Procedural containment vs. substantive entrenchment: two early models of militant democracy

regarded as the originator of the militant democracy paradigm. In a series of articles in the mid and late 1930s, he argued that constitutional democracies should pre-emptively defend themselves against movements and parties that were seeking to undermine them. More recently, another father of the paradigm has been identified in the controversial figure of Carl Schmitt. Before his despicable and opportunistic support for the Nazi regime at the end of 1933, he advocated a model of authoritarian democracy based on fundamental constitutional contents that should be made impervious to legislative change. This article examines the different models of disciplined and authoritarian democracy proposed by these authors. While both advocated measures that could inhibit the activity of parliamentary majorities composed mainly of parties opposed to the state constitutional structure, Schmitt, more than Loewenstein, made the point that the defence of democracy requires subscribing to substantive values and principles and entrenching them. The juxtaposition of these models makes it clear that militant democracy not only recommends the protection of certain procedures but also entails a normative standard comprising substantive contents. This helps to highlight the unstated normative burdens of democratic militancy.