Democracy has oscillated between individualist, collectivist, and organicist notions since the revolutionary era. Similarly, throughout history, democratic movements have agonized over what the power of the people should mean and how it could be exercised democratically. Today, models prevail that transform the fictive will of the people by elective procedures into regimes of (limited) majority rule based on the representational transmission of power, some representative regimes are complemented by forms of direct popular participation. And, consequently, the various narratives of democracy mirror until today the theoretical and practical-institutional attempts to limit majority rule in order to lend some credibility to the idea and ideology that minorities may become majority and vice versa — an interplay that qualifies democracy as legitimate popular self-rule. This article discusses the varieties of constitutional democracy and the dangers posed by democracy.
This article begins by briefly reconstructing the intellectual history of militant democracy, starting with Loewenstein's work and moving on to the ways in which the doctrine of militant democracy was developed in post-war West German constitutional law in particular. It next compares varieties of militant democracy, mostly, but not only in different post-authoritarian countries, before touching on the jurisprudence of the European Court of Human Rights, which has developed its own perspective on militant democracy. It then returns to the normative core questions surrounding militant democracy and asks whether one might conclude that some strategies for defending democracy are clearly superior to others — and what their implications are for constitutional law.
Political parties and party system dynamics are critical to understanding how constitutions work, and why they may not, in spite of well-intentioned designs. Unfortunately, much of the recent literature in comparative constitutional law has paid little attention to the multiple ways our basic constitutional structures are conditioned by political parties and party system dynamics. With a plea for greater integration between studies of parties and constitutions, this article offers an overview of the interaction effects between political parties and party systems, and the three constitutional types found in the democratic world today — presidentialism, parliamentarism, and semi-presidentialism. It concludes with an illustration of these effects from the case of Weimar Germany.