Militant Democracy and the Pre-emptive Constitution: From Party Bans to Hardened Term Limits

28 Pages Posted: 22 Mar 2021

Date Written: January 31, 2021

Abstract

We explore the concept of militant democracy in the context of what appear to be persistent threats to the democratic order. We begin with a reconstruction of the concept with the intention of distinguishing and identifying its historical manifestations. We trace and document two constitutional devices that exhibit the pre-emption and illiberalism that characterizes militant democracy. The first device---party restrictions---is the prototypical example of the concept and is designed to pre-empt extremist intimidation. The second example---hardened term limits---is designed to pre-empt executive intimidation. The latter form of bullying may be the most relevant threat, at least in modern Latin America and Africa. In one view, term-limit evasion accelerates a pernicious negative cycle in which constitutional non-compliance begets constitutional weakness, which in turn begets subsequent non-compliance. Such a negative feedback loop is a core problem in law. Militant democracy, the logic of which implies the entrenchment and protection of term limits, would potentially disrupt such negative cycles. The concept could also be useful as an intellectual defense of seemingly non-democratic means of protecting democracy.

Keywords: militant democracy, constitutions, crisis, parties, term limits

Suggested Citation

Elkins, Zachary, Militant Democracy and the Pre-emptive Constitution: From Party Bans to Hardened Term Limits (January 31, 2021). Available at SSRN: https://ssrn.com/abstract=3790008 or http://dx.doi.org/10.2139/ssrn.3790008

Zachary Elkins (Contact Author)

University of Texas, Austin ( email )

158 W. 21st St. Stop A1800
Austin, TX 78712
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
7
Abstract Views
78
PlumX Metrics