Defending the Ballot

People protest against the rising cost of living in a demonstration organized by the right-wing Alternative for Germany (AfD) political party in Berlin, Germany, on October 8, 2022. (Photo by Omer Messinger/Getty Images)

For the American observer, one of the disconcerting features of European democracy is its occasional bouts of frank and unyielding illiberalism. The United States has Section 3 of the 14th Amendment and never uses it; Germany has streitbare Demokratie—“militant democracy”—and does.*

European countries—particularly Germany and the nations that were most entangled in Nazism—routinely do things that we simply do not do in the United States: They ban political parties, both neo-Nazi and far-left alike, as well as books, symbols, and other political paraphernalia. Austria, the Netherlands, Spain, the Czech Republic, Greece, Ukraine, even Canada have banned political parties and associations. Moldova has just banned the Putinist  Șor Party. The United States attempted to ban (and, hypothetically did ban) the Communist Party USA in 1954, a move that was supported by (how times have changed!) the Yale Law Journal and opposed by J. Edgar Hoover, who preferred that communism not be driven underground but remain out in the open, where it could be more easily surveilled. Even today, you can face jail time in many European democracies for selling a prohibited book or for putting a prohibited slogan on a poster. 

Germany has recently taken steps toward banning Alternative für Deutschland, a right-wing populist party that recently won its first big mayoral election. But the populist right is nonetheless having a moment in Europe: Geert Wilders, the Dutch rightist who shares with Donald Trump both an implausible coiffure and a desire to prohibit Muslim immigration, enjoyed a big win in November, when his Freedom Party (Partij voor de Vrijheid) won more seats in parliament than any of its competitors. 

European governments not only ban political parties but also political books, songs, tattoo designs, associations, and events. To Americans steeped in the First Amendment tradition and raised on The Crucible and Fahrenheit 451, this can be shocking and uncomfortable. At the same time, European observers may be perplexed as Americans flounder impotently for a legal means of preventing the possible reelection of Donald Trump, who attempted to stage a coup d’état when he lost reelection in 2020.

That Donald Trump not only could be but already is prohibited from seeking reelection seems to me reasonably straightforward: Section 3 of the 14th Amendment prohibits those “engaging in” insurrection from standing for election. That there was an insurrection in January 2021 is at this point a matter of legal record, as there are prisoners currently incarcerated after being convicted on charges of seditious conspiracy, defined in statute as an attempt to “conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof.” This is the very definition of insurrection. 

That Donald Trump was involved in this effort is beyond arguing, as is the fact that he continues to give aid and comfort to the insurrectionists, violent criminals he describes as “political prisoners” and “hostages.” Congress could by legislative action set aside Trump’s 14th Amendment disability, but Congress has, so far, chosen not to do so. 

(I am all for scrupulous i-dotting and t-crossing in these matters, but the notion that the president of the United States is somehow not “an officer of the United States” is contemptible nonsense.)

Ironically, it is the Trumpist element that, in all other things, calls for a more European mode of politics and governance and a less Anglo-liberal one. Writing in some obscure political magazine I’ve never heard of, Adrian Vermeule—the house intellectual of the every-day-is-Flight-93-and-everybody-who-disagrees-with-me-is-Stalin set—heaped scorn on the supposedly narrow and formal proceduralism of the traditional conservative approach to the law and the Constitution, arguing that “originalism has now outlived its utility.” Rather than a libertarian mode of limited central government, Vermeule demands a state invested with “ample power to cope with large-scale crises.” (Never mind the question-begging there, for the moment.) Vermeule, who brings less depth to the argument than one might have expected from a Harvard Law School professor, argues that procedure and limits on government power simply must give way when the “common good” demands it, which not only raises the obvious question of who is empowered to define that common good but also ignores the fact that the originalism that he and others of his ilk insist has “outlived its utility” is arguably the single most important bulwark of the common good in our public life, the rule of law and the economic and political stability enabled by it being the most fundamental of all public goods.

Germany’s streitbare Demokratie holds that liberal democracies are not obliged to indulge political parties or movements that would exploit liberal and democratic norms to destroy liberalism and democracy themselves. In a way that is similar to—but in important aspects different from—our Bill of Rights, streitbare Demokratie puts certain things beyond the reach of democratic plebiscite.

In the United States, it does not matter whether 51 percent, 60 percent, or 100 percent of voters in an election say the New York Times should be censored or that the United Methodist Church should be made the national state religion—these things are settled under the Constitution, and nothing short of amending the Constitution will unsettle them. Under streitbare Demokratie, it doesn’t matter whether a majority of Germans want to elect neo-Nazis—the matter is beyond the reach of majorities, especially the temporary and contingent majorities that dominate any given political season. But just as there is a great deal of Anglo-American liberalism in Continental practice, there are streaks of streitbare Demokratie in American practice, Section 3 of the 14th Amendment being one of them.

Section 3 was enacted after the Civil War in order to prevent those who had made war on the U.S. government from being allowed to take control of it. Donald Trump’s attempted coup d’état was not the Civil War, but it was not simply the violence and vandalism at the Capitol on January 6, either. The Trump coup constituted a broader project, the most important parts of which happened far from the Capitol riot, around conference tables and in telephone calls. Like any halfway serious coup, it wasn’t only an attempt to use violence to disrupt government and thereby effectively seize the levers of power; it also incorporated a legal theory—phony, implausible, and risible, of course—deployed to legitimize the violence. 

Trump has never stopped seeking to legitimize his attempted coup d’état and, after a five-minute paroxysm of conscience, Republicans have not ceased to aid and abet his attempts to legitimize his illegitimate actions. Sen. Mitch McConnell achieved many fine and admirable things as majority leader, but his failure to press for the conviction of Trump after his second impeachment and to secure Trump’s disqualification from office is a failure that is at least as heavy as the combined weight of the Kentucky Republican’s many good deeds combined. After Trump himself, McConnell probably bears more personal responsibility for our current predicament than any other single political figure, as contemptible as Mike Pence, Ted Cruz, Lindsey Graham, the bottom-feeders of Fox News and talk radio, et al. have shown themselves to be in the days since January 6, 2021.

And, so, here we are. 

On balance, I prefer U.S.-style liberalism to European streitbare Demokratie. At the same time, the European Union is not an authoritarian hellhole, and the many deficiencies of the European model have to be understood in light of the deficiencies of the American model—which is to say, in light of the fact that the leading candidate for president of the United States is, at this moment, the one man among all 332 million Americans singly most unfit for the office. Donald Trump attempted to negate the lawful election of 2020 and has, in the course of his short career, transformed the Republican Party from a traditional American conservative party—admittedly a daft and dysfunctional one—into an active, positive threat to the American constitutional order.

Americans have the technical legal means to exclude Donald Trump from public life, but they lack the political and spiritual resources to act through those means. One need not believe that Donald Trump is the moral or political equivalent of Adolf Hitler to appreciate the aptness of German experience here, even if one is not necessarily inclined to draw the same policy conclusions Germans drew from that experience.

Correction, December 28, 2023: Due to an editing error, streitbare Demokratie was originally mistranslated as “defensive democracy.

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