Militant Democracy as Constitutional Reason of State

This paper examines militant democracy as a response to the paradox of democratic self-defence: how can a democracy protect itself from internal enemies without compromising its foundational principles of autonomy and legitimacy? I argue that militant democracy represents an attempt to reconcile the doctrine of reason of state – the authorization of extraordinary measures to safeguard the state – with the basic tenets of constitutional democracy. The doctrine of reason of state, explored by thinkers like Machiavelli, Meinecke, and Schmitt, examines the tension between preserving the state and upholding fundamental norms. While historically used in authoritarian contexts, its insights remain relevant for understanding constitutional democracies. Democracies face a unique challenge from enemies who attack them internally using methods of legal revolution, where formally valid democratic procedures are used to subvert democratic constitutional essentials. Building on Schmitt and Loughlin, I analyse how a public order’s identity is rooted in its absolute constitution, which outlines the basic values that unite individuals into that existential political community. A political order is vulnerable to conflicts between that community’s positive laws and its absolute constitution, particularly in moments of crisis such as emergencies or acts of war. Reason of state doctrine historically justified a ruler or government’s suspension of the positive law to preserve that political order in such moments of crisis. Modern democracy is defined by the value of autonomy, both public and private. It rejects appeals to higher authority that might constrain “the people’s” ability to define and redefine itself. Yet, this openness makes democracies susceptible to antidemocratic actors who exploit their legal procedures to dismantle foundational principles – as illustrated by the last two decades of populist-driven “democratic backsliding,” which transmutes legitimate states into illegitimate ones. Constitutional democracies thus face a paradox over how to defend themselves: Actively restricting antidemocrats’ rights using emergency powers risks betraying their commitment to democracy and the rule of law; Passivity risks granting antidemocrats free rein to erode those same commitments. Militant democracy seeks to navigate this paradox by justifying the constitutionalisation of mechanisms like the unamendability of democratic constitutional essentials and bans on antidemocratic parties. Constitutionally grounded, these mechanisms can balance the demands of reason of state with the requirements of the Rechtsstaat. As Carl J. Friedrich suggests, militant democracy is a form of “constitutional reason of state,” tailored to the values and unique vulnerabilities of democratic governance as revealed by history. The paper concludes with an overview of how a normative theory of militant democracy can justify its measures and overcome this paradox. I argue that militant democracy, while imperfect, offers the best practical framework for reconciling the competing norms of state survival with the principles of constitutional democracy, avoiding both the potential tyranny of unchecked power and the fatalism of democratic purity.