American democracy is eating its own tail. We have elected a president whose administration is determined to thwart the Constitution, undermine the courts, and trammel basic rights. Though Americans are deeply proud of our system of government, we have scant experience protecting it from existential threat. Experts from the United States have for decades worked to birth and invigorate democracies around the world, but when it comes to healing ourselves, the medicine cabinet is spare. The available remedies are legal challenges, vague prospects for mass protests, and laying groundwork for elections that are still far off.
In the 1930s, as he watched fascism engulf Europe, German political theorist Karl Loewenstein, by then exiled in the United States at Amherst College, sounded a clarion call for what he dubbed “militant democracy.” He was not advocating violence, or even extremism. Rather, he argued that a fascist affront to democracy demanded more determined, nimble, and fearless approaches, unencumbered by rigid fealty to liberal constructs. Deploring “legalistic self-complacency and suicidal lethargy,” Loewenstein argued that a democracy fighting for its life against a fascist upsurge needed to assume a war footing, using everything in its power—including illiberal means, if necessary—to save itself.
For civic-minded Americans, the prospect of departing from liberal principles to combat illiberalism does not sit well. It is not just that we are set in our ways, but that most of us still believe that the American way—our institutions, precedents, and principles—are preferable to any alternative. But as legal judgements are skirted, judges are attacked, and accountability mechanisms dismantled, we feel growing unease.
Lurking beneath the speculation about the boundaries of the judicial branch’s powers—its civil or criminal contempt powers, or the role of U.S. marshals in enforcing flouted edicts—is collective awareness that our institutions were not built for this. It is as if, having played baseball all our lives, we suddenly find ourselves tackled on the field by a newly arrived team. We need to ask ourselves not whether the next pitch is a ball or strike, but rather how to play the game that has been forced upon us. Loewenstein’s thinking offers a guide.
Karl Loewenstein and his article titled “Militant Democracy and Fundamental Rights” in 1937.
Loewenstein’s article came just a year before Hitler annexed the Sudetenland, setting World War II in motion. He describes the rise of fascism, emanating from Germany and Italy, and sweeping across the continent to Austria, Greece, Portugal, and beyond. Loewenstein’s was an entreaty to democrats that proto-fascism demands thinking and acting differently, a warning that may be as timely now as it was then. What Loewenstein did not seem to coming, and what his ideas could not stop, of course, was Germany’s swift military conquest of nearly the entire continent, subjugating the full range of teetering democracies and budding autocracies alike to Nazi rule.
Loewenstein described emergent fascism as a system whereby the ruling party controlled not just the government, but public opinion, and where a constitutional government had been overridden by an emotional one. While America remains a democracy by any measure. the signature traits are distressingly familiar. As the Trump administration beats universities, law firms, and media organizations into submission, the price of dissent is rising. The president’s personal celebrity and bluster dominate not just our politics, but our culture, raising passions on all sides. Loewenstein described authoritarians’ two-pronged approach to activating emotions in politics, coupling “high-pitched nationalist enthusiasm” (think chants of “USA! USA!” or Trump’s planned military parade) with “permanent psychic coercion, at times amounting to intimidation and terrorization scientifically applied” (e.g., visuals of students rounded up by masked Immigration and Customs Enforcement agents and migrants tossed into foreign dungeons). Loewenstein spoke of the fascist channeling generalized discontent toward specific vulnerable targets (in his era “Jews, freemasons, bankers, chain stores”; in our own, migrants, elite institutions, and the so-called woke).
Loewenstein marveled at fascism as “the true child of the age of technical wonders.” Foreshadowing our social-media soaked era, he described how the technology of the day—newspapers, film reels, and radio—enabled “colossal propaganda” against “the most conspicuously vulnerable targets” through “incessant repetition of over-statements and over-simplifications.” He touched on a bedeviling paradox, namely how a regime of free speech must welcome into the pavilion even those who come to denigrate and deceive, and cannot, without betraying its own precepts, eject them from the tent even as they proceed to collapse it. In the modern age, more so than coups, it is democratic processes—campaigns, elections, assembly rights, and media freedom—that facilitate the rise of autocrats. As Loewenstein put it, “democratic fundamentalism and legalistic blindness were unwilling to realize that the mechanism of democracy is the Trojan horse by which the enemy enters the city.”
Global interest in Loewenstein’s concept has accelerated in recent years. Articles and analyses characterize forms of contemporary democratic pushback as fitting the “militant” paradigm, and advocates of militant democracy argue that such approaches are needed to meet today’s authoritarian moment. Donald Trump’s first term, and particularly the Jan. 6 insurrection, has fueled the drive of democratic standard-bearers around the world to consider new, tougher ways to shield their systems from similar overreach.
Brazil’s top court has ruled that former President Jair Bolsonaro will be prosecuted, subject to a prison sentence of up to 12 years, for his role in plotting a 2022 coup aimed to overturn a democratic vote hold his grip on power. Prior to the election the court had already taken preventive measures to try to batten down the hatches as right-wing populist incumbent Jair Bolsonaro resorted to propaganda and attacks on the judiciary as he sought a second term, Brazil’s Supreme Court initiated probes into election-related propaganda, sanctioned a raid on a businessman who had sent texts musing about a potential coup, ordered the arrest of a legislator who had threatened the high court judges, and took legal steps to try to curb the spread of false news online. After Bolsonaro tried to overturn the election result, he was barred from public office for eight years.
The Romanian Supreme Court’s annulment of the 2024 presidential election showed similar muscle, as did the recent banning of Marine Le Pen from standing for election in France. After taking office in late 2023, Polish Prime Minister Donald Tusk invoked the principle of “militant democracy” in defying orders by courts that had been illegitimately expanded and packed during the reign of the ousted Law and Justice Party.
Trump arrives for an arraignment hearing at the New York State Supreme Court in New York City on April 4, 2023.Michael M. Santiago/Getty Images
Reference to “militant democracy” is cropping up more often in the United States as well. Drake law professor Miguel Schor argues that the United States is the world’s oldest militant democracy, in that our embedded checks on majoritarianism—including the constitutional separation of powers and bicameral legislature—afford vital tools to prevent against populist capture. Schor faults the system that the framers erected for focusing on the danger to democracy posed by the masses but not the risk of a demagogue whose rise is propelled by lies that the First Amendment protects.
During debates in 2024 over proposals to exclude then-candidate Donald Trump from state presidential ballots, some theorists argued that enforcing section three of the Fourteenth Amendment, a clause disqualifying participants in insurrection from public office, was a form of militant democracy, in that it relied on law to thwart democratic will. Others contended quite the contrary: that enforcing a black and white constitutional proviso dating back more than 150 years was an action above politics, that could and should be taken in service of the rule of law, rather than a specific political result.
Read More
Actually, Trump Has a Coherent Vision
What seems like chaos is in fact a unified plan to reshape the United States.
Trump’s Tariff War Is a Test of American Democracy
Congress has a chance to reassert itself against the president’s power grab.
The Supreme Court weighed in, holding that a popular politician must be defeated by voters, rather than legally sidelined. Harvard democracy experts Steven Levitsky and Daniel Ziblatt wrote in October 2024 that “with that decision, for good or ill, America chose to forgo the path of militant democracy.”
Nine months later, having watched government agencies evaporate and detainees disappear despite the best efforts of an activated civil society and increasingly alarmed public, we must ask ourselves whether we are “liv[ing] up to the demands of the hour,” as Loewenstein pleaded. Judges and justices must determine when to call time on the Trump administration’s prevarications. Civil servants and military officers face choices between loyalty to their hierarchies, or to their oaths. States and cities are making calls about when to acquiesce and when to dig in. What some have called the paradox of democracy’s self-defense holds risks either way, forcing a Hobson’s choice between allowing a demagogue to potentially wreck U.S. institutions, or contorting those institutions and their underlying values in a quest to stop him.
The problem is compounded by evidence that the traditional methods of countering wrongful ideas, deceptive premises, and ideological distortions no longer work. Loewenstein commented that fascists “exploit the tolerant confidence of democratic ideology that in the long run truth is stronger than falsehood, that the spirit asserts itself against force.” In public discourse dominated by social media, the ability of truth and facts to prevail over lies has been further compromised. Algorithms propel not what is honest, but what is incendiary. Trump’s popularity is strongest among Americans who do not follow the news, casting doubt on whether information, no matter its veracity, can break through.
To avoid the quandaries inherent in militant democracy, the temptation is to declare the question unripe, and debate what future “break the glass” moment might warrant actions that seem precipitous now. Yet Loewenstein’s own 1937 piece is a poignant reminder that such things cannot necessarily be timed, and that a moment that some still think too early may already be too late.
Protesters in front of the U.S. Supreme Court in Washington on July 1, 2024.Drew Angerer/AFP via getty Images
The dilemmas of militant democracy are profound. For a faithful guardian of democracy to assume the prerogative to break democratic rules in the name of democratic preservation can itself reek of authoritarianism. It can come perilously close to resembling authoritarians’ own claims that their overreach is all in service of the people. Frontal confrontation also risks provoking an authoritarian reaction that could be drastic, or deadly.
But understanding the rationale for militant democracy and considering its place in the arsenal of democratic defense can help put the fight against autocracy in context. The kinds of measures being debated right now—whether to order planes to turn around, demand specific efforts to secure the release of Kilmar Abrego Garcia, or hold obfuscating government officials in contempt—fall well short of a militant approach and instead are authorities squarely within the existing power of courts.
Jurists may hesitate for fear that such steps will be met only with doubled down defiance. Chosen for their measured temperaments, most judges are not keen on prompting a showdown with a recalcitrant executive. But by equivocating, courts are allowing the administration to win by default, dragging out proceedings, mocking orders and delaying confrontation with the risk that power is further consolidated in the meantime. Increasingly, the bucking of court rulings is becoming routine, with the administration suggesting that it need only obey the Supreme Court—if that. More proximate than the question of whether judges should stretch the law to defend democracy may be whether they are bending it already, at democracy’s expense, by extending extraordinary forbearance in order to avoid confrontation.
Militant democracy is also a theory that, conceptually, extends beyond the role of institutions to encompass all strata of society. The law firms that put their fealty to the rule of law above their commitments to continuity of client service and even self-preservation recognized that these are no ordinary times. Harvard University—which is steeling itself for an all-out fight rather than capitulating to the Trump administration’s demands on academic freedom and institutional autonomy—is having to take steps that are without precedent, like asking alumni to reach out their federal representatives on behalf of the university. Civil servants and other officials are risking their careers to leak essential stories that inform the public on how their rights are being breached.
Such measures accept Loewenstein’s premise that democracy must go to war with authoritarianism while still allowing for debate on what weapons are most effective and which may leave too much scorched earth. Loewenstein was right to insist that the authoritarian playbook requires a different democratic script. For the story to unfold as a triumph rather than a tragedy, the narrative must stop short of killing democracy in order to save it.
This post appeared in the FP Weekend newsletter, a weekly showcase of book reviews, deep dives, and features. Sign up here.