America Does Have a Way to Save Itself
Many critics believe that “defensive democracy” has no place in the American system, but it does, and in fact the country has put it to good use throughout history.
In 1868, Senator Waitman Willey, of the newly formed antislavery state of West Virginia, stood on the floor of Congress to argue for the proposed Fourteenth Amendment’s provision disqualifying former Confederate officers from holding office in the recently reunified country. He asserted that the proposal was “a measure of self-defense.” He evidently felt this argument to be so crucial that it required repeated emphasis and explanation. He expanded, “Being a permanent provision of the Constitution, [the provision] is intended to operate as a preventive of treason hereafter by holding out to the people of the United States that such will be the penalty of the offense if they dare to commit it.” He repeated, “It is therefore not a measure of punishment, but a measure of self-defense.”
The proposal passed by a wide margin and eventually became part of the Constitution.
Despite this history, a narrative has developed that defensive democracy—a tradition of passing and enforcing laws to defend democratic institutions from authoritarian threats—does not and cannot exist in America. Defensive democracy’s critics argue that it unavoidably violates our Bill of Rights, because the freedoms of speech and assembly should always include the right to attack any government, whether or not it’s a democracy; your authoritarian is my freedom fighter. In one of the few book-length American treatises on defensive democracy, the Duke University political theorist Alexander Kirshner writes about the “paradox” of defensive democracy: “In avoiding the Scylla of Weimar, it is best not to steer into the Charybdis of McCarthyism.”
But likening defensive democracy to McCarthyism is a dangerous mistake. Although there is much to fear in the abuse of state power against political opponents, the fact is that a viable, valuable American tradition of defensive democracy exists, and we need to revive it today rather than reject wholesale a set of tools the country desperately needs at this crucial moment of democratic fragility.
The idea of defensive democracy goes back to ancient Athens—which passed into law measures, including exiling any demagogue for 10 years, to protect its democracy—and to the fight against fascism across Europe in the 20th century. In 1935, after Weimar Germany crumpled to Nazism, Karl Loewenstein, a Jewish German political scientist teaching in America, wrote two famous articles for the American Political Science Review, in which he proposed a theory of defensive democracy, or wehrhafte demokratie. In Loewenstein’s hands, defensive democracy (also translated as “militant democracy”) comprised laws by which the democratic state defended itself from antidemocratic forces, as in (at the time of the article’s writing) Finland, the Netherlands, Belgium, and Switzerland. Finland, for instance, prohibited the formation of private armies within political parties. Belgium passed statutes to prevent the abuse of parliamentary procedures by political extremists—for instance, through frivolous side elections. Switzerland passed a law imposing certain limits on political assemblies to avoid physical clashes between political opponents. Above all, Loewenstein argued that such measures needed to be insulated from partisanship, even suggesting that officials enforcing defensive democracy should not belong to any political party at all.
In the decades since, those ideas have spread around the world. Many democracies, including Germany, Israel, and India, have laws banning violent political speech, parties, or candidates undermining democracy. Germany today maintains an Office for the Protection of the Constitution, which detects and surveils antidemocratic actors and organizations. The leader of the office describes his charge: “We are the early warning system of democracy.”
America’s own defensive-democracy tradition is admittedly narrower than those in some Western European countries that lack our strong free-speech and assembly rights. Yet it is still undeniably robust, including at least three significant safeguards—prohibiting seditionists from serving in office, preventing unpermitted paramilitary activity, and prosecuting insurrection.
Although the Fourteenth Amendment’s provision against insurrectionists holding office has not been often put to use—there have not been many insurrections, mercifully—it is part of the Constitution, available when the need arises. In September 2022, it was employed by a judge in New Mexico, who removed Couy Griffin, a county commissioner in Otero County, from office for his participation in the January 6 insurrection. In his decision, the judge observed the “irony of Mr. Griffin’s” that he should be allowed to “defend his participation in an insurrection by a mob whose goal, by his own admission, was to set aside the results of a free, fair and lawful election.”
As for paramilitary activity, 49 states have laws on the books stating that paramilitary organizations can legally operate only with the permission of the civilian authority. These laws sit on the bedrock of solid federal and state law. In 1886, the Supreme Court held that “military operations and military drill are subjects especially under the control of the government of every country. They cannot be claimed as a right independent of law.” A New York appellate court noted in 1944, “The inherent potential danger of any organized private militia is obvious. Its existence would be sufficient, without more, to prevent a democratic form of government, such as ours, from functioning freely, without coercion.”
These laws were employed by Georgetown’s Institute for Constitutional Advocacy and Protection, and by the city of Charlottesville, Virginia, while I was the city’s mayor. Together, we successfully sued more than 10 paramilitary groups that had invaded Charlottesville during the 2017 “Unite the Right” rally to prevent them from reentering the city. Notably, the militias we blocked were on both the left and the right, ranging from the white-supremacist Atomwaffen group to the far-left antifa group Redneck Revolt.
American laws against seditious conspiracy and against advocating for overthrowing the government are quintessential defensive democracy. The law that makes up this pillar of America’s defensive-democracy tradition was passed by Congress after the Civil War to punish those who “conspire to overthrow, [to] put down, or to destroy by force” the federal government, and anyone who “knowingly or willfully advocates, abets, advises, or teaches the duty, necessity, desirability, or propriety of overthrowing or destroying” federal or state governments by force, violence, or assassination. These laws are now leading to conviction after conviction (or guilty pleas, in many cases) for those who participated in January 6, including multiple leaders of the Proud Boys and Oath Keepers.
In addition to these three methods of American defensive democracy, we should consider an approach similar to federal hate-crime laws: adding a proven attack on democracy—assaulting an elected official, preventing the peaceful transfer of power—as an aggravating factor in the prosecution and sentencing of an existing statutory crime.
American democracy, at its best, innovates within our laws and principles to address the threats of the time. We can respond, just as the nations who resisted fascism in the 1930s did, by embracing defensive democracy. Our history, our ambitions, and our troubling times demand nothing less.