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

This review explores two recent contributions to the theory of democratic self-defence: Benjamin Schupmann's Democracy Despite Itself and Gabriele Badano and Alasia Nuti's Politicizing Political Liberalism . It situates both works within the broader field of democratic self-defence and critically assesses their central arguments in terms of normative coherence and practical applicability. The review also compares the two: Schupmann's maximalist, institution-focused model of militant democracy offers a sharp, normative framework for early and decisive constitutional intervention against autocrats, while Badano and Nuti shift attention toward the ethical and civic dimensions of democratic resistance beyond the state. Both contributions deepen our understanding of the challenges involved in resisting autocratization today – whether through legal entrenchment or grassroots engagement – while also revealing the persistent tensions between liberal constitutionalism and popular sovereignty.

Among several important constitutional principles, populist constitutionalism emphasizes the principle of popular sovereignty or popular sovereignty. The principle of popular sovereignty is not only an important ideology of democracy, but also an important ideology of populism. The principle of popular sovereignty in harmony with representative democracy accepts the principle of rule of law as an essential component, whereas the principle of absolute popular sovereignty pursued by populism seems to be incompatible with the principle of rule of law. This is where the incompatibility between populism and liberal constitutionalism begins. Although populism's critique of liberal constitutionalism provides a very important insight into structural problems in liberal democracy, populist constitutionalism ultimately leads to the completion of an authoritarian or dictatorial ruling system to maintain their permanent maintenance of political dominance. It poses a serious threat to democracy in that it seeks to justify it through constitutional amendment or constitutional enactment. As the legal-practical approach of populism, the instrumentalist approach holds that the legal values pursued by populism are determined according to how effectively they are useful as a tool for environmental domination that well explains and predicts current social phenomena. This instrumentalist approach can be seen to contain elements of an opportunistic and seditious nature within it. Paradoxically, using the instrumentalist approach of the populists to overthrow the liberal-democratic constitutional system and to realize their political programs, the most used tool is also the constitution. Populists criticize the liberal understanding of constitutionalism and the rule of law. Their critique is the constitutional control mechanism for political phenomena based on liberal constitutionalism. What they criticize is the control of politics through the rule of law, that is, the establishment of limits for political domains through the law, that is, the pursuit of depoliticization through the law. Populists prefer the theoretical approach for critique of liberal constitutionalism and the arguments formed through it, and they share and spread their opinions on it through various media as well as various media. Despite these populists' criticisms of liberal constitutionalism and the rule of law, the starting point of the constitutional evaluation of populism must be evaluated from the perspective of democracy and the rule of law from the point of view of the liberal constitutionalism they criticize. A democratic constitutional state attempts to find a constitutional theory formed within the framework of a constitutional system in the rule of law, as a clue to solving problems related to various domestic and international political phenomena such as populism. The principle of the rule of law, which has justice, legal stability, and proportionality as its ideological components, is a dynamic constitutional concept that can be continuously developed. Therefore, in relation to the continuous development of the principle of the rule of law and the guarantee of the possibility of formation, the constitutional order is newly formed and developed dynamically in the form of populism in the conceptual framework of the modern rule of law, which has been confirmed through the practice of law and the theory of law. What legal control standards can be established and suggested over the political realities that exist? Otherwise, a democratic constitutional state must be able to develop and develop a new constitutional interpretation that seeks an appropriate and balanced point that can accommodate constitutional-developmental constitutional policies based on populism to some extent within the scope of the constitutional order.

Radical democrats such as Sheldon Wolin and Jason Frank often frame radical democracy and liberal constitutionalism as mutually opposed. I argue that they are mutually constitutive. Liberal constitutionalism entails a bundle of normative commitments that support the free expression of radical democratic actors who revolt against one fundamental law in order to write another. Radical democracy enacts the spirit of revolution within the liberal constitutionalist imperative to critically interrogate the fundamental law and prepare oneself—if necessary—to overthrow it. Furthermore, liberal equality—the idea that everyone counts and that everyone counts “only as one”—underwrites the political initiative of the “deviants” and “outsiders” at the center of radical democrats’ concern. Popular sovereignty derives much of its appeal from the liberal individualist principle of self-determination, the idea that individuals should rule themselves. The personal and political rights of both democratic actors and their opponents are the invisible constitution of radical democracy. Anyone calling himself a democrat must treat that constitution as binding.

"Democracy in Action:" International Adoption in Twentieth-Century America Allyson Donna Stevenson (bio) Rachel Rains Winslow. The Best Possible Immigrants: International Adoption and the American Family. Philadelphia: University of Pennsylvania Press, 2017. Pp. 297. Figures, appendices, notes, bibliography, and index. $45.00. Allison Varzally. Children of Reunion: Vietnamese Adoptions and the Politics of Family Migrations. Chapel Hill: The University of North Carolina Press, 2017. Xii +159. Figures, appendices, notes bibliography, and index. Paperback $29.95, Hardcover $80.00. The origins of international adoption are inextricably bound with American engagement in conflicts around the world. As authors Allison Varzally and Rachel Rains Winslow articulate, the children of these international conflicts have become adoptive kin for American middle-class families though a distinctive shifting in the meaning of family and race in American culture. Emerging out of what became an expression of "democracy in action," as one journalist put it, these model families created, shaped and expanded notions of family-making to include refugee children from foreign countries though transnational and transracial adoption (Winslow, p. 134). Scholars of race and ethnicity, childhood, and immigration histories will be interested in reading both Children of Reunion: Vietnamese Adoptions and The Politics of Family Migrations and The Best Possible Immigrants: International Adoption and the American Family to gain clearer sense of the ways in which family and nation are intimately bound through the articulation of race, gender, and citizenship. Rich with sophisticated analysis and insight into the complex maze of non-governmental agencies, government legislation, and private players, each book builds on a growing body of innovative adoption literature that engages with gender, whiteness, and American nationalism in relation to adoptive family-making. Winslow's The Best Possible Immigrants provides a critically important account of the emergence international adoption, an "invisible and integral" element in family making today. In a clear and forthright manner, Winslow identifies four foundational frameworks that guided approaches to adoption and child welfare from the early post-war period to 1976, when her account [End Page 271] concludes. The four paradigms—the consumer paradigm, the child welfare paradigm, the humanitarian paradigm, and the development paradigm—inflected approaches to providing for vulnerable children and families in various times and places. Allison Varzally's Children of Reunion: Vietnamese Children and the Politics of Family Migrations in many ways picks up where Winslow leaves off. Looking specifically at the experiences of Vietnamese adoptees and migrant children, Varzally uses stories and memoirs to examine the ways in which children themselves have grappled with their identities not only as racial minority adoptees, but also ambiguous symbols of commemoration of the Vietnam War. While Winslow focuses on the distinctive American approach of giving adoptive parents a prominent role in crafting adoption policy, Varzally opens up space for adoptees' voices and experiences, while remaining critical of the uses of children as political symbols of American humanitarianism. Rachel Rains Winslow's The Best Possible Immigrants is a historical account of the policies and procedures that developed around international adoption in America. Between 1947 and 1975 Americans adopted 35,000 children from around the world. (p. 2) She focuses exclusively on intercounty adoptions that occurred between American families and children from Greece, South Korea, and South Vietnam to illustrate the uniquely American story of international adoption and the competing and occasionally complementary agendas at work in child welfare and child rescue. She argues that intercountry adoptions went from an ad hoc response to World War II war orphans to a respected institution, and succeeded because it was "in the interest of many." From her introduction, Winslow situates international adoption in the domestic adoption context. Adoption in the 1950s was noteworthy for tensions between professional social workers employed by state agencies and in organizations operating from the child welfare paradigm, such as the Child Welfare League of America and the National Children's Bureau, and private individuals such as doctors, lawyers, and volunteers who matched babies with adoptive families for profit, operating from the consumer paradigm. The Children's Bureau and Child Welfare League acted only as advisory bodies and sought to regularize and control the emerging adoption market in the domestic United States. Social workers fought unsuccessfully to eliminate non...

Democracy despite Itself: Liberal Constitutionalism and Militant Democracy

Democracy despite itself: liberal constitutionalism and militant democracy

Recent scholarship on eighteenth- and nineteenth-century Spanish America, and to a lesser extent Spain itself, has reinvigorated the study of the Spanish Empire's political history and provided new vistas onto the transition from colonies to republics. Out of these diverse case studies and revisionist arguments a few trends are notable. Among others, scholars have emphasized continuities between the political culture of the late colonial period and the early republics, the ways that local concerns articulated with royal policies or national politics, and how religion intertwined with political practices and representation. Scott Eastman's new book takes some of these insights as jumping-off points but views them with a wide optic, examining the emergence of a proto-nationalist language in the transatlantic Spanish Empire. Using a loosely comparative framework that draws upon material from select locales in Spain and New Spain, Eastman focuses on the development of what he terms a “Hispanic public sphere.” Over six chapters, he traces the evolution of public discourse on popular sovereignty from the era of the Spanish Enlightenment in the second half of the eighteenth century into the first decades of the nineteenth century. The bulk of his sources are concentrated in the period from 1808 to 1823, a tumultuous fifteen years that included the Napoleonic invasion of Spain, the long independence struggle in New Spain, and the first experiments with liberal constitutionalism in both places. While Eastman privileges the literate public sphere, his sources are diverse, ranging from songs and plays to published sermons, civil catechisms, and other political tracts. He handles these documents with great skill, providing nuanced readings and stylish translations.

Multiple laws and regulations in Western Europe have been enacted on the premise that headscarves and face veils constitute an existential threat to the constitutional identity of the respective legal systems. Thus, the logic of militant democracy as a justification for restricting fundamental rights have been applied in order to restrict the freedom to manifest one’s religion. Yet, the politicymakers claiming to defend the constitutional identity through militant democracy have not been able to prove the existence of a concrete, imminent threat against the state from the women who wear headscarves or face veils. Nonetheless, the European judiciaries have taken the political claim at face value and allowed the restrictions without compelling the political decision-makers to provide substantive justifications. Thus, the cases of headscarves and face veils offer a prism, through which we can study fundamental paradoxes of liberal democracy and constitutionalism.

This thesis examines in detail the three major Vietnamese constitutional reforms of 1992, 2001, and 2013. In doing so, it examines the core purposes of constitutional changes related to the political legitimacy of the Party-State and investigates the factors that support or hinder the transition of the Vietnamese socialist constitution to liberal democratic constitutionalism. It does so by looking at Vietnamese history, culture, the circumstances of the emergence of each constitutional reform in the larger context of the crisis of the political legitimacy of the Party-State, the changes in the Vietnamese Communist Party’s policies, the procedure of drafting each constitution, and the aims and the substance of these changes. This study contributes to the ongoing discussion on constitutional transition in socialist regimes in two important ways. First, is represents the first comprehensive examination of all the major Vietnamese constitutional reforms. Second, it draws on not only international academic scholarship but importantly original Vietnamese sources, ranging from secondary literature of Vietnamese scholars, to original Party and State documents, particularly National Assembly deputies’ speeches, and Vietnamese media and blogs. The finding of the thesis is that there were three major factors that had a significant influence in the Vietnamese constitutional reforms of 1992, 2001 and 2013, namely, the Vietnamese Communist Party; state agencies and officials; and political and legal culture, such as village culture, Confucianism, colonialism, and socialism. The Party, state agencies and officials were the main factors that hindered these constitutional reforms, mainly because the Party-State introduced these reforms as a part of the ongoing negotiation with the people to retain the Party hegemony.

Democratic defence – Germany’s militant democracy – militant measures against radical-right parties – targeted organisations in militant democracies not passive recipients of militant measures – actions taken by targeted organisations – parties engaging in frontstage moderation to shield the party from militant measures – alternative for Germany shielding the party from militant measures by the Office for the Protection of the Constitution

The conclusion of this book underscores how ‘militant democracy’ is vital for entrenching democratic constitutional essentials against legal revolutionary threats. It argues for the use of proactive defensive measures to safeguard the political identity of democracy against its internal enemies. While emphasizing the importance of constitutional design in safeguarding democracy, the conclusion recognizes that militant democracy should be integrated into a broader defensive strategy. It argues that militant democracy’s focus on constitutional entrenchment should be paired with more proactive and longer-term solutions, such as improved social democracy and civic education. It concludes that a multifaceted defence is the best guarantee against the cannibalization of democracy.

The article analyses the annulment of the 2024 presidential election by the Romanian Constitutional Court. This unprecedented semi-peripheral exercise in militant democracy has received worldwide attention. The Romanian event was represented by various foreign officials and dignitaries (President of France, President of Poland, Vice President of the United States, etc.) as a bellwether for trends that are interpreted in diametrically opposed ways. Militant democracy is a concept that corresponds to specific constitutional instruments for the protection of democracy from radicalism. The notion is routinely understood as an important practical corollary of the “lesson of Weimar”, whereas the German Basic Law has served as a blueprint for the general philosophy and the specific instruments of democratic militancy in various post-totalitarian systems. After decades of dormancy, the concept and its practical legal and political implications have once again come to the fore of political and theoretical preoccupations. This revival happened in a context marked by the steady erosion of Western liberal constitutionalism, which is placed under threat by radical forces, wishing to upturn it. I use the Romanian constitutional and political developments to showcase three sets of paradoxes that the events illustrate and illuminate: 1. Party bans enforced through constitutional courts as the synecdochic “lesson of Weimar”; 2. Individual militant democracy, as practiced in Romania, and the broader implications of the instrument; 3. The structural preconditions that lead to the perceived need to practice legal-constitutional militancy and the cause-effect correlations involved in the need and the practice.

This paper examines the doctrine of Basic Structure and its effect upon the development of constitutional jurisprudence on the Indian sub-continent, i.e. Bangladesh, India and Pakistan. It also analyses the courts’ robust underpinning on the doctrine that puts ‘an embargo or a limit upon the parliamentary supremacy’. Such an embargo or a limit is at times seen as a fundamental one which eventually led practical application. Since this position provokes huge controversy, e.g. illegitimacy, anti-democracy, judiciocracy, counter-majoritarianism, anathema to popular sovereignty, non-textual and abstract formulation, etc., it fairly requires doctrinal expositions to be made on how to figure it out. Moreover, it explores the scope, standing and inviolability of the doctrine in the sense of comparative conceptualization. Furthermore, dissection from multifarious perspective is made in order to look into its pragmatism, justification and legitimacy through fixing its today’s position in the ongoing debate among the contemporary constitutional commentators.

Introduction: Opposing Populist Parties in Europe discusses challenges of studying opposition to contemporary populist parties, shortcomings of existing approaches, and a new model of democratic defence as ‘normal politics’. ‘Militant democracy’ and ‘democratic defence’ approaches for studying responses to those challenging the liberal democratic status quo tend to focus on exclusionary, rights-restricting responses by public authorities and party-political responses such as ostracism, policy cooptation, and collaboration in government. While suited for studying responses to relatively small, extremist parties, with little chance of governing alone, a different lens is needed for larger and governing populist parties. Additionally, existing approaches generally fail to acknowledge the ambiguity of populist orientations to democracy. democratic defence as normal politics builds on earlier approaches but also focuses attention on international and civil society responses, and emphasizes routine or ordinary repertoires of opposition in democratic societies, including use of constitutional checks and balances, public protest, and negative framing.

Examination of the role and structure of Loyalist violence has been particularly concerned with the problem of how violence functions as ‘pro-state’ terror. That is, terror which aspires to defend and preserve the authority and legitimacy of the state. Existing in competition with state security agencies, pro-state terrorism tends to arise when those agencies are seen as unable to resist the forces of anti-state terrorism (in this case militant republicanism), and while anti-state terror networks do not compete with state agencies in terms of logistical and public support because of their obvious opposition, pro-state terror groups do (Bruce 1992b: 74). This happens because the prostate group is not only exposing the inability of state agencies to contain or overcome anti-state terror, thus undermining the public perception that such agencies are able to operate effectively against state enemies, but because recruitment for pro-state terror groups invariably comes from the same communities that serve state agencies (ibid.: 76). In a pro-state terrorism environment, recruitment for pro-state terror groups is an additional problem for state agencies to deal with because the very process of recruitment is reflective of state agencies being seen as ineffective in defending communities against the attacks of anti-state groups. In that instance, by representing themselves as an important component in the realm of defence, pro-state terror groups are thereby able to gain some credibility and legitimacy from their actions and widen their base of support as a result (ibid.: 86).