Antidemocratic Candidates and Democracy

“One of the best jokes of democracy [was that] it provided its mortal enemies itself the means through which it was annihilated,” claimed Nazi propagandist Joseph Goebbels, articulating what we now call the paradox of democracy.[1] It was precisely this concern that drove political scientist Karl Loewenstein to coin the term “militant democracy” to urge democrats to protect democracy at all costs: even if they risk “violating fundamental principles” of democracy such as the right to participate.[2] Because antidemocrats exploit the tolerance of democracies, Loewenstein maintained that they must be met with intolerance. Recently, however, political scientist Alexander Kirshner has argued that a legitimate democrat cannot hold this position. Because participatory rights are grounded in the fact that one has morally relevant interests at stake democrats must reconcile democracy with the limitation of democratic participation.[3] Otherwise, they undermine their own commitment to democracy.

To think about this problem, we can consider actual antidemocratic candidacies. Political philosopher Nancy Rosenblum cites the case of the Israeli far-right antidemocrat Meier Kahane. Kahane made the following campaign promise:

“[Arabs are a] cancer in the midst of us …. Let me become defense minister for two months and you will not have a single cockroach around here! I promise you a clean Eretz Yisrael.”[4]

Kahane operated on the assumption that he potentially has the power to forcibly deport Arabs. In doing so, he ranked them as inferior members of Israeli society. But we may question how Kahane’s ranking Arabs can be effective at all. Kahane is one man, and other Israelis, including political candidates, disagree that Arabs are cockroaches that should be deported.

But, as philosopher Ishani Maitra argues, the failure to authoritatively intervene lets expressions like Kahane’s serve as a shared background assumption. “An assertion,” Maitra contends, “may be accepted for the purposes of a conversation (and so added to the shared background) even if participants don’t believe in its content.”[5] If such ranking is not challenged, it changes the way we behave due to an update in our background assumptions. We may not like Kach, but now we have an updated background that informs our expectations: a candidate for office has ranked Arabs as inferior and proposed to forcibly transfer them. If he remains in the race, our new assumption is that forcible transfer is an issue that is both normatively and empirically “up for grabs” – and the demos can affirm Kahane’s ranking by electing him.[6]

Allowing candidates like Kahane and parties like Kach to partake in democracy makes it so that Arabs do not participate as equals — the electoral contest itself includes a violent threat against their democratic participation — but their vote is equally weighted with others who experience no such threat. If you and I are participating in equally weighted decision-making, but the agenda only has my exclusion as a possibility and not yours, then we are not participating in the decision-making process as equals.

One may contend that if the antidemocrat is elected but there is a strong judiciary, his threats have no ground. Hence, one need not worry about one’s security as a democratic participant. But I contest this. The problem is not so much the probability of the policy’s implementation. Rather, it is that a targeted group’s inferiority is entertained in the first place, even prior to the election. That is, it is not only the procedure’s outcomes that need to respect citizen equality; but the procedure itself.

Furthermore, the fact that a proposal is not realized does not mean that it will not impact the society’s democratic health. Kahane legitimized the idea of transferring Arabs from Israel as a proposal Israel could realize through its democratic process, which later became a legitimate platform in a single-issue party, Moledet. Rather than being denounced as an unacceptable option, Kahane’s proposals are debated as any other kind of political issue.

In what follows I argue that antidemocrats, qua political candidates, undercut the abilities of members of targeted groups to partake in democracy with their fellow citizens as equals. If my account is correct, we will be justified in regulating antidemocratic participation because it is not a legitimate exercise of a democratic right. I use the term “antidemocrat” to describe candidates and political parties that explicitly want i) to deny civic equality to one or more classes of citizens based on socially salient characteristics such as race and ii) to implement policies that degrade the way in which a state is democratic.

The popular line of thinking is that threats to democracy come in the form of legislation; hence, solutions like judicial review that would strike down antidemocratic legislation when it comes must suffice. However, it is antidemocrats themselves, not antidemocratic legislation, that should concern us, for two reasons. First, waiting until antidemocrats take office and pass legislation lags behind the challenge they pose to democracy: we should not wait until it is too late. Second, antidemocrats even as candidates can damage democracy by threatening others’ rights as democratic participants.

Subordination and unequal standing

When antidemocrats participate in elections, they join what political theorist Claudio López-Guerra calls the effective choice set. The effective choice set is a group of candidates that potentially have the power to hold office if elected.[7] In other words, they are a legally valid option for governance. López-Guerra argues that including antidemocrats as a legally valid option disrespects their targets. It expresses to them that the political community is “not willing to stand by them” and conveys that we accept the possibility of the antidemocrat taking office.

López-Guerra’s argument helps us differentiate between preventing antidemocratic candidates from running for office and preventing them from being in a private, voluntary association. Candidates for office do not yet have government power, but neither are they mere private citizens. They can be thought of as quasi-government officials, who may enjoy some of the privileges of government office, such as Secret Service protection. López-Guerra is concerned with the public conferral of respect, and institutions exhibiting equal respect is certainly an important rule for democracies to abide by. However, antidemocratic candidates do not just disrespect but marginalize socially salient groups in the democratic process. They perform an act of discrimination that alters the standing in which their targets participate. This is the wrong that ought to concern democrats.

López-Guerra puts his finger on this: “in allowing an unreasonable party to compete and win,” he contends, “[…] we are ultimately saying that the eventual victory of such a party is acceptable.”[8] When the society in question conveys this — that the eventual victory is acceptable — it undermines the equal standing of their targets throughout the democratic process. Antidemocratic candidates subordinate democratic participants in a way that compromises their ability to participate.

If a presidential candidate advocates for discriminatory treatment, he is not simply expressing an opinion. Rather, he is putting a policy on the agenda. The consequences differ from ordinary speech; I need not count on hate speakers like Klansman David Duke to protect me from unreasonable acts of discrimination, but I should, in a liberal-democratic society, be able to count on the government, and my potential elected representatives, to afford me some protection and treat me as equal to other citizens.

Feminist speech-act theorist Mary Kate McGowan describes how one can enact permissibility facts in some realm through “exercitive speech acts.”[9] For instance, a professor has the power to state “no laptops in class” and enact a permissibility fact over a realm in which he has speaker authority; the classroom. However, he cannot authoritatively enact a “no-laptop” policy in a café because that is not a realm in which he is capable of enacting permissibility facts. This is what we call a “standard exercitive”: an explicitly authoritative speech act that one enacts in virtue of his social position.

Political candidates enact permissibility facts — change what is socially permissible — about democratic deliberation through covert exercitives. Covert exercitives “[trigger] the norms of that activity and thereby [enact] facts about what is subsequently permissible in that activity,”[10] all without explicit intention or without standard authority. In the case of elections, we have a norm where candidates are potential governors. Candidates know this and act on this assumption. In making electoral promises, candidates rely on the assumption that there is a difference between saying “I will do x” as a political candidate and as an ordinary citizen. If no one blocks a candidate from making this proposal, it remains in the realm of possibility as a democratically informed decision. Unless he is explicitly prevented from doing so, the antidemocrat alters what is permissible among the kinds of issues people could vote for.

Shifting what is up for debate

In proposing a policy, political candidates as potential representatives shift what counts as permissible grounds for democratic deliberation unless their platform is blocked. For instance, the antidemocrat can make it so that policies that would usually be considered racist are not seen as such.[11] Trump’s Muslim ban initially shocked his own party; but since no members effectively intervened, it soon became accepted and the “slightly less racist call to ban all Syrians” became the party’s moderate view. 

In liberal democracies, there is some consensus that fundamental rights should be guaranteed without being threatened by citizens’ preferences.[12] Jurist and political philosopher Ronald Dworkin deems these kinds of issues choice-insensitive issues, meaning that, for example, if most citizens favour a racist policy, a democracy still should not promulgate it because its rightness does not depend on citizen preferences. Choice-sensitive issues, on the other hand, depend on citizens preferences; such as deciding where to allocate funds.[13]

Let’s consider Kach again, which created a disproportionate sense of insecurity for Israel’s Arabs. Even if Kach did not assume the power to enact law, any potential Arab constituents of Kach could not rely on their representatives to perform their duty towards them. Their existence posed a threat to what political philosopher Jeremy Waldron describes as “assurance.” The concept of assurance refers to how citizens in a just society should be able to count on a reasonable level of protection from “violence, exclusion, indignity, and subordination.”[14] Portraying policies that subordinate certain groups as a choice-sensitive issue makes it difficult for group members to engage in the normal activities of society due to fear and disrespect. The issue is not merely protecting a targeted group from insult; this is not about feelings. The issue is instead making sure that this group is not degraded and singled out to other members during the electoral process.

Following Waldron’s argument, we can say that hateful electoral speech is not just a speculation of what the group in question is like. Rather, these claims project the point that these people should “expect to be treated in a degrading manner if the person making the hateful claim and the fellow-travelers that he is appealing to have their way.” Kahane’s proclamations did not just disrespect Arabs; he made a point to say that a realizable political proposal for Israel is the forcible ejection of this undesirable group. In making this policy proposal, Kahane “specifically [targeted] the social sense of assurance” that Arabs in Israel might rely on to carry out basic activities, let alone political participation.

Donald Trump’s campaign had similar effects. In a 2015 campaign rally, Trump proposed to kick out all Syrian refugees of the United States, claiming that “they could be ISIS.” In doing so, Trump undermined the assurance of the Syrian refugee community and pushed forward a standard about how Americans ought to see them. Trump’s antagonism toward Arabs and Islam appear to have produced visible effects: the rate of assaults against Muslims more than doubled over the course of Trump’s campaign (2015 – 2016) relative to 2014.

There is precedent for regulating democratic activity on these grounds. Kirshner describes the example of regulating the British National Party (BNP). The BNP’s constitution did not permit non-white membership in their party. They were not a demonstrable danger to Britain’s democratic institutions, but nonetheless the British Equality and Human Rights Commission (EHRC) threatened the BNP with legal sanction unless they stopped racial discrimination within their party, changed their constitution, and ensured that their potential racialized constituents would be treated equally. Their reasoning was that non-white constituents of the BNP could not depend on them to fulfill their duties towards them.[16] The EHRC blocked the attempted instantiation of a new permissibility fact. This shows that intervention need not take the form of a ban. If we locate the harm as limiting others’ ability to participate, as Kirshner does, there is a wide array of actions that we can take.

The grounds we stand on: justifying regulation

I have not denied the antidemocrat’s claim to participation qua citizen, but I have instead specified the boundaries of participation itself: namely, we cannot accept participation that subordinates others as democratic participants. The antidemocrat’s participation in an electoral race — regardless of his intent or ability to later implement policy — undermines others’ abilities to participate equally among citizens and is antidemocratic for that reason. Hence, it cannot be covered by his democratic participatory rights.

This is not as problematic as we may think. For instance, in a standard liberal democracy, I have a right to not be discriminated against on the basis of immutable characteristics, such as my gender or race. This means that if my workplace were to mistreat me on those grounds, my employers are not exercising their freedom of association, because racial discrimination does not fall within one’s free-association rights. How do we draw the boundaries of a right’s scope? The first and most obvious way is to limit it when its attempted exercise constitutes an illegal action, such as racial discrimination. The intervention against the BNP is a good example here.

The general principle does not seem all that controversial to a liberal democrat who accepts that a right is more than a freedom to act in a certain way. Rights are coherent because they also place duties and responsibilities on others. Participatory rights protect citizens against barriers to participation that other citizens may try to impose. For instance, my right to participate protects me from people in power who want to unjustifiably disenfranchise me or compromise my right to express my preferences. This constrains some forms of citizen expression during elections; a citizen must refrain from speech or actions that constitute voter intimidation in the United States or face imprisonment. This does not mean his right to participate in political deliberation is violated. Rather, it is the way he is trying to participate and express himself that is not within the scope of his participatory rights. Similarly, if an antidemocratic candidate makes it so that a citizen cannot participate on equal footing, he is engaging in an action beyond the scope of his own participation rights.

If the practice of a democratic right seriously undermines what we find desirable about that right, then prioritizing that practice for democracy’s sake is normatively incoherent.[17] Consequently, there is disharmony between what moves us toward democracy and democratic processes themselves if a democracy does not “protect and respect the values the process is intended to instantiate.”[18] In our case, that means that participatory rights end once they undermine others’ ability to fulfill their moral interests; both as persons and as democratic participants.

Objections

The inclusion-moderation hypothesis

It has been argued that antidemocratic parties can be expected to moderate once they achieve political power due to the need to attend to the mundane tasks of practical governance and holding together a political coalition.[19] This is the inclusion-moderation hypothesis. One could also fruitfully distinguish between “ripe” democracies with mature, stable institutions versus younger and more fragile “unripe” democracies, to use the terms of political philosopher Kristian Skagen Ekeli.[20] Ripe democracies may be more robust to antidemocratic candidacies than unripe democracies, so differing regulations may be justified.

Assuming that including an antidemocrat actually can moderate, we still do not know how exactly to generalize this principle. And the ripe/unripe distinction is not stable enough to be a rule. Unripe democracies have democratized their extremists, too. As an example, take Hezbollah, who began in Lebanon as an armed, Islamist resistance party. In their initial manifesto, Hezbollah expressed a desire to impose Islamic law on Lebanon, a state in which Muslims barely comprise a majority and where support for political Islam is the lowest among all Arab states. After becoming better established and politically mainstream, Hezbollah’s leader, Hassan Nasrallah, declared that his party had dropped the mandate. The reason, Nasrallah claimed, is because Hezbollah decided as newly democratic participants that they wished to reflect popular sentiment in Lebanon.[21] While they opposed some structures of Lebanon’s democracy, such as its confessional system (the preference of Lebanon’s Christians), Hezbollah has democratized and accepted Lebanon’s political reality, claiming that because they have Christian constituents, they have to be receptive to their preferences.[39] Tunisia’s Ennahda is another party that became increasingly democratized after being allowed to democratically participate.[22]­ This was a shift in orientation considering Ennahda’s far more radical past.[23] In these cases, including antidemocrats democratized their parties, supporting the inclusion-moderation hypothesis.

But we cannot categorically claim that unripe democracies are better off through inclusion. Ekeli’s perspective is exemplified during the Egyptian democratization in 2011. In Egypt, the Muslim Brotherhood came into the spotlight after spending most of their existence being denied legal status.[24] During pro-democracy protests, the Muslim Brotherhood protected crowds from the police and sided with protesters in favour of democracy. When running in elections, the Brotherhood assured Egyptians that they would not dominate parliament or implement Islamic Law despite earlier stated goals in favour of doing so. After the election, however, Egypt’s largely Islamist parliament, though democratically elected, put forth a Salafist, undemocratic constitution.[25]

Lebanon, Tunisia, and Egypt are relatively unripe democracies. But the United States’ 2016 election demonstrates that even ripe democracies may succumb to antidemocratic parties. One may think that American institutions would have been able to curb President Trump’s ability to implement antidemocratic policies or moderate him into a practical leader. But he remained fixated on his antidemocratic goals, where the Muslim Ban was recently approved by the Supreme Court of the United States, allowing it to take effect. Other undemocratic behaviours from President Trump include attempts to discredit journalists, nepotism, and falsely claiming the elections were fraudulent. The Republican party, in tolerating Trump by permitting his nomination, has enabled him to shift basic norms of acceptable political behaviour and to entertain more antidemocratic policies, both proposed and executed. In fact, there is a history of such policies in the United States — a ripe democracy — with examples including the Chinese Exclusion Act as far back as 1882.

From these examples, we see the ripe/unripe distinction may not be a useful heuristic, and that while the inclusion-moderation hypothesis can be explanatory in some cases, it is difficult to generalize. Further, if we are concerned about harm, it is not assuring to the antidemocrat’s targets to say that the antidemocrat must be accommodated because it might make him more democratic. If we are concerned with treating democratic participants as equals and assuring citizens that democracies protect this equality, a purely instrumental consideration about long-term democratization falls apart. In other words, if democracy’s aim is to treat citizens indiscriminately, as equals, it should not permit the welfare of the antidemocrat’s targets to be used as a means to to deradicalize others.

Driving hate underground

A related problem with excluding antidemocrats is that it simply drives their hatred underground and exacerbates it. This means that its targets are still insecure and subject to danger. Ekeli makes this case by describing what he calls “enclave deliberation.” Enclave deliberation is when “exclusion can create isolated enclaves of like-minded political extremists who wall themselves off from alternative or competing perspectives.”[26] This allows the antidemocrat to become more radical because they cannot be properly opposed and criticized. As a result, antidemocrats can experience “group polarization,” where “like-minded people (e.g. members of a given social group or movement) who are engaged in deliberation with one another end up taking a more extreme position in line with their pre-deliberation views or tendencies.”[27]

This is a valid concern; however, part of my argument is that hate should be driven “underground.” I use quotation marks because I have not advocated for a shutdown of these groups’ existence. Rather, I have argued that they cannot participate in an electoral process in a way that undermines others’ ability to partake in democracy. This is because, I have argued, the democratic process specifically needs to permit citizens to partake in it as equals. Driving hatred underground signals to political society more broadly that these are not acceptable views.

Nonetheless, it is plausible that there could be a cost from political exclusion. That said, plenty of legal actions done for the sake of justice and equal treatment can have similar effects. Affirmative action, for instance, has produced a similar backlash of bitterness and resentment among white Americans, but that does not make it unnecessary.[27] In other words, we do not deny members of political societies protection from harms simply because it would radicalize their perpetrators. One could argue the inverse: including antidemocratic candidates can empower radicalization. Trump’s nudging encouragement of hate crimes is one such example, as was his ability to shift moderate Republican policy rightward. Thus, the response to this objection is similar to the prior objection. Specifically i) hatred should be delegitimized through some form of exclusion to protect antidemocrats’ targets and ii) we cannot generalize a claim about enclave deliberation and group polarization to inform our theory more broadly.

Epistemic losses

One fascinating extension of this argument is that preventing antidemocratic participation decreases social knowledge. That is, exclusion will make us unable to accurately track citizens’ preferences if not all of them can be expressed publicly. Political scientist Adam Przeworski argues that democracy is valuable because it mimics a war non-violently.[48] In this way, political participation allows us to know “who would mutiny and against what.”

This is a compelling view. After all, if I were in Israel, I might want to know how many people supported Kach out of personal concern. But I also would not prioritize my knowledge of this over my assurance. Permitting antidemocratic parties for the sake of obtaining knowledge wrongs its targets in a similar way as other instrumental arguments for inclusion do: that is, by treating their well-being as a means. Letting antidemocrats be a legally valid option for governance is not the only way to obtain knowledge about what sides citizens stand on — surveying and other methods from the social sciences are viable, if incomplete, alternatives.

Wrongful interference

The power to intervene against antidemocratic candidates could enable a government to silence political participation if it saw it as a threat to how a state perceives its character. Rosenblum makes this argument by claiming that sometimes an “antidemocrat” is not actually antidemocratic but merely antisystem.[29] States have attempted to ban candidates and parties that are not necessarily antidemocratic, but that threaten the state’s existential identity. For instance, the United States suppressed the Communist Party’s participation in the twentieth-century despite the fact that it did not pose a threat to American democracy or any citizens’ participation.[30]

This is one reason why Dworkin argues that democracies must permit any opinion to be expressed, no matter how hateful the opinions are.[31] Dworkin argues that laws that regulate what kind of speech is permissible “disfigure[s] democracy, because if a majority of citizens has the power to refuse a fellow citizen the right to speak whenever it deems his ideas dangerous or offensive, then he is not an equal in the argumentative competition for power.” He argues against the idea that hateful speech injures citizen equality because he rejects that the “free circulation” of opinions can do this kind of harm. More importantly, for Dworkin, it is impermissible to protect citizens by means of censorship in an “otherwise fair political contest” because we could not generalize this right to protection. He gives an example of a fundamentalist Christian: we could not protect him from offense because it would require us to ban too much. While Dworkin places importance on democratic discourse, he argues that we cannot attempt to engineer an ideal discourse that improves democracy, and to do so would encourage abuse. For instance, people may invoke the improvement of democratic discourse to justify totalitarian aims of silencing their critics.

It is possible that the government could abuse the power to legislate antidemocratic participation as a means of silencing its critics — but it can do so with almost any other kind of regulation as well. Dworkin himself showed us a case in which the government used free speech law to facilitate social hierarchies and inequality by permitting campaign expenditures. Unsurprisingly, Dworkin has been criticized by philosophers such as Rae Langton who argues that Dworkin is “wrong even by his own lights.”[32] This is because Dworkin supports numerous government actions that restrict the intolerant — all of which can be, but are not necessarily, abused.[33] If there were to be a blanket ban on “antidemocratic parties,” I agree that this could easily invite abuse, and has. But it need not take this form. For instance, Kirshner’s example of the BNP did not entail banning the party. Instead, a human rights court merely stepped in and dealt with the specific problems that the BNP posed to democratic participants.

Further, protective action should be informed, sensitive to the society in question, and not merely about offense. Waldron helps us by distinguishing between offense and indignity. Offense refers to hurt feelings of the target, whereas indignity refers to the way in which the target is marked as someone “not worthy of being treated as members of society in good standing.”[34] Admittedly, this is a subtle distinction. Dworkin’s fundamentalist Christian, for instance, could claim that a pro-choice candidate is degrading Christian members of the community. But we also need not be so relativistic as to accept the Christian’s characterization as accurate. This is a case of offense rather than indignity because the candidate is not degrading the Christian, qua Christian, as a political participant.

Disrespect of citizens’ capacity to elect

This objection argues that if one’s options are limited, one is not making a truly democratic decision. In other words, limiting the effective choice set of voters limits their right to vote.[35] In doing so, it disrespects voters by assuming that they are not competent enough to reject unreasonable candidates. If we respect voters’ confidence, we must allow them the freedom to be exposed to all available options and have the freedom to “discriminate between alternatives.”[36]

My framework deals with this objection by prioritizing the welfare of democratic participants over choice. Even if citizens can reject antidemocrats, it does not mean that the antidemocrats cannot simultaneously marginalize their targets as democratic participants. Further, it does not seem accurate to characterize restrictions as an act of disrespect so much as a form of protection. We do not deprive others of assuring legal protections for this reason. For instance, an employer might feel offended by Affirmative Action laws by claiming that he is already inclusive and does not need to be coerced into being so. Yet, this should not be prioritized over assuring minorities that they will have equal access to employment. If he is already inclusive, he should not feel negatively affected by these laws. Similarly, intervening against antidemocrats does not insult tolerant citizens. Instead, it rejects certain moves made by intolerant ones. One may claim that this wrongs the intolerant candidate’s supporters by disrespecting them, but it does not disrespect them so much as their beliefs, a distinction worth making.[37]

Accommodating disagreement

Some justifications of democracy are rooted in the claim that citizens will always disagree about policy. In this way, we must all expect to sometimes be subject to policies we disagree with. Democracy is authoritative because it accommodates disagreement, including disagreement about what one’s rights should look like.[38] For scholars like Waldron, democracy requires us to have respect for others as rational individuals and respect for their judgment amidst even controversial disagreements.[39]

If we are concerned with political equality, this is an important objection. Liberal democratic institutions are obliged to treat all citizens as equals, meaning that such institutions ought to “show equal respect for persons or citizens as moral agents and their judgements.”[40] In this way, we disrespect the judgment of the antidemocrat and his supporters by claiming that their perspective about political rights is invalid and does not deserve equal weight.[41]

There are two problems with the disagreement stance I will highlight. First, as I pointed out in addressing the previous objection, respecting citizens as rational agents does not necessitate respecting their opinions. We ought to afford antidemocratic citizens free speech to express their opinions, but that does not mean that we must accommodate them institutionally. In fact, as I have argued, the content of antidemocratic beliefs must be actively disrespected through rejection in order to block a dangerous shift in permissibility facts during an election.

Further, as pointed out by philosopher Joshua Kassner, the argument that holds disagreement as a rock-bottom principle has its normative priorities confused.[42] What we ought to value about democratic decision-making is “the degree to which that process protects and maintains the values of democracy and the rights that instantiate such values.”[43] If what we value is equal respect for persons, we should be warranted in defending this principle against candidates that undermine it. On the other hand, the proponent of a disagreement-based theory argues that the process of participating is in itself democracy’s value.[44] Even if we accept participation as a core value of democracy, this value must be supplanted by the value of equal respect for persons in the case of antidemocratic participation. Otherwise, we affirm that it is permissible for some groups’ rights to be singled out as up for debate in the democratic process.

Conclusion

I have attempted to show that antidemocratic candidacy compromises its targets’ abilities to participate in democracy. Specifically, I claimed that an antidemocratic candidate, in advancing an antidemocratic platform, can subordinate members of the electorate and wrong them as democratic citizens.

First, I showed how the participation of antidemocrats places its targets in unequal standing as democratic participants in a way that is both disrespectful and damaging to their status as members of the demos. To do this, I showed how a political candidate has the power to shift permissibility facts in the realm of democratic deliberation. The antidemocrat ranks his target as inferior and adds to a background of assumptions about where his target stands in society. If the state fails to intervene, the antidemocrat’s proposals are added along with himself to the voters’ effective choice set. In turn, his targets lose their sense of security that they could otherwise reasonably expect from their society — such as the right to be seen and to participate in equal standing.

Second, I expanded on how regulation is aligned with goals of democratic equality, and how democratic rights obligate electoral participants to engage in reasonable behaviour that does not compromise participants’ welfare. Finally, I considered and rejected several potential objections.

A democratic society must protect the values it instantiates. If what we value about democracy is equality, we must not compromise this value through fear of regulation. I hope to have shown that our value of democratic procedures does not override legal protections we are owed in a democratic society. In fact, these very values are what should encourage it.

This essay was adapted for Liberal Currents. The original, with more discussion and references, can be found here.

References

[1] Jan-Werner Müller, “Militant Democracy and Constitutional Identity,” Comparative Constitutional Theory, ed. Gary Jacobsohn & Miguel Schor, (Edward Elgar Publishing, 2018), 418; Nancy Rosenblum, “Banning Parties,” Law & Ethics of Human Rights, 1, no. 1, (2007), 20.

[2] Karl Loewenstein, “Militant Democracy and Fundamental Rights, I,” The American Political Science Review, Vol 31, No. 3 (June 1937): 432.

[3] Alexander S. Kirshner, “Self-Limiting Theory of Militant Democracy,” A Theory of Militant Democracy: The Ethics of Combatting Political Extremism, (New Haven & London: Yale University Press, 2014), 27.

[4] Rosenblum, 53

[5] Maitra, 111. Maitra’s italics.

[6] Christiano, “Waldron on Disagreement,” 538; Jeremy Waldron, “The Constitutional Conception of Democracy: ‘Is Everything Up for Grabs?’” Law and Disagreement, (Oxford: Oxford University Press, 1999). One objection is that we have institutions like judicial review to make sure that people like Kahane could not enact antidemocratic legislation. But this is not reassuring given, e.g., the recent SCOTUS acceptance of Trump’s Muslim ban.

[7] Claudio López-Guerra, “Disenfranchisement and the Limits of Democratic Theory,” Democracy and Disenfranchisement: The Morality of Electoral Exclusions, (Oxford: Oxford University Press, 2014), 152.

[8] ibid, 158. My italics.

[9] ibid, 127.

[10] ibid, 134.

[11] Jennifer Saul, “Racial Figleaves, the Shifting Boundaries of the Permissible, and the Rise of Donald Trump,” Philosophical Topics Vol.  45, No. 2 (Fall 2017): 113.

[12] Not all theorists hold this view; see Jeremy Waldron, “The Constitutional Conception of Democracy: ‘Is Everything Up for Grabs?’” Law and Disagreement, (Oxford: Oxford University Press, 1999)

[13] Dworkin, “What is Equality 4,” 25.

[14] Waldron, “The Appearance of Hate,” The Harm in Hate Speech, (Cambridge & London: Harvard University Press, 2012), 83.

[15] Ibid., 86.

[16] Kirshner, “Political Regulation in Defense of Democracy,” 61.

[17] This argument is indebted to Thomas Christiano, “The Limits to Democratic Authority,” The Constitution of Equality Democratic Authority and its Limits, (Oxford: Oxford University Press, 2008), 266-267.

[18] Joshua Kassner, “Debate: Is Everything Really Up for Grabs? The Relationship between Democratic Values and a Democratic Process,” The Journal of Political Philosophy Vol. 14, No. 4, (2006), 492.

[19] Janine Clark, “Islamist Movements and Democratic Politics,” Beyond the Arab Spring: Authoritarianism and Democratization in the Arab World ed. Rex Brynen et. al. (Boulder: Lynne Rienner Publishers, 2012). 130.

[20] Kristian Skagen Ekeli, “The Political Rights of Anti-Liberal-Democratic Groups,” Law and Philosophy 31 (2012): 290.

[21] Sayyed Hassan Nasrallah, “Hezbollah is Not an Iranian Community in Lebanon,” Voice of Hezbollah: The Statements of Sayyed Hassan Nasrallah, ed. Nicholas Noe & trans. Ellen Khouri (London & New York: Verso Books, 2007), 90.

[22] Ibid., 98.

[23] Anne Wolf, “An Islamist ‘renaissance’? Religion and politics in post-revolutionary Tunisia,” The Journal of North African Studies, 18:4 (2013): 564.

[24] Carrie Rosefsky Wickham “Conceptualizing Islamist Movement Change,” The Muslim Brotherhood: Evolution of an Islamist Movement, (Princeton University Press, 2013), 1.

[25] Clark, 119.

[26] Ekeli, 293.

[26] Ekeli, 294.

[27] Scott Jaschik, “White Perceptions of Affirmative Action,” Inside Higher Ed, (30 October 2017).

[28] Adam Przeworski, “Minimalist Conception of Democracy: A Defense,” Democracy’s Value. Eds. I. Shapiro and C. Hacker-Cordón. (Cambridge: Cambridge University Press, 1999), 48.

[29] Rosenblum, 23.

[30] Kirshner, “Political Regulation…” 82.

[31] Dworkin, “Free Speech…” 365.

[32] Rae Langton, “Hate Speech and the Epistemology of Justice (Book Review of Waldron, The Harm in Hate Speech)” Criminal Law and Philosophy (2014): 867. Langton’s emphasis.

[33] Ibid., 868.

[34] Waldron, “Protection from Dignity or Protection from Offense?” The Harm in Hate Speech, 106.

[35] López-Guerra, 153.

[36] Ibid., 156.

[37] Raz, Joseph. “Disagreement in Politics.” American Journal of Jurisprudence (1998): 31-32, 43.

[38] Waldron, “Participation: The Right of Rights,” Law and Disagreement, 246. Note: I do not claim that Waldron himself would be against restricting who could run for office, only that his framework could contribute to an argument that could suggest it. His writing in The Harm in Hate Speech, as I have shown, could possibly mean he is against it.

[39] Ibid., 251-252.

[40] Ekeli, 276.

[41] Ibid., 277.

[42] Kassner, 492.

[43] Ibid.

[44] Ibid., 294.

Featured image is The Fire of Rome, by Hubert Robert.