In 2012, Danny Oppenheimer and Mike Edwards published a book with the same title as the volume by Benjamin Schupmann. They argued that notwithstanding all the shortcomings of democracy, notwithstanding irrationality and bounded rationality, institutional devices are capable of maintaining democracy as the best available system of government. Twelve years later Benjamin Schupmann bets on militant democracy, a set of suspect and even dangerous measures that many scholars find hardly compatible with democracy as popular government. After all, as Schupmann admits, militant democracy restricts the choices that are at the heart of democracy and entails a set of measures that run the risk of turning into abuse and oppression, turning democracy into tyranny by democratic means.

To overcome the intellectual reluctance and practical reservations that paralyze militant democracy, Schupmann offers a much needed justification of militant democracy, based on liberal political philosophy. He combines John Rawls’ ideas with certain critical concerns of Carl Schmitt. This sounds like ‘a chance meeting of a sewing machine and an umbrella on a dissecting table’ (de Lautréamont, 1994 p. 193). As it happens, this encounter results in creative tension.

In Schupmann’s understanding, militant democracy serves to protect democracy against legal revolution, in which ‘democratically elected actors use their legal possession of state power to subvert democratic essentials’ (p. 1). Schupmann intends to apply his concept to ‘illiberal democracies’ such as Hungary, India, and Turkey (ch. 1). His extended concept of militant democracy differs in fundamental ways from an electoral takeover of power by parties which intend (more or less openly) to annihilate democracy (the Hitler scenario). One could object to this extension that there was nothing in Hungary’s Fidesz, or even in Poland’s PiS or in the program of Venezuela’s Chavez before their democratic takeover that would have triggered the defensive mechanisms of militant democracy, such as a party ban.

Legal revolutions ‘affect the democratic identity of the constitution’ (p. 34). Legal revolution is the act of constituent power (the ‘people’). This provides immanent legitimacy: ‘the subject of the law is also its author’ (p. 43). The law is legitimate, not because it codifies a transcendent normative fact, but because its subject, ‘the people,’ has in principle authored the law. However, as Schupmann points out, there is no ‘people,’ only an electorate which cannot properly represent the ‘people.’ Hence, the need for constitutional arrangements as corrections to the electorate: militant democracy will be a form of that protection against extreme digressions.

Chapter 2 discusses the meaning of militant democracy which is presented as broader than its prevailing concentration on the party ban. The party ban paradigm creates a detection problem, as it will apply only when it is too late. Further, as Schupmann points out, ‘Existing theories of militant democracy are generally unable to recognize the dangers of populism and “illiberal democracy”’ (p. 55).

Schupmann favors early intervention, which seems reasonable but runs into rule of law obstacles. Additionally, the track record of early intervention remains problematic. For example, the Turkish Constitutional Court banned Refah and yet the successor party to Refah won the elections and Erdoğan is ruling until this day. However, what matters for the book is not a legal detail but the justification of militant democracy, and it is here that its value becomes obvious. Without proper justification, militant democracy will not be available to safeguard democracy.

In chapter 3, Schupmann relies on Rawls’ political constructivism. Behind the veil of ignorance, it will be an inevitable conclusion that ‘constitutional essentials, especially basic liberal rights, are implicitly unamendable; and … restricting the [political] rights of antidemocrats is justifiable.’ Basic liberal rights have normative priority and have to be protected even at the expense of political rights. Many human rights supporters would object to this in the name of the 1993 United Nations Vienna Declaration and Program of Action that stands for the unity and equivalence of human rights: no lexical priority, only ‘balancing.’

Schupmann develops the Rawlsian intuition further, recognizing that Rawls was not ready to draw the practical conclusions of his position (pp. 99-100). Certain technical questions emerge here, like what qualifies as a liberal right? Is freedom of speech a liberal right, or a political one? While it seems to pertain to the fundamental essentials of liberty, it is a crucial part of political rights: associations do speak, and this is what they use on their way to victory.

A more serious difficulty, expressly confronted by Schupmann, is this: what is the legitimate behavior of a democratic political community where ‘a sufficient number of members hold “unreasonable” beliefs, beliefs that reject a democratic overlapping consensus’ (p. 83)? Is non-violent fanaticism to be prohibited? The answer is, ‘even if unreasonable members are a supermajority and can use democratic legal procedures to fundamentally alter the democratic essence of the constitution, Rawls’ approach identifies authoritative and binding constitutional norms that justify rejecting their political will’ (p. 85). Applying this position to populist movements it follows that as soon as a party claims in a credible way that it is the only authentic representative of the people, it can be restricted preventatively.

Liberal rights constitute the identity of the constitution which corroborates their priority. Identity is by definition self-protecting as change like the legal revolution would end it. Republican democrats and non-democrats could criticize this position as a matter of status quo bias that does not allow change in the name of an immutable identity. As long as one stands for liberalism, this is not a valid criticism, as the constitutional structure is indeed about the preservation of what is optimal for all (see Rawls), even if the electorate is not aware of it.

With constitutional identity, enters Schmitt (ch. 4), who ‘theorized that every state was constituted by its “political” identity, and a state could legitimately use militant measures to defend that identity against legal and extralegal threats’ (p. 105). For Schmitt this identity is an existential matter, and it entails readiness to die for it. Schupmann tries to expurgate these most sinister elements of constitutional identity. What the book uses from Schmitt is his opportunistic conservativism: his readiness to protect the state irrespective of the values the state stands for. Without preventative protection, the pluralistic society destabilizes the state. Because potentially fratricidal pluralism results in ‘politicization,’ ‘institutions should not be designed to permit the electorate to act as if it were “the people”’ (p. 124). Given that only the electorate stands for the legal revolution, and the ‘electorate is inherently limited in its ability to amend the constitution’ (p. 125), therefore, the justification of non-amendability and the resulting militant defense of the constitution do not run into a theoretically valid objection.

Part III returns to the problem that was discussed in a more theoretical manner in Part II, namely it deals with ‘Fixing Basic Liberal Rights “Once and for All”.’ Here, non-amendability, political rights restriction, and judicial review are considered in three separate but interrelated chapters, drawing practical conclusions from the normative justification.

In line with the position of the German Basic Law, Schupmann stands for the absolute and express entrenchment of democratic essentials. It is interesting that the Basic Law in a sense anticipated Rawls by entrenching fundamental liberal rights. The necessity of this is justified in the Schmittian sense: ‘…if the continued depoliticization of society hinges on the state’s guarantee of those constitutional norms—as a liberal normative theory of militant democracy argues—then those norms ought to be entrenched absolutely’ (p. 141).

A major contribution of the book’s defense of militant democracy is its refutation of the juristocratic criticism and republican-democratic arguments which find militant democracy, and non-procedural constitutional limits to popular will-formation, incompatible with people’s choices. Democracy needs specific protectors, and courts are the least biased in this respect, even if to some extent they are politicized. Schupmann points out that Jeremy Waldron’s influential and representative refutation of judicial constitution-protection depends on assumptions that cannot be sustained. Waldron simply disregarded democratic potentials which turned into burning reality (pp. 189-190). He assumed a worldwide consensus on fundamental rights and claimed that people work in good faith to solve their reasonable disagreements. Populism knows only the ‘truth’ of its own people; there is no place for disagreement and even less for good faith common, reasonable solutions. A theory of militant democracy cannot accept cavalier assumptions. After all, constitutions are contingency plans for the worst case scenario, even if, as the uncertainties and risks of militant democracy indicate, these plans are not complete, and remain unfinished.