations as educative forums is rarely advanced without acknowledging how partisan activity will affect the larger community. This point is implicit in Rosenblum’s contention that parties are the most valuable form of civic association because of their distinctive role in shaping the political agenda, winning elections, and influencing

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Political Regulation in Defense of Democracy government decision making. Parties are “Janus-faced,” both voluntary association and necessary fixture of the representative process, and their special status creates unique opportunities for partisans. “Alone among associations, then,” Rosenblum concludes, “parties offer a comprehensive map of the political world—cues and symbols and framing devices that extend across issues and candidates and over time. And active membership exposes men and women to a distinctive form of political socialization.”23 It is this distinctive form of political socialization that would be lost in the unlikely scenario of party extinction. In sharp contrast to their instrumentalist colleagues, scholars and jurists in the intrinsic camp frequently state that the opportunity to reap profits from partisan activity requires independence from state interference. Somewhat surprisingly, the actual relationship between independence and intrinsic benefit is rarely spelled out. This analysis by Bruce Cain is typical: “It is widely acknowledged that interest groups and other private political associations should have the unfettered right to determine the governance of their internal affairs and the beneficiaries of their support. Therefore, another way to frame the party rights issue is to ask how much of the freedom normally accorded to interest groups should be forfeited when a group places its label next to a candidate’s name on a ballot, and why. Arguing for party autonomy, I would advocate only taking away what is necessary to prevent racial discrimination and maintain the management of the ballot.”24 Cain assumes that private associations have intrinsic benefits worthy of some fairly strong rights claims and then asserts a relation between associations and parties. I believe we can identify three premises underlying Cain’s argument. First, to gain from interacting with individuals in associative forums, one must have a possessive commitment to those individuals and those forums. Sources of that form of commitment might include identifying with other members and shaping the direction of the

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Political Regulation in Defense of Democracy association’s activities. If one did not care about the fate of an association or one’s role in it, it is difficult to see how participation could have a beneficial effect.25 Second, one must be able to choose between a variety of different kinds of organizations. Allowing individuals to develop different modes of association may help them find an association to which they can commit. Moreover, according to Rosenblum, offering a broad choice among forums helps cultivate a pluralistic sensibility. Third and finally, state regulation of civil associations may reduce individuals’ purview in managing their organizations and the diversity among organizations. For instance, if the state forced each organization to elect its leadership, conformity would be imposed on the party system, thus eliminating opportunities for citizens to try out different kinds of partisan activity.26 Previously, I suggested that the instrumental view of parties applies most forcefully to influential parties. My reconstruction of the intrinsic view suggests that peripheral or noninfluential parties have a stronger claim to be free of regulation than their more significant cousins. First, as parties grow in size and import, members of the “party in the electorate” will not be able to sway these organizations. The shape of influential parties and the policies they endorse are dictated largely by political professionals.27 Once party members possess little control over a party’s strategy and program, it is difficult to understand what logic might support Cain’s strong claims concerning party independence. Supporters of the intrinsic perspective might raise the possibility that partisans can gain intrinsic benefits from political activity even when they do not control the direction of their party. Indeed, it is possible that one might wholly identify with a large, professionalized party. But this defense is actually self-defeating. If it is merely the act of joining a party that is intrinsically valuable, regardless of whether one has an effective role in determining its course, then it follows that increased regulation will not substantially impinge on party members’ interests.

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Political Regulation in Defense of Democracy More important, the relative weight of the intrinsic argument declines as parties grow in influence. Once a party begins to affect non–party members seriously, it is no longer merely a mechanism for forwarding the interests of its supporters. Influential parties are closer to public utilities than to voluntary associations. They set the political agenda, determine who will be a viable candidate for office, participate in creating the regulatory structure to which they are subject, and so on. If an organization achieves this kind of influence, its internal structure must be arranged in ways that reflect the equality of all citizens’ democratic interests.

Summary and Example The preceding analysis suggests that a regulatory strategy consistent with individuals’ equal claims to participation in the political process and with the goal of minimizing the costs of militant measures—consistent, in other words, with the self-limiting model of militant democracy—would impose more robust democracyreinforcing regulation on parties as they gain influence. Thresholds for stricter regulation might include gaining a seat in the legislature, achieving a certain percentage of the vote, and taking certain legislative positions—such as leader of the opposition. A system biased in this way would not restrict citizens from voting for a party that they could rightly consider their own. Nor would that system keep citizens from participating in the selection of candidates for parties rightly thought of as quasi-public institutions. What would this approach to regulation look like in practice? This chapter began with the example of the British Equality and Human Rights Commission’s (EHRC) action against the British Nationalist Party (BNP). To review, in June 2009 the EHRC informed the BNP that legal action would be taken against the party unless it took the following actions: (1) it stopped restricting its membership on the basis of race, (2) it changed its constitution, and (3) it took steps to 79

Political Regulation in Defense of Democracy ensure that constituents in areas represented by the party would not be denied services on the basis of their race. For our purposes, two aspects of the EHRC’s approach are of particular interest. First, the commission’s actions were directly precipitated by a change in the party’s stature. “Your party has recently made successful gains for the first time in a national election,” the commission’s letter noted. “This has increased public interest and scrutiny. Partly as a result of this, the Commission has received complaints from individuals about the BNP’s constitution and membership criteria. You will understand from the above why it is the duty of the Commission to consider taking action to ensure compliance with the equality enactments.”28 The United Kingdom’s 1976 Race Relations Act prohibits any public organization from discriminating on the basis of color, race, nationality, ethnicity, or national origin. But it took the BNP’s growing success at the polls to trigger an intervention by the EHRC. Second, the commission identified a specific harm caused by the conjunction of the party’s racism and its newfound political influence. Local inhabitants who were excluded from participating in the party could reasonably expect that their BNP representative would not provide even basic constituent services—for example, those services that representatives provide to all members of their district regardless of party affiliation. In the aftermath of the EHRC’s legal assault, the BNP and Nick Griffin continue to play an outsize role in British public debate, and the party has largely maintained its intolerant character. But the electoral fortunes of the BNP have also waned; it has suffered a series of embarrassing electoral defeats. And the party has changed both its membership standards and its constitution. The commission’s actions also instigated a salutary rift between the ambitious leaders of the party, who wanted to take seats in various political bodies, and hard-liners who opposed any weakening of the party’s racist and xenophobic commitments.29

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Political Regulation in Defense of Democracy By waiting until the BNP’s activities infringed on others’ democratic rights, the EHRC struck a balance between individuals’ interest in a political system reflective of their political equality and their interest in participating in political associations with which they identify. Where precisely to draw the line between tolerance and intolerance remains an open and deeply challenging question that is subject to legitimate debate. And any answers to that question will turn on the particularities of the society under discussion. The specific injury caused by the accession of the BNP, for instance, is possible only in a political system organized on the basis of territorial electoral districts. Moreover, the interests set back by the election of the BNP are not self-evidently core democratic interests. The BNP elected only two members to the European Parliament, and they probably could not affect policy making at the European level. Just as important, they were elected from multimember districts; their constituents had at least five other members of the European Parliament to serve them. In this case the most democratic course of action might simply have been to speak out and organize against the BNP. But to the degree that the commission’s analysis was correct—that in the light of the party’s intolerance and its growing electoral prominence, the sitting of BNP representatives did compromise their constituents’ fundamental political interests—then the commission was justified in not tolerating the BNP’s activities. And its proposed solution, the rewriting of the party’s constitution, preserved BNP supporters’ ability to participate. The commission’s actions thus neatly embody an institutional perspective that weighs seriously the rights of all citizens, both the intolerant and their opponents.

Two Concerns about Biased Institutions My argument suggests that we disavow neutrality and bias democratic institutions in a way that privileges a particular worldview or set of interests. I want to address two reasons one might be concerned 81

Political Regulation in Defense of Democracy about this argument. The first is the specter of misuse. Government officials are likely to take advantage of their legal authority to regulate the political system. A salient example of misuse is the suppression of the Communist Party of the United States (CPUSA) during the twentieth century. Today we have substantial evidence of Soviet support for the CPUSA.30 Still, the criminalization of political participation, Joe McCarthy’s grandstanding, and the reliance on guilt by association were disproportionate to the threat posed and in many cases unjust. More recently, in 2010, the Iraqi Accountability and Justice Commission disqualified over five hundred legislative candidates (one-seventh of the total number of candidates), many of whom were Sunni, from participating in Iraqi elections. Carrying out their work, the members of the commission acted in secret and employed vague standards. Numerous political figures in good standing with the new Iraqi government, including the minister of defense, were ruled ineligible. The mass disqualifications and the ensuing crisis threatened both the public and abstract legitimacy of the regime.31 An objection on the basis of misuse, while important, is not a knockdown argument. First, the strength of the objection depends on a faulty premise: that there is a natural or given edifice of political regulation that would structure democratic politics free from political interference. Unfortunately, no such natural political setup exists. Democratic competition, like economic competition, is not merely the subject of political regulation; it is also the outgrowth of that regulation. Even if a society’s political regulations were not employed to defend democracy, politicians would still possess both the ability and the incentive to entrench themselves and to punish their enemies. Second, in designing democratic institutions, we face the possibility that democracy will be overdefended, but also the possibility that these institutions will be systematically underdefended. Recall the hypothetical example of Americanistan. Imagine that the Southern Democrats had simply been allowed to violate the rights of African

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Political Regulation in Defense of Democracy Americans. That not implausible scenario would exemplify a situation in which militant democracy was seriously and unacceptably undersupplied. Without losing sight of the danger of misuse, the questions we should focus on are (1) whether those who infringe on others’ core rights to participate should face sanctions, and (2) if so, how democrats might limit the damage caused by militant measures. Detailed questions of institutional design are beyond the scope of this book. But the application of some commonsense heuristics might be used to judge whether militant policies are properly deployed. The heuristics include the following: 1. Regimes should use the least restrictive means available to control democratic corruption—that is, militant policies should be focused where they will be effective and where individuals’ claims not to be subject to political regulation are weakest. 2. The policies should not keep the intolerant from advancing their core rights within the democratic process. 3. Regulations should feature clear criteria for their application and, just as important, for their removal. 4. Mechanisms should be established to police the policeman— that is, all uses of defensive measures should be subject to review by an independent body, such as a court. A second reason to be skeptical of a biased democratic process turns on questions of effectiveness. There is a long tradition of political thought that holds that intolerance is best met with openness. Might antidemocratic challenges be met most successfully if we fought for a level playing field, not one pitched toward democracy? The claim here is not that militant regulations will be ineffective; rather, the fear is that those regulations will be more costly and less effective than no regulation at all. This challenge depends on an

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Political Regulation in Defense of Democracy empirical conjecture: that political openness is really the best form of militant democracy. If the conjecture is true, then anyone interested in defending democracy ought to prefer that strategy. Less optimistically, one might argue that militant regulations aimed at parties will be no more effective than inaction. Neither militancy nor openness will work. As Samuel Issacharoff and Pamela Karlan argue in an essay on campaign finance reform, “Electoral reform is a graveyard of well-intentioned plans gone awry. It doesn’t take an Einstein to discern a First Law of Political Thermodynamics— the desire for political power cannot be destroyed, but at most, channeled into different forms—nor a Newton to identify a Third Law of Political Motion—every reform effort to constrain political actors produces a corresponding series of reactions by those with power to hold onto it.”32 On this view, those who are affected by militant policies will have strong personal incentives to find a way around them. If a particular form of speech is banned, political leaders will stand up and tell their followers: “You know what I can’t say. And that, my friends, is what I am saying!” This counterargument provides an important corrective to any incipient Pollyannaism on the part of militant democrats. Nonetheless, even if one embraces a “realistic skepticism” about militant regulations, one might still conclude that they should be employed. Leaving aside questions of effectiveness, rules combatting antidemocratic activity serve important expressive goals. By attempting to stop parties from discriminating on the basis of race, for example, the wider society recognizes and reaffirms that those who are excluded are full members of the political community. Second, even the most ardent critics of regulatory activism admit that some efforts to inhibit antidemocratic action have been successful—the American Voting Rights Act of 1965 is just one example.33 Over time political entrepreneurs may find ways to skirt these rules. But in such cases democrats should not respond to a rights violation with

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Political Regulation in Defense of Democracy quiescence. Rather, they should reformulate the rules so that they more effectively curb the antidemocratic activity in question.

Conclusion Should democrats tolerate antidemocratic activity that does not threaten the stability of representative government? No. Taking democratic rights seriously means taking action when citizens violate others’ core interests in participation. The challenge presented by this standard for intervention is how to counter antidemocrats without simply abrogating their rights. I have suggested that societies can meet that challenge by taking advantage of the regulations that make democracy work. Self-limiting regulations will be crafted in ways that not only prevent rights violations, but also make space for the intolerant to express themselves and to act politically. The standard I have proposed for when militant action should be taken is neither the best-known nor the most frequently employed justification for limiting citizens’ democratic rights. Why, for instance, ought democrats to tolerate those who would not tolerate them? In the next chapter, I consider that question and illustrate why more sweeping justifications for limitations on democratic rights are inconsistent with democratic values.

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four

Justifying the Exclusion of Antidemocrats

Antidemocrats as Democrats through the Force of Circumstance On the very first page of his book The Republican Experiment, the historian Maurice Agulhon notes that many participants in the French Second Republic held no affection for self-government. Unlike those who had cultivated deep and abiding allegiances to republicanism, opponents of the new dispensation were sarcastically referred to by their peers as republicains du lendemain, or republicans on the day after—that is, the day after the revolution.1 Agulhon brands disloyal participants with a different epithet: they were republicans through the force of circumstance. These citizens participated not because they accepted the republic’s legitimacy, but because, for the moment, the republic was the only game in town. It is not uncommon for students of democratic revolution, whether they are classicists, historians, or political scientists, to describe democracy as a sectional form of government, a form of government that one part of the

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Justifying the Exclusion of Antidemocrats populace imposes on another. This fragment of democratic wisdom was neatly captured in the French epithets cited above, but it remains more or less latent in contemporary discussions of democracy’s moral value. As I illustrate in this chapter, the sectional character of popular government ought to color fundamentally our discussions of who should be allowed to play a part in democratic life. In contrast to the considerable tolerance extended to the republicans du lendemain, democratic regimes disqualify or sanction political organizations for a remarkably diverse array of reasons. The Israeli Basic Law stipulates that political parties can be kept from competing merely if they do not accept the democratic or Jewish character of the Israeli state. Turkey has consistently sidelined parties that question the state’s secular identity or its territorial integrity. And Spain has banned and seized the assets of the Batasuna Party, an organization accused of fostering an unacceptably close relationship with the Basque terrorist organization ETA. In the previous chapters I argued that democratic institutions should be biased against those whose actions violate others’ right to participate. In this chapter I reflect on which, if any, alternatives to that justification are defensible. In particular, I focus on whether sanctions are legitimate in two prominent situations: first, when parties are unwilling to acknowledge publicly others’ rights, explicitly rejecting the democratic character of the regime; and second, when parties are not opposed to democracy per se but seek to alter an important element of a state’s identity, such as its religious or national character. Neither of these justifications—justifications that are frequently employed to delimit the political arena—holds water. Banning organizations or punishing their members merely because they reject democracy or secularism cannot be defended on democratic terms and is inconsistent with the self-limiting theory of militant democracy.

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Justifying the Exclusion of Antidemocrats

Rationales for Banning a Party Judges and politicians are not typically praised for their creativity. But the sheer number and extensive range of reasons offered in defense of restricting political participation is truly impressive. A narrow attempt to categorize those justifications would not break new ground in the study of militant democracy. Works by scholars such as Peter Niesen, Samuel Issacharoff, and Nancy Rosenblum already provide useful frameworks for divvying up the various rationales states offer when they limit political competition. I take a different approach, grouping the justifications on the basis of whether they offer an independent democratic basis for circumscribing the political arena.2 I have discussed the justification for heading off attempts to violate the rights of others in the previous two chapters. Before moving on to discuss the latter two categories, however, I would like to discuss a fourth category, which I have not included in the tables—punishing an organization because it facilitates corrupt or violent activity, such

Table 1. Justification 1: Individuals or Groups Violate the Core Rights of Others Groups that fit this criterion

Major parties that invidiously exclude individuals from their membership Individuals who keep people from the polls through violence and intimidation

Examples

Nazi Party (Germany) Democratic Party between the end of the Civil War and the 1960s (United States)

Democratic rationale

The democratic process is a valuable and legitimate way of making collective decisions; those who violate others rights inflict harm

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Justifying the Exclusion of Antidemocrats Table 2. Justification 2: A Party Rejects Democracy Groups that fit this criterion

Parties that oppose democracy but participate in the democratic system

Examples

German Communist Party—KPD (Germany) Communist Party (United States) Orleanist Party during the Second French Republic (France)

Democratic rationale

Antidemocratic parties threaten democracy and participate in bad faith

Table 3. Justification 3: A Party Threatens an Important Feature of a Regime’s Identity (not Democracy per se) Groups that fit this criterion

Parties that aim to change the state’s religion, its economic system, its borders, or its national or ethnic character

Examples

Refah Party (Turkey) Communist Party (United States) Batasuna (Spain) KPD (Germany) Kach (Israel)

Democratic rationale

Democratic challenges to these features threaten the stability of the regime or waste resources that could be devoted to more pressing questions (or both)

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Justifying the Exclusion of Antidemocrats as terrorism. I omit this justification because it neither is grounded in democratic norms nor falls afoul of those norms. Groups should not be able to use the protections and privileges afforded political activity to take action that is generally considered worthy of criminalization—for example, murder and economic fraud. I include the word generally here to account for the possibility that basic modes of democratic practice—such as criticizing the government—can be outlawed; in such aberrant cases individuals should not be punished for disobeying the law. Consider the example of the Basque separatist Batasuna Party. In 2002 Batasuna was brought to trial for failing to condemn the violent activities of the military organization ETA. A refusal to condemn a separatist movement is not generally considered worthy of criminalization—so banning a party for this reason would appear to fall outside the lines of the justification described above. In the face of significant criticism from the national and international civil rights community, the Spanish state upped the ante, holding that Batasuna was actually inseparable from ETA, providing the military operation both funding and logistic support.3 To the degree that this charge could be substantiated, a restriction on Batasuna would have been warranted. Preventing individuals and organizations from engaging in illegal action is among the most compelling grounds for limiting the political arena. Parties that repeatedly engage in illegal actions are not fully parties—they are front organizations.4 Yet there is nothing exceptionally democratic about this reason for banning parties. Organization X should be prohibited from taking illegal action whether organization X is a political party, a Girl Scout troop, or a gentlemen’s club. In the case of Batasuna, though the party may have been instrumental in ETA’s activities, we have good reason to believe that many members had a legitimate interest in peacefully advancing the cause of Basque nationalism. In these kinds of cases, the state should make every effort to distinguish the criminal from the legitimate elements

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Justifying the Exclusion of Antidemocrats of a political organization. An independent authority might be charged with ensuring that official party funds are not siphoned off for other activities; perhaps the state should organize and oversee internal elections for party leadership—policies of this sort, similar to those used to rid American labor organizations of mob influence, would balance the communities’ dual interests in curbing criminal activity and in allowing the broadest possible political participation.5

Parties That Reject Democracy Examples of laws that sanction political organizations merely for rejecting democracy and its cognate principles are fairly common. Section 7(a) of the Israeli Basic Law states that parties may be disqualified if the “goals or deeds of the list or the deeds of the person explicitly or implicitly are one of the following: (a) reject the existence of the state of Israel as a Jewish and democratic state.” More famously, the Basic Law of the German Federal Republic authorizes the Constitutional Court to ban parties that aim to undermine or destroy the “free democratic basic order.” Banning the German Communist Party (KPD), the Constitutional Court held that “the KPD must actually deny all other parties . . . any right to exist in the sense of a lasting partnership with equal rights. But precisely such a lasting partnership is the prerequisite for the functioning of the multiparty principle—and for the struggle for power between several parties— within a free democracy. The same is basically true of the KPD’s parliamentary activity. In the parliamentary system of liberal democracy, each party participating in forming the popular political will is to be given a chance to come as close as possible to achieving its own goals through its activity in parliament. But no party may pursue material that, when reached, would forever exclude the existence of other parties. . . . But, according to its own pleadings, this is exactly the KPD’s goal.”6

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Justifying the Exclusion of Antidemocrats I think we can identify three distinct reasons to penalize individuals who would use democratic institutions to undermine democracy but have not violated their fellow citizens’ core political rights. First, one might argue that seeking to undermine democracy, even if one poses no threat to the rights of another, places one beyond the democratic pale. I considered this argument in chapter 2 (in the section entitled “The Principle of Limited Intervention”) and rejected it. To spare the reader, I won’t recapitulate my claims here; suffice it to say that proponents of this argument fail to adequately account for antidemocrats’ important interests in participation and for the inconsequence of what is to be gained by silencing those who haven’t violated the rights of others. Second, one might hold, as the U.S. Supreme Court did in its famous (or infamous) 1951 decision Dennis v. United States, that antidemocrats threaten democratic institutions merely through their participation. The third argument is that antidemocrats behave in an unfair and misleading manner when they participate: by voting, forming parties, and serving in congress, they signal to their fellow citizens that they agree to the basic rules of democracy; but antidemocrats, naturally, reject those rules.7 By engaging in an act of deception, so the argument goes, antidemocrats can no longer demand that others respect their interests. In what follows, I illustrate the shortcomings of the latter two arguments.

Any Party That Opposes Democracy Poses a Threat to Democracy In the 1951 case Dennis v. United States, the Supreme Court examined the constitutionality of the Smith Act. The act was aimed at the Communist Party of the United States; it criminalized advocacy of, or participation in, efforts to overthrow the government of the United States by force or violence. The Court ruled that “the mere fact that from the period of 1945 to 1948 [the parties’ activities] did not result in an attempt to overthrow the government by force or violence is of course no answer to the fact there was a group that was ready to make 92

Justifying the Exclusion of Antidemocrats the attempt. . . . It is the existence of the conspiracy which creates the danger. . . . If the ingredients of the reaction are present, we cannot bind the Government to wait until the catalyst is added.”8 In other words, even if the members of an organization have not harmed anyone, antidemocrats pose “a clear and present danger” to democratic regimes merely through their existence. Defenders of this view cite the possible spread of antidemocratic doctrines, the hardening of civil discourse, and the systematic deterioration of “democratic dispositions.”9 The Court’s discussion of democratic stability is not persuasive. The causal connection between merely organizing to oppose a democratic regime and actually eroding its stability is simply too tenuous to support the Court’s bold arguments. For example, the actual probability that an organization such as the National Socialist Movement, currently America’s leading fascist group, will undermine the United States must be vanishingly small.10 By contrast, consider the current chairman of the Federal Reserve, Ben Bernanke. Bernanke’s position allows him to dramatically alter interest rates in the United States, which can affect the economy of almost every nation. With his virtually unchecked power to trigger a worldwide economic depression, Bernanke certainly poses a greater threat to the stability of representative government than Hitler’s American disciples. The point is that democratic governments face myriad sources of catastrophe that might, under a narrow set of circumstances, contribute to the demise of democracy. Responding to each one of these latent threats, I believe, would force democracies to run afoul of the paradox of militant democracy—closing off so many avenues of participation that they would undermine democracy in the name of itself.11 Consider the following example. Political scientists and historians have variously pointed to the threat of redistribution and the jingoistic pursuit of unwise imperial wars as potential sources of instability in

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Justifying the Exclusion of Antidemocrats great republics. If those arguments were valid, members of both the Democratic and Republican parties would pose a clear and present danger to American democracy. Disenfranchising the supporters of America’s two major parties is absurd because it is self-defeating. Increasing the probability of the failure of democracy is simply too sweeping a reason to limit the political arena.12 Of course, one might contend that what really matters is not just that antidemocrats will marginally increase the probability of democracy’s demise, but also that the antidemocrats’ actions are specifically intended to weaken a legitimate regime. The immorality of the antidemocrats’ aims has a catalytic effect of its own, triggering a society’s justification for acting against the intolerant. Supporters of this view might argue that states may restrict participation that trivially increases the likelihood of a rights violation, participation that it would otherwise not be justified restricting, if the actors intentionally aim to achieve immoral or antidemocratic ends. If these conditions are met, a society need not worry about the interests of antidemocrats or the dangers associated with acting against threats that may not emerge. Do we have reason to deny the catalytic effect of immorality and therefore to remain concerned about the interests of antidemocrats? I think we do. And, perhaps surprisingly given his arguments in favor of restricting the participation of Nazis, Jeremy Waldron provides the brief. In a classic essay entitled “A Right to Do Wrong,” Waldron explains why the liberty to seek morally suspect ends is a defining feature of important rights, such as the right to participate.13 If political rights did not protect immoral action, few serious questions would be open for democratic consideration. If morality dictated a higher level of redistribution in a given society, no one would have the right to oppose that policy. Ultimately, a society could determine its own course only on matters about which morality was silent—such as whether street cleaning should occur on Mondays or Tuesdays. But

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Justifying the Exclusion of Antidemocrats the right to participate is precisely grounded in the idea that individuals should be able to influence important decisions that affect their well-being. By implication, without the freedom to help fashion answers to questions of moral import, questions about society’s deeper structure and ends, the right would be shorn of its meaning and its value. “If rights were confined to actions that were morally indifferent,” Waldron contends, “then rights would lose the link with the importance of certain individual decisions which, as we have seen, is crucial in their defense” (italics in original).14 Given the value of the interests at stake in participation and the importance of allowing individuals a broad range of action when they exercise their political rights, the mere fact that people seek immoral ends through the political process does not warrant lesser concern for their interests. Stronger grounds are needed to justify your right to block my ability to play a role in political life. And that requirement is satisfied if, in my pursuit of immoral ends, I violate anyone else’s core rights to participate. It is critical to note that defensive action will be justified in most of the cases in which an antidemocratic party actually poses a credible threat to democracy. Two grounds support this contention. First, in most instances, antidemocratic movements are unlikely to pose a serious threat without first violating other citizens’ right to participate. To cite a single example, during the Weimar Republic the Nazi Party engaged in electoral intimidation well before it was in a position to seize power. In those circumstances, defensive or exclusionary action would be justified (such action was taken, if unsuccessfully, during Weimar).15 Second, if an antidemocratic movement has not violated anyone’s rights, but will do so imminently by toppling a democratic regime, then democrats can legitimately act to preempt the movement’s actions. In making this claim, I am following a standard just-war argument. Acting against an imminent threat, on this view, is a relatively unproblematic species of self-defense. By contrast,

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Justifying the Exclusion of Antidemocrats preventive self-defense—defensive action taken against a nonimminent and uncertain threat—requires a different and more elaborate justification.16 (I give sustained attention to the ethics of preventive intervention in chapter 5.)

Antidemocratic Parties Participate in Bad Faith The most compelling justification for banning groups just in case they are ideologically opposed to democracy is that such groups act unfairly or in bad faith. Rejecting the legitimate authority of the democratic process, democrats through the force of circumstance would, if given the opportunity, topple the regime. When they play the game of democracy, they therefore signal a commitment to obey that they are not, in fact, committed to fulfilling. And by engaging in pernicious acts of deception, they relinquish their claim to participation. As the respondent in the 1973 Supreme Court case Communist Party of Indiana et al. v. Whitcomb argued, “It is fraudulent for a group seeking violent revolution to . . . disguise itself as a political party and use the very forms of the democracy it seeks to subvert, in order to gain support and carry on its nefarious ends.”17 Peter Singer’s Democracy and Disobedience offers the clearest and fullest exposition of this justification.18 He argues that antidemocrats are subject to sanction because they would refuse to follow the outcome of democratic procedures if they had a choice, but they nonetheless expect democrats to take their preferences seriously. Modeling his argument on the legal doctrine of estoppel, Singer holds that participation in the decision-making process “can be said to give rise to reasonable expectations which will be disappointed by his refusal to accept the verdict of the majority.”19 The willing creation of an expectation that one will carry out an action carries considerable normative bite. Having raised this belief, one ought to take the action, whether one wants to carry the action out or not. Antidemocrats thus mislead their fellow citizens when they vote. 96

Justifying the Exclusion of Antidemocrats Singer is well aware that some groups publicly declare their opposition to democracy. If one disavows the political system before one participates, has one still raised the expectation of compliance? Publicly denouncing democracy will not resolve the problem. Groups, even antidemocratic groups, participate with the expectation that their votes will be counted, representatives seated, and so on. Even if a party’s members publicize their opposition to self-government, their democratic activity may cause others to believe that antidemocrats will follow the rules of the game. “The Dissenter is clearly taking an unfair position, a position which allows him to have a say in the decision, and yet not be obliged by any decision opposed to his views,” Singer contends. “To vote, and yet refuse to be in any way obliged by the result of the vote, is to take an advantage over those who are prepared to accept the majority decision.”20 According to Singer, bad faith requires electoral exclusion. One need not fulfill a contract made with someone who explicitly refuses to satisfy her end of a bargain. And if individuals were willing to accept democratic outcomes only when doing so furthered their narrow selfinterests, democracy could not be sustained. “There would be, for this reason, a strong case for barring from participation in the democratic process those who announce beforehand that they do not regard the result of the election as obliging them to the smallest degree, or that the majority has no right to decide the matter on which they are voting.”21 Only those who accept the legitimacy of democracy participate legitimately. The argument from bad faith depends on the possibility of voluntary choice. If I can choose whether to make a contract with you, you can regard my saying “I agree” as evidence of my intentions. But if I am forced to enter into a contract with you, the intention to fulfill the contract is not my own. Singer acknowledges this important requirement. He praises those who openly reject the democratic system and therefore refuse to vote. The ability to abstain, to withhold one’s

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Justifying the Exclusion of Antidemocrats participation, hints at the possibility of voluntary choice. If I can stay at home instead of voting, democrats can justifiably infer that I intend to follow the outcome of the democratic procedure on the basis of my participation. The argument from bad faith collapses, however, because voting is not a normatively relevant signal of one’s acceptance of the democratic process. Individuals are affected and obligated by decisions whether or not they decide to formally participate; they cannot abstain from the collective enterprise that the democratic process ostensibly guides. Accordingly, democrats are in no position to assume that participation indicates acceptance. Lacking the opportunity to choose how to make authoritative decisions, citizens cannot be understood to have offered a voluntary signal of their commitment to democracy by voting or seeking political office. An example will illustrate the preceding point. Imagine that three brothers—Ryne, Jody, and Shawon—must make a collective decision that will affect them all (the necessity of the decision is akin to the necessity of making collective choices in a democracy—it is, in Rawlsian terms, a circumstance of politics).22 Assume, for the sake of argument, that the brothers must decide whether to have their home painted. Shawon insists that he should make the decision because he is the oldest of the three. The other two brothers, Ryne and Jody, demand a fair vote to determine their collective choice. Since they happen to be bigger and stronger than Shawon, their preference prevails. Shawon must live in the house regardless of which decision is made, and he cannot change the voting procedure. He might communicate his rejection of the process by refusing to vote. But Shawon cannot simply walk away. He is forced to comply. And his brothers cannot draw any inference about whether Shawon accepts the process should he vote. The preceding example raises the following question: is Shawon morally obligated to obey the outcome of a legitimate procedure he

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Justifying the Exclusion of Antidemocrats adamantly rejects? The answer is yes. Regardless of whether someone votes, he won’t just be affected by a democratic decision; he will have a duty to adhere to it. This duty arises because a democratic procedure embodies each brother’s equal moral status and because they must make a decision about the color of the house. Shawon, of course, does not see the value in democracy. But the only basis for his claim not to be bound by the process would be that he was superior in some way. And a claim of that sort carries little democratic weight. When citizens are morally and legally obligated to obey a decision regardless of whether they believe in democracy, then they are, in a narrow but important sense, participating regardless of whether they vote. Despite prior commitments, any individual who is forced to obey democratic outcomes possesses an equal claim to participation in the democratic process. As long as Shawon’s brothers expect him to comply with the outcome of a fair procedure, they must allow him to play a role in making that decision. In sum, defenders of the good-faith argument fail to recognize that democracy is a justifiably sectional form of government. Democratic institutions and democratic decisions are imposed by one group on another. But those institutions remain legitimate and authoritative despite their imposition. We tend not to think of antidemocrats in democratic regimes as being democrats through the force of circumstance. Yet as long as individuals cannot choose the kind of regime they live in, then the extant regime, no matter how admirable, has been imposed. Accordingly, democrats may not assume that participation signals acceptance. And antidemocrats cannot be charged with acting in bad faith. In this section I have outlined two different justifications for checking the rights of antidemocrats. Neither of these approaches should tempt us to believe that the repression of antidemocratic ideology, rather than the defense of democratic rights, should be the lodestar of militant efforts to defend democracy.

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Gag Rules and Indirect Threats to Democracy “In a word, ‘antisystem’ parties today are not necessarily antidemocratic.”23 So contends Nancy Rosenblum in her exploration of the justifications used to ban political parties. In Italy, for instance, restrictions are placed on fascist parties, but not on all antidemocratic organizations. Portugal and Bulgaria limit the participation of religious parties. And Turkey has banned Islamist and Kurdish parties that do not accept the state’s official secular or national character. Attempting to fix the identity of the regime, the societies (or elites) that have adopted these policies signal, “We are and will remain an X type of community.” Rosenblum rightly points out that for a community to legitimately define its identity, whether religious or secular, that identity must be open to democratic contention. “It may be that a democratic majority or coalition elects to protect essentialist characteristics. But it only does so democratically when it is the result of democratic decisions and not by banning parties that challenge it.”24 By implication, regulations limiting political participation in the name of a communal identity must be grounded in persuasive nondemocratic arguments, rather than in democratic norms themselves. But what if a democracy is unstable, perhaps recovering from a devastating ethnic civil war? The examples of Bosnia and Rwanda come to mind. In these cases, if individuals organize on the basis of issues that incite passions, alienate partisans from one another, and make productive political cooperation more difficult, their activities may undermine the consensus on which functional government depends. Even if one acknowledged that debating these issues would not violate anyone’s rights, one might still fear that such a debate would spark an incendiary process, destabilizing fragile democratic institutions. There is a hoary strain of liberal thought that holds that “radically divisive” issues should be removed from the political agenda. State establishment of religion is the most famous example of

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Justifying the Exclusion of Antidemocrats such an issue, but the ethnic and national character of the state falls into this category as well. In “Gag Rules, or the Politics of Omission,” Stephen Holmes dubs constitutional restrictions on a majority’s ability to legislate on divisive issues “gag rules.”25 Gag rules typically limit political outputs—for example, legislation. But the restrictive policies aimed at ethnic and religious parties might achieve much the same ends as Holmes’s recommended course of constitutional omission. Can the logic of gag rules therefore justify the limitation of political participation? I do not think so, and in this section I will illustrate why protecting democracy from indirect threats is not a serious reason to infringe on citizens’ right to participate. Holmes identifies two general reasons gag rules might be acceptable—because they are acceptable to all and because they are to everyone’s benefit. I discuss each justification in turn.

Mutual Acceptability Defenders of gag rules may contend that they are mutually acceptable. In other words, members of a community may find that it is in their interest to “gag themselves.”26 Take the issue of religion. Many might prefer that their own faith be endorsed by the state. Though no one wants to fight a war, no one is willing to accept the establishment of another religion. An externally enforced gag rule, however, allows democracy to persist by taking the possibility of religious establishment off the table. The key feature of this defense is that each group would refrain from pursuing its goal if it were confident that the other groups would do so as well. Gag rules symbolize the existence of an overlapping consensus about the value of political stability, if not a consensus about an underlying set of political values. The classic example of a political gag rule, as Holmes notes, was the series of de jure and de facto agreements between American states of the North and South over the issue of slavery. Until the late 1850s, both Northern and Southern elites preferred maintaining the Union 101

Justifying the Exclusion of Antidemocrats to abolishing slavery or definitively insulating the practice. “Legislative self-censorship was justified as essential to national cooperation,” Holmes contends. “The prohibition against federal regulation of slavery did not merely protect a private sphere and the attendant values of personal autonomy; it also unburdened the public sphere and thus subserved the values of democracy. Orderly democratic consideration of other problems would become impossible if such a passion-charged and divisive issue were placed at the center of legislative deliberation” (italics in original).27 Holmes advances a plausibly democratic argument for lowering the stakes of political discussion. But would restricting political participation be a defensible mechanism for taking issues off the political agenda? The slavery example actually reveals a cardinal weakness in the justification of gag rules. Gag rules often benefit their creators at the expense of a third group; they may be the product not of compromise but of collusion. To find the slavery gag rule acceptable, we have to focus narrowly on how it allowed the parties to the agreement— Northern and Southern whites—to achieve ends they prized. At the same time, we have to close our eyes to the claims of the slaves whose interests were sacrificed by this vicious bargain. Holmes brands those who raise concerns about gag rules benefiting select elites as “conspiracy theorists.”28 But, oddly enough, he places the flawed slavery example at the heart of his analysis. The slavery gag rule was not a mutually acceptable compromise that allowed relevant participants to reach ends that they desired. Rather, it was an agreement that silenced some to benefit those party to the agreement. I think the moral inadequacies of the slavery gag rule are general in character. A rule reserving the political arena for parties that accept certain features of a regime cannot reasonably be treated as the product of agreement, as a democratic “form of self-control.”29 The existence of a group dedicated to pressing a schismatic issue reveals the inapplicability of the concept of a mutually acceptable bargain.

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Justifying the Exclusion of Antidemocrats Consider Israel’s constitutional amendment excluding parties denying its Jewish character. The amendment was the product of a compromise between largely Jewish parties on the right and left—the parties on the left wanted to restrict the participation of racist parties, but they could gain support for the measure only by also agreeing to ban parties committed to transforming Israel into a secular state.30 Groups affected by this restriction on political practice surely would not agree that everyone is better off because Israel’s religious identity cannot be raised by officially recognized political parties.

Mutual Interest Gag rules, and perhaps restrictions on certain kinds of parties, can also be defended on the grounds that they are in everyone’s mutual interest. This defense is distinct from the claim that gag rules are the product of compromise; on this view, gag rules benefit all, whether they realize it or not. The argument from mutual interest depends on the idea that democracy is, in Adam Przeworski’s words, “a contingent outcome of conflict.”31 Democracy is never fully consolidated—some change in policy could disturb the political equilibrium and lead to violence. In the name of democracy, sensitive issues ought to be removed from the political agenda. In antebellum America some groups simply wanted to avoid the issue of slavery. Others, like the abolitionists, wanted to raise it. Those with the power to impose a gag rule, however, might have argued that a war was in no one’s interest (not even the slaves’), and peace depended on slavery’s not being on the table. One should be wary of using this approach to circumscribe the political arena. Instead of challenging the view that everyone might be better off if some issues were left off the political agenda, I want to focus on the question of who actually poses a threat to democracy, those who challenge the status quo or those who are willing to go to war to preserve it. 103

Justifying the Exclusion of Antidemocrats Consider the following example. Prominent political scientists and economists argue that the stability of democracy depends on the level of economic redistribution remaining between some upper bound and lower bound.32 The upper bound is the maximum level of redistribution the rich would be willing to accept before they support a coup. The lower bound is the minimum level of redistribution the poor are willing to abide. Imagine a democracy in which two parties dominate, one representing the rich and the other the poor. Officials in these two parties know more or less where the upper and lower bounds lie. They are committed to not antagonizing their rivals. Wary of one another, they enjoy the benefits of peace. Now imagine that a third party, the Proudhonists, suggests that all property is theft and it should be redistributed on a massive scale. Could the third party be sanctioned for raising the divisive issue of redistribution? Violence would ensue if the third party’s proposal were realized. Yet who would be perpetrating this violence? Presumably, the rich party. It is thus not the new party, but those who are defending the compromise, who threaten the republic. To ban the radical party under these conditions would require a fairly undemocratic act of hypocrisy. Why should the Proudhonists sacrifice their liberties in the name of mutual interest when their compatriots are unwilling to bear the same burden? If divisive issues are subject to good-faith disagreement, the proper or democratic way to defend one’s preferred policy is by winning an election. To insist that a damaging war will occur if one’s preference is not supported is merely to hold one’s fellow citizens hostage; that kind of blackmail should not be mistaken for legitimate political activity. In conclusion, when no one’s political rights have been violated, when the intolerant have not themselves restricted the political arena, democrats ought to combat those with divisive ambitions without restricting their ability to participate. Under most circumstances it is illegitimate to forge barriers to participation, yet aggressive measures can still be employed to

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Justifying the Exclusion of Antidemocrats safeguard the stability of the regime. Democrats can refuse to join political coalitions with intolerant groups. They can craft political institutions in ways that give the groups incentives to compromise with their opponents. And they can create policies, such as a regime of civic education or a civil rights bureaucracy, aimed at securing democracy against challenge. But as long as democrats require their opponents to obey laws and policies with which they adamantly disagree, democrats must defend their opponents’ right to participate. In sum, from the perspective of the self-limiting theory of militant democracy, democrats through the force of circumstance should be treated with the same respect as democrats through the force of conviction.

Conclusion In this chapter, and in the preceding one, I have outlined an approach to militant democracy centered on citizens’ basic interests in participation. In the previous chapter I discussed how democratic regimes might address the violation of democratic interests while continuing to respect antidemocrats’ right to participate. In this chapter I defended the claim that a harm- or rights-based standard is the most plausible democratic justification for militant sanctions. Taken together, the two chapters provide an account of the nature and limits of militant democracy when representative regimes do not face an existential threat. At this point it makes sense to compare the self-limiting model of militant democracy with the threat-to-democracy-based approach outlined in the 1930s by Karl Loewenstein.33 From one perspective, the self-limiting version of militant democracy is more capacious, allowing the employment of militant sanctions to counter groups that may not actually reject democracy, but nonetheless have infringed on others’ right to participate. From a different perspective, the measures that I believe can be legitimately employed to defend democracy are

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Justifying the Exclusion of Antidemocrats less radical and, in a sense, less militant than those defended by Loewenstein. This difference follows fairly predictably from our contrasting treatment of the status of antidemocrats. Loewenstein regards antidemocratic citizens as enemies to be defeated, whereas I place considerable emphasis on their legitimate democratic interests. A critic might contend that Loewenstein and I do not simply offer different approaches to militant democracy; we seem to be discussing totally different problems. Loewenstein was concerned with largescale majoritarian challenges to democratic regimes, such as the Nazi Party of the 1930s, whereas I have focused on the marginalia of militant democracy, aptly represented by my discussion of the arguably harmful but hardly regime-shaking activities of the British National Party. Were I to discuss “real” challenges to democracy, a critic might argue, the limitations imposed by the self-limiting theory would no longer appear quite so palatable. In the next chapters I illustrate why this criticism is misplaced. I explore how the self-limiting theory applies when putatively antidemocratic groups are large and pose a danger not just to the rights of others, but also to the very mechanisms that a society might use to defend itself.

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Can a Coup Be Democratic? On December 24, 1995, the Refah Party scored an impressive victory in Turkey’s parliamentary elections. Refah (Welfare), an Islamist party, won the largest share of parliamentary seats (158 of 450), and it soon formed a coalition with the center-right True Path Party. The alliance allowed Necmettin Erbakan, Refah’s leader, to take the post of prime minister in the summer of 1996. A veteran political operative, Erbakan had previously headed a party that had been banned in 1971.1 Members of Turkey’s secular establishment, including leading military officers and a significant portion of the Turkish population, viewed the ascendance of the Refah Party with suspicion. They believed the organization posed a serious threat to the secular foundation of the Turkish state. In office, Prime Minister Erbakan did not lay siege to Atatürk’s republic; but many feared that he was willing and able to do so. The new government had resisted pressure to crack down on unlicensed religious schools and spoke of instituting

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On Preventive Intervention elements of Sharia law. Moreover, Refah was suspected of targeting religious fundamentalists for recruitment, and Erbakan had publicly attempted to forge closer ties with religiously conservative regimes— such as Saudi Arabia and Iran.2 The rise of the Refah Party generated a complicated ethical and political problem. Party members had not violated anyone’s right to participate, nor was it obvious that they would do so. Yet the party’s growing political power meant that if its leaders sought to weaken democracy, they would be in a position to inflict serious harm. Moreover, Erbakan and his allies were well placed to block legislative attempts to reinforce democratic institutions. On June 19, 1997, the military took action, forcing Erbakan from office. Seven months later, the Constitutional Court banned Refah and prohibited Erbakan from participating in politics for five years.3 The praetorians of Turkey’s secular state—including its military and courts—have earned a reputation for zealously infringing on democratic practice in the name of republican principle.4 It is, accordingly, appropriate to treat their actions with suspicion. But consider the opinion of the European Court of Human Rights (ECHR). The ECHR has clashed with Turkey over the regulation of its political parties, repeatedly challenging sanctions imposed on elements of the Kurdish nationalist movement. But when the ECHR reviewed the ban of the Refah Party, it held that “Refah had the real potential to seize political power. . . . While it can be considered in the present case that Refah’s policies were dangerous for the rights and freedoms guaranteed by the Convention, the real chances that Refah would implement its program after gaining power made that danger more tangible and immediate.”5 Given the specific nature of the threat, the Court argued that it was legitimate to take extraordinary action to defend Turkey’s representative institutions. Through its nowcanonical decision, the Court made clear that the European legal community had not forgotten what I have referred to as the lesson of

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On Preventive Intervention Weimar: the idea that showing leniency to opponents of a democratic regime might lead to the collapse of that regime.

Must Democrats Wait until Antidemocrats Have Acted? In the preceding two chapters I argued that many of the grounds used to explain the banishment of political parties run afoul of democratic principle and are inconsistent with the self-limiting approach to militant democracy. The core justification for banning parties, or taking similar exclusionary action, revolves around whether the groups in question have violated the political rights of others. An implicit assumption powered those chapters: that the state could effectively respond to rights violations after the fact. But what if that assumption does not hold? In its decision the ECHR held that because Refah was a major player in Turkish politics, potentially capable of thwarting efforts to punish antidemocratic activity, a preventive ban on the party was justified. By preventive I mean action taken before a significant violation of individuals’ right to participate is imminent. In contrast, following just-war theorists, I use preemptive to refer to actions taken in response to imminent rights violations. Generally speaking, preemptive acts of self-defense are understood to be normatively similar to acts taken at the time of a rights violation. For example, if someone is just about to attack you physically, you are warranted in employing a range of defensive measures that would not be justified if the attack is not near. You may restrain or incapacitate your assailant. If the threat is not imminent, you probably should just call the police.6 In this chapter I argue that preventive party bans or preventive interventions of any sort are democratically illegitimate. By illegitimate I mean something quite specific: that those who are ostensibly acting in defense of democracy, whether they are members of a military council or a constitutional court, cannot justify that they, in particular, should throw a party out of office. In general,

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On Preventive Intervention representative democracies rely on democratic procedures to resolve the question of who should decide. But in the cases under discussion here, the likely defenders of democracy are not in a position to determine authoritatively whether a party poses a threat to democracy, and they therefore lack the right to remove a party from government. Yet in the extreme cases I discuss in this chapter, the practice of militant democracy draws close to the practice of democratic revolution. As a result, the illegitimacy of preventive interventions will not end the discussion about what should be done. When faced with a credible and comprehensive threat to a functioning, if imperfect, representative regime, it may be democratic for individuals to take illegitimate action, just as it may be democratic to act without a democratic imprimatur when rebelling against authoritarian regimes. By democratic I mean consistent with the principles of the self-limiting framework and, in particular, the idea that individuals have moral claims to participation in decisions that affect their basic or fundamental interests. For better or worse, the self-limiting model does not offer a tidy framework for resolving the question of whether democrats should take it on themselves to suspend the democratic process and remove a party from office. Instead, I show that when large parties appear likely to challenge basic democratic institutions, democrats confront a distinctive and potentially tragic dilemma. Only by acknowledging this dilemma, and only by acknowledging both the potential costs of action and inaction (the principle of democratic responsibility), can democrats manage these intricate challenges in a manner consistent with the self-limiting theory of militant democracy. My argument proceeds as follows. In the following section I outline two standard approaches to preventive interventions. The ECHR’s decision in Refah Partisi (Refah Party) v. Turkey embraced early action as a species of normal judicial oversight, justifiable along the same lines. On this view, the Turkish Court’s preventive banishment of Turkey’s largest elected party was as legitimate as the voiding of an

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On Preventive Intervention unconstitutional law. By employing this argumentative strategy, the ECHR turned its eyes from the democratic costs of preventive action. Next, summarizing a compelling critique of the Refah decision by the legal scholar Patrick Macklem, I argue that the ECHR’s argument missed the mark; preventive interventions cannot be suited up in the garb of normal court action. Macklem contends that interventions should be undertaken only once a party violates individuals’ rights or will do so imminently. If he is right, acting democratically may require us to wait until it is too late to defend democratic institutions. That may just be so much the worse for democracy. In the next section of the chapter, “A Democratic Justification of Illegitimate Action,” I outline an alternative approach to preventive intervention. Returning to the example of Adam Michnik, this defense is founded on the most basic insight of the self-limiting model of militant democracy: that the ethics of defending representative regimes parallel the ethics of establishing those regimes.7 Democratic institutions cannot be designed and established in a democratically legitimate fashion. At the inception of a representative regime, the institutions necessary for legitimate democratic decision making are, by definition, either nonexistent or not being used. The initial decisions that define the new rules of the game cannot be made using democratic procedures. As a result, those who establish new regimes will lack a right to decide for others. Yet the committed democrat still has good reason to participate in a transition to democracy. The founding of a representative regime is a clear case in which the value of securing democratic institutions trumps the costs of illegitimate action. As I show, when democracy is challenged, the same commitments that provide democrats with coherent reasons to illegitimately establish legitimate regimes provide them with reasons to safeguard those regimes. In this chapter I map a conceptual space in which democrats can defensibly act in ways they regard as illegitimate. In accordance with

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On Preventive Intervention the principle of democratic responsibility, I argue that what marks the democratic defense of democracy is the recognition that militant action incurs serious moral costs. This recognition should be reflected in the strategies democrats employ and the institutions they establish to secure their regime. The actions of neither the Turkish Constitutional Court nor the Turkish military reflected the high costs of removing an elected party from office; their efforts were inconsistent with basic democratic commitments.

The Illegitimacy of Preventive Intervention The European Court of Human Rights and Necessity Since the ECHR announced its decision in Refah, legal scholars have made the decision into a touchstone for their analyses of the legal implications of militant democracy.8 Despite its quick induction into Europe’s legal canon, the ECHR’s ruling displays a strikingly indifferent attitude to the costs of preventively removing a political party from office. The Court rightly acknowledged that banning a party and removing its members from office necessarily infringes on the right to associate, a right enshrined in article 11 of the European Convention on Human Rights. Nonetheless, it held that the infringement was justified and that the Turkish state had been justified in making it. Indeed, if the relevant conditions are met, the Court’s decision suggests, democrats should not hesitate to ban a party for actions not yet taken. This approach to preventive intervention is troubling. But to see why, we have to outline its structure. The European Court held that a preventive ban must meet three conditions to be consistent with the European Convention’s legal and democratic norms: (1) the state’s preventive actions should be authorized by existing law, (2) the ban should serve a legitimate aim, and (3) the intervention must be actually “necessary in a democratic society.”9 Defending the claim that the dissolution of Refah was 112

On Preventive Intervention necessary, the Court cited party members’ vocal support for the use of political violence and for the institutionalization of a pluralist legal system that would include elements of Sharia law; it described the Refah Party’s strong position in Parliament and cited a poll indicating that the party might dramatically strengthen its position at the next election. Making the most of this evidence, the Court determined that Refah posed a serious threat, it had the potential to carry this threat out, and it would be increasingly difficult to respond to this threat in the future. “A State,” the ECHR argued, “cannot be required to wait, before intervening, until a political party has seized power and begun to take concrete steps to implement a policy incompatible with the standards of the Convention and democracy. . . . A state may reasonably forestall the execution of such a policy which is incompatible with the Convention’s provisions, before an attempt is made to implement it through concrete steps that might prejudice civil peace and the country’s democratic regime.”10

Judicial Review: A Model for Legitimate Intervention Suppose we were persuaded by the European Court’s argument: that large, possibly antidemocratic movements warrant anticipatory responses because they pose a threat to democracy and can keep democratic institutions from responding to that threat. We would still be left with a lingering problem: the leaders of the Refah Party had been elected. The party’s strong electoral position was an essential element of the Court’s necessity-based argument for action. And by banning the party, the Turkish state not only curbed party members’ democratic rights; it voided the outcome of an ostensibly authoritative, democratic vote. To see why Refah’s electoral status affects our calculus, it will be helpful to reiterate why individuals ought to respect outcomes generated by a democratic process. Those processes derive their authority from the fact that political communities face problems that require a 113

On Preventive Intervention collective decision about what, if any, action should be taken. The definitions of these common problems and their solutions are inevitably subjects about which there is good-faith disagreement. Under these circumstances, making legitimate collective decisions requires a procedure that can be justified to each of its citizens. Democracy is such a procedure. When decisions are made through that procedure, our mutual respect gives each of us a weighty moral reason to obey a democratic decision regardless of whether the decision is ultimately correct or whether we agree with it. In other words, reasonably democratic procedures generate democratic authority.11 Critically, democratic procedures not only give us reasons to obey collective decisions; they also resolve the problem of who has a legitimate claim, or a right, to make choices for others. For example, after the 1995 election of the Refah Party, Prime Minister Erbakan could justifiably make decisions or represent voters. Turkish citizens’ obligation to respect Erbakan’s judgment was, of course, owed not to Erbakan but to their fellow citizens. By implication, the ECHR’s case for legitimate preventive intervention relies on two different but related claims: that certain threats to democracy justify a preventive act and that someone has a legitimate claim to determine when such a threat exists and, in response, to overturn a free and fair election.12 In its decision the ECHR noted that under the Turkish constitution the Constitutional Court possessed the legal right to dissolve a party and the ability to remove party members from Parliament. But for our purposes, we must determine whether the Constitutional Court has a legitimate claim to the preventive exercise of this power. Imagine that members of the Refah Party did not accept that their party threatened democracy. We should be able to explain to them why the Court had the right to make such a decision. What would be the basis for our explanation? Theories of judicial review offer an answer to this question, and I suspect that those theories outline the only credible avenue for explaining why it might be legitimate for a

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On Preventive Intervention small group of individuals to overturn democratic decisions (they are certainly the most prominent). The stock normative justification of judicial review has three elements. First, certain democratic decisions are substantively undemocratic and therefore do not command our respect. Imagine a law stripping voting rights from a minority group. The law evidently violates that group’s rights. More important, such a decision radically conflicts with our reasons for obeying the decision in the first place. Accordingly, so the argument goes, we have no moral obligation to obey it.13 Second, a specific group of individuals, generally members of a constitutional court, is able to determine reliably which democratic decisions are offensive in the way described above. If an institution could identify and overturn democratic decisions that deeply conflict with democratic commitments, then on matters falling within its expertise, we would do a better job respecting citizens’ democratic interests if we obeyed its rulings than if we always followed democratic decisions. Proponents of judicial review claim that courts are institutions of this sort. On this view, a court is like a trusted financial adviser. You follow your adviser’s advice because she is more likely than you to be right about questions concerning your financial security. You might, of course, disagree with any individual decision she makes on your behalf, but so long as you accepted her general reliability, you would nonetheless have good reason to respect her decisions. Constitutional courts, on this view, possess a special ability to identify democratically offensive democratic decisions. Accordingly, courts and similar institutions possess an instrumental form of democratic authority, and members of those institutions can legitimately overturn democratic legislation.14 The third and last element of a justification of judicial review is the virtue of simply overturning a democratic decision. When discussing legislation, we generally expect only the offending activity, the passage

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On Preventive Intervention of an antidemocratic law, to be subject to censure. Invalidating a decision is a comparatively surgical method of responding to antidemocratic action. Parties have not been banned and popular politicians have not been removed from office. In summary, normally we take judicial interventions to be legitimate when (1) the decisions that are overturned invidiously violate individuals’ rights and are therefore unauthoritative; (2) constitutional court judges have reasons to believe that they should overturn antidemocratic decisions, and affected citizens have reasons to follow their decisions; (3) the response to the rights violation creates relatively little collateral damage; supporters of the legislation can continue to defend their legitimate interest within the democratic process. The upshot of this logic is as follows: when a judge finds herself in the position to overturn antidemocratic legislation, she ought to do so, and she does so with a clear conscience. This raises the following question: Does the stock justification of judicial review apply in cases like Refah? If not, should the members of the Turkish Court simply have sat on their hands?

The Limits of Judicial Legitimacy To get at these questions, I want to examine briefly Patrick Macklem’s critique of the ECHR’s decision, entitled “Militant Democracy, Legal Pluralism, and the Paradox of Self-Determination.” Macklem’s essay exposes basic flaws in the ECHR’s decision; the force of his critique, I believe, shows why the just-described instrumental justification of judicial review does not cover preventive removal of a party from office. The persuasiveness of the European judges’ ruling depends on their ability to draw an equivalence between democratic activity that might threaten a regime’s stability and activity that actually infringes on individuals’ equal claim to participation, such as legislation disenfranchising a segment of the population. Macklem rejects this 116

On Preventive Intervention equivalence: “Until it becomes policy,” he argues, “a radical political agenda—whether advanced by an individual or a political party— represents freedom of expression and association in action. The traditional democratic approach to such an agenda is to determine its constitutionality when it begins to conflict with the rights of others. In the absence of accompanying violence or criminal activity, there is no legal conflict until the party comes to power and begins to introduce legislation or policies or otherwise engages in actions that represent the realization of such an agenda.”15 From Macklem’s perspective, and from the perspective of the framework of principles I have defended in this book, democratic participation is especially valuable, worthy of special forms of respect. Political activity, even when immoral, is owed considerable latitude. Accordingly, though they are both outcomes of democratic procedures, the election of the Refah Party does not occupy the same insecure moral terrain as the passage of an unauthoritative, antidemocratic law. Macklem also kicks out a second leg of the justification of preventive intervention: judges’ capacity for making the evaluations required to justify preventive action—that is, judges’ instrumental authority. A substantial causal distance separates a group successfully undermining democracy and a few members of a party advocating for a substantial relaxation of the barrier between church and state. The breadth of this causal gap raises a challenging question: Is it wise to allow the Refah Party to take power, though it may eventually threaten Turkish democracy? Arguments based on judicial expertise cannot easily be extended to this type of question; the Court’s authority is grounded in its putative ability to identify laws that sharply conflict with democratic commitments, not to unravel the mystery of whether the Refah Party would ultimately undermine Turkish democracy. “Assessing the imminent level of a threat to democracy,” Macklem rightly contends, “is a complex endeavor not simply because events are too scarce to calculate the probability and extent of harm but also

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On Preventive Intervention because a single event or action typically does not tend to produce democratic deterioration.”16 Taken together, the wide berth owed political participation and the difficulty of establishing instrumental authority in these kinds of cases mean that removing an elected political party from office is not akin to invalidating an unconstitutional law. The Turkish Court, and others in the same position, simply lack the right to overturn the outcome of a fair election on the basis of a speculative threat. Macklem’s critique indicates why preventive intervention is democratically illegitimate. Yet he doesn’t suggest that democrats should passively stand by while democracy is undermined. A state should intervene and remove a party, he argues, if democratic institutions face a demonstrably immediate and total threat.17 But until it possesses evidence of the imminent failure of democracy, the state ought to rely on “existing constitutional measures”—that is, judicial review of legislation. Democrats, on this view, should keep their hands clean; by waiting until a threat to democracy is both clear and present, they can do so.

When Clean Hands Are Not Enough Macklem’s critical evaluation of the ECHR’s decision is persuasive. Nevertheless, there is something too simple, too neat, about his proposed solution to the dilemma faced by Refah’s opponents. In his view, democrats can move only when a party is on the verge of toppling a regime. But effective action at that late date might be extraordinarily difficult. As I noted in the introduction, inattention to the challenges of responding to large antidemocratic movements stems from an abiding faith in the effective or de facto authority of the judicial system. If one assumes that political figures will always obey judges, the perceived necessity of preventive action weakens and withers away. If antidemocratic legislation can always be overturned or if parties can always be removed from parliament, then 118

On Preventive Intervention it would be practically and normatively unproblematic to hold off intervening until an antidemocratic party was about to enact its program. But the ECHR’s decision was motivated, in part, by a different and I believe more realistic assumption: as antidemocratic parties gain in power, it will be more difficult for the normal institutions of constitutional government to defend the integrity of the regime. Had the Turkish Court waited until the threat from Refah was indisputable, the party’s status and power might have allowed its leaders to ignore the Constitutional Court, alter the body’s membership, or change the constitution itself. For the ECHR, if Refah had intended to demolish Turkey’s political system, its ascension to the commanding heights of the Turkish government would have been irreversible through normal constitutional means. The implication here is not that the Turkish Court had a right to intervene, but that by insisting that states wait until a threat has come to fruition, Macklem has undersold the challenges posed by large, possibly antidemocratic parties. There is a second troubling element in Macklem’s approach to the problem of antidemocratic movements. Like the work of Thomas Christiano, whose arguments I explored in chapter 3, Macklem’s essay is narrowly focused on the harm caused by antidemocratic legislation (or similar action). Yet antidemocratic organizations can also undermine the democratic system by refusing to implement laws and undertaking sustained programs of institutional intransigence. Intransigence and obstructionism are the primeval methods of the antidemocrat. At the inception of representative government, for example, zealous monarchs would maintain their political autonomy and thwart assertive oppositions simply by refusing to call parliaments into session. Indeed, the fears of Refah’s opponents were partly stoked by the party’s perceived unwillingness to enforce Turkey’s laws—specifically, rules related to Turkey’s strict state

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On Preventive Intervention secularism. Similarly, during America’s Reconstruction, Northern Republicans excluded Southern representatives from Congress because they feared that Southern legislators would block federal efforts to secure democracy in the South. Preventing the state from acting and frustrating the basic mechanisms of a government can pose a serious threat to constitutional democracy, and Macklem’s argument does not account for the destructive power of such obstinacy and intransigence. We have arrived at something of an impasse. Macklem rightly claims that the removal of a political party from office before it has violated anyone’s rights cannot be treated as a species of judicial review. It would be democratically illegitimate for a group of judges to overturn the outcome of a free and fair election that did not clearly contravene democratic principles. Yet even if the solution the ECHR proposed was defective, the risks associated with waiting until a threat is imminent are real enough. One coherent response to this impasse would be the following: (1) there are solid reasons for respecting individuals’ right to participate; (2) we cannot legitimately infringe on those rights unless citizens have attempted to violate the rights of others; (3) if we illegitimately exclude individuals from the political process, we harm and wrong them; (4) accordingly, we must not intervene until clearly antidemocratic action has been taken (or is just about to be taken), even if our patience increases the likelihood of democratic failure. This position boasts a powerful, if slightly unnerving, simplicity—“We have only one option: we must not act.” In the next section of this chapter, however, I challenge the intuitive claim that because preventive intervention is democratically illegitimate, democrats should never intervene. I return again to the example of those who struggle for democracy in nondemocratic regimes. And I illustrate that there is a subset of actions that affect the entire political community and that democrats cannot legitimately

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On Preventive Intervention undertake, but that is nonetheless consistent with the self-limiting framework. By critically reconstructing why illegitimate action can be democratic before representative institutions are established, I demonstrate that under certain limited circumstances, preventive intervention can also be democratic after representative institutions have been established.

A Democratic Justification of Illegitimate Action Democrats in Nondemocratic Regimes In nondemocratic regimes the institutions necessary to make authoritative decisions do not exist or cannot be used.18 Despite this reality, some individuals still regard themselves as democrats; they are democratic rebels. Not surprisingly, the ideal type I develop is informed by the writings and actions of a rebel whose ideas form the foundation of the self-limiting model—Adam Michnik.19 Democratic rebels reject the government that exercises power over them. Yet as democrats they deny the authority of all nondemocratic regimes. Just like their democratic counterparts in legitimate regimes, the rebels respect systems based on “pluralism and authentic selfgovernment.”20 Michnik was once asked whether he would have preferred to live under the Chilean dictator Augusto Pinochet instead of the Polish Communist Party leader General Wojciech Jaruzelski. Expressing his commitment to democracy per se, Michnik replied: “If forced to choose between General Jaruzelski and General Pinochet, I would choose Marlene Dietrich. The alternative is absurd and irrational. It offers me the choice, as I fight for democracy in a dictatorial system, of sitting in prison either as a Communist or as an anti-Communist.”21 Not only do some individuals consider themselves democrats when participation in a democratic process is impossible; often enough they also recognize and even take pleasure in this seemingly romantic 121

On Preventive Intervention element of their identity. In a 1987 interview with Daniel CohnBendit, Michnik noted that “all the people in the know told us we were dreaming: ‘You are doing something that is impossible. There is no opposition in communism.’ We answered that this opposition existed despite this impossibility.”22 Michnik’s claim powerfully captures the rebel’s idealistic position. One regards oneself as a democrat even though one cannot participate in activities we closely associate with legitimate decision making. One cannot run in a fair election, criticize the government without fear of reprisal, or obey a decision one disagrees with for democratic reasons.

Democratic Action in Authoritarian Regimes: Democracy as an End Being a democrat is not merely a state of mind. In authoritarian systems, democratic partisans actualize a belief in self-government by struggling for democracy. Challenging an autocratic system, of course, requires democrats to conceal their activities and work within hierarchical organizations. Yet they can still shape their efforts in recognizably democratic ways.23 For instance, a democrat can establish institutions that are independent of the state. She might publicize her objections to the government and its policies; she might protest the authorities and even participate in an undemocratic election. Especially democratic oppositions often aim not only to change a regime, but also to establish an autonomous political culture. “The democratic opposition,” Michnik argued, “must be constantly and incessantly visible in public life, must create political facts by organizing mass actions, must formulate alternative programs. Everything else is an illusion.”24 Truly democratic organizations will be marked by relatively open attitudes about the work of rival opposition groups. Accepting incipient forms of political pluralism and rivalry, even at the cost of political effectiveness, demonstrates an exceptionally strong commitment to democratic principles. Nondemocrats also attempt 122

On Preventive Intervention to overthrow authoritarian governments, yet they fight so that their organizations and only their organizations can dominate the state. Democratic rebels can also be identified by their limited aim: to establish a pluralist order. The diverse elements of democratic rebellion share a common characteristic: what the rebel aims to achieve is not a new society, but a more democratic one. The democrat’s ultimate aim is not to defeat her enemies, but to incorporate them as equals in a legitimate polity. In more prosaic terms, to be a democrat is to value a state of affairs in which legitimate decision making is possible. By definition, a democrat will be persuaded that a system defined by the right to participate is preferable to a system that is not. A rebel’s efforts therefore logically follow from a commitment to representative government; her actions are reasonably aimed at achieving a goal she values. Though she cannot act in accordance with democratic procedures, she seeks to realize democracy as an end. In this important respect her actions are democratic; they are consistent with individuals’ equal moral interests in political participation. Still, that it is reasonable to pursue democratic institutions when living in a nondemocracy does not resolve our problem: Can it be consistent with the participatory principle, with citizens’ claims to participation, to take illegitimate action? Democratic action in authoritarian regimes has the same relation to the preventive banning of political parties as more familiar efforts to democratize civil societies, workplaces, or personal relationships.25 These activities extend beyond mere decision making and create the conditions for legitimate collective action. Yet building a more democratic society is not akin to imposing representative institutions on one’s political community. More work needs to be done to show why it might be democratic for a rebel to participate in the establishment of a representative regime or for a court to ban a party preventively.

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On Preventive Intervention Democratic Foundings without Democratic Legitimacy Suppose that our rebel succeeds in building a plausibly democratic opposition organization. Suppose further that the regime begins to weaken.26 In moments of political transition, the leaders of the opposition frequently have to make critical decisions about the new rules of the game or the processes, such as constitutional conventions, that will define the emergent system. These decisions are open to substantial good-faith disagreement, and they have lasting import, shaping the future of young democracies and frequently cementing who will be the political and economic winners under the new order. In other words, these are precisely the kinds of collective decisions that require the legitimacy of democratic procedures.27 In reality these decisions are often negotiated among elites, including representatives of the outgoing government. Pacts, round tables, and secret negotiations are nearly ubiquitous elements of political transitions. They are the concrete evidence of the difficulty democrats would face if they wanted to establish a legitimate form of government through legitimate procedures. The barriers to a fully democratic transition arise from both practical and logical sources. Logically, the rebel faces the problem of regress. To make a legitimate collective decision requires us to establish a set of constitutive rules—for example, rules for aggregating votes. There are a number of reasonably democratic ways of counting votes, but we cannot select those rules democratically.28 To do so would require us to have already determined how to decide on the constitutive rules. Yet to decide those rules democratically would require us to have already selected a prior set of rules and so on. Nor can we resolve this problem by assuming the existence of an acceptable and salient democratic decision procedure, such as majority rule. Even if we spontaneously agreed on such a rule, determining which question to begin with—Should we establish a democracy? Should we elect Lech as our president?—could not be determined by means of 124

On Preventive Intervention democratic procedures. Thus, even in a scenario in which the ancien régime simply crumbles, democratic rules will, in an important sense, be imposed. Practically, limitations of time, political opportunity, and collective action restrict the possibility of a wholly democratic transition to democracy. Representative institutions are unlikely to arise through spontaneous joint action because those institutions are a public good.29 They are joint in supply (making them available to some means making them generally available) and nonexcludable (they allow more people to participate in the political process). Accordingly, individual supporters of a transition to democracy will have an incentive to free ride on the activity of others. Creating democracy frequently requires the sustained effort of a smaller group of unelected individuals whose decisions will often determine the fate of an uncertain transition. Defending the work of the American constitutional convention, James Madison reflected on this very problem: “It is impossible for the people spontaneously and universally, to move in concert towards their object [a new constitution]; and it is therefore essential, that such changes be instituted by some informal and unauthorized propositions, made by some patriotic and respectable citizens or number of citizens” (italics in original).30 Charles Tilly once wrote that “democracy is a lake.”31 The metaphor refers to the multiple causal sources of democracy. If I am correct, few, if any, of those sources are democratically legitimate; the individuals who shepherd the establishment of democratic institutions will lack the right to do so. Rebel leaders might be rightly regarded as moral or political authorities, but they cannot answer why they, above all others, should decide the new rules of the game. The work of rebels and activists, as Michael Walzer observes, is a “version of virtual representation and shares the same difficulties and dangers.” When rebels call for a general strike, organize a blockade of the capital’s main square, or enter into negotiations with the regime, they

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On Preventive Intervention forge decisions and speak on behalf of their fellow citizens even though “they are rarely authorized to speak or act on behalf of anyone.”32 In these circumstances, the democratic rebel may be sure that it is legitimate to take some collective action in the name of democracy. Yet without the benediction of democratic procedures, she will lack the right to decide what that action should be. Those who disagree with her choices have no democratic reason to respect her orders. When democrats establish democracy, they engage in a significant and procedurally illegitimate imposition.33

Democratic Reasons to Act Illegitimately When an authoritarian regime begins to collapse, the leaders of the democratic opposition face a choice. Lacking a right to decide for others, they can refrain from taking part in the final efforts to polish the regime off. There is a democratic price to establishing a new political system: most individuals will not have the opportunity to participate in the design of institutions that will significantly affect their well-being. These are the sunk costs of democratic revolution, incurred whether or not democrats participate in the transition process. But in light of these costs, democrats might wait for someone else to undertake the sometimes sordid work of establishing representative institutions; perhaps the leaders of the outgoing government or members of another group will step into the breach. Democracy would still not have been established through a legitimate process, but at least the democrats would not be responsible for undertaking any illegitimate efforts themselves. Alternatively, rebels can decide to participate in a procedurally illegitimate effort to fashion representative institutions. This is what I believe democrats should do; the prospect of taking illegitimate action should not keep them from founding a democracy. Democratic rebels have sought to establish a new regime, sometimes at great personal risk. They have taken these risks because democracy, or rather 126

On Preventive Intervention polyarchy, allows individuals to satisfy their interests in participation and, as a result, is a distinctly valuable end. By imposing institutions, democrats achieve this end. Moreover, in doing so, rebels drastically reduce the need for further acts of imposition and give their opponents a political avenue for defending their interests—that is, the democratic process itself. Finally, and more practically, by actively participating in the design and implementation of a representative form of government, by advocating in behalf of fairer or more legitimate institutions, democrats probably increase the likelihood that the new regime’s institutions will actually instantiate individuals’ right to participate. In sum, the high value of actually existing representative institutions warrants an illegitimate course. Democratic foundings are instances in which illegitimate actions are democratic.

Defending the Illegitimate Defense of Democracy I have argued that (1) democrats exist in authoritarian regimes, (2) democracy constitutes an end for those democrats, (3) democracies are not established democratically, and (4) illegitimate action to establish a democracy is consistent with the right to participate. To show that one should not take illegitimate action to defend democracy, a skeptic would need to construct a conceptual firewall between the normative worlds of authoritarianism and democracy. That skeptic would surely argue that in polyarchies individuals can act through the normal mechanisms of representative democracy; because they can, they must do so. In contrast to establishing democracy, defending it requires one to intervene actively in the democratic process; one displaces the authoritative decision of others and neglects an obligation to obey. Whereas before no collective action was procedurally legitimate, now all such action must be.34 To be sure, transitions to democracy are normatively significant events. The everyday politics of democracy should not be confused with the politics of creating a democracy. Still, we have two reasons to 127

On Preventive Intervention reject the skeptic’s Manichaean worldview. First, the establishment of democratic institutions does not revolutionize a democrat’s principles. In authoritarian regimes, democrats regard democracy as both a means and an end, as a way of making decisions and as a goal to be reached. The same is true of democrats in a polyarchy. That our reasons for seeking a legitimate form of government are durable and withstand political transitions is, of course, not a novel idea. It was apparent to John Locke, who concluded that if it made sense to pursue legitimate government, it made sense to defend it. What the establishment of democratic institutions affects is how one manifests a commitment to democracy. After a transition, if a person is persuaded that the representative process is in some way lacking, she might take steps to improve the system. She might commit her time and money to struggle for increased election oversight or for a more democratic system of judicial review. Indeed, she might even take actions that give priority to democracy over other valued ends. Once representative institutions have been created, a democrat remains committed to democracy above other forms of government. She treats both the development of democratic institutions and the survival of those institutions as reasons for action. She remains, in other words, “a partisan for democracy.”35 The second reason we should reject the skeptic’s claims is that transitions to democracy are never realistically complete. The political transition gripping Egypt as this book is being completed powerfully testifies to this less-than-ideal reality. Though Hosni Mubarak no longer holds power, the military he led continues to wield outsize influence, and the Muslim Brotherhood, the most prominent opposition organization under his rule, has maintained its position as the dominant popular organization under the new dispensation. These groups and the decisions they make in designing Egypt’s constitution will define Egyptian politics well into the future. And Egypt is no special case. The political institutions, parties, laws,

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On Preventive Intervention economic systems, and power structures inherited from the preceding order frequently define new regimes. Elements of nondemocratic politics are not simply remnants or artifacts of some predemocratic past. They are intimate, common components of democratic politics.36 Finally, in real-world democracies, especially those that have recently transitioned from authoritarianism, the status of democracy itself is often the subject of debate and even violent struggle.37 All democratic regimes include members who prefer other forms of government. As the Czechslovakian scholar-president Thomas Masaryk argued in 1939, “A newborn democratic State has its difficulties, in that, eo ipso, it has to deal with men of both the old and new regimes.”38 In rare cases those who oppose democracy may block representative institutions or disenfranchise minorities. In Michnik’s words, “Radical movements—whether under red or black banners— gladly use the procedures and institutions of democracy to obliterate it.”39 The persistence of nondemocratic politics implies not only that individuals have the opportunity to make their regime more democratic; it implies, as well, that rare situations will emerge in which one’s commitment to democracy as an existing set of institutions will radically conflict with one’s commitment to democracy as a method of legitimate decision making. Examining the founding of democracies, I outlined a set of conditions in which, paradoxically, the democratic thing to do is to act illegitimately. The typical strategy for identifying when these conditions arise is to focus on the life cycle of a democracy—that is, we can ask whether an intervention will inaugurate a new regime. In The Social Contract, for example, Rousseau famously invoked the idea of a lawgiver who, at the moment of a society’s founding, would bestow just political institutions on its thereafter-self-governing citizens.40 A less ad hoc strategy would require us to consider why founding moments are appropriate sites of illegitimate action. Two conditions

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On Preventive Intervention stand out. The first is the value of the end that can be achieved: the de facto authority of legitimate institutions. Periods when parties threaten those institutions, when democracy itself is at stake, share this condition. The second condition is the effective inability of democrats to resort to democratic procedures when establishing a new constitution. By implication, if democrats can respond to a suspect party through the democratic process, they must do so. Democratic groups might challenge their opponents by building coalitions, both inside and outside parliament. They can take to the streets and attempt to overturn particular policies through the courts. Finally, they can try to unseat the party at the next election. Of course, a strategy of democratic opposition may not yield success. But as long as these modes of contestation are not threatened, the rebel’s reasons for undertaking illegitimate action do not apply. Preventive action would be undemocratic. The situation differs if there is good reason to believe that a party poses a comprehensive threat to the basic mechanisms of representative government. By a comprehensive threat I mean that a group has the capacity and intent to block democratic challenges in the present and shut down normal avenues of democratic opposition in the future. This definition has two elements: capacity and intent. A dominant position within a country’s main political institutions—such as a national legislature—or a position that would allow a party independently to keep the state from acting would constitute evidence of this capacity. So too would credible evidence that the organization in question will maintain or increase its position in the future. At the time it was removed from office, Refah did not possess a majority in parliament, holding just over a third of the seats in the body. Its position running the Turkish government depended on the legislative support of the moderate True Path Party; unlike the Turkish military, True Path could have removed Erbakan from power

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On Preventive Intervention simply by shifting its allegiance away from its coalition partner. Finally, the influence of Turkey’s military, whose leaders rarely shied from making their distaste for Refah public, would also have served as a check on the party. All this meant that Refah simply lacked the capacity to unwind Turkey’s constitution. Yet the European Court paid little attention to these constraints. In ruling against the party, it relied on a poll indicating that the party would gain in influence at the next election. A single poll would, in general, not be sufficient to establish confidence about the outcome of a competitive electoral contest, and this one should not have been considered a sufficient basis for banning a party. Capacity is one element of a comprehensive threat; intent is the other. The reason to consider intent is that groups or individuals with a capacity to undermine democratic institutions may lack an incentive or desire to do so. In Great Britain, where the legal authority of Parliament is theoretically unlimited, essentially any parliamentary majority possesses the legal capacity to destroy key elements of Britain’s representative democracy. On May 1, 1997, the Labour Party, under the leadership of Tony Blair, won 418 of 659 seats in Parliament, thus controlling more than 63 percent of the seats in the chamber. Labour’s rise caused some to worry about the future of Thatcherite reforms. Few worried that Labour would institute a dictatorship. Tony Blair, for all his flaws, never evinced the desire to become a despot. Moreover, built to win elections, not street fights, the Labour Party was more likely to accumulate and maintain influence in a democracy than in a nondemocracy. In other words, despite his considerable power, any case for removing Blair from office would have run up against the fact that there was no reason to think he intended to demolish British democracy. What would constitute evidence that a particular party wanted to undermine a regime? Recent statements or other compelling proofs demonstrating that leading figures within a political organization,

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On Preventive Intervention collectively, had a strong preference for nondemocracy and a plan for achieving it would qualify. Making the case that entire parties ought to be banned, ostensible defenders of democracy often cite the disturbing statements of fringe activists. Strategies of this sort will be overinclusive, branding parties as degenerate when they pose no threat to the political system. Beyond explicit evidence of a preference for nondemocracy, the past behavior of the party leaders in question, showing their respect or lack of respect for the law and the institutional limits on their power when in office, can shed light on their intentions. Finally, defenders of democracy should consider whether the parties in question are developing techniques for maintaining power once democracy is undermined—does the party, for example, possess a militia? In rare cases there will be evidence that a party possesses both the ability and the desire to undermine democracy, and democrats may judge that there is no procedurally legitimate way to remove the party. As in the case of the rebel, the status of democratic institutions may depend on individuals’ willingness to act without the imprimatur of democratic procedures. Under these circumstances, a democrat can recognize that a party was duly elected and still take it on herself to change the state’s policy illegitimately. The claim that it can be democratic to overturn the outcome of a democratic election ought to make the reader uneasy; the import of acknowledging both that unease and the uncertainty at its root is a key feature, rather than a flaw, of the approach I have outlined in both this chapter and this book. In the next section I will address two potential sources of such unease. But I believe that we ought to be doubly skeptical of theories, such as the one advanced by the European Court of Human Rights, that paper over these profound difficulties by equating the removal of a political party from power by the military with familiar and unexceptional political practices, such as judicial review. The defense of democracy is morally and politically problematic. And

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On Preventive Intervention I have argued that any truly democratic defense of democracy will reflect the normative costs and risks such actions entail. Only by acknowledging sources of our disquiet can we possibly hope to identify policies and institutions that will minimize the dangers inherent in militant democracy.

A Democratic Approach to Preventive Intervention In this section I address two concerns likely to have been raised by the preceding argument. First, one might be concerned that, by shifting away from the standard that interventions should be undertaken only after individuals’ rights have been violated, I have rationalized the wholesale reversal of democratic elections. Second, one might question the equivalence I have drawn between a democratic revolution, when individuals’ ability to make good on their participatory rights is expanded, and a scenario in which rights are illegitimately restricted in the name of a still-putative threat.

Unlimited Intervention What binds individuals to obey democratic decisions if they can intervene even when it is illegitimate to do so? Does this approach to illegitimate intervention rationalize the indiscriminate banning of political parties? I have defended the claim that democrats should view the existence of democratic institutions as an important reason for action, but they ought nonetheless to recognize that intervening, and thereby excluding citizens with claims to participation, carries a serious moral cost. When a democrat preventively intervenes, she treads on interests that are indefeasible and she excludes others. She understands herself to have wronged them. A distinction drawn by Michael Walzer may help us grapple with this state of affairs: “An excuse is typically an admission of fault; a justification is typically a denial of fault and an assertion of innocence.”41 After preventively 133

On Preventive Intervention intervening, a democrat can explain or excuse her actions, but because she lacks the right to decide for others, her intervention cannot be justified. The self-limiting approach to preventive action will therefore be less permissive than that defended by the ECHR. The ECHR found that the Turkish Court’s ban on the Refah Party was justified and legitimate even though the party had not violated anyone’s right to participate. Recall that for both the ECHR and the Turkish Constitutional Court, intervention was substantially justified by the threat the Refah Party posed to Turkey’s strictly secular political system. Even if we allow that a shift away from secularism amounts to a shift in an antidemocratic direction, the Turkish state could have become considerably less secular and still have remained a functioning and even admirable polyarchy. Efforts to allow women to wear religious garb in public universities, or even to establish Islamic courts for the regulation of marriage rites, would not warrant the preventive removal of a party from government according to the model I have developed in this book. In these cases, an intervention would be inconsistent with the principle of democratic responsibility: preventive intervention would be neither the least costly nor the least restrictive method of meeting the challenge posed by the Refah Party. More generally, a democrat would not seriously consider intervening if she believed a party merely had the intention and ability to move a regime further away from the democratic ideal. For instance, preventive intervention would not be warranted if a party threatened to pass a law granting corporations many of the same political liberties as individuals. Reasonable people might not consider such a law undemocratic. More significantly, even if successful, the proponents of this corporation-friendly policy would not be in a position to choke off later efforts to counter the measure; the policy could still be changed after the next election or challenged through the courts.

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On Preventive Intervention Because undertaking preventive action is both morally costly and illegitimate, it will be permissible to act before a threat has fully materialized and to take it on oneself to decide for the community only when doing so appears to be the best way to avoid disastrous outcomes, outcomes that are deeply inconsistent with the respect owed a polity’s citizens. A central aim of this chapter has been to identify one such exception; using the example of the democratic rebel, I have argued that a democrat may preventively intervene when she judges there to be a comprehensive threat to representative institutions. A final comparison may further assuage the reader’s concern. Defenders of civil disobedience claim that if an individual believes that a policy is sufficiently unjust, undemocratic, or ill advised, then that individual can reasonably take it upon herself to disobey the policy. Of course, a citizen’s moral liberty to decide which laws ought to be obeyed does not thereby imply that she might reasonably disobey any law. The same logic holds here. There are circumstances in which it makes sense to intervene illegitimately, but those circumstances are far from unlimited.

The Cost of Militant Interventions The parallel I have drawn between establishing democracy illegitimately and defending it illegitimately may strike some readers as ill considered. When political leaders define the contours of a new representative regime, those who are excluded from that process may have reason to complain that their interests have been sacrificed in the name of democracy. Yet after a transition, of course, the excluded will have the ability to participate; in democratic terms, even the interests of those who did not participate in the writing of the constitution are more secure in the new democracy than under the former regime. By contrast, in cases where preventive action has been taken, it would be difficult to persuade the excluded that they are better off. Accordingly, we confront the following question: How can efforts to secure 135

On Preventive Intervention democratic institutions by limiting the rights of the few be defended? I believe the answer lies in how democrats respond to the moral cost of an intervention. A comparison with the right to kill in self-defense may help us. Generally speaking, we are appalled at the idea of killing anyone unless two conditions have been met. (I leave aside the complicated ethics of punishment, the morality of the death penalty, and the rules of war.) First, the attacker must be “morally liable”—that is, the attacker must be in the midst of attacking you with something approaching deadly force or its moral equivalent, such as torture.42 Second, the only way to stop the attack must be through deadly force. These are strict rules. They apply to killing in self-defense because the right to life deserves the utmost respect. Simply put, it is difficult to advance any important interests if one is dead, and it is just as difficult to successfully compensate those who have been killed in error.43 The premise of this entire work is that the right to participate, and the interests that ground that right, are of considerable import. But the right to participate is not equivalent to the right to life. When a party is banned from office, its members can form another party and continue to play a role in the political arena. Moreover, a polity can make amends and compensate those whose ability to participate has been illegitimately restricted; the harm to the passive and active interests of the affected can be alleviated. The strictures on preventive militant action need not be as tight as those regulating preventive selfdefense. But by implication, for militant action to be defensible, to be consistent with the self-limiting framework, democrats have a responsibility to recognize and make good on the harm they cause. In cases in which preventive measures are employed, this duty holds with special weight. A democrat’s efforts to make amends for illegitimate projects will observably distinguish her attempts to defend democracy. If formal efforts to make good on the costs of a preventive

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On Preventive Intervention intervention are not undertaken, then ostensible attempts to protect democracy are merely that, ostensible. A democrat’s recognition of the illegitimacy and the costs of militant interventions should take two forms: a reluctance to undertake the project and a form of responsibility after having participated in the effort. By reluctance I mean a disinclination to decide for others or to infringe on their political rights. By responsibility I mean a democrat’s obligation to publicly acknowledge and repair the damage caused by an illegitimate act of intervention.44

Before an Intervention How might democrats acknowledge the illegitimacy of preventive action and the cost to those affected before an intervention occurs? In keeping with my broader strategy, instead of outlining specific institutional answers to this question, answers that would require empirical research beyond the ambit of this work, I will outline a set of principled criteria that any defensible institutional setup ought, at a minimum, to meet. First, intervention is defensible only when the basic effectiveness of representative institutions is at issue and when the party in question appears intent on incapacitating those institutions. But the failure of democratic institutions need not be certain and imminent. Instead, preventive action is warranted when there is the real likelihood that antidemocrats will attain a position that allows them to thwart or ignore normal democratic and legal mechanisms. Defenders of democracy must possess credible evidence that these conditions are met. Second, democrats should not deny the possibility of an unnecessary intervention. “Because the harm to be averted is speculative,” Allen Buchanan has observed with respect to preventive wars, “there are ample opportunities for honest mistakes in prediction, bias in the interpretation of evidence and hence in estimating both the 137

On Preventive Intervention magnitude and the probability of the anticipated harm, and hence for self-deception as well as deception of others.”45 Evidence that a party actually poses a threat should be open to public scrutiny, and the party in question should have a real opportunity to challenge its validity, whether in a national or international forum. But even if an independent body such as a court or electoral commission finds that the criteria for intervention have been met, preventive intervention remains democratically illegitimate. Finally, those who advocate for preventive intervention, in particular leaders of rival parties, must commit to and accept a process of review that will hold them accountable for their decisions. This post hoc review should include the possibility of sanctioning those who invidiously press for preventive intervention. Officials who undertake preventive interventions should have some skin in the game.46

In the Aftermath of an Intervention Democrats may preventively drive an antidemocratic party out of parliament. But as Prime Minister Erbakan argued on the day he was forced from office, defenders of democracy “cannot order a large part of the people not to exist.”47 Even if the excluded oppose democracy, they retain basic interests in participation, and their inability to participate will steal legitimacy from representative institutions. After a preventive action has been taken, every effort must be made to fully reincorporate the excluded. A series of secondary obligations arises from militant democrats’ duty to bring the excluded back in. Any conditions on readmission, such as a requirement that a party forfeit its weapons, must be made public. And independent authorities, such as courts, ought to have the power to judge whether the conditions have been met. In the streets, in print, or on the web, supporters of the groups harmed by an intervention will inevitably seek to protest against the action. Critical opposition to militant policies must be allowed, even welcomed; this 138

On Preventive Intervention is a key way in which democrats can signal that their ultimate aim is not to silence or ostracize their enemies, but to incorporate them as equals in a legitimate polity. Individuals who participate in efforts to secure democracy frequently attempt to cloak the undemocratic features of their intervention behind post hoc claims to legal authority. In Turkey the Constitutional Court provided legal cover to the military after the generals forced Erbakan from power. Democrats should not seek post hoc absolution for militant action. As I argued above, those who have led militant efforts should submit their actions to an independent review process, a process that forces them to acknowledge and explain the steps they have taken. On the one hand, the specter of this process increases the ex ante likelihood that an intervention will be undertaken for the right reasons; on the other hand, submitting oneself to a review process is consistent with the idea that even a defensible intervention remains illegitimate. In sum, truly democratic policies will convey a distinctive ambivalence—ambivalence not about the value of democracy, but about the value of preventive intervention.

Conclusion In his essay “Notes of a Native Son,” James Baldwin uses the metaphor of gangrene to represent the debilitating but unavoidable feelings of hate that racism inspires. Baldwin outlines the fateful stakes of deciding whether to amputate a limb threatened by a creeping death: “One is always in the position of having to decide between amputation and gangrene. Amputation is swift but time may prove that amputation was not necessary—or one may delay the amputation too long. Gangrene is slow, but it is impossible to be sure that one is reading one’s symptoms right. The idea of going through life as a cripple is more than one can bear, and equally unbearable is the risk of swelling up slowly, in agony, with poison.”48 Like Baldwin, the

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On Preventive Intervention democrat faces a tragic dilemma. She must either limit the arena of politics—she must perform an amputation—or allow the spread of some kind of gangrenous threat to democracy. Like Baldwin, the democrat confronts the question of whether a potential threat, minor now, will spread so that preventive action is impossible in the future. To wait risks the dissolution of democracy; to act precipitously risks a McCarthyite mutilation of one’s own regime. I have argued that a democrat can recognize this dilemma without shedding her principles. She can preventively intervene when this appears to be the only way to preserve a legitimate regime. Yet the toughest theoretical questions about popular threats to democracy revolve not only around when we should defend popular regimes, but also around how we should do so and what we will define as success. Preventive efforts will be worthwhile only if the sum and the substance of those projects reflect the basic illegitimacy of democratic vanguardism. Throughout this work I have questioned the assumption that judicial institutions possess the effective ability to counter antidemocratic movements when they are in a position to pass antidemocratic legislation. Yet the normative analysis offered in this chapter also depends on an empirical assumption: that groups whose rights have been infringed on can be rapidly reincorporated into the political community. Some antidemocratic movements cannot be easily reinserted into the democratic fold; doing so would place representative institutions in the same precarious position that the intervention was intended to remedy. Perhaps the extremist group in question has continued to use the means at its disposal to destabilize the regime or to violate other citizens’ equal right to participate. In such cases longer-lasting and more drastic forms of political exclusion may be required to defend representative institutions. But could such clearly antidemocratic measures plausibly be consistent with democratic norms? This is the question I address in the next chapter.

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six

Political Exclusion and the Limits of Militant Democracy

“A Blight and a Curse upon This Nation” On February 7, 1866, William Pitt Fessenden, a leading Republican senator from Maine, stepped onto the floor of the Senate and outlined the political facts of the day: “We have had a great war. That war has resulted in overthrowing an institution of the States, one that had been a blight and a curse upon this nation from its very foundation.” With victory in the Civil War, the North had ended slavery. Yet though the Confederacy had been demolished, Southerners still posed a threat to the republic. And if the federal government failed to guarantee the political rights of the former slaves, the outcome would be clear: “So far as the power exists in the States,” Senator Fessenden explained, “it would be exercised to deny all political rights to those who have heretofore been considered unfit and not in a condition to exercise them.”1 To secure a legitimate form of government, the Congress inaugurated a program known as Reconstruction.2 Reconstruction lasted

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Political Exclusion from 1863 until 1877. During this period Congress crafted a host of undemocratic policies. On December 4, 1865, representatives of ten of the eleven states of the former Confederacy were excluded from both the House and the Senate (Tennessee had already been readmitted). The citizens of Georgia, the last state to regain full rights, would have no influence over the legislative branch for more than five years. In March 1867, in response to Southern opposition to the Fourteenth Amendment, the federal government split the South into five military occupation zones. Each state was forced to rewrite its constitution and ratify the Fourteenth Amendment. Southern whites could attend their state’s constitutional conventions only if they swore an oath of loyalty to the United States. The Congress suspended habeas corpus throughout the areas of military control, and the army repeatedly silenced critics in the name of public order.3 Reconstruction, not the invasions of Germany, Japan, or Iraq, was America’s first attempt to impose democracy by force.4 In the previous chapter I outlined the dilemma democrats face when it appears that the viability of democratic institutions depends on preventive action. That dilemma turned on the ability of large antidemocratic movements to immobilize or capture democratic institutions. This chapter explores a related question: Is there a recognizably democratic course of action when only a policy of extended political exclusion might keep antidemocrats from sabotaging others’ rights and crippling representative institutions? In the winter of 1865–66 the Reconstruction Congress confronted this problem headon. It could either allow Southern representatives to assume their places in the legislature or exclude those representatives. The Congress faced this predicament because, in the aftermath of the Civil War, many Southerners and Southern governments had undertaken systematic and violent efforts to ensure that former slaves could not exercise their political rights. Without increased federal oversight, without a military effort to enfranchise freedman, the exclusion of

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Political Exclusion African Americans would have endured. And had Southern representatives been allowed to take their congressional seats, they would have used their positions and their prerogatives to avert, frustrate, and weaken any federal intervention. The self-limiting theory ought to throw light on the bitter stakes of this choice. Using the framework, we can evaluate the normative character, both the advantages and the shortcomings, of the enterprise the Republicans ultimately embarked on. Reconstruction is not simply a dramatic test case for a theory of militant democracy, useful for considering the outer bounds of plausibly democratic action. The architects of this massive legal, political, and military project, I argue, devised an indispensable model for the self-limiting defense of democracy: they conditioned the exclusionary measures they employed on the South’s effective acceptance of basic democratic practices. The Republicans who dominated Congress offered Southerners a simple choice: play by the rules or do not play at all. In forging this strategy, the Congress struck an impressive balance between vigorously confronting the intolerant and acknowledging the unsettling reality that those who oppose democracy have a legitimate claim to participation. The Republicans’ radical policies would have no place in a society in which everyone accepted liberal and democratic values. Nonetheless, their approach was realistically aimed at securing a polity that was both reasonably democratic and legitimate. The authors of Reconstruction took themselves to be defenders of republican government. They were preoccupied with the danger that their own efforts would undermine the regime—a fear I have described as the paradox of militant democracy.5 They recognized that even if a policy of exclusion was justified, that policy was certain to carry a price, a price that could be traced back to the democratic rights of their recently defeated fellow citizens. Recorded in the Congressional Record and in the country’s newspapers, the debates over

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Political Exclusion Reconstruction demonstrate the firm grip of the theoretical problem outlined in this book on individuals who have actually taken a stand for democracy.

Reconstruction as a Paradigmatic Case of Militant Democracy Article 1 of the U.S. Constitution infamously stipulates that slaves count as three-fifths of persons for the purpose of congressional districting and populating the Presidential Electoral College. Slaves, of course, were not allowed to vote. Before the Civil War voters in states with substantial slave populations—that is, Southern voters— enjoyed a considerable electoral advantage over voters in states with small slave populations—that is, Northern voters. Ironically, the destruction of the Confederacy threatened to exacerbate this problem. The Emancipation Proclamation and the Thirteenth Amendment abolished slavery and repudiated the three-fifths clause. For the purposes of districting, African Americans would count as whole people. As Senator Fessenden made clear in the quote at the beginning of this chapter, if African Americans were denied the vote, the electoral influence of Southern white voters would swell.6 Basic political equality, even among whites, therefore hinged on the South’s effective acceptance of the rights of African American men. By effective acceptance I do not mean that opponents of black enfranchisement needed to metamorphose into democrats; rather, I mean that Southern states would feature political and institutional conditions, of their own making or not, ensuring compliance with African Americans’ political liberties. In the winter of 1865–66 the Republican majority in Congress created the Joint Committee on Reconstruction, comprising leading members from both the House and the Senate, to study political conditions in the South and determine whether Southern states should be represented.7 The committee reported:

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Political Exclusion “The increase of representation necessarily resulting from the abolition of slavery was considered the most important element in the questions arising out of the changed condition of affairs. The necessity for some fundamental action in this regard seemed imperative.”8 Despite their capitulation to Northern arms, the citizens of the former Confederacy revealed their intent and ability to subjugate former slaves soon after the adoption of the Thirteenth Amendment. Southern opposition to political equality was widespread, deeply ingrained, and frequently brutal. In 1865 Southern voters elected numerous Confederate officials to a wide variety of government positions.9 Southern legislatures passed a series of laws, known as the black codes, demolishing the rights of freed slaves to work and travel. African Americans were required to have written evidence of employment every year, they could not leave their jobs, and they were subject to arrest by any white citizen. Employers were forbidden from competing for African American labor, leaving African Americans entirely dependent on a single employer. African Americans could not rent land. And they were subject to a system of forced apprenticeships. Vagrancy, including misspending one’s own money, could be punished by involuntary plantation labor. The black codes amounted to a cruel system of de facto slavery.10 At the state and local levels, Southern supporters of the Republican Party, both African American and white, confronted countless obstacles intended to keep them from the ballot box. Just months after the “official” cessation of war, the North was flooded by reports of violence against freedmen and sustained resistance to the new, more equitable political dispensation. The Ku Klux Klan, for example, began to grind down the green shoots of Southern democracy. As Eric Foner writes: “In effect, the Klan was a military force serving the interests of the Democratic party, the planter class, and all those who desired the restoration of white supremacy. . . . It aimed to reverse the interlocking changes sweeping over the South during Reconstruction:

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Political Exclusion to destroy the Republican party’s infrastructure, undermine the Reconstruction state, reestablish control of the black labor force, and restore racial subordination in every aspect of Southern life.”11 The only way to stifle the Southerners’ massive electoral bonus was to guarantee black political participation or penalize states that engaged in disenfranchisement.12 Yet the intrusive policies required to end the invidious exclusion of African Americans—in effect, a fullscale military occupation—could not be sustained if Southerners were allowed their full allotment of federal representation. As a result, the Republicans contemplated three alternatives: (1) give way to Southern demands for representation; (2) exclude Southern representatives from Congress until the South could be remade into a more egalitarian society; (3) find a way to safeguard African Americans’ ability to participate without indefinitely shutting out Southern antidemocrats. These three options map to the three basic choices democrats have anytime democratic rights are systematically violated: capitulation, disenfranchisement, or a path defined by the moral interests of both democrats and antidemocrats. Ultimately, the Republicans selected the third option. In the next sections of this chapter, I will use the self-limiting framework to explore the normative bona fides of the policy they created. But before moving fully into that argument, I want to note how ill suited the court-centric approach to antidemocratic action would be for surveying the normative landscape of postbellum America. Some Southern opposition to political equality, such as the black codes, took the form of legislation. Yet much of the antidemocratic action during this period assumed other guises, including physical intimidation and the selective enforcement of existing law. As Foner argues, “In a democratic society, law enforcement ultimately rests on public willingness to cooperate with the police, a condition that did not exist in the Reconstruction South.” Moreover, overturning the immoral feats of Southern legislatures would not have kept Southern antidemocrats

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Political Exclusion from thwarting the passage of democratic legislation—such as the Fifteenth Amendment, which forbids the denial of the vote “on account of race, color, or previous condition of servitude.”13 To be clear, champions of judicial review would be unlikely to recommend a course of democratic passivity, but their theories give little insight into how to act for the best when the only plausible strategies involve radical forms of disenfranchisement.

Option 1—Allowing Southerners to Participate “[Southerners] expected as soon as the confederate cause was abandoned that immediately the States would be brought back into their practical relations with the government.” So reported Alexander Stephens, former vice president of the Confederacy, during his testimony to the Congress’s Joint Committee on Reconstruction. “They expected that the States would immediately have their representatives in the Senate and in the House.”14 Stephens, along with President Andrew Johnson and many Northern Democrats, forcefully opposed the exclusion of Southern representatives. Before the war, the states had possessed broad freedom of action with respect to the regulation of elections. Stephens argued the states should retain that freedom after their defeat. The Union government, he noted, had always insisted that secession was illegal. Consequently, Southern capitulation could not have affected the Confederate states’ legal privileges. According to President Johnson’s account, qualification for full status ought to have rested solely on the adoption of the Thirteenth Amendment—ending slavery—and the repudiation of the Confederate debt. Southern states, therefore, should have been allowed to sit their full complement of representatives. Whatever the legal or constitutional merits of Stephens’s and Johnson’s positions, as a democratic matter they are unsatisfactory. If Southern whites governed their states as they wished, if they sent representatives to Congress, the legitimate interests of both Southern 147

Political Exclusion blacks and Northern whites would have been compromised. Restoring the Southern states without requiring reform would fail to satisfy even the meanest, most pared-down version of the principle that all citizens have an equal claim to participation; an accommodationist policy would not have created conditions allowing all citizens to exercise their rights safely, and it would have left a regime wanting in both legitimacy and democratic authority. My analysis of Stephens’s scheme contains no special insight. The plan’s shortcomings were evident at the time. According to the Joint Committee’s report, federal inaction would leave “the government of the United States powerless for its own protection.”15 The congressional Republicans agreed that together neither the “official” end of hostilities nor President Johnson’s efforts to reconstruct the eleven states of the Confederacy constituted a credible bulwark against the threat to the regime.16 Allowing Southern voters to seize outsize political influence would lead to “the continuance of precisely the same rule, and the fostering of a feeling which . . . has proven to be contrary to the very foundation principles of republican government. There can be no question that such would be the result; and we should have in a portion of the States all the people represented and all the people acting, and in another portion of the States all the people represented and but a portion of the people exercising political rights and retaining them in their own hands.”17 With the scars of war and the assassination of a president still fresh, the Republicans understandably refused to cede through election what they had sacrificed to achieve on the battlefield.

Option 2—Disenfranchisement and the Pursuit of Political Paradise For Karl Loewenstein, the oracle of militant democracy, a serious threat to self-government warranted cabining off mutual respect. “The liberal-democratic order,” he judged, “reckons with normal times.”18 For some of the leading members of the Republican Party, 148

Political Exclusion the aftermath of the Civil War was hardly normal times. The North’s military success and its continued mobilization created an opportunity to refashion the South along democratic lines. Egalitarian Republicans such as Charles Sumner, George Julian, and the leader of the majority in the House, Thaddeus Stevens, demanded that the opportunity be seized. Julian contended that the South “should be directly governed from Washington and only readmitted at ‘some indefinite future time’ when its ‘political and social element had been thoroughly transformed.”’19 Thad Stevens, among the leading opponents of slavery in Congress, argued that the deformed structure of Southern society could not support a government republican in form. “There are no symptoms,” he contended, “that the people of these provinces will be prepared to participate in constitutional government for some years”20 Stevens favored transforming the South into a Jeffersonian-style democracy. This new South would be peopled with yeoman farmers, cultivating property redistributed from seized plantation land. Stevens promised that his plan would “secure perpetual ascendancy to the party of the Union; and so as to render our republican Government firm and stable forever” (italics added). Hitting Jacobinic notes, Stevens argued that political exclusion was the only path to this earthly conception of “political paradise.”21 Stevens’s ideal was straightforwardly admirable: a stable republican regime consistent with basic conceptions of human equality. Yet his proposal to maintain the South as a quasi-permanent vassal territory would have been inconsistent with the principles of the self-limiting framework. First, Stevens’s plan was irreconcilable with the principle that all citizens possess basic interests in participation. Under Stevens’s plan, a substantial portion of the population would have had no prospect of influencing the policies created by the federal government for some undetermined period; they would have been treated as political inferiors.22 Imagine that Southern citizens were not actually owed a

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Political Exclusion measure of equal respect. In that case, a strategy of withholding representation from the former Confederacy might not have proved objectionable. Indeed, the leader of the majority contended that Southerners had forfeited their claim to participation by supporting the rebel government. Stevens’s position is not persuasive. His argument depends on the reconciliation of two incompatible positions. First, he posited that the authority of the United States was not optional; it did not depend on the ideological commitment or past behavior of those subject to it. Second, he argued that Southerners’ claims to participation depended precisely on their ideological commitments and past behavior. Yet if a state like the United States does not offer one a choice whether to accept its authority, then that state cannot assert that one forfeits democratic rights if one acts disloyally. Questions of loyalty are orthogonal to the question of whether one has a claim to participation (I developed this line of argument at greater length in chapter 4). Stevens’s plan was also inconsistent with the militant principle of limited intervention—the idea that democratic utopias should not be pursued through exclusionary policies. Stevens believed that the indefinite occupation of the South should have been undertaken in the name of an egalitarian democracy, a democracy that would never be challenged and would never fail. But like other efforts to wholly remake a political society, his proposal was fraught with uncertainty about whether such a policy would actually produce a stable or democratic regime. Doubts about the North’s ability to remodel the former Confederacy into a moral community would have been well warranted. Many Northerners opposed the enfranchisement of African Americans in their own states. By 1876 the Republicans’ resolve would flag, leading them to quit the effort to guarantee black suffrage in the South. Actually transforming the South into a bastion of equality, a moral community, would have required far more determination than simply guaranteeing universal suffrage.

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Political Exclusion Finally, Stevens’s proposals did not reflect the fact that some militant measures may be normatively costly even if defensive action is justified. Nor did his scheme seek to reconcile the excluded to the larger political community—that is, it was not in sync with the principle of democratic responsibility. By turning the South into a protectorate, the plan would have created substantial incentives for the South’s Republican governors to abuse their unlimited authority. In general, we lack information about whether large, complicated endeavors will be successful. And it is precisely because we are uncertain or disagree about the consequences of our decisions that we require a fair process to tether government actions to the judgment of affected individuals. Justifying serious breaks from democratic practice, like those championed by Stevens, on the basis of such an uncertain outcome requires a perfectionist leap of faith that is fundamentally inconsistent with our less hopeful, more skeptical reasons for valuing participation. The possibility that defensive measures themselves could degrade the American regime was not lost on Republican moderates such as Senators Fessenden and Lyman Trumbull and Representative John Bingham, the principal author of the Fourteenth Amendment.23 It was these congressmen who beat back Stevens’s sweeping designs and fashioned a competing approach to Southern antidemocrats. Historians are correct to emphasize that Stevens’s rivals were influenced by the exigencies of practical politicking and a (small c) conservative commitment to political federalism.24 But the moderates also rejected Stevens’s position that the disloyal citizens of the Confederacy had forfeited their political rights; they argued that even though Southern states had dissolved themselves, the Constitution continued to apply to Southern citizens. “If we exclude from voting the rebels of the South . . .,” asked Representative John Sherman, “what becomes of the republican doctrine that government must be founded on the consent of the governed?”25

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Political Exclusion Those who rejected the two options we have so far canvassed confronted a perplexing political and ethical quandary. Something had to be done to keep Southern antidemocrats at bay, but a policy of disenfranchisement appeared unacceptable. In the next section I explore how the moderates in Congress squared this circle by means of a policy of democratically conditional exclusion. Looking back on Reconstruction, we have good reason to be stirred by Stevens’s defense of racial equality and his commitment to establishing a sound foundation for the republic. The evident tension between Stevens’s plan and the self-limiting model highlights a normative, perhaps even tragic, fault line between the duty to give people what they are due and the duty to act democratically. These tensions are regularly confronted during moments of revolutionary change and political transition. And it is not surprising that they also arise when democratic institutions face an existential challenge. From the perspective of justice, Stevens was surely right that the freed slaves deserved more than a ballot. But the self-limiting model forces us to consider the perils of imposing one’s comprehensive political visions, admirable or otherwise, on less-than-ideal societies. It asks us to reckon with the possibility that Stevens’s egalitarian ambitions could not have been satisfied. Ultimately, Stevens’s approach was problematic not because of the content of his vision, but because of the undemocratic course he championed for achieving that vision.

The Logic of Democratic Exclusion On March 4, 1865, President Lincoln, in his Second Inaugural Address, drew a famous distinction to assign the South culpability for the Civil War. Though both Northern and Southern parties had decried the possibility of bloodshed and conflict, one “would make war rather than let the nation survive; and the other would accept war rather than let it perish” (italics in original).26 The South, in Lincoln’s

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Political Exclusion terms, had chosen to fight, and it therefore bore responsibility for the North’s retributive efforts. Two years after Lincoln’s speech, the congressional Republicans’ ability to meet a new Southern challenge depended on what might be justly labeled a Lincolnesque logic. The Reconstruction Republicans’ chief innovation was making Southern access to Congress conditional on the South’s acceptance of fundamental elements of democratic practice. Congressional exclusion would end once states ratified institutional guarantees of an open, democratic system. Southerners could participate if they wanted to. But if they subverted the rules of the game, then they would be the authors of their own exclusion. And Congress, backed by the Union Army, would accept the responsibility for constructing democracy in the South. In the words of the Joint Committee on Reconstruction, the aim of the project was “equal participation of all, without distinction, in all the rights and privileges of citizenship, thus affording a full and adequate protection to all classes of citizens, since all would have, through the ballot-box, the power of self protection.”27 Neither tolerant nor neutral, the Republicans’ conditional policy guaranteed that Southern citizens had as expansive a right to participate as was consistent with the claims of their fellow citizens. Reconstruction provides one model for how exclusionary policies might be constructed in ways that are consistent with the self-limiting approach to militant democracy. Before taking this argument forward, I want to underscore that the conditions that the North required the South to accept were constitutive rules of democracy. As a practice or social institution, representative democracy, or polyarchy, is defined and given form by a set of constitutive rules—such as a principle for determining how leaders will be chosen.28 A representative regime can be said to exist when a sufficient number of individuals act according to these rules. Scholars disagree about what the constitutive rules of democracy are or should be, but some form of voting and fair vote counting seem minimally

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Political Exclusion necessary.29 Institutions establishing a minimal level of electoral equality were precisely what the Congress required the Southern states to adopt. The expansion of suffrage to African American men would be achieved through the ratification of the Fourteenth Amendment, the Fifteenth Amendment, and the states’ new constitutions. In addition, Congress, through the 1870 and 1871 Enforcement Acts, erected the most expansive protections against electoral-process intimidation and manipulation it would create until the 1960s. The democratic character of the right to vote needs no explanation, but I want to illustrate briefly why the enforcement of civil rights is also constitutive of democratic (not just liberal) government. The legitimacy of a democratic procedure depends not only on whether the relevant set of individuals can vote, but also on whether their votes are counted equally. Similarly, the legitimate authority of legislation depends on its fair application and on the ability of individuals to challenge the enforcement of law by means of due process procedures. If public officials do not fairly apply the law, then they are simply not applying that law. The extension of civil rights enables democratic practice because due process procedures ensure that democratic decisions are fairly implemented.

Choice, Chess, and Democracy Can a policy that denies one-fifth of the adult population representative access be consistent with the principle that all citizens have a right to participate?30 The answer to this question depends on whether Southern citizens could credibly claim to have been denied the opportunity to elect congressmen. To claim they were excluded would have revealed a basic misunderstanding of the practice of democracy.31 Southerners had violently attempted to create a system in which their votes would hold substantially greater weight than the votes of others. Having lost the war, they could no longer maintain that 154

Political Exclusion African Americans were not citizens. Nor could they appeal to the difficulties of determining who has the right to participate in democratic decisions—the so-called boundary problem in democratic theory. Indeed, to do so would have been contrary to their desire to count African Americans for the purpose of congressional districting. The argument that Southerners were unfairly excluded, therefore, treats democracy as a practice that allows for both invidious restrictions on who can participate and radically unequal weighting of individual votes.32 Democracy, however, is not such a practice. The very reason we value democracy is that it is not such a practice. Southerners could participate if they accepted the relevant federal and state constitutional reforms. For that reason, the Congress acted rightly when it spurned the entreaties of Alexander Stephens and his ilk. As the editors of the staunchly republican Chicago Tribune observed in the late summer of 1866, “The doors of Congress are not closed to the representatives of these [Southern] States. They are not excluded indefinitely, nor are they sought to be excluded. On the contrary, they are excluding themselves.”33 An analogy will help clarify the Tribune’s logic. Bonnie offers to play chess with Clyde. Clyde replies that he would be happy to play so long as he may make two moves for every one of Bonnie’s. Chess, like democracy, has a constitutive set of rules. A player moves one piece and then it is the other player’s turn to move. To play a game according to Clyde’s rules would not be to play chess. Thus, Bonnie would in no sense be snubbing Clyde if she refused to play according to Clyde’s rules (even if in the past they had, for whatever reason, played Clyde’s favored game). And no matter how long Bonnie refuses to yield to Clyde’s demands, we should not treat Clyde as if he has been kept from playing “chess.” The same logic applies in cases like Reconstruction. Like Clyde, white Southerners demanded something unreasonable, a substantially greater say in political matters than their fellow citizens. Like Bonnie, the North could not be fairly accused of

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Political Exclusion excluding the South because the South refused to play by the rules of democracy. Chess, of course, is not democracy. One can walk away from a chessboard without affecting other areas of one’s life. In the game of democracy, one remains subject to political decisions regardless of whether one opts to participate. Southerners were certainly subject to laws made by the Congress, and they actually wanted to participate, just not by the rules favored by the Republican Party. Treating Southerners as if they had excluded themselves necessarily privileged the Republicans’ approach. Does this privilege make sense? In politics, rules that treat people fairly are important for two reasons. First, within a political community, each of us will be subject to the same set of rules; for the North and the South the choice between democracy and nondemocracy was a zero-sum game.34 Second, political outcomes are legally authoritative: we are forced to obey them. Unlike the rules of chess, the rules of politics must not be ethically arbitrary. Not any set of rules will do. In chapter 2 I stipulated that a legitimate regime’s basic institutions would, in principle, be justifiable to its reasonable members. Though different polyarchal regimes use different procedures, to be minimally legitimate and authoritative those procedures must meet some minimum standard of equal respect; otherwise they would simply not be acceptable to the reasonable members of that community. In the case we are considering, we rightly privilege the rules championed by the congressional Republicans, not because of the institutional and military power at their disposal, but because those rules were consistent with individuals’ equal interest in participation, because those rules were constitutive of democratic practice. The setup defended by the South was manifestly and unreasonably undemocratic. The North thus justifiably insisted that the South play its version of democracy. One might object that the exclusion of the South was actually a form of extortion. The Republicans demanded compliance with a set

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Political Exclusion of rules that were evidently advantageous to their party. And it is indisputable that the Republicans were substantially inspired by partisan motives. The viability of their hard-won political dominance depended on the enfranchisement of freedmen. But what does that actually prove? That the Party of Lincoln stood to profit from a fair set of procedures does not seriously impugn those procedures. Presumably, it is always true that those who reject democracy think they would be better off under another form of government. The fact that the enfranchisement of African American men reduced the power of Southern whites does not constitute a particularly persuasive objection to democracy. To return to the chess analogy, Southern concern about the fairness of democratic rules depends on the same logic as Clyde’s rejecting the rules of chess because he cannot win. The problem, though, is not how the game is played; the problem is Clyde’s lack of ability. Finally, someone with a cursory knowledge of the history of Reconstruction might also protest the claim that the readmission of the Southern states was conditioned only on the acceptance of democracy. The expansion of federal prerogatives looms as a central feature of Reconstruction’s constitutional amendments. To take one significant example, each of the three amendments shares a common coda: “The Congress shall have power to enforce this article by appropriate legislation.” Reconstruction had the effect not only of extending democracy, but also of empowering precisely those individuals responsible for guiding the project—namely, the Republicans in Congress. In the particular case of Reconstruction, the expansion of federal power can be justified instrumentally; that power was a necessary element of an effort to ensure that the Southern states were committed to democracy. But as a general matter, to be consistent with individuals’ claims to participation, to be democratic, a largescale political exclusion must be conditioned solely on the effective acceptance of the rules of the democracy.

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Political Exclusion The exclusionary course adopted by the Congress was justified because it was formulated in response to a massive and concerted violation of political rights and because the exclusion was necessary to establish conditions in which individuals could safely participate. The Republicans’ strategy was self-limiting because its narrow conditional structure gave affected citizens the opportunity to participate in a political system in which their votes would carry roughly the same weight as others’ votes. By offering a choice, but not accepting a compromise, the Republicans constructed an exclusionary regime that made the United States more democratic.

The Wages of Democratic Exclusion In chapter 2 I described two different classes of democratic interests. Passive interests, such as equal respect, are satisfied merely if one possesses the option to effectively participate. Active interests require actually playing a role. In the case of Reconstruction, Southerners were given the opportunity to participate; they could not have reasonably claimed to have been disrespected, to have suffered harm to their passive interests. Yet since Southerners had legitimate active interests at stake in the political process, their inability to participate, though justified, was democratically costly.35 To get at the crux of the matter, let us return to the analogy of Bonnie and Clyde. If Clyde refuses to play chess with Bonnie, the outcome is that they do not play chess. If Clyde refuses to participate in a fair decision-making procedure with Bonnie, she still has to make judgments that will affect them both. Even though Clyde is choosing not to play, even though Bonnie has good reasons for making collective decisions on her own, her decisions will differ from the choices they would have made together. We cannot help valuing the choice Bonnie would make with Clyde differently from the decision she makes alone. Under any circumstances, procedures that systematically fail to reflect the views of a large group of citizens warrant a 158

Political Exclusion democrat’s concern.36 Republicans had a duty, given the moral costs of their policy, to work to bring the excluded back in. As a purely historical matter, the Republicans’ initial commitment to reincorporating Southern voters and to limiting the democratic harm caused by Reconstruction was impressive. Though Congress established military commands in the South, Southern self-rule was not wholly abandoned. Reconstruction policies maintained state and local forms of government. Constitutional conventions were called and elections were held under inclusive rules. Opponents of Reconstruction, Northern and Southern Democrats, for instance, took part in that era’s elections. Their participation illustrates the expectation that the democratic or republican character of the country would be maintained. Last, after the occupied states adopted the reforms demanded by Congress, they were allowed to send representatives to the Capitol. As Representative John Bingham explained, the goal of Reconstruction was to “hasten the day when the people of those States . . . will reorganize governments republican in form.”37

The Tragedy of Militant Democracy In this chapter I have argued that Reconstruction provides a model for the democratic defense of democracy. But I want to add a bit of gray to the black-and-white picture I have drawn. Those who crafted the program of conditional exclusion eventually abandoned their project. Enforcing the militant policies they formulated required a massive commitment of military, financial, and political resources. These vast commitments had seemed necessary in the wake of the bitter conflict, but as time passed more prosaic political and economic concerns emerged. In 1876 a deadlocked presidential election sounded the death knell for Congress’s militant attempts to impose basic democratic rules on the South.

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Political Exclusion To secure the election of their candidate, Rutherford B. Hayes, the Republicans agreed to withdraw federal troops from the former Confederacy. Though the eclipse of black enfranchisement in the South would not be completed until the advent of Jim Crow in the 1890s, Congress, by removing the army from the South, eliminated an essential barrier restraining Southern antidemocrats. Retrospectively, we recognize that the Republicans’ morally calamitous compromise undermined African Americans’ ability to participate. But the abandonment of African Americans also increased white Southerners’ influence over the federal government. Section 2 of the Fourteenth Amendment, which requires that states forfeit representation if citizens are hindered from voting, was never enforced.38 With the end of slavery and the failure of Reconstruction, white Southerners collected their odious electoral bonus. The experience of Reconstruction dramatically illustrates that militarily imposing democracy on a resistant population can carry an enormous human and financial toll, while boasting narrow prospects of success. In the case of postbellum America, attempts to guarantee the stability of the republic and to reincorporate democracy’s opponents entailed a military occupation, the passage of constitutional amendments, the organization of state constitutional conventions, and the establishment of new administrative bureaus. Despite all these steps, the North still lacked the determination to carry this huge task to success. One might ask whether grappling with the dilemmas of Reconstruction can help us confront contemporary challenges to democracy. Reconstruction began 150 ago, after years of war. Yet the lessons of Reconstruction are readily applicable to exigent circumstances in which democracies appear to face grave threats—for instance, when large religious groups are or are thought to be hostile to democracy, as has happened in Algeria and Lebanon. The lessons of Reconstruction apply equally to circumstances in which special

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Political Exclusion privileges are demanded by geographically concentrated groups. During the 1930s Czech-German nationalist parties worked to undermine the Czechoslovakian republic.39 Following a period in which the Czechoslovakian government made few efforts to incorporate ethnic Germans into the larger political community, many Czech-German organizations developed close connections to the German Nazi Party. As a result of these connections and the increasing threat posed by German territorial ambitions, the Czechoslovakian government used radical policies in defense of its constitution. To be clear, my claim is not that radical policies are always legitimate; instead, I believe Reconstruction reveals which kinds of radical policies might be. More generally, the Republicans in Congress struggled with the real possibility that their efforts would leave their regime less legitimate. By implication, anyone who takes undemocratic action to counter threats, whether large or small, will seek the same ends and work within the same normative constraints as their Republican predecessors. Finally, when trying to draw insight for contemporary life from the Republicans’ massive experiment in militant democracy, it is worth reflecting on the amount of time and effort it finally took for the United States to make good on the democratic promise of Reconstruction. The expansion of black enfranchisement and increase in black office holding witnessed at the height of this project took a body blow in 1877 and had more or less completely evaporated by the beginning of the next century. It was not until 1965 that the federal government again undertook a serious program of militant democracy, a second Southern reconstruction, with the passage of the 1965 Voting Rights Act. Taken together, the writing of the American Constitution at the end of the eighteenth century, the North’s victory in the Civil War, the passage of the Reconstruction amendments, the twentieth century’s struggle for civil rights, and the Voting Rights Act of 1965 illustrate, in the starkest terms, that the struggle for democracy does

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Political Exclusion not end once a revolution has taken place. Equally, the American experience illustrates that the fight for legitimate government continues after those who oppose democracy gain the upper hand, as it did when Reconstruction came to its less than spectacular end. At the time of this writing, multiple autocratic Middle Eastern regimes have been shaken by popular and sometimes violent uprisings. Pundits and policy makers have responded with a bipolar form of enthusiasm. On the one hand, the events in the Middle East are described as revolutionary, a veritable new dawn. On the other hand, the rise of powerful Islamist political parties generates hand-wringing about the possibility that those parties will demolish the possibility of representative government; “one man, one vote, one time” has become a catchphrase, festooning the titles of pessimistic editorials, blog posts, and academic articles. Both the pessimistic and optimistic forms of enthusiasm fail to grapple with the reality that the outcome of any particular vote or any decision will not end the democratic project. As the American experience shows, successful transitions do not give birth to perfect democracies. And failed efforts to establish representative institutions or to enfranchise more citizens can enrich democrats’ political and legal repertoires in ways that will shape the next attempt to achieve a more legitimate form of government. To return to a familiar example, Solidarity’s famous 1980 push for political reform shook, but did not topple, Poland’s communist regime. Still, that experience proved crucial in 1989. Whether the Arab Spring’s transitions to democracy prove immediately successful, Arab partisans of democracy, like their American and Polish colleagues, should not regret their hard work.

Conclusion In the still-bloody shadow of a grueling conflict, Southern antidemocrats attempted to win, through fiendish labor codes and violent

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Political Exclusion disenfranchisement, what they had lost in the Civil War. It is difficult to believe that any defense of democratic equality would countenance such grave violations of democratic rights. And Congress’s policy was rightly aimed at curtailing Southerners’ antidemocratic activity. But the Republicans also crafted measures that managed to reflect Southerners’ legitimate claims to participation. In doing so, the Congress exhibited the kind of institutional creativity and ethical resourcefulness that the democratic defense of representative government requires.

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Conclusion

It is said that to defend democracy, societies must behave antidemocratically. In this book I have aimed to upend this paradoxical fragment of wisdom. Societies can keep faith with democratic principle; to do so, they must steadfastly defend the rights of both democrats and antidemocrats. For political theorists, the archetype of antidemocratic action, the problem to be addressed by a theory of militant democracy, has traditionally been an inflamed majority making decisions or forging laws that violate basic tenets of democratic practice. And because they have concentrated on the moral status of those decisions and those laws, these theorists have presented the challenge posed to democracy as exceptional and transitory, fully resolvable by a timely and effective remedy, such as judicial review of legislation. According to the standard account, judges on constitutional courts are treated less like lawyers or even philosophers than like masterly surgeons amputating democratically malignant policies.

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Conclusion I have shown why the traditional approach is flawed. Antidemocrats, not antidemocratic legislation, ought to occupy center stage in any discussion of militant democracy. Objectionable laws of the character used to justify limits on democratic decision making are not epiphenomena of normal, democratic politics. They are the product of substantial populations that carry unreasonable beliefs and oppose basic elements of democratic practice, such as the right of a significant part of the population to participate in a democratic election. And it would require a theological confidence in legal institutions to believe that once these antidemocrats are in a position to pass legislation that they will be deterred from their goals by a phalanx of robed lawyers. By implication, to counter antidemocratic action effectively, societies must act before antidemocrats have conquered the commanding heights of a society’s political institutions. But then when should societies undertake defensive action, and how should they do so? Answers to these questions turn on the moral claims of antidemocrats. For better or worse, antidemocrats cannot be invalidated like an offensive piece of legislation. They have serious claims to participation, claims grounded in the very same moral interests that ground the democratic rights of other citizens. As a result, responding to antidemocratic action poses deep practical and moral dilemmas that are not candidates for easy or rapid remedy (or amputation). The presence of antidemocrats is attributable to the fact that representative regimes do not spring fully consolidated out of philosophical ether. Such regimes are always the progeny of incomplete revolutions and imperfect transitions. Representative democracy or polyarchy is a sectional form of government, inevitably housing opponents of democracy who may seek to violate the rights of other citizens. Before a transition to democracy occurs, individuals’ moral interests in political participation justify rebellion against tyranny. After a transition, those moral interests will be a valid and forceful warrant for sustaining the political supremacy of ballots over bullets. Properly conceived,

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Conclusion therefore, a theory of militant democracy is a set of principles that should shape democrats’ response to antidemocrats, and it is an extension of theories of legitimate revolution. In other words, efforts to defend democratic practice are one part of a broader project to make real-world societies more democratic. If the democratic claims of opponents of self-government form the core of the problem addressed in this work, principles for grappling with when and how to counter their efforts are the basis of the solution. The key insight that I have drawn from the self-limiting conception of revolution developed by Adam Michnik and his colleagues is that the aim of a democratic revolution should not be to destroy democracy’s opponents, but to secure polyarchy, the imperfect political space in which groups can both peacefully pursue their political ambitions and actively contest the ambitions of others. I have argued that this insight should also shape responses to opponents of selfgovernment even after representative institutions have been established. The upshot is that states should not limit participation on the basis of citizens’ beliefs, specifically whether they oppose democracy. Instead, only violations of rights should be the target of militant policies. Shaped by an overarching concern for individuals’ political rights, true efforts to safeguard democracy will include strategies for responding to the distinctive normative costs associated with militant democracy. By taking the costs of defensive policies seriously, I claim, societies may be more likely to avoid the paradox of militant democracy—the possibility that defensive action may do more harm to democracy than no action at all. The normative question of whether to tolerate the intolerant is conventionally answered from the perspective of ideal theory. In this work I have taken a decisively different approach, examining efforts to defend self-government in the real world, where idealistic political action is fraught with uncertainty and the moral course may yield little success. This book is built around a series of cases from a variety

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Conclusion of less-than-ideal polities, including Israel, Turkey, the United Kingdom, and the United States. The challenges I consider escalate from groups that do not constitute a fundamental threat to the regime to groups whose antidemocratic efforts might be thwarted only by preventive interventions or long-term electoral disenfranchisement. My aim in treating these complicated cases is not to define the exact course that ought to have been taken, all things considered. Instead, I reveal the structure of the dilemmas faced by societies when antidemocrats challenge popular regimes, I illustrate how a dedicated focus on the right to participate might shape responses to antidemocratic efforts, and I provide insight into the costs of action and inaction. Reading recent literature on militant democracy, one may have the sense that questions about the rights of antidemocrats are period pieces, normative relics left over from the twentieth century.1 This conclusion is driven by the successful consolidation of representative government in Western Europe, where the duty to defend selfgovernment against popular challenge was self-consciously formalized as a theoretical, political, and legal doctrine. Today, it is said, the movements that cause democracies to respond intolerantly are sparked not by avowedly antidemocratic ideologies, such as fascism and communism, but by unyielding religious faith, divisive nationalist commitments, and the willingness to commit acts of terrorism. History is over. We face new problems that call for fresh solutions. Unfortunately, antidemocratic movements do not require the nowbarren soil of fascist or communist ideology to take root. This claim is verified by the American example of postbellum Reconstruction, which predates by some decades the ideological feuds of the twentieth century. As Reconstruction demonstrates, to pose a serious threat to democracy, antidemocrats need not oppose representative government per se; they need only oppose the effective participation of some members of society. Accordingly, I am convinced that the moral and

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Conclusion political problem addressed in this work—how to respond to antidemocratic action while respecting antidemocrats’ claim to participation—is a fixed feature of democratic politics. In Leszek Kołakowski’s memorable words, “The problem of the antinomy inherent in the principle of tolerance is eternal and eternally unresolved.”2 At this very moment, partisans of democracy are consumed by the dramatic play of events in the Middle East. The revolutions in Tunisia, Egypt, and Libya raise familiar questions. Who should be allowed to participate in elections? Will religious organizations, such as the Muslim Brotherhood and their Salafist rivals, diminish or bolster the prospects of representative government? Should the new governments ban parties that supported the previous regimes, such as Hosni Mubarak’s National Democratic Party? Easy answers to these questions do exist, but accepting those answers would require us to close our eyes to an important principle: all Tunisians, Egyptians, and Libyans have an equal right to participate. Unless they violate the rights of others, individuals, even those who have opposed democracy in the past, should be allowed to play a role in the political process. Many find this conclusion worrisome. Would it not be easier to build a new regime, they ask, without the participation of those who exhibit contempt for democratic principles? If my arguments have been persuasive, it will be clear that the democratic course is actually the harder course, requiring equal parts conciliation and militant vigilance. As one veteran of democratic revolution, Adam Michnik, has recently cautioned, “The path to democracy and the rule of law is not a walk in the park.”3

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Notes

Chapter 1. Introduction 1. Gilbert Fergusson, “A Blueprint for Dictatorship: Hitler’s Enabling Law of March 1933,” International Affairs 40, no. 2 (1964): 250. 2. Richard Evans, The Coming of the Third Reich: A History (New York: Penguin Press, 2003), 350–54. 3. There is some debate about whether the parliamentarians who voted for the law were coerced into doing so. There was, however, no uncertainty about whether the Nazi Party would have accepted a negative vote. Moreover, the voting process was characterized by significant levels of violence and intimidation. On the question of why the center parties voted for the Enabling Law, see Ivan Ermakoff, Ruling Oneself Out: A Theory of Collective Abdications (Durham, NC: Duke University Press, 2008). 4. Karl Loewenstein, “Militant Democracy and Fundamental Rights, I,” American Political Science Review 31, no. 3 (1937): 424. 5. As another émigré, Karl Popper, wrote: “We should therefore claim, in the name of tolerance, the right not to tolerate the intolerant. We should claim that any movement preaching intolerance places itself outside the law, and we should consider incitement to intolerance and persecution as criminal, in the same way as we should consider incitement to murder, or to kidnapping, or to the revival of the slave trade.” Karl Popper, The Open Society and Its Critics (Princeton, NJ: Princeton University Press, 1950), 546.

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Notes to Pages 2–5 6. In the next chapter I define antidemocrats as individuals who prefer a political regime that lacks basic prerequisites of polyarchy—such as universal suffrage—to a regime that satisfies those prerequisites. 7. Loewenstein, “Militant Democracy and Fundamental Rights, I,” 432. 8. Karl Loewenstein, “Militant Democracy and Fundamental Rights, II,” American Political Science Review 31, no. 4 (1937): 653. 9. John Rawls, A Theory of Justice (1971; repr., Cambridge, MA: Belknap Press of Harvard University Press, 1995), 218. 10. I use representative as a synonym for democratic throughout this work. 11. See the insightful legal analysis offered by Issacharoff, who focuses on the “institutional considerations that either do or should govern restrictions on political participation, with particular attention to how these have been assessed by reviewing courts.” Samuel Issacharoff, “Fragile Democracies,” Harvard Law Review 120, no. 6 (2007): 1405–67; Giovanni Capoccia, Defending Democracy: Reactions to Extremism in Interwar Europe (Baltimore: Johns Hopkins University Press, 2005); Nancy L. Rosenblum, On the Side of the Angels: An Appreciation of Parties and Partisanship (Princeton, NJ: Princeton University Press, 2008), chap. 9; Thomas Christiano, “Commentary: Cannibal Democracies,” Cardozo Journal of International and Comparative Law 7 (1999): 473–78; Raphael Cohen-Almagor, “Disqualification of Political Parties in Israel: 1988–1996,” Emory International Law Review 11, no. 1 (1997): 67–109; Ermakoff, Ruling Oneself Out; Gregory H. Fox and Georg Nolte, “Intolerant Democracies,” Harvard International Law Journal 36, no. 1 (1995): 1–70; Patrick Macklem, “Militant Democracy, Legal Pluralism, and the Paradox of SelfDetermination,” International Journal of Constitutional Law 4, no. 3 (2006): 488–516; Yigal Mersel, “The Dissolution of Political Parties,” International Journal of Constitutional Law 4, no. 1 (2006): 84–113; Peter Niesen, “Anti-Extremism, Negative Republicanism, Civic Society: Three Paradigms for Banning Political Parties,” German Law Journal 3, no. 7 (2002), www.germanlawjournal.com/index. php?pageID=11&artID=164, accessed October 1, 2012; Markus Thiel, ed., The “Militant Democracy” Principle of Modern Democracies (Farnham, UK: Ashgate, 2009). 12. See, for example, Issacharoff, “Fragile Democracies,” 1411. 13. Plato, The Republic, ed. G. R. F. Ferrari, trans. Tom Griffith (Cambridge: Cambridge University Press, 2000), 565c–566b, pp. 279–80. 14. James Madison, “Federalist 10,” in The Federalist, ed. Jacob E. Cooke (Middletown, CT: Wesleyan University Press, 1961), 60. 15. Jean-Jacques Rousseau, “The Social Contract,” in The Social Contract and Other Later Political Writings, ed. Victor Gourevitch (Cambridge: Cambridge University Press, 1997), bk. 1, chap. 4, pp. 44–48. 16. Joshua Cohen and Joel Rogers, “Directly Deliberative Polyarchy,” in Philosophy, Politics, Democracy: Collected Essays by Joshua Cohen (Cambridge, MA: Harvard University Press, 2009), 181; Robert Dahl, Democracy and Its Critics (New Haven, CT: Yale University Press, 1989).

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Notes to Pages 6–13 17. The term was coined by Jacek Kuron´. Martin Malia, “Poland: The Winter War,” New York Review of Books, March 18, 1982, www.nybooks.com/articles/6682, accessed June 15, 2009. 18. Adam Michnik, “Towards a Civil Society: Hopes for Polish Democracy: Interview with Erica Blair (John Keane),” in Letters from Freedom: Post–Cold War Realities and Perspectives, ed. Irena Grudzin´ska Gross, trans. Jane Cave (Berkeley: University of California Press, 1998), 11. 19. Ian Shapiro suggested this formulation to me during a conversation in October 2009. 20. I am grateful to Ruth Grant for bringing this passage from the Second Treatise to my attention in November 2011. John Locke, Two Treatises of Government, ed. Peter Laslett (Cambridge: Cambridge University Press, 1988), 411. 21. Hannah Arendt, On Revolution (New York: Viking, 1963), 18. 22. On proceduralism see Michael Walzer, “Philosophy and Democracy,” Political Theory 9, no. 3 (1981): 384. On dualism see Corey Brettschneider, Democratic Rights: The Substance of Self-Government (Princeton, NJ: Princeton University Press, 2007). On the concept of constitutional democracy see Walter Murphy, “Constitutions, Constitutionalism, and Democracy,” in Constitutionalism and Democracy: Transitions in the Contemporary World, ed. Douglas Greenberg (Oxford: Oxford University Press, 1993), 3–25. On deliberative democracy see Cohen and Rogers, “Directly Deliberative Polyarchy,” 216. And on republicanism see Cass R. Sunstein, “Beyond the Republican Revival,” Yale Law Journal 97 (1988): 1539–90. 23. Ronald Dworkin, Freedom’s Law: The Moral Reading of the American Constitution (Cambridge, MA: Harvard University Press, 1997), 20. 24. Ibid., 24. 25. Ibid., 17. 26. Brettschneider, Democratic Rights, 13. 27. This was an attractive interpretation of Dworkin’s argument offered by Stephen Macedo in spoken comments at the American Political Science Association (Toronto, September 2009). 28. See B. Beinart, “The South African Appeal Court and Judicial Review,” Modern Law Review 21, no. 6 (1958): 587–608. 29. Thucydides, History of the Peloponnesian War, ed. M. I. Finley, trans. Rex Warner (New York: Penguin Books, 1980), 3.1–50, pp. 194–223. See the discussions in Jon Elster, Ulysses Unbound: Studies in Rationality, Precommitment, and Constraints (Cambridge: Cambridge University Press, 2000), 122; and Donald Kagan, The Peloponnesian War (New York: Viking Penguin, 2003), 107–12. 30. Along these lines, Karl Loewenstein thought it possible that judicial review or another delaying mechanism might have preserved the French Third Republic: “The indecent haste with which the Third Republic rushed to its suicide may be understood in view of internal and external pressure. Had a more complicated and rigid procedure been provided for, with considerable delays before final action,

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Notes to Pages 13–28 perhaps the national spirit of democratic France would have reasserted itself.” Karl Loewenstein, “The Demise of the French Constitution of 1875,” American Political Science Review 34, no. 5 (1940): 895. 31. Dworkin, Freedom’s Law, 23. 32. Evans, The Coming of the Third Reich, 346–49. 33. Michael Klarman, “The White Primary Rulings: A Case Study in the Consequences of Supreme Court Decisionmaking,” Florida State University Law Review 29 (2001): 55–107. See also Gerald Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? (Chicago: University of Chicago Press, 1991). 34. Alexander Hamilton, “Federalist 78,” in The Federalist, ed. Jacob E. Cooke (Middletown, CT: Wesleyan University Press, 1961), 522. 35. Rosenblum, On the Side of the Angels, 415. 36. See Bruce Ackerman, Before the Next Attack: Preserving Civil Liberties in an Age of Terrorism (New Haven, CT: Yale University Press, 2006); Giorgio Agamben, State of Exception, trans. Kevin Attell (Chicago: University of Chicago Press, 2005); and John Ferejohn and Pasquale Pasquino, “The Law of the Exception: A Typology of Emergency Powers,” International Journal of Constitutional Law 2, no. 2 (2004): 210–39. 37. Quoted in Gregory H. Fox and Georg Nolte, “Intolerant Democracies,” Harvard International Law Journal 36 (1995): 1. 38. Though many readers and colloquium participants have raised this question, I am especially grateful to Ryan Pevnick for pressing me to answer it. 39. In ancient Greece the practice of ostracism was used to defend democratic regimes against popular antidemocratic elites. Sara Forsdyke, Exile, Ostracism, and Democracy: The Politics of Expulsion in Ancient Greece (Princeton, NJ: Princeton University Press, 2005).

Chapter 2. The Self-Limiting Theory of Militant Democracy 1. On interest-based accounts of rights see Joseph Raz, The Morality of Freedom (Oxford: Oxford University Press, 1986), 166. Both the liberal egalitarian Thomas Christiano and the contractualist Charles Beitz argue that the right to participate is grounded in individuals’ political interests. Thomas Christiano, The Constitution of Equality (Oxford: Oxford University Press, 2008); Charles Beitz, Political Equality: An Essay in Democratic Theory (Princeton, NJ: Princeton University Press, 1989). 2. Lipski makes clear that KOR itself was a humanitarian and not a political organization. Those who considered political questions, especially Kuron´ and Michnik, did so independently of their association with KOR. See Jan Jozef Lipski, KOR: A History of the Workers’ Defense Committee in Poland, 1976–1981, trans. Olga Amsterdamska and Gene M. Moore (Berkeley: University of California Press, 1985),

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Notes to Pages 28–32 62. Also see the analysis in Jean Cohen and Andrew Arato, Civil Society and Political Theory (Cambridge, MA: MIT Press, 1992). 3. Adam Michnik, “Letter from Gdansk Prison, 1985,” in Letters from Prison and Other Essays, trans. Maya Latynski (Berkeley: University of California Press, 1985), 91. 4. Adam Michnik, “Towards a Civil Society: Hopes for Polish Democracy: Interview with Erica Blair (John Keane),” in Letters from Freedom: Post–Cold War Realities and Perspectives, ed. Irena Grudzin´ ska Gross, trans. Jane Cave (Berkeley: University of California Press, 1998), 100. 5. Ibid., 105. See also Jeremy Waldron, “A Right to Do Wrong,” Ethics 92, no. 1 (1981): 21–39. 6. Adam Michnik, “Gray Is Beautiful: A Letter to Ira Katznelson,” in Letters from Freedom, 323. 7. Adam Michnik, “Maggots and Angels,” in Letters from Prison, 188. 8. Also see his 1985 letter from the Gdansk prison: “I should add that Solidarity has not been wholly immune to totalitarian temptations. Organized as a social movement struggling against the totalitarian state, composed of people who grew up in the Leading System and were shaped by its totalitarian structures.” Michnik, “Letter from Gdansk Prison, 1985,” 89. 9. “There are Communists among us, but they have the same right to live as the rest of us. If they committed a crime, they will be punished like other criminals, but if not we can’t discriminate against them just because at one time or another they belonged to the Communist party.” Adam Michnik, “The Strange Epoch of PostCommunism: A Conversation with Václav Havel,” in Letters from Freedom, 233. 10. Michnik, “Maggots and Angels,” 190. 11. On “Spanish-style” conciliatory transitions see Jon Elster, Closing the Books: Transitional Justice in Historical Perspective (Cambridge: Cambridge University Press, 2004), 62. 12. Adam Michnik, “Poland at a Turning Point: Fifteen Years of Transformation, Fifteen Years of Gazeta Wyborcza,” in In Search of Lost Meaning: The New Eastern Europe, ed. Irena Grudzin´ ska Gross, trans. Roman Czarny (Berkeley: University of California Press, 2011), 8. 13. Norman Davies, God’s Playground: A History of Poland, 2 vols. (New York: Columbia University Press, 2005), 2:312. 14. Michnik writes frequently of the need for those engaged in rebellion to consider Dostoevsky’s antidemocratic and antifundamentalist novel Demons (also translated as The Possessed). Fyodor Dostoevsky, Demons, trans. Richard Pevear and Larissa Volokhonsky (New York: Vintage Classics, 1994). 15. Michnik, “Gray Is Beautiful,” 323. 16. The movement’s commitment to evolutionary change was, in part, pragmatic. Even if the uncompromising removal of the Polish government and the Polish United Workers’ Party had been within their grasp, the leaders of Solidarity

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Notes to Pages 32–40 justly feared that too much success, too much democracy, would instigate violent reprisals and even full-scale occupation by the Soviet army (as had occurred in Hungary in 1956). Adam Michnik, “A New Evolutionism,” in Letters from Prison, 135–48. 17. Lipski, KOR, 7. 18. Joshua Cohen, “Money, Politics, Political Equality,” in Philosophy, Politics, Democracy: Selected Essays (Cambridge, MA: Harvard University Press, 2009), 270. 19. This section is intended to synthesize a number of approaches to the right to equal participation. Nonetheless, I draw heavily from Thomas Christiano’s enlightening account of political equality in his Constitution of Equality, especially 75–130. 20. See Robert Dahl’s discussion of competence, Democracy and Its Critics (New Haven, CT: Yale University Press, 1989), 105. 21. On disagreement see Jeremy Waldron, Law and Disagreement (Oxford: Oxford University Press, 1999); Christiano, The Constitution of Equality, 58; and Laura Valentini, “Justice, Disagreement, and Democracy,” British Journal of Political Philosophy 42 (2012): 1–23. 22. An instrumental or autonomous account of political equality is offered by Ronald Dworkin in “What Is Equality? Part 4: Political Equality,” University of San Francisco Law Review 22, no. 1 (1988–89): 1–30. I am grateful to one of the anonymous reviewers for suggesting that I acknowledge that democratic principles are not merely the outcomes of a democratic process. 23. Beitz, Political Equality, 110. 24. Christiano, The Constitution of Equality, 59. 25. Waldron, Law and Disagreement, 232–54. 26. Jon Elster, “The Market and the Forum: Three Varieties of Political Theory,” in Foundations of Social Choice Theory, ed. Jon Elster and Aanund Hylland (Cambridge: Cambridge University Press, 1986), 121. 27. Phillip Pettit, Republicanism: A Theory of Freedom and Government (Oxford: Oxford University Press, 1997), 187. See also Beitz, Political Equality, 114. 28. Pettit, Republicanism, 70–73. 29. Claude Steele, Whistling Vivaldi and Other Clues about How Stereotypes Affect Us (New York: W. W. Norton, 2010). 30. Beitz, Political Equality, 110. 31. If every citizen’s interests should be given equal consideration, must we draw the conclusion that an ideal or just political system would maximize all citizens’ opportunities for political participation? Modern representative and bureaucratic government, in which some individuals possess a greater ability to influence political outcomes than others, is not conceptually inconsistent with the participatory principle. A number of arguments help justify these inequalities. In many cases, representative governments will be more effective at satisfying citizens’ interests than direct democracies. Because of their ability to govern large numbers of people,

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Notes to Pages 40–48 representative systems may be better able to steer or direct the issues people care about. In addition, modern governments can marshal technical expertise, which allows them to achieve ends beyond the reach of a truly direct democracy. Last, individuals have basic interests that are not satisfied by political participation. Playing a role in the formulation of law and government policy consumes time and resources. Representative government can allow individuals to participate in the selection of their government’s aims while also allowing those citizens to pursue other productive endeavors. See Robert Dahl and Edward Tufte, Size and Democracy (Palo Alto, CA: Stanford University Press, 1973); Bruce Ackerman, We the People: Foundations (Cambridge, MA: Belknap Press of Harvard University Press, 1991). On the relationship of democracy, justice, and bureaucracy, see Henry S. Richardson, Democratic Autonomy: Public Reasoning about the Ends of Policy (Oxford: Oxford University Press, 2002). 32. Christiano, The Constitution of Equality, 81. See also Harry Brighouse and Marc Fleurbaey, “Democracy and Proportionality,” Journal of Political Philosophy 18, no. 2 (2010): 137–55. 33. The definition is meant to reflect the possibility that being an antidemocrat is not necessarily a fixed feature of an individual’s identity. 34. Something akin to this argument is offered in Jonathan Quong, “The Rights of the Unreasonable Citizens,” Journal of Political Philosophy 12, no. 3 (2004): 314–35. 35. Discussions with Amelia Hoover-Green inspired this example. 36. Benjamin Lippincott, Democracy’s Dilemma: The Totalitarian Party in a Free Society (New York: Ronald Press, 1965). 37. See, for example, Thomas Scanlon, The Importance of What We Care About (Cambridge, MA: Belknap Press of Harvard University Press, 2000). 38. Joshua Cohen, “Deliberation and Democratic Legitimacy,” in Philosophy, Politics, Democracy, 22. 39. Joshua Cohen, “Democracy and Liberty,” in Philosophy, Politics, Democracy, 233. 40. Joshua Cohen, “Moral Pluralism and Political Consensus,” in Philosophy, Politics, Democracy, 57. For an illuminating discussion of some of these issues, see Quong, “The Rights of the Unreasonable Citizens,” 315–22. See also Erin Kelly and Erin McPherson, “On Tolerating the Unreasonable,” Journal of Political Philosophy 9, no. 1 (2001): 38–55. 41. John Rawls, A Theory of Justice (1971; repr., Cambridge, MA: Belknap Press of Harvard University Press, 1995), 505. 42. Cohen, “Democracy and Liberty,” 246. 43. On this standard see John Stuart Mill, “On Liberty,” in On Liberty, with The Subjection of Women, and Chapters on Socialism, ed. Stefan Collini (Cambridge: Cambridge University Press, 1989), 14–16. 44. Another way to think of this issue is this: Do individuals have an enforceable claim to be able to participate in an ideally democratic system? If we live in a

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Notes to Pages 48–63 polyarchy and I block your attempts to create a more democratic society, am I violating your rights to participation in a way that would justify the limitation of my own ability to participate? 45. In chapter 1 I endorsed Cohen and Rogers’s definition of polyarchy as a system in which “virtually all citizens have rights of suffrage, political expression, association and office holding, as well as access to diverse sources of information; in which elected officials control public policy, and citizens choose those officials through free and fair elections.” Joshua Cohen and Joel Rogers, “Directly Deliberative Polyarchy,” in Philosophy, Politics, Democracy, 181. More generally, see Robert Dahl, Polyarchy: Participation and Opposition (New Haven, CT: Yale University Press, 1971). On the concept of the second best see Avishai Margalit, “Ideals and Second Bests,” in Philosophy for Education, ed. Seymour Fox (Jerusalem: Van Leer Foundation, 1983), 79. See also R. G. Lipsey and Kelvin Lancaster, “The General Theory of the Second Best,” Review of Economic Studies 24, no. 1 (1956–57): 11–32. 46. Christiano, The Constitution of Equality, 166. 47. Corey Brettschneider, “When the State Speaks What Should It Say? The Dilemmas of Freedom of Expression and Democratic Persuasion,” Perspectives on Politics 8, no. 4 (2010): 1011. 48. Jeremy Waldron, “Rights in Conflict,” in Liberal Rights: Collected Papers, 1981–1991 (Cambridge: Cambridge University Press, 1993), 223. 49. I am grateful to Andrea Pozas-Loyo for emphasizing the parallel between the two principles. 50. Bonnie Honig, Emergency Politics: Paradox, Law, Democracy (Princeton, NJ: Princeton University Press, 2009), 7. 51. See Daron Acemoglu and James Robinson, Economic Origins of Dictatorship and Democracy (Cambridge: Cambridge University Press, 2006). 52. Paul Pierson, “Increasing Returns, Path Dependence, and the Study of Politics,” American Political Science Review 94, no. 2 (2000): 252.

Chapter 3. Political Regulation in Defense of Democracy 1. John Rawls, A Theory of Justice (1971; repr., Cambridge, MA: Belknap Press of Harvard University Press, 1995), 216–21; Ronald Dworkin, “The Right to Ridicule,” New York Review of Books, March 23, 2006, www.nybooks.com/articles/archives/2006/ mar/23/the-right-to-ridicule/, accessed September 11, 2010. 2. Corey Brettschneider, “When the State Speaks What Should It Say? The Dilemmas of Freedom of Expression and Democratic Persuasion,” Perspectives on Politics 8, no. 4 (2010): 1007. 3. Rawls does not focus exclusively on legislation. Instead, he argues that intolerant action should be abided until the tolerant “believe that their own security and that of the institutions of liberty are in danger.” But like the legislative standard,

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Notes to Pages 64–72 this approach assumes, I believe, that harm can occur only once “institutions are in danger.” It is this assumption that I challenge in this section. Rawls, A Theory of Justice, 220. 4. On the peculiarity of the American practice of criminalizing antidemocratic behavior, see Samuel Issacharoff, “Fragile Democracies,” Harvard Law Review 120, no. 6 (2007): 1415–20. 5. Thomas Christiano, The Constitution of Equality (Oxford: Oxford University Press, 2008), 269. 6. Ibid., 179. For a similar argument see Brettschneider, “When the State Speaks What Should It Say?” 1005–19. 7. Christiano, The Constitution of Equality, 270. 8. Ibid. 9. The U.S. Supreme Court dealt with a case like this in Terry v. Adams, 345 U.S. 461 (1953). The case involved a private organization, the Jaybird Democratic Association of Fort Bend County, Texas, which held exclusionary elections, informing the white majority whom to vote for in the official Democratic primary. The Court held that by playing any significant role in the official electoral process, private associations would become, in effect, branches of the state and subject to various constitutional restraints. 10. Christiano actually makes an argument of this sort, suggesting that citizens’ rights to expression and association do not extend to the incitement of violence or the direct violation of the rights of others. But if Christiano’s caveat is correct, and I believe it is, it is quite difficult to square with his clear claim that only the legislature can act in ways that undercut the legitimate authority of democratic institutions. Christiano, The Constitution of Equality, 179, 270. 11. Samuel Issacharoff and Richard H. Pildes, “Politics as Markets: Partisan Lockups of the Democratic Process,” Stanford Law Review 50, no. 3 (1998): 666. 12. Christiano, The Constitution of Equality, 270. 13. There is an enormous legal literature on the practical, legal, and constitutional issues raised by the regulation of democracy. My works adds a more thoroughly normative perspective. For an overview, see Samuel Issacharoff, Pamela S. Karlan, and Richard H. Pildes, Law of Democracy: Legal Structure of the Political Process, 2nd ed. (Westbury, NY: Foundation Press, 2002). For an attempt to define general principles that should structure political regulations, see Dennis F. Thompson, Just Elections (Chicago: University of Chicago Press, 2004). 14. See Morgan Kousser, Colorblind Injustice: Minority Voting Rights and the Undoing of the Second Reconstruction (Chapel Hill: University of North Carolina Press, 1999). 15. Issacharoff, “Fragile Democracies,” 1449. 16. Naturally, some theoretical work on parties falls into neither camp. Russell Muirhead has written an important essay on the ethics of partisanship—that is, why we might value the activity of someone who is willing to take a side. But Muirhead’s essay is focused largely on the concept of partisanship rather than political parties

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Notes to Pages 73–78 per se, so I do not treat his argument here. Russell Muirhead, “A Defense of Party Spirit,” Perspectives on Politics 4, no. 4 (2006): 713–27. 17. On the role of parties in a democracy, see John Aldrich, Why Parties? The Origin and Transformation of Political Parties in America (Chicago: University of Chicago Press, 1995), 28–64. On the instrumental normative value of parties, see Thomas Christiano, The Rule of the Many: Fundamental Issues in Democratic Theory (Boulder, CO: Westview Press, 1996), 245; Charles Beitz, Political Equality: An Essay in Democratic Theory (Princeton, NJ: Princeton University Press, 1989), 191. 18. Beitz, Political Equality, 191. 19. Among other implications, the German Constitutional Court’s approach to political parties allows parties “to adjudicate their rights as primary agents of electoral politics.” It has also ruled that “in their capacity as constitutional organs of the state, political parties may defend their institutional rights before the court in an Organstreit (interbranch conflict) proceeding (4 BVerfGE 27: 1954), empowering parties to challenge an infringement of their electoral rights much as a branch of government would seek to vindicate its rights under the principle of separation of powers.” Donald P. Kommers, “Moves toward Democracy: The Federal Constitutional Court: Guardian of German Democracy,” Annals of the American Academy of Political and Social Science 603 (2006): 113, 119. 20. James Madison, “Federalist 50,” in The Federalist, ed. Jacob E. Cooke (Middletown, CT: Wesleyan University Press, 1961), 346. 21. On the moral value of membership in civic organizations, see Nancy L. Rosenblum, Membership and Morals: The Personal Uses of Pluralism in America (Princeton, NJ: Princeton University Press, 1998). For a more skeptical approach, see Simone Chambers and Jeffrey Kopstein, “Bad Civil Society,” Political Theory 29, no. 6 (2001): 837–65; and Sheri Berman, “Civil Society and the Collapse of the Weimar Republic,” World Politics 49, no. 3 (1997): 401–29. Habermas’s account of the value of civil society has a more instrumental character. Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, trans. William Rehg (Cambridge, MA: MIT Press, 1998), 373–79. See also Robert Putnam, Making Democracy Work: Civic Traditions in Modern Italy (Princeton, NJ: Princeton University Press, 1993). 22. See Alexis de Tocqueville, Democracy in America (1835–40), ed. J. P Mayer, trans. George Lawrence (New York: Harper Perennial, 1998); Rosenblum, Membership and Morals, 18. 23. Nancy L. Rosenblum, “Political Parties as Membership Groups,” Columbia Law Review 100, no. 3 (2000): 826. 24. Bruce Cain, “Party Autonomy and Two-Party Electoral Competition,” University of Pennsylvania Law Review 149, no. 3 (2001): 802. 25. Jon Elster, “The Market and the Forum: Three Varieties of Political Theory,” in Foundations of Social Choice Theory, ed. Jon Elster and Aanund Hylland (Cambridge: Cambridge University Press, 1986), 121.

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Notes to Pages 78–90 26. Rosenblum sometimes refers to the pursuit of democratic uniformity within and among political and civil society as the “logic of congruence.” Rosenblum, Membership and Morals, 46. 27. As Aldrich argues, “Ambitious office seekers and holders are thus the first and most important actors in the political party.” Aldrich, Why Parties? 20. 28. Equality and Human Rights Commission, UK, to Nick Griffin, Chairman, British National Party, June 22, 2009, www.equalityhumanrights.com/ uploaded_files/letter_before_claim.pdf, accessed March 4, 2011. 29. Matthew Taylor and Hugh Muir, “General Election 2010: The Defeat of the BNP,” Guardian, May 13, 2010, www.guardian.co.uk/politics/2010/may/14/ general-election–2010-fall-bnp, accessed October 6, 2012. 30. Martin H. Redish, The Logic of Persecution: Free Expression during the McCarthy Era (Stanford, CA: Stanford University Press, 2005). 31. Anthony Shadid, “Political Turmoil Follows Barring of Hundreds from Iraqi Ballot,” New York Times, January 15, 2010, www.nytimes.com/2010/01/16/world/ middleeast/16iraq.html?pagewanted=all, accessed January 15, 2010. 32. Samuel Issacharoff and Pamela S. Karlan, “The Hydraulics of Campaign Finance Reform,” Texas Law Review 77 (1998–99): 1705. 33. Michael S. Kang, “The Hydraulics and Politics of Party Regulation,” Iowa Law Review 91 (2005–6): 138.

Chapter 4. Justifying the Exclusion of Antidemocrats 1. Maurice Agulhon, The Republican Experiment, 1848–1852, trans. Janet Lloyd (Cambridge: Cambridge University Press, 1983), 1. 2. These categories are not mutually exclusive. For instance, the German Nazi Party of the 1930s fits each description. The rationales attached to each category, however, are logically distinct. In practice, courts, electoral regulators, and legislators have found each individual justification sufficient to ban a party. The Israeli Parliament (the Knesset) has stipulated that any party that opposes the Jewish character of the state can be prohibited from seeking seats in the Knesset. Such a party would fall into only the third category. Samuel Issacharoff, “Fragile Democracies,” Harvard Law Review 120, no. 6 (2007): 1432; Peter Niesen, “AntiExtremism, Negative Republicanism, Civic Society: Three Paradigms for Banning Political Parties—Part 1,” German Law Journal 3, no. 7 (2002), www .germanlawjournal.com/index.php?pageID=11&artID=164, accessed February 21, 2013; Nancy L. Rosenblum, On the Side of the Angels: An Appreciation of Parties and Partisanship (Princeton, NJ: Princeton University Press, 2008), 412–55. 3. See Victor Ferreres Comella, “The New Regulation of Political Parties in Spain, and the Decision to Outlaw Batasuna,” in Militant Democracy, ed. Andras Sajo (Utrecht: Eleven International Publishing, 2004), 133–56; Nancy L. Rosenblum,

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Notes to Pages 90–97 “Banning Parties: Religious and Ethnic Partisanship in Multicultural Democracies,” Law and Ethics of Human Rights 1, no 1 (2007): 46. 4. Rosenblum, “Banning Parties,” 47. 5. See Michael H. Belzer and Richard Hurd, “Government Oversight, Union Democracy, and Labor Racketeering: Lessons from the Teamsters Experience,” Journal of Labor Research 20, no. 3 (1999): 343–65; Michael J. Goldberg, “Cleaning Labor’s House: Institutional Reform Litigation in the Labor Movement,” Duke Law Journal 38, no. 4 (1989): 903–1011. 6. Israel Basic Law, sec. 7; German Basic Law, art. 21; Communist Party Case, 5 BVerfG 85 (1956) in Comparative Constitutional Law: Cases and Commentaries, ed. Walter Murphy and Joseph Tanenhaus (New York: St. Martin’s Press, 1977), 621–27. 7. Dennis v. United States, 341 U.S. 494 (1951). On bad faith, see Benjamin Lippincott, Democracy’s Dilemma: The Totalitarian Party in a Free Society (New York: Ronald Press, 1965). 8. Dennis v. United States. 9. Rosenblum, “Banning Parties,” 54. 10. Anti-Defamation League, “The National Socialist Movement,” www.adl.org/ Learn/Ext_US/nsm/default.asp?LEARN_Cat=Extremism&LEARN_ SubCat=Extremism_in_America&xpicked=3&item=nsm, accessed September 11, 2012. 11. On Dennis see Geoffrey Stone, Free Speech in Perilous Times (New York: W. W. Norton, 2004), 404. 12. On redistribution see Carles Boix, Democracy and Redistribution (Cambridge: Cambridge University Press, 2003). On strategic overstretch see Paul Kennedy, The Rise and Fall of the Great Powers: Economic Change and Military Conflict from 1500 to 2000 (New York: Random House, 1987), 48. 13. Jeremy Waldron, “A Right to Do Wrong,” Ethics 92, no. 1 (1981): 35. 14. Ibid., 36. 15. John Finn, Constitutions in Crisis: Political Violence and the Rule of Law (Oxford: Oxford University Press, 1991), 135–78. 16. See, for example, Michael Walzer, Just and Unjust Wars (New York: Basic Books, 1977), 74. 17. Communist Party of Indiana v. Whitcomb, 414 U.S. 441 (1973), quoted in Rosenblum, “Banning Parties,” 22. 18. I should note that Singer’s chief concern is the nature of an individual’s obligation to obey democratic law, not the boundaries of legitimate participation. Peter Singer, Democracy and Disobedience (Oxford: Clarendon Press, 1973). For a similar argument see Thomas Scanlon, “Promises and Practices,” Philosophy and Public Affairs 19, no. 3 (1990): 199–226. 19. Singer, Democracy and Disobedience, 47. 20. Ibid., 55. 21. Ibid., 55–56.

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Notes to Pages 98–108 22. John Rawls, A Theory of Justice (1971; repr., Cambridge, MA: Belknap Press of Harvard University Press, 1995), 126; Jeremy Waldron, Law and Disagreement (Oxford: Oxford University Press, 1999), 101–6. 23. Rosenblum, “Banning Parties,” 23. See also Niesen, “Anti-Extremism, Negative Republicanism, Civic Society,” 17. 24. Rosenblum, “Banning Parties,” 67. 25. Stephen Holmes, “Gag Rules, or the Politics of Omission,” in Constitutionalism and Democracy, ed. Jon Elster and Rune Slagstad (Cambridge: Cambridge University Press, 1988), 19–58. See also Robert E. Goodin, “Talking Politics: Perils and Promise,” European Journal of Political Research 45, no. 2 (2006): 241. 26. Holmes, “Gag Rules, or the Politics of Omission,” 22. 27. Ibid., 36. 28. Ibid., 21. 29. Ibid., 24. 30. On Israel see Raphael Cohen-Almagor, “Disqualification of Political Parties in Israel: 1988–1996,” Emory International Law Review 11, no. 1 (1997): 67–109; Mordechai Kremnitzer, “Disqualification of Lists and Parties: The Israeli Case,” in Sajo, Militant Democracy, 157–70. 31. Adam Przeworski, “Democracy as a Contingent Outcome of Conflict,” in Elster and Slagstad, Constitutionalism and Democracy, 59–80. 32. Scholars debate whether the total level of wealth or relative level of wealth in a society is the more important factor determining the stability of a democratic polity. For our purposes, this distinction is of little importance. Adam Przeworski, “Democracy as an Equilibrium,” Public Choice 123, no. 3–4 (2005): 253–73; Daron Acemoglu and James Robinson, Economic Origins of Dictatorship and Democracy (Cambridge: Cambridge University Press, 2006); Boix, Democracy and Redistribution. 33. Karl Loewenstein, “Militant Democracy and Fundamental Rights, I,” American Political Science Review 31, no. 3 (1937): 417–32; Loewenstein, “Militant Democracy and Fundamental Rights, II,” American Political Science Review 31, no. 4 (1937): 638–58.

Chapter 5. On Preventive Intervention 1. The National Order Party was banned a few months after a 1971 military coup. Erbakan was forced to flee the country for a year. More recently, Erbakan was indicted on corruption charges. M. Hakan Yavuz, “Political Islam and the Welfare (Refah) Party in Turkey,” Comparative Politics 39, no. 1 (1997): 66. 2. The party was accused of recruiting individuals who had been expelled from the military because of their religiosity. Umit Cizre, “Ideology, Context and Interest: The Turkish Military,” in The Cambridge History of Turkey: Turkey in the Modern World, ed. Resat Kasaba (Cambridge: Cambridge University Press, 2008), 301–32.

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Notes to Pages 108–114 3. Refah Partisi (Refah Party) v. Turkey, 35 Eur. H.R. Rep. 56 (2002). See also Samuel Issacharoff, “Fragile Democracies,” Harvard Law Review 120, no. 6 (2007): 1456. It is frequently the case that political actors ban parties before legislatures or courts authorize such action. In 1933 the Czechoslovakian government banned the Sudeten German Nationalist Party and the Nazi Party before it was able to pass authorizing legislation. Only later were the bans validated. In 1991, after an unsuccessful coup, the Russian president took it upon himself to ban the Communist Party and seize its assets. Eventually, the Russian Supreme Court held that the president’s unilateral actions were constitutional. Giovanni Capoccia, Defending Democracy: Reactions to Extremism in Interwar Europe (Baltimore: Johns Hopkins University Press, 2005), 94. 4. Yazar v. Turkey, 2002-II Eur. Ct. H.R. 395; Freedom and Democracy Party (ÖZDEP) v. Turkey, 1999-VIII Eur. Ct. H.R. 293. See also Dicle Kogacioglu, “Progress, Unity, and Democracy: Dissolving Political Parties in Turkey,” Law and Society Review 38, no. 3 (2004): 433–62. 5. Refah Partisi (Refah Party) v. Turkey. 6. See David Luban, “Preventive War,” Philosophy and Public Affairs 32, no. 3 (2004): 207–48; Jeff McMahan, “Preventive War and the Killing of the Innocent,” in The Ethics of War: Shared Problems in Different Traditions, ed. Richard Sorabji and David Rodin (Aldershot, UK: Ashgate, 2006), 169–90; Henry Shue and David Rodin, eds., Preemption: Military Action and Moral Justification (Oxford: Oxford University Press, 2007). 7. This chapter draws methodological and conceptual insight from Christine Korsgaard, “Kant on the Right to Revolution,” in Reclaiming the History of Ethics: Essays for John Rawls, ed. Andrews Reath, Barbara Herman, and Christine Korsgaard (Cambridge: Cambridge University Press, 1997), 297–328. 8. See Richard Pildes, “The Supreme Court 2003 Term: The Constitutionalization of Democratic Politics,” Harvard Law Review 118, no. 1 (2004); 33; Andreas Sajo, “The Self-Protecting Constitutional State,” East European Constitutional Review 12, no. 2 (2003): 80–81. 9. Refah Partisi (Refah Party) v. Turkey. 10. Ibid. 11. My account of the authority of democratic procedures draws on Jeremy Waldron’s discussion in Law and Disagreement (Oxford: Oxford University Press, 1999), 88–118. 12. I am following Buchanan in distinguishing between democratic authority and legitimacy. An authoritative decision, in Buchanan’s account, implies an obligation to obey. Legitimacy implies the right to coerce individuals whether or not those individuals have an obligation to obey. Though distinct, the two concepts are not mutually exclusive. Allen Buchanan, “Political Legitimacy and Democracy,” Ethics 112, no. 4 (2002): 689–719.

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Notes to Pages 115–124 13. For an alternative perspective on this claim, see, generally, Waldron, Law and Disagreement; Waldron, “The Core of the Case against Judicial Review,” Yale Law Journal 115 (2006): 1346–1406. 14. This description of instrumental authority is based on the canonical account in Joseph Raz, The Morality of Freedom (Oxford: Oxford University Press, 1986), 38–69. 15. Patrick Macklem, “Militant Democracy, Legal Pluralism, and the Paradox of Self-Determination,” International Journal of Constitutional Law 4, no. 3 (2006): 512. 16. Ibid., 515. 17. Ibid. 18. There is a burgeoning literature on representative institutions in dictatorships. See, for example, Jennifer Gandhi, Political Institutions under Dictatorship (Cambridge: Cambridge University Press, 2008). 19. The literature on the Solidarity movement, in which Michnik played a crucial role, and on the Polish struggle for democracy is extensive. I have relied on a small selection of that literature, including Timothy Garton Ash, The Polish Revolution: Solidarity (London: Granta Books, 1991); Francis Millard, The Anatomy of the New Poland (Aldershot, UK: Edward Elgar, 1994); and Wiktor Osiatyn´ ski, “The Roundtable Talks in Poland,” in The Roundtable Talks and the Breakdown of Communism, ed. Jon Elster (Chicago: University of Chicago Press, 1996), 21–68. 20. Adam Michnik, “A New Evolutionism,” in Letters from Prison and Other Essays, trans. Maya Latynski (Berkeley: University of California Press, 1985), 146. 21. Adam Michnik, “Towards a Civil Society: Hopes for Polish Democracy: Interview with Erica Blair (John Keane),” in Letters from Freedom: Post–Cold War Realities and Perspectives, ed. Irena Grudzin´ ska Gross, trans. Jane Cave (Berkeley: University of California Press, 1998), 99. 22. Adam Michnik, “Anti-Authoritarian Revolt: A Conversation with Daniel Cohn-Bendit,” in Letters from Freedom, 57. 23. Andrew Arato has argued that Solidarity’s decision to organize around the goal of an independent union, rather than a democratic workers’ council, reflected the members’ concern that the communist state would penetrate and capture more open and more democratic organizations. Andrew Arato, “The Democratic Theory of the Polish Opposition: Normative Intentions and Strategic Ambiguities,” in From Neo-Marxism to Democratic Theory: Essays on the Critical Theory of Soviet-Type Societies (Armonk, NY: M. E. Sharp, 1984), 247. 24. Michnik, “A New Evolutionism,” 121, 147–48; also see Jean Cohen and Andrew Arato, Civil Society and Political Theory (Cambridge, MA: MIT Press, 1992), 31–36. 25. Along these lines see Ian Shapiro, Democratic Justice (New Haven, CT: Yale University Press, 1999). 26. I am not making the strong causal claim that rebels cause the failure of regimes. For example, the failure of authoritarian regimes may occur after a severe

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Notes to Pages 124–129 economic shock. See Kenneth F. Greene, Why Dominant Parties Lose: Mexico’s Democratization in Comparative Perspective (Cambridge: Cambridge University Press, 2007). 27. On how decisions made during political transitions can shape the politics of new democracies, see John Londregan, Legislative Institutions and Ideology in Chile (Cambridge: Cambridge University Press, 2000). 28. On voting rules and their relative reliability, see Gerry Mackie, Democracy Defended (Cambridge: Cambridge University Press, 2003). 29. Ian Shapiro, Democratic Justice, 55–56. 30. James Madison, “Federalist 40,” in The Federalist, ed. Jacob E. Cooke (Middletown, CT: Wesleyan University Press, 1961), 265. 31. Charles Tilly, “Democracy Is a Lake,” in The Social Construction of Democracy, ed. George Reid Andrews and Herrick Chapman (New York: New York University Press, 1995), 365–87. 32. Michael Walzer, Obligations: Essays on Disobedience, War, and Citizenship (Cambridge, MA: Harvard University Press, 1970), 52–53. 33. Once democratic institutions have been imposed, democrats frequently attempt to build public legitimacy for these institutions after the fact through plebiscites, ratifying conventions, and so on. James Madison directly confronts these issues in “Federalist 40.” The last section of this chapter, which thinks through how democrats might build legitimacy for illegitimate acts taken in defense of democracy, is informed by the examples of constitution-making processes and especially the establishment of the Constitution of the United States. 34. On this before-and-after perspective on transitions to democracy, see Bruce Ackerman, The Future of Liberal Revolution (New Haven, CT: Yale University Press, 1992). 35. Bryan Garsten suggested this formulation to me during a conversation. Russell Muirhead describes J. S. Mill as a “partisan of democracy” in “A Defense of Party Spirit,” Perspectives on Politics 4, no. 4 (2006): 721. 36. On how Poland’s communist parties continued to shape politics after the transition, see Anna M. Grzymala-Busse, Redeeming the Communist Past: The Regeneration of Communist Parties in East Central Europe (Cambridge: Cambridge University Press, 2002). For a theoretical treatment of the persistent influence of nondemocratic legal systems on democratic regimes, see J. M. Finnis, “Revolutions and Continuity of Law,” in Oxford Essays in Jurisprudence: Second Series, ed. A. W. B. Simpson (Oxford: Clarendon Press, 1972), 44–76. 37. Describing Poland’s chaotic transition to democracy, Michnik observed: “The evolution from a totalitarian system to a democratic order is unprecedented and unprecedentedly painful. Great hopes generate enormous frustration. The picture of the world becomes grim and shaky. This is the ideal time for demagogy. Demagogy that aggressively attacks the government may be successful, which must lead to destabilization. Destabilization in turn elicits chaos. Chaos generates a new

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Notes to Pages 129–141 poverty and a new dictatorship. . . . A great danger to the democratic order comes from this direction. We all must take care of democracy.” Adam Michnik, “My Vote against Wałesa,” in Letters from Freedom, 162–63. 38. Emil Ludwig, Defender of Democracy: Masaryk of Czechoslovakia (New York: Robert M. McBride, 1936), 204. 39. Adam Michnik, “Gray Is Beautiful: A Letter to Ira Katznelson,” in Letters from Freedom, 326. 40. Jean-Jacques Rousseau, “The Social Contract,” in The Social Contract and Other Later Political Writings, ed. Victor Gourevitch (Cambridge: Cambridge University Press, 1997), bk. 2, chap. 7, pp. 68–72. 41. Michael Walzer, “Political Action: The Problem of Dirty Hands,” Philosophy and Public Affairs 2, no. 2 (1973): 170. 42. In fact, for contributors to the literature on self-defense, this is an easy case. Most of the philosophical work on self-defense concerns whether it is legitimate to kill people who did not intend to cause anyone harm—that is, they just happened to find themselves on a trolley that was about to flatten an innocent. This literature is huge. But on moral liability and self-defense, see Jeff McMahan, “The Basis of Moral Liability to Defensive Killing,” Philosophical Issues 15, no. 1 (2005): 386–405; and Judith Jarvis Thomson, “Self-Defense,” Philosophy and Public Affairs 20, no. 4 (1991): 283–310. 43. On the vexing metaphysical questions about whether death is actually harmful, see Jeff McMahan, “Death and the Value of Life,” Ethics 99, no. 1 (1988): 32–61. 44. On reluctance see Bernard Williams, “Politics and Moral Character,” in Moral Luck (Cambridge: Cambridge University Press, 1981), 63. On responsibility see Bonnie Honig, Emergency Politics: Paradox, Law, Democracy (Princeton, NJ: Princeton University Press, 2009), 7. 45. Allen Buchanan, “Justifying Preventive War,” in Preemption: Military Action and Moral Justification, ed. Henry Shue and David Rodin (Oxford: Oxford University Press, 2007), 136. 46. Ibid., 133. See also Allen Buchanan and Robert O. Keohane, “The Preventive Use of Force: A Cosmopolitan Institutional Perspective,” Ethics and International Affairs 18, no. 1 (2004): 1–22. 47. Quoted in Stephen Kinzer, “Turkey’s Prime Minister, About to Step Down, Defends Record,” New York Times, June 17, 1997, http://query.nytimes.com/gst/ fullpage.html?res=9B05EFD61E3FF934A25755C0A961958260&sec=&spon=& pagewanted=all, accessed February 22, 2013. 48. James Baldwin, “Notes of a Native Son,” in Notes of a Native Son (1955; repr., Boston: Beacon Press, 1984), 112.

Chapter 6. Political Exclusion and the Limits of Militant Democracy 1. Congressional Globe, 39th Cong., 1st sess. (1866): 703.

185

Notes to Pages 141–148 2. One must acknowledge that by our standards the United States was not a minimally legitimate form of government before or after Reconstruction. The exclusion of African Americans, women, Native Americans, and others from the electorate should not be defended. Yet I believe this important caveat does not alter the conclusions I reach in this analysis. 3. Ex parte McCardle, 74 U.S. (7 Wall.) 506 (1869). 4. Of course, the United States also fostered the development of democratic government in both Germany and Japan following World War II. 5. Though the Republicans would consider themselves adherents to a republican, rather than a democratic, theory of legitimate government, I use the terms interchangeably. Even if one treated republics and democracies as discrete regimes, it would not change the chapter’s logic or conclusions. 6. After Reconstruction, white Southerners did in fact enjoy this unjust advantage from at least the 1890s until the enforcement of the Voting Rights Act of 1965. 7. Eric Foner, Reconstruction: America’s Unfinished Revolution, 1863–1877 (New York: Harper and Row, 1988), 239. 8. Senator Fessenden was chairman of the Joint Committee. Report of the Joint Committee on Reconstruction, 39th Cong., 1st sess. (1866): XIII. 9. Bruce Ackerman, We the People: Transformations (Cambridge, MA: Belknap Press of Harvard University Press, 1998), 196. 10. Foner, Reconstruction, 199–208. 11. Ibid., 425. 12. Moderate Republicans were not enthusiastic about extending suffrage to African American men. Over time Southern intransigence pushed them toward accepting that the only way to ensure basic political equality was to entrench black suffrage within the Constitution. The evolution of their position is illustrated by the texts of the Thirteenth, Fourteenth, and Fifteenth amendments. The Thirteenth Amendment makes no mention of the vote. Rather than extending the franchise, section 2 of the Fourteenth Amendment states that representation will be reduced in proportion to the number of eligible voters who are not allowed to vote. Finally, the Fifteenth Amendment states: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.” 13. Foner, Reconstruction, 434. 14. Alexander Stephens, quoted in Report of the Joint Committee on Reconstruction, pt. 3, 163. 15. Report of the Joint Committee on Reconstruction, XI. 16. Eric McKitrick, Andrew Johnson and Reconstruction (Chicago: University of Chicago Press, 1960), 292–93. 17. Fessenden in Congressional Globe, 39th Cong., 1st sess. (1866): 703.

186

Notes to Pages 148–154 18. Karl Loewenstein, “Militant Democracy and Fundamental Rights, I,” American Political Science Review 31, no. 3 (1937): 417–32. 19. Foner, Reconstruction, 273. 20. Thaddeus Stevens, “ ‘Reconstruction,’ December 18, 1865, in Congress,” in The Selected Papers of Thaddeus Stevens, ed. Beverly Wilson Palmer, 2 vols. (Pittsburgh: University of Pittsburgh Press, 1997), 2:50. 21. The messianic character of Stevens’s commitment to democracy is evinced in his critique of Senator Fessenden (note the language at the end of the quote): “A few senators of great ability, undoubted patriotism and purity have become so saturated with what they are pleased to call conservatism . . . that I fear they will forget the monster that was slain in 1776 and again in 1861, and will thus do great damage to the creation of a government now so capable of being converted into a political paradise.” Quoted in Charles A. Jellison, Fessenden of Maine: Civil War Senator (Syracuse, NY: Syracuse University Press, 1962), 223. 22. For exact figures see Campbell Gibson and Kay Jung, “Historical Census Statistics on Population Totals by Race, 1790 to 1990, and by Hispanic Origin, 1970 to 1990, for the United States, Regions, Divisions, and States,” www.census.gov/ population/www/documentation/twps0056/twps0056.html, accessed September 1, 2009. 23. Historians have thoroughly debated whether the moderates’ efforts were still too radical, overly conservative, or conservative but still revolutionary. Both McKitrick and Benedict explore and critique the role played by moderate “radicals” during Reconstruction. McKitrick, Andrew Johnson and Reconstruction; Michael Les Benedict, A Compromise of Principle: Congressional Republicans and Reconstruction, 1863–1869 (New York: W. W. Norton, 1974). 24. Michael Les Benedict, “Preserving the Constitution: The Conservative Basis of Radical Reconstruction,” Journal of American History 61, no. 1 (1974): 65–90. 25. Foner, Reconstruction, 278. 26. Abraham Lincoln, “Second Inaugural Address (March 4, 1865),” in Lincoln, Speeches and Writings, 1859–1862, ed. Don E. Fehrenbacher (New York: Library of America, 1989), 686. 27. Report of the Joint Committee on Reconstruction, XIII. 28. John Searle, Construction of Social Reality (New York: Free Press, 1995). 29. For the classic itemization of the rules or practices that are potentially constitutive of democracy, see Robert Dahl, Polyarchy: Participation and Opposition (New Haven, CT: Yale University Press, 1971). 30. Gibson and Jung, “Historical Census Statistics.” 31. This discussion of practices (or institutions) and their constitutive rules relies on the following works: John Rawls, “Two Concepts of Rules,” Philosophical Review 64, no. 1 (1955): 3–32; John Searle, “How to Derive ‘Ought’ From ‘Is,’ ” Philosophical Review 73, no. 1 (1964): 43–58; and Searle, Construction of Social Reality.

187

Notes to Pages 155–168 32. Indeed, Southerners typically did not claim that they were being excluded undemocratically, but illegally and unconstitutionally. Though interesting in themselves, such claims do not warrant our consideration. See, for example, Garrett Epps, Democracy Reborn: The Fourteenth Amendment and the Fight for Equal Rights in Post–Civil War America (New York: Henry Holt, 2006), 78. 33. “Are the Rebel States Excluded,” Chicago Tribune, September 1, 1866. 34. I am assuming that the question of whether we will be together in a political community is already settled. 35. Because Northern and Southern voters had distinct preferences, interests, and information, the Northern electorate simply could not be counted on to monitor the government for Southern citizens effectively. 36. On the underlying logic of this claim see Frank Lovett, “Can Justice Be Based on Consent?” Journal of Political Philosophy 12, no. 1 (2004): 79–101. 37. Congressional Globe, 40th Cong., 2nd sess. (1866): 514. 38. “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.” 39. Philipp Nielsen helped me add some needed historical nuance to this example.

Conclusion 1. Nancy L. Rosenblum, “Banning Parties: Religious and Ethnic Partisanship in Multicultural Democracies,” Law and Ethics of Human Rights 1, no. 1 (2007): 23. 2. Leszek Kołakowski, “In Praise of Inconsistency,” in Toward a Marxist Humanism (New York: Grove Press, 1968), 218. 3. “Droga od wolnos´ci do demokracji, czyli wolnos´ci w ramach pan´stwa prawa, nie jest usłana płatkami róz˙.” Adam Michnik, “Jeden z Tych Dni, dla Których Warto Z˙yc´,” Gazeta Wyborcza, February 12, 2011, http://wyborcza. pl/1,76842,9095475,Jeden_z_tych_dni_dla_ktorych_warto_zyc.html, accessed March 1, 2011. Translated for the author by Michał Wawrzoniak.

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200

Index

Abstention from participation, 97–98 Accountability and Justice Commission (Iraq), 82 Active interests in participation rights, 36–40 African Americans: and black codes, 145; participation rights of, 160; voting rights of, 67–68, 70–71, 154, 157, 186n12 Agulhon, Maurice, 86 Aldrich, John, 179n27 Algeria, antidemocratic groups in, 160 Alien Registration Act of 1940 (U.S.), 92 Antidemocrats: as democrats through force of circumstance, 86–87; disenfranchisement of, 86–106; and gag rules, 100–105; intransigence of, 119; and limited intervention principle, 53; militant democracy theory’s response to, 166;

obstructionism by, 119; participation rights of, 4, 40–42 Arab Spring, 128, 162, 168 Arato, Andrew, 183n23 Arendt, Hannah, 8 Association rights, 63, 65, 74, 117 Authoritarian regimes: failure of, 183–84n26; participation rights in, 35; preventive intervention in, 122–23 Autonomy of political parties, 73–74, 76, 77 Background institutions, 19 Bad-faith argument for political exclusion, 42–45, 96–99 Baldwin, James, 139 Basque separatists, 87, 90 Batasuna Party (Spain), 87, 90 Beitz, Charles, 36, 74, 172n1 Benedict, Michael Les, 187n23 Bernanke, Ben, 93

201

Index Bias toward democracy, 69–71, 81–85 Bingham, John, 151, 159 Black codes, 145, 146 Blair, Tony, 131 Bosnia, gag rules to preserve fragile democracy in, 100 Boundary problem in democratic theory, 155 Brettschneider, Corey, 10 British National Party (BNP), 18, 61–62, 79–81, 106 Buchanan, Allen, 137, 182n12 Bulgaria, gag rules in, 100 Cain, Bruce, 77 Censure, 66 Chess metaphor, 154–58 Chicago Tribune on participation rights of Southern states, 155 Christian Democrats (Germany), 74 Christiano, Thomas, 50, 64, 65–68, 119, 172n1, 177n10 Civic associations, 76 Civic virtue, 37–38 Civil disobedience, 135 Cohen, Joshua, 4–5, 43, 44–45, 176n45 Cohn-Bendit, Daniel, 122 Communist Party (Germany), 14 Communist Party (Poland), 33 Communist Party (Russia), 182n3 Communist Party of Indiana v. Whitcomb (1973), 96 Communist Party of the United States (CPUSA), 82, 92–93 Competence of citizens, 34, 55 Comprehensive threats to democracy, 130–31 Congressional Record on Reconstruction debates, 143–44 Constitution (U.S.): Thirteenth

Amendment, 144, 145, 186n12; Fourteenth Amendment, 151, 154, 160, 186n12; Fifteenth Amendment, 147, 154, 186n12; drafting process for, 184n33; three-fifths clause, 144. See also specific amendments Constitutional Court (Turkey), 108, 112, 114, 118, 134, 139 Constitutional courts, 164–65. See also specific courts by country The Constitution of Equality (Christiano), 65 Constitutive rules of democracy, 50, 110, 124, 153, 155–56 Contract law, 96–97 Criminal activity, 88, 90 Czechoslovakia, antidemocratic groups in, 161, 182n3 Dahl, Robert, 4 Deliberative democracy, 9, 43–44 Democracy and Disobedience (Singer), 96 Democratic Party (U.S.), 74, 94 Democratic responsibility principle, 7, 55–59; defined, 27–28; and potential costs of action and inaction, 110, 112; and preventive intervention, 134; reasons for, 57–59 Demons (Dostoevsky), 173n14 Dennis v. United States (1951), 92–96 Discriminatory electoral rules, 62–65 Disenfranchisement: of antidemocrats, 86–106; costs of, 50; and limited intervention principle, 54; in Reconstruction, 146; as threat to democracy, 10–11. See also Political exclusion Dostoevsky, Fyodor, 173n14 Dualism, 9, 171n22 Duty to obey, 99, 127, 182n12

202

Index Duty to respect participatory rights of others, 36 Dworkin, Ronald, 10–18, 63 Egypt, political revolution in, 128, 168 Electoral rules, 62–65, 70, 144. See also Constitutive rules of democracy Electoral violence, 57 Emancipation Proclamation (U.S.), 144 Emergency powers, 22 Enabling Act of 1933 (Germany), 1, 14, 169n3 Enforcement Acts of 1870 and 1871 (U.S.), 154 Equality and Human Rights Commission (EHRC, UK), 61–62, 79–81 Equal recognition, 38, 43, 65, 174n31 Equitable distribution of wealth, 35, 93–94, 104, 181n32 Erbakan, Necmettin, 107–8, 114, 130–31, 138, 181n1 Estoppel doctrine, 96–97 ETA (Basque organization), 87, 90 Ethics of democratic revolution, 28–33 European Convention on Human Rights, 112 European Court of Human Rights (ECHR): on political exclusion in Turkey, 108, 110–11, 119, 134; on preventive intervention, 109, 112–13, 132 European Parliament, 61–62, 81 Exclusion. See Political exclusion Fascism, 2 Federal Constitutional Court (Germany), 74, 91, 178n19 Federalism, 151, 157 “Federalist 40” (Madison), 184n33

“Federalist 50” (Madison), 75 Fessenden, William Pitt, 141, 144, 151, 187n21 Fifteenth Amendment (U.S.), 147, 154, 186n12 Foner, Eric, 145, 146 Fourteenth Amendment (U.S.), 151, 154, 160, 186n12 “Fragile Democracies” (Issacharoff), 71 France: democratic revolution in, 86–87; judicial review in, 171n30 Freedom of association, 63, 65, 74, 117 Freedom of expression, 63, 65, 117 Freedom of speech, 52 Freedom’s Law (Dworkin), 10 Free rider problem, 125 Fringe political parties, 74–75 Gag rules, 100–105; mutual acceptability defense for, 101–3; mutual interest defense for, 103–5; and tolerance, 63–64 Garsten, Bryan, 184n35 Georgia, political participation rights during Reconstruction in, 142 Germany: democratic development in, 186n4; institutional failure in, 3; political parties in, 74, 91, 178n19 Germany Communist Party (KPD), 91 Goebbels, Joseph, 23 Grant, Ruth, 171n20 Griffin, Nick, 61–62, 63, 80 Habeas corpus, 142 Hamilton, Alexander, 16 Hateful speech and parties, 61–62 Hayes, Rutherford B., 160 Hitler, Adolf, 1, 14 Holmes, Stephen, 19, 101, 102 Honig, Bonnie, 56

203

Index Idealism: and harmful participation, 68; and self-limiting revolution, 31; and tolerance, 166 Identity: national, 87, 100, 103; and participation rights, 38–39 Illegal activities, 88, 90 Illegitimate interventions: defense for, 127–33; preventive interventions as, 109–10, 112–21; recognition of, 137 Individual equality, 65 Instrumental value of parties, 73–75 Intent to harm, 50–53 Intrinsic value of parties, 75–79 Iraq, political exclusion of candidates in, 2, 82 Israel: consolidated democracy in, 2; Jewish identity of, 103; political participation rights in, 71, 87; political parties in, 91, 179n2 Issacharoff, Samuel, 71, 84, 88, 170n11 Italy, gag rules in, 100 Japan, democratic development in, 186n4 Jaruzelski, Wojciech, 121 Jaybird Democratic Association (U.S.), 177n9 Johnson, Andrew, 147, 148 Joint Committee on Reconstruction (U.S.), 144–45, 147, 148, 153 Judicial review, 9–18; and discriminatory electoral rules, 63; and French Third Republic, 171n30; justification of, 115; legitimacy of, 9; and preventive intervention, 110, 113–16; and Reconstruction, 147; and threats to democracy, 21 Julian, George, 149 Justice, 23–24

Justice Department (U.S.), 71 Just war theory, 95, 109 Karlan, Pamela, 84 Kołakowski, Leszek, 30, 168 KOR (Workers’ Defense Committee, Poland), 28, 172n2 Ku Klux Klan, 145 Kuron´, Jacek, 32 Labour Party (UK), 131 Legislative coalitions, 67, 105, 130 Legislative self-censorship, 102 Legitimacy: and bad-faith participation, 99; and costs of militant democracy, 58; democratic foundings without democratic legitimacy, 124–26; democratic justification of illegitimate action, 121–33; democratic reasons for illegitimate action, 126–27; and duty to obey, 182n12; equal recognition as basis for, 43; illegitimate defense of democracy, 127–33; of judicial interventions, 9, 116; judicial legitimacy’s limits, 116–18; and participation rights, 38; of preventive intervention, 112–21 Libya: antidemocratic groups in, 160; political revolution in, 168 Limited intervention principle, 6–7; defined, 27; and intent to harm, 50–53; and legitimate limitations on participation, 48–50; and political exclusion of antidemocrats, 66; reasons for, 53–55; and Reconstruction, 150 Lincoln, Abraham, 152–53 Lipski, Jan Jozef, 172n2 Locke, John, 7–8, 128

204

Index Loewenstein, Karl: on antidemocrats’ participation rights, 2; on democratic revolution, 3; on judicial review and French Third Republic, 171n30; on suspension of democratic principles to defend democracy, 23, 148–49; threat-to-democracy approach of, 105–6 Logic of congruence, 179n26 Loyalty, 150 Macedo, Stephen, 171n27 Macklem, Patrick, 111, 116–18, 119 Madison, James, 3–4, 75, 125, 184n33 “Maggots and Angels” (Michnik), 30 Maistre, Joseph de, 8 Majority rule, 124 Marxism, 31 Masaryk, Thomas, 129 McCarthy, Joseph, 82 McKitrick, Eric, 187n23 Michnik, Adam: on antidemocrats’ participation rights, 40–42; on democratic action within nondemocratic regime, 5, 39, 121–22; and democratic responsibility principle, 55; on Dostoevsky’s Demons, 173n14; and ethics of democratic revolution, 27, 28–33, 111; and participatory principle, 33; on path to democracy, 168; on pluralism, 7; on Poland’s transition to democracy, 184n37; on radical movements, 129; on self-limiting revolution, 17, 48, 59, 166 Militant democracy: cost of interventions, 55–56, 59, 135–37; as democratic counterrevolution, 1–9; limits of, 141–63; Loewenstein’s use of term, 2; paradox of, 16, 25, 55–56,

143, 166; Reconstruction as, 144–52; risk of fanaticism in, 29; tragedy of, 159–62. See also Political exclusion; Political regulation; Preventive intervention; Self-limiting theory of militant democracy “Militant Democracy, Legal Pluralism, and the Paradox of SelfDetermination” (Macklem), 116 Mississippi, voting rights in, 70–71 Moral absolutism, 32 Moral liberty, 135 Moral membership in community, 10, 13 Moral reflection, capacity for, 44 Mubarak, Hosni, 128, 168 Muirhead, Russell, 177n16, 184n35 Muslim Brotherhood, 128, 168 National Democratic Party (Egypt), 168 National identity, 87, 100, 103 National Order Party (Turkey), 181n1 National Party (South Africa), 12 National People’s Party (Germany), 1 National Socialist Movement (U.S.), 93 Nazi Party (Germany): antidemocratic actions of, 95, 106; in Czechoslovakia, 161; and Enabling Act, 1–2, 169n3; and intent to harm standard, 51, 179n2; political exclusion by, 13, 179n2 Necessity-based political exclusion, 112–13 Nielsen, Philipp, 188n39 Niesen, Peter, 88 Nondomination, 35 Nonutopian conception of democracy, 33 “Notes of a Native Son” (Baldwin), 139

205

Index On Revolution (Arendt), 8 Overlapping consensus, 44 Participation rights: and abstention, 97–98; active interests in, 36–40, 158; in authoritarian regimes, 35; exclusion of antidemocrats, 19, 86–106; and gag rules, 100–105; and harmful participation, 65–68; and intent to harm, 51; interest-based account of, 5, 18, 28, 33–47, 59; passive interests in, 36–40; and self-limiting revolution, 24; and tolerance, 69; value of, 117 Participatory principle, 6, 33–47; and antidemocrats’ participation rights, 40–42; defined, 27; and democratic action in authoritarian regimes, 123; and equal consideration, 174n31; interests grounding the right to participate, 36–40; and limited intervention principle, 48–50, 54; and reciprocity, 42–45 Passive interests in participation rights, 36–40 Pierson, Paul, 58 Piłsudski, Józef, 31 Pinochet, Augusto, 121 Pluralism, 7, 32, 76, 78, 121–23 Poland: participation rights in, 40–42; transition to democracy in, 184n37. See also Solidarity movement Political competition, 70 Political exclusion, 141–63; costs of, 38, 158–59; and limited intervention principle, 47–55; logic of democratic exclusion, 152–59; and obligation to restore participation rights, 138; in Reconstruction, 152–59; and selflimiting revolution, 31. See also Disenfranchisement

Political parties: autonomy of, 73–74; bad-faith participation by, 96–99; banning of, 19, 21, 88–99; ethics of, 177n16; hateful speech and parties, 61–62; influential, 19, 71–85; instrumental value of, 72, 73–75; intrinsic value of, 72, 75–79; and political regulation, 71–85; rejecting democracy, 91–99 Political regulation, 61–85; bias toward democracy, 69–71, 81–85; as censure, 66–67; discriminatory electoral rules, 62–65; and harmful participation, 65–68; of hateful speech and parties, 61–62; and influential parties, 71–85; and instrumental value of parties, 72, 73–75; and intrinsic value of parties, 72, 75–79; legal interpretation of, 56; religiously inspired, 44–45; thresholds for, 79; and tolerance, 65–68. See also specific legislative acts Political socialization, 77 Political transitions, 124, 127–28, 162 Popper, Karl, 169n5 Portugal, gag rules in, 100 Preventive intervention, 107–40; and authoritarian regimes, 122–23; and cost of militant interventions, 135–37; democratic approach to, 133–39; democratic justification of illegitimate action, 121–33; ECHR on, 112–13; illegitimacy of, 112–21; and illegitimate defense of democracy, 127–33; and judicial legitimacy’s limits, 116–18; and judicial review, 113–16; preemptive intervention distinguished from, 109; and unlimited intervention, 133–35 Preventive wars, 137

206

Index Proceduralism, 9, 171n22 Przeworski, Adam, 103 Race Relations Act of 1976 (UK), 61, 80 Radically divisive issues, 100–101 Rawls, John, 2, 43–44, 63, 176n3 Reciprocity, 42–45 Reconstruction (U.S.): and democratic responsibility principle, 58–59; and justice, 24; as militant democracy, 144–52; political exclusion during, 20–21, 120, 141–44, 152–59 Redistribution of wealth, 35, 93–94, 104, 181n32 Refah Party (Turkey), 20, 107–10, 112–13, 130–31 Regulatory interventions. See Political regulation Religion: and gag rules, 100, 101; as national identity, 103; and political regulation, 44–45; state establishment of, 100–101 The Republican Experiment (Agulhon), 86 Republican Party (U.S.): influence of, 74; and Reconstruction, 143, 146, 148–49, 156, 158 “A Right to Do Wrong” (Waldron), 94 Rogers, Joel, 5, 176n45 Rosenblum, Nancy, 18–19, 76–78, 88, 100, 179n26 Rousseau, Jean-Jacques, 4, 129 Russia, political exclusion in, 182n3 Rwanda, gag rules to preserve fragile democracy in, 100 Second Treatise on Government (Locke), 7 Self-defense rights, 136, 185n42 Self-determination, 38–39 Self-limiting revolution, 6, 8–9, 24, 26–28

Self-limiting theory of militant democracy, 26–60; and democratic responsibility principle, 55–59; and ethics of democratic revolution, 28–33; and limited intervention principle, 47–55; participatory principle of, 33–47; and political regulation, 72; and “self-limiting revolution,” 26–28 Shapiro, Ian, 171n19 Sharia law, 108, 113, 134 Sherman, John, 151 Singer, Peter, 19, 96–97, 180n18 Slavery, 101–3, 142–43 Smith Act of 1940 (U.S.), 92 The Social Contract (Rousseau), 129 Social Democrats (Germany), 14, 74 Solidarity movement (Poland): and authoritarian regime’s demise, 162; and participation rights of antidemocrats, 40–42, 183n23; as “self-limiting revolution,” 5–6, 8–9, 26–27, 28–33, 173n16 South Africa, antidemocratic legislation in, 12, 14 Spain, political participation rights in, 87, 90 Stephens, Alexander, 147, 148, 155 Stevens, Thaddeus, 149, 150, 152, 187n21 Sudeten German Nationalist Party (Czechoslovakia), 182n3 Sumner, Charles, 149 Sunk costs, 126 Supreme Court (Russia), 182n3 Supreme Court (U.S.), 14–15, 92–93, 96, 177n9 Tennessee, readmission to Union, 142 Terry v. Adams (1953), 177n9

207

Index Thirteenth Amendment (U.S.), 144, 145, 186n12 Threats to democracy: assessment of, 117; comprehensive, 130–31; defensive actions justified in response to, 95; Dworkin’s approach to, 10–11; and gag rules, 100–105; indirect, 100–105; and judicial review, 9–18; judicial review as response to, 21; legislation as, 11–15; political parties that reject democracy, 91–99; and self-limiting model of militant democracy, 105–6 Three-fifths clause, 144 Tilly, Charles, 125 Tocqueville, Alexis de, 76 Tolerance: and bias toward democracy, 69; and discriminatory electoral rules, 63; and gag rules, 63–64; in ideal theory, 166; of intolerance, 169n5, 176n3; Loewenstein on, 2; paradox of, 25; and political regulation, 65–68 Transitional justice, 23–24 True Path Party (Turkey), 107, 130–31 Trumbull, Lyman, 151 Tunisia, political revolution in, 168 Turkey: gag rules in, 100; political exclusion in, 20, 107–9, 181n1; political participation rights in, 87

United Kingdom: legal authority of Parliament in, 131; political stability in, 3 United States: communist activism response in, 63, 82; democratic development role in Germany and Japan after World War II, 186n4; gag rules on slavery in, 101–2, 103; political parties in, 74; voting rights in, 67–68, 70–71. See also Reconstruction United Workers’ Party (Poland), 173n16 Unlimited intervention, 133–35 Utility, 35 Voting Rights Act of 1965 (U.S.), 70–71, 84–85, 161 Waldron, Jeremy, 50–53, 94–95 Walzer, Michael, 125, 133 Weimar Republic (Germany), 1–2, 14, 95 Welfare Party (Turkey). See Refah Party “Who Are the Mindbenders?” (Griffin), 61 Workers’ Defense Committee (KOR, Poland), 28, 172n2

208