Two years ago, the U.S. Supreme Court agreed to quickly review a Colorado Supreme Court decision that sought to disqualify Donald Trump from the presidential ballot under Section 3 of the 14th Amendment. In Trump v. Anderson (2024), the Supreme Court ruled that states lack authority to enforce that provision against federal candidates without congressional authorization, allowing Trump to remain on the ballot.

What would the world look like if militant democracy had prevailed in the United States? Many have asked this question since then, arguing that militant democracy may be the most effective way to protect democratic systems when they are under serious threat.

Militant democracy in 20th-century Europe

Militant democracy is a constitutional doctrine that permits the exclusion of political parties or candidates deemed anti-constitutional, on the premise that democratic systems may defend themselves by limiting participation. Almost 80 years after the idea of militant democracy was first used in post-war Germany by the German Federal Constitutional Court, many democracies are again resorting to similar legal tools as those used by the German Constitutional Court. Once treated as an exceptional response to existential threats, the doctrine has gained renewed prominence in contemporary democracies. In Romania, electoral authorities barred a presidential candidate from running on constitutional grounds; in Germany, political and legal elites have openly debated banning the Alternative für Deutschland (AfD) for allegedly undermining the constitutional order; and in the United States, courts invoked the Insurrection Clause of the Fourteenth Amendment in efforts to exclude Donald Trump from the ballot. However, historical evidence suggests that the implementation of militant democracy is fraught with paradoxes, which can ultimately undermine rather than strengthen the defense of democracy.

Militant democracy in contemporary Europe

A brief examination of the doctrine’s application – or attempted application – in Europe highlights the deep contradictions and ambiguities inherent in the concept. In Romania, the Constitutional Court barred Călin Georgescu – a controversial, pro-Russian candidate – from participating in the presidential election after he had won the first round. The reasons cited by the court were widely seen as unconvincing, raising concerns that the court had overstepped its legal mandate and entered the realm of political arbitrariness.

In Germany, there is currently a push to ban the far-right party Alternative for Germany (AfD), which currently enjoys the support of about one-fifth of the electorate. After the Federal Office for the Protection of the Constitution labelled AfD an extremist party in a 1,100-page report, the Social Democrats (SPD) and Greens proposed launching proceedings to ban the party through the Constitutional Court. However, Chancellor Friedrich Merz has expressed skepticism about this initiative, making its future uncertain.

A slippery slope

Militant democracy, while often justified to protect democratic institutions from anti-democratic forces, cannot be supported in principle by a true democrat. Leading Austrian legal thinker Hans Kelsen strongly opposed the idea of militant democracy, contending that such methods were fundamentally incompatible with democratic values. As he argued in 1932, even if democracy were “sinking” or losing public support, a committed democrat must remain faithful to democratic principles to the end.

The fundamental flaw of militant democracy is that it requires the state to restrict freedoms and limit political participation for certain groups, undermining the very principles it seeks to defend. By granting the state the power to suppress parties, ideas, or movements deemed “dangerous,” it creates a slippery slope: those powers can easily be abused, either by targeting legitimate opposition or by consolidating authority in ways that erode democratic norms. In essence, it risks turning democracy into an authoritarian regime in the name of self-preservation. Despite good intentions, it opens the door to dangerous overreach, since defining an “enemy of democracy” is anything but simple. This is particularly evident when such “enemies” are, in the eyes of many voters, legitimate representatives of the people’s will, while others label them as demagogues, populists, or authoritarians.

Framing populism

Contemporary debates on populism in constitutional theory are often framed from a centrist perspective that treats populism primarily as a democratic pathology. In such a context, political actors frequently make rapid, often unfounded judgments about their opponents – labelling them populists indiscriminately – and may advocate for their political marginalization or elimination. For instance, the Slovenian Constitutional Court had faced the question of whether the Left, a party in many ways analogous to Greece’s Syriza, and the Social Democrats, an even more centrist social democratic party, should be banned on the grounds that they pose a threat to Slovenia’s constitutional order. The Court rejected the petition as unfounded. This example illustrates how the prevailing centrist framing of populism can generate high-stakes legal and political dilemmas, highlighting the tension between safeguarding constitutional norms and protecting democratic pluralism.

Creating populism

Why, then, is this concept experiencing a revival among European and other defenders of democracy? As Samuel Moyn illustrates in his book Liberalism Against Itself, today’s dominant form of liberalism emerged from the traumatic experience of authoritarianism and massive rights violations during and after World War II. Liberals retreated into what Judith Shklar calls a “liberalism of fear,” in which the primary goal of politics became the prevention of abuse of power. Consequently, rather than engaging in self-reflection about their own responsibility for the rise of demagogues and populists, liberal elites often turn to the more comfortable explanation: that the problem lies with others. Yet a closer look reveals that these elites bear significant responsibility, largely through their defence of neoliberal constitutionalism. Over the past several decades, liberal elites have increasingly relied on technocratic institutions – central banks, international organizations, independent regulatory bodies, and unelected judicial authorities – to make the most important economic and political decisions. While framed as necessary safeguards against inefficiency or populist whims, these arrangements have effectively removed substantial policy control from elected representatives, leaving ordinary voters feeling powerless and disenfranchised.

The consequences of this technocratic governance have been profound. By insulating critical decisions from popular influence, liberal elites have unintentionally fostered a sense of alienation and resentment among the broader electorate. Ordinary citizens, witnessing that their voices often have little impact on issues that directly affect their lives – such as economic policy, taxation, or social welfare – begin to see the political system as distant, unresponsive, and elitist. This perceived disconnect creates fertile ground for populist leaders, who offer the seductive promise of “restoring democracy” and returning power to the people. Populists position themselves as the antidote to the unaccountable elite, promising to bypass technocratic institutions and give ordinary citizens a meaningful role in decision-making.

In this light, the rise of populism is not merely a reflection of public irrationality or xenophobia, as liberal elites often suggest. Rather, it is a reaction to systemic decisions and structural choices championed by those very elites. By prioritizing technocratic efficiency and defending neoliberal constitutionalism, liberal elites have inadvertently created the conditions for their own political marginalization. The populist surge, then, can be understood as a corrective impulse – a backlash against an elite-driven system that has long treated democracy as a procedural formality rather than a living practice of popular empowerment. Recognizing this dynamic is essential: blaming “others” obscures the real drivers of discontent, while genuine self-reflection could help liberal elites address the structural grievances that fuel populist movements.

Solutions, not restrictions

But you can’t ban opponents of democracy out of existence. Democracy can only remain legitimate and popular if it continues to enjoy the support of voters. Modern advocates of militant democracy often overlook a critical principle: while the impulse to ban adversaries may appear expedient, it risks undermining the very democratic norms it seeks to protect. A robust defence of democracy requires engagement, deliberation, and the capacity to persuade the citizenry of the merits of one’s political program, rather than the silencing of opposition. In other words, democracy is preserved not through restriction, but through the expansion of democratic participation, and by revitalizing the constitutionalist tradition through substantive engagement with the public.

Consequently, democratic actors should redirect their energies from legalistic strategies aimed at eliminating competitors toward initiatives that reconnect with disaffected constituencies. Many citizens, feeling neglected or alienated by established parties, have expressed their discontent through alignment with populist or illiberal movements. Addressing this democratic deficit demands not the mere restoration of liberal constitutional norms, as proponents of militant constitutionalism suggest, but a deeper transformation of the liberal order itself. As Jack Balkin observes, liberal constitutionalism is not merely under threat – it is in a state of “constitutional rot”. Unlike the militant constitutionalism camp, which prioritizes restoration of the status quo, diagnosing the liberal order’s “rot” emphasizes the need for substantial reform rather than mere preservation.

Attempts by proponents of militant democracy – through banning or suppressing political rivals – often backfire by reinforcing voters’ perception of distant, unresponsive elites, unintentionally fuelling populist movements. A more promising strategy lies in directly engaging with the issues driving populist appeal and offering alternative political visions that tackle society’s most pressing challenges more effectively than the populists’ short-term fixes. In this way, the defence of democracy becomes inseparable from its renewal: through meaningful participation, substantive reform, and credible alternatives, citizens are empowered to choose solutions rather than resent restrictions.