Two years ago, at the end of a democratic theory seminar, I read Alexander Kirshner’s book A Theory of Militant Democracy (2014) and decided to continue his discussion about the paradox of democracy. The paradox asks: can a democratic society, in a non-contradictory way, restrict political participation if said participation is a threat to democracy? For the purposes of my essay, “antidemocrat” is taken to mean a political actor that wishes to exclude a socially salient group of participants from the demos.
Kirshner’s book is illuminating, though not the first to bring the concern to the table. Karl Loewenstein, writing in the time of Nazi Germany, coined the term “militant democracy” to argue that it is permissible to violate “fundamental principles” of democracy such as the right to participate as an electoral candidate. Loewenstein argued that antidemocrats – like the Nazi party – can exploit the tolerance of democracies and thus, must be met with intolerance. Indeed, Joseph Goebbels himself taunted democrats by claiming that their own system lets antidemocrats like himself annihilate it.”
A Theory of Militant Democracy takes a softer position than Loewenstein’s, and Kirshner calls us to take seriously the participatory rights of antidemocrats. If one holds morally relevant interests at stake during democratic deliberation, Kirshner argues, we cannot lighthandedly suppress their participation. Instead, he offers limited and extenuating circumstances under which we can suppress democratic participation. For instance, he favorably cites how the British Equality and Human Rights Commission (EHRC) legally sanctioned the British National Party (BNP) for refusing to permit non-white membership in their party. The EHRC’s rationale, in this case, was that non-white constituents would be unable to depend on the BNP to fulfill their political duties towards them should they be elected. While the EHRC was successfully able to influence the BNP’s direction, the question remains: did their act contradict the democratic values they espoused?
I have argued under the assumption that democracy contains these relevant features: first, democracy is a system wherein citizens have an equal opportunity to influence political outcomes. Second, democracy as a system is motivated toward equal opportunity of political influence because of the way citizens are legally bound, equally, by the decisions made in the political sphere. These are somewhat abstract conceptions of democracy; understandably so, as my paper was initially for a political philosophy seminar. Realistically, there is an imbalance in the way citizens are legally bound by political decisions. Your sentencing prospects on a drug arrest will be bleaker if you cannot afford a good lawyer, and your financial status will also determine your access to the political arena. Democracy, in this case, is an ideal rather than something fully realized in practice. The assumption of this essay, however, is that it is a desirable ideal worth influencing what we strive for.
It is also worth noting after my last visitation of this issue in 2018 that concerns about antidemocratic threats do not always come to fruition. Many had concern about President Donald Trump’s elected presidency turning into fascist rule; it has now fizzled out as a term less authoritarian and fascistic than the presidency of George W. Bush when accounting for surveillance and suppression of citizenry, war, bigotry, and general CIA activity. In reflecting on the two years between my piece and now, I have concluded that campaign rhetoric is not as sufficiently indicative of what one’s presidency will be like; more important is whether a nation’s sites of power choose to align with that president’s goals.
My answer to the initial question is still that it is not paradoxical or contradictory under a non-minimalist understanding of democracy to restrict who can run for office under an equal political influence model of democracy.
Whether it is desirable and feasible, on the other hand, is a separate question. As such, I would still recommend exercising caution for two reasons: first, as in Trump’s case, someone who appears to be an antidemocratic threat may not substantiate this fear once in office. Second, we risk casting the net of what constitutes “antidemocratic” far too widely. Because I had defined an antidemocrat as someone that wishes to restrict the democratic participation of a socially salient group, what counts as “socially salient” can be easily manipulated. For instance, some governments have attempted to justify restricting speech using anti-discrimination laws, creating another democratic paradox to be contended with. For the sake of space, I will only deal with the former in this essay, though find it necessary to acknowledge the latter.
Is Restriction Contradictory?
I had based part of my argument on Ronald Dworkin’s argument that democracies can legitimately regulate democratic participation if such a regulation improves the democracy at large. Dworkin cites the Buckley v Valeo case from 1976, where the Court ruled that campaign expenditure ceilings violated the First Amendment right to use one’s finances to express political convictions. The outcome of this case, to Dworkin, is unacceptable: he argues—rightfully, in my opinion—that the concentration of wealth inhibits the likelihood of equal opportunity of influence. As such, it is antidemocratic. Campaign expenditure ceilings, according to Dworkin, limit participation in the right way; they improve democracy by facilitating an equal opportunity among citizenry to influence the laws that will bind them.
My framework, like Dworkin’s, took the view that we can improve democracy by allowing limited restrictions on participation. I also borrowed from Claudio López-Guerra, who conceptualizes the “effective choice set”: a group of candidates that potentially have the power to hold office. López-Guerra argues that allowing antidemocrats to be a legally valid option disrespects the people they wish to exclude; it expresses to those people that the community is unwilling to “stand by them” and conveys a potential acceptance of an antidemocratic administration.
To build on López-Guerra’s argument, I argued that disrespectful and exclusionary rhetoric on the part of antidemocratic candidates can constitute discriminatory behavior. I took this route from speech act theory, which explains how speech from a certain place of authority can constitute norms for others, for example by authorizing discriminatory treatment against them. If a boss of a workplace fires you for an immutable characteristic protected by discrimination law, their speech act that indicates they are firing you constitutes a legally discriminatory act. The antidemocrat’s campaign rhetoric can also constitute an act: it places what may be thought of as choice-insensitive issues (e.g., guaranteed political equality) as potentially choice-sensitive issues. What does this look like in practice?
The Antidemocrat in Practice
The memory of Meier Kahane came to the forefront in political discourse last year when the Prime Minister of Israel, Benjamin Netanyahu, worked to get some of his followers elected into the Knesset. Kahane’s party, Kach, promoted not only excluding non-Jewish citizens of Israel from the demos, but proclaimed the inferiority of Palestinians and promoted forcibly transferring them. Kahane’s party was seen to be so contrary to the aims of democracy—and inciteful of extremism—that it was banned in Israel. As such, Netanyahu’s support for Kahane’s followers understandably drew controversy.
Kahane’s campaign and party is cited by theorist Nancy Rosenblum as an example of conduct that is “corrosive” for democracy. If Kahane were to remain in the political race, a new assumption takes place among citizens: forcibly transferring an entire ethnic group is on the table. Voters may choose it as a legitimate option. As such, people do not come to the polls and participate in the election as equals. For the ethnic Palestinians that even can vote, they come to the polls with the possibility of their exclusion in the future while others do not.
Restricting the participation of someone like Kahane is not as contradictory as one may initially believe because we must not, as Harry Brighouse says, “violate the principle that justifies the process.” The coherence of a political right rests on the ability to place duties and responsibilities on others; these inevitably constrain some forms of expression, such as voter intimidation or uttering threats. As such, restricting the participation of a candidate who wishes to undermine others’ democratic rights is rejecting that this kind of participation is within the scope of participatory rights, rather than restricting participatory rights themselves. The electoral process can validly make ground rules for itself that limit the way certain citizens are disrespected as fellow democratic participants.
Is Restriction Desirable?
It is one thing to grapple with the paradox of democracy and another to determine its relevance. Establishing a political action as non-contradictory does not make it a desirable political action.
As Joseph Raz argues, it is wise to avoid creating grand principles for government interference across the map. Instead, Raz argues we should attune ourselves to a state’s surrounding realities and incline ourselves “…toward a position which is informed by moral concerns but regards their application as a thoroughly nuanced and pragmatic matter.” My argument thus arrives at this: threats to democracy differ based on a country’s governance and political culture. The usefulness in restricting participation could be minimal or non-existent, which should be taken into consideration by democratic theorists.
Unsubstantiated Threats: Is It the Campaign That Matters?
Notable about campaigns that put forward exclusionary goals is the shocking rhetoric. Kahane’s campaign promise, for instance, claimed that Arabs were “cancer” and that he would rid his country of these “cockroaches”. In a 2015 campaign rally, Trump proposed to kick out all Syrian refugees of the United States, claiming that “they could be ISIS.” Trump, though less explicitly antidemocratic than Kahane, espoused rhetoric that initially shocked even his own party.
Of course, if racism is the concern, presidencies before Trump and after Kahane’s campaign wouldn’t exactly pass the test. The War on Terror in America, which led to the death and torture of American and non-American citizens alike, had no problem rationalizing itself through racist rhetoric. Racism not unlike Kahane’s still has a place in Israeli parliament. As such, we might wonder: what exactly are we preventing here?
My initial argument considered the campaigns themselves as a form of antidemocratic harm; as I claimed before, it is potentially corrosive to a political society to deem admissible a platform that will potentially undercut others’ democratic rights. Of course, a campaign has numerous proposals; as in the case of the BNP, such a restriction may simply involve removing antidemocratic clauses from a party’s platform while still permitting their participation.
Taking Raz’s suggestions, we should be looking to specific features of a political society when assessing what an antidemocratic threat looks like and what measures would be appropriate in response. This brings us out of the realm of the ideal, that is, “democracy is x, and y is an ethical violation of x.” Political societies that contain antidemocratic political candidates are, in real life, not democratic in the ways I have described. As such, we cannot stop at an observation that a candidate is violating a democratic ideal if that ideal has not been fully realized. We may say, however, that that ideal is something to strive for, and that we should avoid actions that take us further from it.
As such, what an antidemocratic candidate can do will depend on what their institutions, including their opposition, will permit them to do. If Trump’s opposition votes with his party to consolidate national surveillance powers, it is difficult to conceive of Trump’s administration itself as the unique authoritarian threat. Rather, there is an institutional norm and apparatus in place that permits those with authoritarian fantasies to actually realize them should they make it in. Trump’s presidency lacked an opposition willing to oppose his more authoritarian measures; not because he suppressed them, but because America’s political realities include a bipartisan consensus that is fundamentally undemocratic to begin with.
In Israel, Palestinians are fundamentally unconcerned with campaign rhetoric and which candidate will win. This is partly because many cannot vote while still remaining legally bound by the Israeli government in relevant ways. Whether Kahanists make it into parliament is likely immaterial. For Palestinians who can vote, the difference between having someone like Netanyahu and Kahane—both of whom have expressed contempt towards them—is likely immaterial as well.
As such, I have concluded that while it is not contradictory for a democracy to restrict electoral candidates’ participation, it may not be the most effective strategy of curtailing antidemocratic threats. It is up to different political societies to decide whether regulating political participation is worth their time.
It is common at this point in our political timeline to think of rhetoric as a more primary mover than I now find necessary; this is something that has occurred to me and subsequently changed some of my stances as Trump’s presidency progressed. In reality, rhetoric is often a reflection of material political conditions, as is susceptibility to certain forms of rhetoric. In the end, striving for democracy will involve not fixating on restricting antidemocratic campaigns per se, but simply taking away their teeth through improvements in institutions, political culture, and in opposition parties.
 I initially wrote this for a Democratic Theory seminar at McGill University (Winter 2018), which was taught by Professor Arash Abizadeh. I would like to credit him for guiding me on these concepts and on this essay. I would also like to credit Professor Jacob T. Levy, whose “Political Theory in and As Political Science” seminar (Fall 2018) inspired numerous ideas for this piece. A version of my argument was published in October 2018: Mila Ghorayeb, “Antidemocratic Candidates and Democracy,” Liberal Currents, (October 29, 2018), <https://www.liberalcurrents.com/antidemocratic-candidates-and-democracy/>.
 See: 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.
 Karl Loewenstein, “Militant Democracy and Fundamental Rights, I,” The American Political Science Review, Vol 31, No. 3 (June 1937): 432.
 Loewenstein, 428.
 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.
 Kirshner, “Political Regulation in Defense of Democracy,” 61.
 See Robert Dahl, “Procedural Democracy,” Philosophy, Politics, & Society (5th Series). Ed. P. Laslett and J. Fishkin. (Oxford: Blackwell, 1979), 101-108, 128; Harry Brighouse, “Egalitarianism and Equal Availability of Political Influence,” Journal of Political Philosophy 4(2) (1996): 140; Kolodny, 308-310; Dworkin, “What is Equality 4,” 22.
 For a comprehensive overview of these policies, see: Glenn Greenwald, “No Matter the Liberal Metric Chosen, the Bush/Cheney Administration Was Far Worse Than Trump,” Glenn Greenwald Substack, (November 7, 2020) <https://greenwald.substack.com/p/no-matter-the-liberal-metric-chosen>.
 For instance, it is difficult to deem Trump uniquely fascist if his opposition grants him further power to spy on citizens without a warrant. See e.g. Glenn Greenwald, “The Same Democrats Who Denounce Donald Trump as a Lawless, Treasonous Authoritarian Just Voted to Give Him Vast Warrantless Spying Powers,” The Intercept, (January 12, 2018) <https://theintercept.com/2018/01/12/the-same-democrats-who-denounce-trump-as-a-lawless-treasonous-authoritarian-just-voted-to-give-him-vast-warrantless-spying-powers/>.
 See, for instance, anti-BDS laws: Human Rights Watch, “US: States Use Anti-Boycott Laws to Punish Responsible Businesses,” HRW, (April 23, 2019) <https://www.hrw.org/news/2019/04/23/us-states-use-anti-boycott-laws-punish-responsible-businesses>.
 Dworkin, “Free Speech…” Law’s Empire (Cambridge & London: Harvard University Press, 1986), 352.
 Claudio López-Guerra, “Disenfranchisement and the Limits of Democratic Theory,” Democracy and Disenfranchisement: The Morality of Electoral Exclusions, (Oxford: Oxford University Press, 2014), 152.
 Ibid., 157.
 See: Ishani Maitra, “Subordinating Speech 1,” Speech and Harm: Controversies Over Free Speech, (Oxford University Press, 2012), 109.
 See: Dworkin, “What is Equality 4,” 25.
 Haviv Rettig Gur, “Netanyahu and the Kahanists: A moral compromise that may ruin his legacy,” The Times of Israel, (February 25, 2019), <https://www.timesofisrael.com/netanyahu-and-the-kahanists-a-moral-compromise-that-may-ruin-his-legacy/>.
 Nancy Rosenblum, “Banning Parties,” Law & Ethics of Human Rights, 1, no. 1, (2007), 53.
 Ibid., 54.
 Brighouse, 139.
 For a more expanded version of this argument, see my Liberal Currents piece.
 Joseph Raz, “Disagreement in Politics,” American Journal of Jurisprudence 43 (1998): 52.
 Rosenblum, 53.
 Jenna Johnson, “Donald Trump: Syrian refugees might be a terrorist army in disguise,” The Washington Post, (September 30, 2015), <https://www.washingtonpost.com/news/post-politics/wp/2015/09/30/donald-trump-syrian-refugees-might-be-a-terrorist-army-in-disguise/?utm_term=.0bc579e3faa7>.
 Snopes Fact Check, “Mike Pence Said Calls to Ban Muslims are ‘Offensive and Unconstitutional’?” Snopes.com (January 28, 2017), < https://www.snopes.com/fact-check/mike-pence-muslim-ban-offensive/>.
 Glenn Greenwald, “The racism that fuels the ‘war on terror,’” The Guardian, (March 25, 2013), <https://www.theguardian.com/commentisfree/2013/mar/25/racism-war-on-terror-awlaki>.
 Haaretz editorial, “Netanyahu’s racist mudslinging against Arabs,” Haaretz, (2016) <https://www.haaretz.com/opinion/israeli-all-the-way-1.5385419>
 Alex Emmons, “With support from Nancy Pelosi, House gives Trump administration broad latitude to spy on Americans,” The Intercept, (January 11, 2018), <https://theintercept.com/2018/01/11/nsa-pelosi-democrats-spy-american-section-702/>.
 The anticipated response: “IT’S A REPUBLIC, NOT A DEMOCRACY!”
 Joseph Krauss and Mohammed Daraghmeh, “Unable to vote, Palestinians shrug off Israel’s elections,” AP News, (September 13, 2019), <https://apnews.com/article/5bd073882ef148a4be098b8e3754c0d1>.