About this Issue

Liberal societies are famously open to a wide range of different ideas. Must they tolerate political movements that are openly illiberal? Both theory and practice propose a range of limits, or not, on illiberal groups’ speech, political participation, membership, and other questions.

Illiberals don’t mind resorting to liberal tactics; that is, they are happy to win elections whenever they can—or to come to power by other methods. Liberal groups, though, make the critique of illiberal methods a central feature of their activism. As such they can’t as easily adopt their opponents’ tactics.

So when an illiberal movement proposes, for example, to permanently disenfranchise a segment of the population, what should a liberal polity do? Is so-called “militant democracy” the right way to go? Our lead essay this month is by Mila Ghorayeb, an essayist and law student who has studied political theory at McGill University; responses will be by Prof. Brian Kogelmann of the University of Maryland; attorney and author Mike Godwin; and Cato Unbound’s editor, Jason Kuznicki. Readers are welcome to join the discussion, and comments will remain open through the end of the month.

Lead Essay

Antidemocratic Participation Revisited

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?[2] 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.[3] Loewenstein argued that antidemocrats – like the Nazi party – can exploit the tolerance of democracies and thus, must be met with intolerance.[4] Indeed, Joseph Goebbels himself taunted democrats by claiming that their own system lets antidemocrats like himself annihilate it.”[5]

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.[6] 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.[7] 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.[8] 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.[9]

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.[10] 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.[11] 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.[12] 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.[13]

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.[14] 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.[15] 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.[16] 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.[17] Kahane’s party was seen to be so contrary to the aims of democracy—and inciteful of extremism—that it was banned in Israel.[18] 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.[19] 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.”[20] 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.[21] 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.”[22] 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”.[23] In a 2015 campaign rally, Trump proposed to kick out all Syrian refugees of the United States, claiming that “they could be ISIS.”[24] Trump, though less explicitly antidemocratic than Kahane, espoused rhetoric that initially shocked even his own party.[25]

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.[26] Racism not unlike Kahane’s still has a place in Israeli parliament.[27] 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,[28] 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.[29]

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.[30] 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.


[1] 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/>.

[2] 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.

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

[4] Loewenstein, 428.

[5] 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.

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

[7] 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.

[8] 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>.

[9] 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/>.

[10] 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>.

[11] Dworkin, “Free Speech…” Law’s Empire (Cambridge & London: Harvard University Press, 1986), 352.

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

[13] Ibid., 157.

[14] See: Ishani Maitra, “Subordinating Speech 1,” Speech and Harm: Controversies Over Free Speech, (Oxford University Press, 2012), 109.

[15] See: Dworkin, “What is Equality 4,” 25.

[16] 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/>.

[17] Nancy Rosenblum, “Banning Parties,” Law & Ethics of Human Rights, 1, no. 1, (2007), 53.

[18] Ibid., 54.

[19] Ibid.

[20] Brighouse, 139.

[21] For a more expanded version of this argument, see my Liberal Currents piece.

[22] Joseph Raz, “Disagreement in Politics,” American Journal of Jurisprudence 43 (1998): 52.

[23] Rosenblum, 53.

[24] 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>.

[25] 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/>.

[26] 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>.

[27] Haaretz editorial, “Netanyahu’s racist mudslinging against Arabs,” Haaretz, (2016) <https://www.haaretz.com/opinion/israeli-all-the-way-1.5385419>

[28] 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/>.

[29] The anticipated response: “IT’S A REPUBLIC, NOT A DEMOCRACY!”

[30] Joseph Krauss and Mohammed Daraghmeh, “Unable to vote, Palestinians shrug off Israel’s elections,” AP News, (September 13, 2019), <https://apnews.com/article/5bd073882ef148a4be098b8e3754c0d1>.

Response Essays

Excluding the Antidemocratic Is Antidemocratic

In her lead essay for this month’s Cato Unbound, Mila Ghorayeb argues that democracies can, in a non-contradictory way, limit the participation of those who hold antidemocratic views. By antidemocratic views, Ghorayeb refers to those who “wish to exclude a socially salient group of participants from the demos.” Though Ghorayeb thinks democracies can limit the participation of the antidemocratic, she is skeptical that it is wise to do so. While I agree with Ghorayeb on this latter point—we should always exercise extraordinary caution when granting government new powers—I do not think she succeeds in arguing for the former. That is, I am not convinced democracies can restrict the participation of the antidemocratic without violating their most basic principles.

As a starting point, we might ask: what are the basic moral principles that ground democratic political institutions? Ghorayeb, following a long line of influential thought, says that the ideal of equal influence is at democracy’s foundation: “democracy is a system wherein citizens have an equal opportunity to influence political outcomes.” The basic idea here is that all citizens in a polity should have a roughly equal capacity to influence political decisions. The rich, for instance, should not have more influence on who is elected and what policies are implemented than the poor do. Nor should certain racial or ethnic groups have more influence than others. Equality of influence is a fitting moral goal for a democratic society, according to Ghorayeb, because “of the way citizens are legally bound, equally, by the decisions made in the political sphere.” That is, political decisions effect all of us equally, so we should all have a roughly equal say in how these decisions are made.

According to Ghorayeb, democracies can restrict the participation of those who hold antidemocratic views because doing so helps achieve and preserve equality of influence. She makes her argument by appealing to Ronald Dworkin’s work on campaign finance regulation. On Ghorayeb’s reading of Dworkin, it is permissible to regulate the amount of money persons may spend on political speech, because “the concentration of wealth inhibits the likelihood of equal opportunity of influence. As such, it is antidemocratic.” Dworkin’s argument is simple and intuitive. Democracies ought to realize equality of influence. Too much money in politics leads to inequality of influence. Therefore, we ought to regulate money’s role in political speech in order to achieve democracy’s guiding ideal of equal influence.

Ghorayeb’s argument for why we may restrict the participation of antidemocratic agents is structurally similar to Dworkin’s argument for why we may regulate money in politics. By definition, the antidemocratic are those who want to exclude certain persons from political participation. If the antidemocrats get their way, then there will not be equality of influence, as those excluded will not have as much (or any) influence on political decisions when compared to those still enfranchised. Hence, to secure equality of influence, we may permissibly ban the antidemocratic from political participation. This—like Dworkin’s imperative to limit the role of money in politics—is not in tension with democracy’s basic commitments, according to Ghorayeb, but rather serves democracy’s basic commitments. Such restrictions help equalize political influence.

There is an important difference between Dworkin’s argument for regulating political speech and Ghorayeb’s argument for limiting the participation of the antidemocratic. According to Dworkin, if we don’t regulate money in politics, then there will be unequal influence. A billionaire will likely have more influence on politics than the average citizen if there are no caps on spending. Yet, if we do decide to regulate money in politics, we don’t create any new inequalities in political influence. That is, by restricting the amount of money the rich can spend on political speech, we don’t thereby disenfranchise a new group of citizens, preventing them from influencing political decisions. True, the rich no longer have as much influence as they once did, but they still have just as much influence as everyone else (indeed, that’s the point of the regulation). The point here is that campaign finance regulation does not eliminate one form of political inequality just to find a new form of political inequality pop up in its place.

This is not so when it comes to limiting the participation of the antidemocratic, however. If we don’t restrict the participation of the antidemocratic, then they may get their way and implement a system of unequal influence. Whoever the antidemocratic exclude from the demos will have less influence than those still enfranchised. Yet, if we do restrict the participation of the antidemocratic, we create a new form of political inequality. In particular, the excluded antidemocratic individuals now have less influence over political decisions than the enfranchised democratic ones. If we don’t bring in other moral considerations and view things solely from the perspective of equal influence, these two cases are identical. In both, a group is excluded from participating and has a diminished capacity (when compared to other groups) to influence political decisions as a result. Which group is excluded differs between the two cases, but there is nonetheless unequal influence in both scenarios.

The more abstract point here is that when thinking about new regulations—be they restrictions on money in politics or restrictions on who may participate in democracy—it’s not enough to ask: does the proposed regulation eliminate an inequality in influence? We must instead ask: does the proposed regulation eliminate an inequality in influence without creating a new inequality? If the answer to this question is not “Yes,” then it is hard to see how the policy is justified from the perspective of equality of influence alone. Yet, as I have argued, though campaign finance regulation can plausibly answer this question in the affirmative, Ghorayeb’s proposal cannot.

This is all just to say that I think restricting the participation of the antidemocratic is inconsistent with basic democratic principles. In particular, if one holds that the ideal of equal influence is at the very heart of democracy, then restricting the participation of the antidemocratic is itself antidemocratic. This is because restricting the participation of the antidemocratic creates unequal influence and, by Ghorayeb’s own premises, democracy is about securing equality of influence.

Of course, if we don’t limit the participation of the antidemocratic, then we might also end up with unequal influence. If the antidemocratic get their way, then that will be the result of their successful exclusionary policy. So, what do we do? Allow antidemocratic parties to run rampant, which may possibly result in unequal influence, or restrict the participation of the antidemocratic, thereby creating a different form of unequal influence? In my view, we should take the former path, not the latter. Why?

Suppose we are confronted with a group that adopts antidemocratic rhetoric. We might seriously worry that if they win election, they will disenfranchise certain groups. In response, we might disenfranchise them first. If we do this, then we will have definitely created unequal influence. Suppose we don’t take this route, though, and the antidemocratic group wins seats in office. Then what happens? In this latter case, it’s hard to say. The antidemocratic group might keep its promises and disenfranchise certain groups. If they do, then we will have unequal influence. And yet the antidemocratic group might not follow through on its rhetoric, or it may try but fail. As Ghorayeb notes, “concerns about antidemocratic threats do not always come to fruition.”

The point I am making here is that when faced with antidemocratic tendencies, our choice is not between two political inequalities, where we must choose which group suffers the fate of unequal influence. Rather, our choice is between the certainty of unequal influence (which happens if we preemptively exclude those we deem antidemocratic) or the possibility of unequal influence (which may or may not happen if the antidemocratic party actually wins election). When faced with this choice, I choose the possibility of unequal influence (hoping that it never comes to fruition), rather than its certainty. But this is just to say that I do not think we should disenfranchise the antidemocratic.

Of course, this does not mean that I am not worried about rising antidemocratic tendencies. I am deeply worried about them. My point is that, contra Ghorayeb, we cannot address these tendencies through disenfranchisement without also harming the very thing we are trying to protect: the ideal of a free and open democratic society.

Democracy Needs More Than Itself to Survive

Consider the following scenario: A political party declares that homosexuality is a major threat to the United States. They add that there is no such thing as a gay identity, only homosexual inclinations.

Because they don’t recognize a gay identity, the party happily accepts gay people as citizens, voters, and party members: “Homosexuality is a filthy abomination,” they say, “but we would never take away anyone’s voting rights.” And they don’t.

Past experience tells us that at least some gay people will join that party. Some might not even be closeted. A party could run on the platform of repealing same-sex marriage, criminalizing sodomy, censoring gay art and literature, and closing down gay community organizations. That party could win and severely persecute gay people. It could remain deeply illiberal, and thus inimical to democracy, without denying anyone citizenship, voting rights, or party membership.

This is a known pattern. Racist parties sometimes welcome the “good” members of a stigmatized race. Religious and other minorities may get similar treatment. Sexist parties can and do welcome women—that is, the women who would confine other women to traditional roles. In each case, the subset of persecuted people who would join the illiberal party would not moderate its program. Some are all too happy to be the contrarian spokespeople for their own oppression.

The problem of democratic exclusion is a subset of a larger problem, namely that of unequal civil rights. Removing the franchise may happen or not, but the problem remains conceptually similar either way. I’m therefore not convinced that it makes sense to treat the franchise as the prime mover of the set.

I find that the recommendations that we get when we assume that democratic participation is the key to the rest of our rights tend to look oddly mechanical and ineffective. Illiberal parties already know that they can happily work around our insistence that they open up their own ranks.

Democracy is great, but let’s be more precise: we want to protect people. Civil rights, including voting, are one means to that end. But it may not be the case that equal democratic participation rights protect, encompass, or serve as an adequate conceptual stand-in for the full scope of human rights. A liberal democracy needs to keep both of the words of its descriptor firmly in mind; it must be liberal as well as democratic.

Indeed, by the time that a significant political party outright bans membership by a disfavored minority, the members of that minority have probably already been experiencing many other forms of repression. Far from being a heavy hammer brought out only in emergencies, an open party membership requirement for antidemocratic parties could be both too little and too late.

Consider prisoners. Many people in both major U.S. political parties believe that prisoners should be denied the vote. We should therefore admit that many of America’s “democratic” politicians are really antidemocrats, at least on this issue. We could insist that prisoners be allowed to join the Republican Party—but they already can. And so, when considering with the most salient group of disenfranchised Americans that I know of, the remedies that target antidemocratic groups appear completely ineffective.

When we turn to the fate of the imprisoned themselves, restoring their democratic-participatory rights seems like only a good start. To do the work we really want, a theory of rights needs to integrate both the rights of democratic participation and other kinds of rights, even if they have only a weak tie to democratic participation in themselves. Only that kind of a theory could effect genuine change.

Mila Ghorayeb is aware of this, and her account of democracy doesn’t really end at political participation:

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.

But in passages like these it starts to look like “democracy” is an overworked term: No one, I think, would assert in good faith that the real problem with the War on Drugs is that it denies so many the franchise. The real problem is that it exists in the first place. Many of its harms—like inadequate treatment, the inability to hold a job or raise a family, and the needless dangers of black-market drugs—are at best only distantly related to democratic participation.

Let’s say we articulate a set of rights not conceptually founded on democratic participation, its requirements, and its consequences, but encompassing rights further afield as well. There would seem to be at least two ways of safeguarding the items on our list:

  1. We could prevent illiberals from participating in the polity or otherwise constrain their participation.

  2. We could establish a constitutional requirement that the rights we have articulated take more than a simple majority vote to restrict. We might require a supermajority, an absolute majority plus a majority of a majority of districts, or a majority in two or more differently chosen representative bodies. There are lots of strategies that could be used singly or in groups to cordon off especially important rights and make them harder, or even formally impossible, to restrict.

These two strategies have different fields of action. The first restricts citizens and citizen-run groups, and it does so unequally. It may therefore send the signal that democracy is only for right-thinking people. It also means that we are committing the polity to a new and difficult task, that of gatekeeping over time. Once one group has been sanctioned, the question will always be on the table: Should some other group be next? Mistakes of over- under-inclusion will proliferate regardless of how we keep the score. In the process, we will lose an important coordination point in our political culture—the clear, simple rules of democratic inclusion that we could otherwise rally around.

The second strategy does not restrict citizens or citizen-run groups; it binds only legislators. It preserves democratic participation while sending a signal that certain rights are more fundamental to our polity than they might be elsewhere. It will dissuade illiberal groups and make their programs mathematically harder to achieve. If we are worried about democratic participation rights—which we should be—then democratic participation rights should get these heightened protections. This the United States has already done.

Yes, that strategy failed during Reconstruction, when a horrible Supreme Court decision and an unchecked terrorist group both helped to defeat it. Yet it may still be that in a world where ignorance, hypocrisy, and bigotry are pervasive, the second strategy prevails. That’s because an individualized and general framework of rights can still protect even those minorities whom we personally find repulsive, whom we know little about, or whom we cannot conceive of as persecuted by the mistreatment that we are inflicting on them.

An individualized rights framework helps because it gives people the chance to defend their rights even when they don’t already belong to a well-known or well-defined group. Before Stonewall, gay people as a group had little social salience and even less esteem, but they usually still had their First Amendment rights, and that wasn’t nothing. Such rights allowed a gay identity to emerge, and as it did, the parts of the law that were the most harmful to gay people came increasingly into question.

As Ghorayeb rightly says, “what counts as ‘socially salient’ can be easily manipulated.” It can be, and it is, both for good and bad purposes. The groups most needing protection may be the ones whom we are the most reluctant even to acknowledge. But a group doesn’t need social salience to start convincing people that it deserves social salience.

Consider the following not entirely fictional dialogue:

Me: Some people don’t fit neatly into either of the gender boxes that we usually get assigned to at birth. We should thus affirm the humanity and dignity of trans and nonbinary people. And we should avoid public policies that hurt them.

Social Conservative: But there are so few of them.

Me: The smallest minority is just one person, and I stand for individual liberty.

Social Conservative: But there are so few of them.

I have had variants of this conversation several times. It is therefore good that the U.S. Bill of Rights never asks how many of us there, or how well organized we are, before it deigns to protect us. If we think we might be able to get a group going, we can always do that, and if we want to remain alone, we’ll still probably be okay. A polity in which the citizens propose to govern themselves deserves nothing less. Democratic participation rights are good, but they will be hollow if we don’t think of them as being grounded in, and as serving, a larger ecosystem of individual and cooperative actions. 

Tolerance and the Fate of Democracies

I’m grateful to have the chance to comment on Mila Ghorayeb’s thoughtful essay centering on whether a democratic society can, consistent with its own premises and values, restrict political participation from antidemocratic forces or factions. I agree with much of what she writes, including her conclusion that there’s no inherent contradiction in a democratic society’s ultimate decision to proactively limit or suppress antidemocratic political action (even including speech in certain narrow circumstances). I also agree that, generally speaking, these limiting or suppressing responses are not the best approachat least not at first.

Where I disagree with Ghorayeb is in certain details of her analysis, as well as in her assessment of certain current antidemocratic threats.

It should be no surprise that I think this topic is evergreen: I’ve written about this very issue more than once over the course of my career. And in recent years I’ve been compelled to revisit my earlier efforts and refine my thinking as we’re confronted with seemingly new variations of the problem that Karl Popper famously framed in The Open Society and Its Enemies as “the paradox of tolerance.”

Like Ghorayeb, I have felt compelled to return to this subject matter by the range of events that have occurred in American political life in recent years. In my view, there is no question that there has been an increased willingness of some factions to search for a principled justification for shutting down the speech and political activity of opponents who they believe are anti-democracy. I think this issue needs to be addressed, but, as I’ve said, I may disagree with Ghorayeb as to how to address it.

We saw some of these concerns springing from the 2017 “Unite the Right” rally in Charlottesville. To my dismay as a Popperian, I saw Popper’s discussion of “the paradox of tolerance” reduced to a cartoonish infographic that (unsurprisingly given its format) drastically oversimplified Popper’s discursive thinking about the problem of with anti-democracy speakers and movements. Thankfully, Jason Kuznicki responded quickly on this very issue in 2017 in a way that he no doubt hoped would put to rest the misreadings of Popper’s position on the paradox.

Unfortunately for Jason and the rest of us, the “intolerance of intolerance” idea had ongoing memetic traction on social media and elsewhere. For that reason I felt compelled to do a deeper dive on the subject on the one-year anniversary of the Charlottesville riots. Coincidentally, I published my one-year-later reflection in August 2018, just a couple of months before Ghorayeb published her own initial essay on “Antidemocratic Candidates and Democracy”—a precursor to her new essay that is the subject of this symposium. And it’s here that we find my first major points of disagreement with her subsequent essay.

In her new essay, Ghorayeb maintains the view that democratic societies aren’t acting in a “paradoxical or contradictory” way if they impose some restrictions on (e.g.) who can run for office. A particular example of such a restriction came to mind for me early in 2020 when President Trump was subjected to an impeachment trial in the Senate based on charges originating in the House. In the politically unlikely event that Trump had been convicted by the Senate, he might have faced not only the sanction of removal from office but also the sanction of “disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States,” per Article I, Section 3, of the U.S. Constitution.

The latter penalty, if imposed, may matter a lot; when then-federal judge Alcee Hastings was impeached and removed from on the federal bench in the late 1980s, the Senate might have chosen to bar him from holding any future federal office. The senators chose not to do so, however, and Hastings staged an extraordinary political comeback, ultimately resulting in his election to the House of Representatives. Hastings has represented Florida’s 23rd District, and later the 20th District, ever since. Given that Trump was impeached on charges of abusing the powers of his political office as well as of obstructing Congress, in the alternate-universe version of the impeachment trial, Trump might have been removed and also—if the Senate had wished it—might have been barred from serving at some future date as president. (Whether we are living in the “Mirror Universe” or somehow managed to avoid the “Darkest Timeline” may itself be the subject of partisan debate.)

At any rate, there seems to be no significant dispute on the question of whether an impeached president might be barred from serving as president, or in any other federal office, in the future. And this aligns well with Ghorayeb’s conclusion that restrictions on who can hold governmental power aren’t necessary paradoxical—it’s arguably consistent with democratic principle that those who abuse governmental power might be barred from exercising it again. As she notes, however, answering the question of whether such restrictions may be consistent with democratic principles doesn’t resolve the question of whether such restrictions are a good idea. If I read her correctly, she has revised her earlier view (grounded in speech-act theory and Ronald Dworkin’s functionalist conception of limits on participation that may actually improve the health of a democracy) to a more facts-and-circumstances—and far less bright-line—approach. “My argument thus arrives at this: threats to democracy differ based on a country’s governance and political culture” she writes. “The usefulness of restricting participation could be minimal or non-existent, which should be taken into consideration by democratic theorists.”

I appreciate Ghorayeb’s eventual recognition that coming up with sound bright-line rules about restricting democratic participation can be difficult, as when she writes: “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’ may be easily manipulated.” She’s also right to acknowledge that antidiscrimination law can be misused to suppress what might be democratically valuable speech.

But I don’t think we need to abandon altogether the search for clearer general rules to the question of when antidemocratic speech and actions can be limited. Plus, I’m discomfited by her dismissal of President Trump’s various antidemocratic pronouncements and threats as not so big a problem because his impulses and initiatives “fizzled out,” as she puts it. A more effective president who shares Trump’s antidemocratic views might well be more successful at undermining our democracy. This means that the proper lesson to learn from Trump’s tenure shouldn’t be that our institutions are so inherently robust that no would-be autocrat can raze them. Instead, the lesson should be that although we have been blessed (if that’s the right word) with an antidemocratic president whose chief virtue has been his incompetence and lack of focus, we should not assume that we’ll remain so blessed going forward. After all, the world has no shortage of would-be autocrats.

For this reason, I think we can and must come up with a better principle for responding to antidemocratic individuals and factions. This is something I explored in my Charlottesville-riots reflection in 2018. In that essay, I underscored that Popper in The Open Society is advising democracies to tolerate even antidemocratic discourse as an initial response. As he puts it, “… I do not imply, for instance, that we should always suppress the utterance of intolerant philosophies; as long as we can counter them by rational argument and keep them in check by public opinion, suppression would be most unwise.” A well-ordered democratic society must have reasoned discourse and debate as its underpinning. This entails, to be frank, the possibility that even the most corrosive criticism from antidemocrats may make valid points and deserve a reasoned response. It’s no surprise to any thoughtful person that democracies frequently make bad decisions; the test a democracy is whether it can learn from criticism of those bad decisions.

And it’s here that Karl Popper’s theorizing about open societies merges with his paradigm of “conjectures and refutations.” (He says as much in his first “addendum” to The Open Society, in which he explains that recognizing our own human fallibility when it comes to recognizing “truth”—which turns out not to be true at all once we learn more—doesn’t require that we abandon the idea of objective truth altogether.) A democracy is more robust when it incorporates mechanisms that require it to hear criticisms and recognize its mistakes, big and small.

And even antidemocrats may, like stopped clocks, be right twice a day—when those criticisms are right, democracies do best to respond by demonstrating their own flexibility and willingness to adapt. So giving even antidemocrats a hearing is the right choice—at least initially. It’s only when the antidemocratic forces take direct action (which may, on occasion, include the “speech acts”—or “tweet acts”—of incumbent politicians) that we need to give attention to whether antidemocratic behaviors require something stronger than reasoned refutation.

The Conversation

Constitutional Safeguards for Democratic Participation and Other Rights

In his reply to Mila Ghorayeb’s piece, Jason Kuznicki argues that Ghorayeb’s focus on restricting the participation rights of the antidemocratic is misguided. Ghorayeb argues that, when faced with an antidemocratic group who seeks to prevent others from participating in democratic politics, it is permissible to restrict the participation rights of the antidemocratic group first. I have already responded to Ghorayeb’s main argument. In what follows, I would like to examine Kuznicki’s response to Ghorayeb.

Kuznicki responds to Ghorayeb in two steps. First, he notes it is peculiar that all her focus is on antidemocratic groups who wish to restrict the participation rights of others. After all, antidemocratic groups can do great harms to others without ever threatening their participation rights. A political party, Kuznicki notes, could be “deeply illiberal, and thus inimical to democracy, without denying anyone citizenship, voting rights, or party membership.” Such a party is just as concerning as one who wishes to restrict the participation rights of others. Hence, “the problem of democratic exclusion is a subset of a larger problem, namely that of unequal civil rights.”

Once we realize that the problem of democratic exclusion is a subset of the larger problem of unequal civil rights, Ghorayeb’s proposal seems misguided. After all, when an illiberal group seeks to restrict the free speech rights of others, our response isn’t to prevent the illiberal group from participating in politics. Our response is to pound our fists on the First Amendment. Similarly, when we encounter an antidemocratic group who seeks to restrict the participation rights of others, our response shouldn’t be disenfranchisement, but rather upholding prespecified rights. As Kuznicki phrases it, instead of restricting the participation rights of illiberal groups, “we could establish a constitutional requirement that the rights we have articulated take more than a simple majority vote to restrict. We might require a supermajority, an absolute majority plus a majority of a majority of districts, or a majority in two or more differently chosen representative bodies.” Indeed, we could go even further, and enshrine voting rights in the Constitution, as we do the right to free speech.

Kuznicki’s proposal is thus the old solution of constitutionally limited government, coupled with checks and balances. If the system of government is designed properly, then there is no need to restrict the participation rights of the antidemocratic. The antidemocratic, even if they win power, will be unable to advance their illiberal agenda. I agree with nearly all of what Kuznicki says. In general, for reasons I have already articulated, we should be deeply skeptical of proposals to restrict the participation rights of anyone, be they democratic or antidemocratic. Protecting minority groups is best done through constitutional rights, coupled with checks and balances.

Nonetheless, I do believe there is a limit to Kuznicki’s solution. In particular, constitutions designed to protect liberal rights will do so only if a sufficient number of persons populating the government are liberal. If there are not enough persons in government committed to the liberal project, then constitutional guarantees don’t mean much. As such, Ghorayeb might respond to Kuznicki by arguing that we may need to restrict participation rights in certain cases, in order to ensure that our liberal government can continue to function in a liberal manner, which includes protecting minority rights.

Central to my argument here is the claim that constitutions designed to protect liberal rights will do so only if a sufficient number of persons who populate the government are liberal. There are historical examples that bear out this claim. Consider, for instance, the history of First Amendment jurisprudence in the United States. In 1798, the 5th Congress and President John Adams passed the Sedition Act, which made it illegal to publish “false, scandalous, or malicious writing” against the government of the United States. Many of us today would agree that such a law violates the First Amendment. Nonetheless, the legislature passed it, and the executive signed it. What is more, the judiciary actually enforced it. People were fined and some spent time in prison for criticizing the U.S. government.

If it means anything, the First Amendment protects the right to criticize one’s government. So what went wrong in 1798? The simple answer is that there just weren’t enough people committed to the ideal of free speech serving in government. There weren’t enough people in the Congress committed to free speech, the President wasn’t committed to it, nor was the judiciary. With no one to uphold it, the First Amendment wasn’t worth the paper it was written on.

The point I am making here is that constitutionally protected rights and structures of government can only do so much. At the end of the day, you need the right sorts of people inhabiting the government who will uphold the liberal rights we care so much about. So, Ghorayeb might reply to Kuznicki that we can permissibly restrict the participation rights of the antidemocratic, because if we don’t do so then our constitutional rights and checks and balances (that Kuznicki places his hope in) will all be for naught.

There is, however, something of a paradox going on here with Ghorayeb’s hypothetical reply to Kuznicki. As I have articulated it, Ghorayeb might argue that we should restrict the participation rights of the antidemocratic to ensure that we have enough liberal persons willing and able to uphold our liberal system of government. Yet, if there are so many illiberal persons in government that our constitutional rights are at risk of not being enforced, then it’s hard to see how that same government will pass laws that restrict only the antidemocratic and illiberal from participating. That is, a government at the brink of doing something like passing the Sedition Act of 1798 will be a government unable to exclude only the illiberal from participating. So, though Ghorayeb has a response to Kuznicki that works in principle, how it works in practice is another matter.

The Fourteenth Amendment’s Section 3 and the Defense of American Democracy

I have felt compelled to delay my wrap-up response until we got through the events of the last week. Readers who, like me, are Americans will understand why. Here we are in Cato Unbound developing our thinking about how a democratic society copes with its antidemocratic factions, while all around us the very conflict we have been contemplating is playing out in real time.

My views are colored by last week’s events. The president of the United States attempted to suborn a state’s officials to negate or change the voting outcomes in their state. (This may have happened in other states as well.) The president then used a public event to call directly for mass action that amounted to an assault on the Congress in the Capitol building on January 6. Some members of his audience took him to mean that the invading throng should not merely attempt to intimidate (or assault) members of the opposition party but also Republican members of Congress who were insufficiently resolved to challenge, delay, or halt the (previously regarded as merely formal) counting of electoral votes—the final step in certifying an election result.

As I write this, we are learning more facts about how close the invaders came to disrupting and damaging this final step in our process of certifying a victor in the presidential election. We’re also learning what the invaders were thinking, what some of them hoped to do (which ranged from merely “being heard” to possible assault, kidnapping, torture, and murder of members of Congress and others). A handful of people died as a result of the president’s call to “patriots” to invade the Capitol.

Not to put too fine a point on it, but this whole series of events underscores how important it is that our tolerance for dissent—including antidemocratic dissent—be generous, in line with freedom of expression values, yet also limited, because an open society requires “ordered liberty,” not the kind of disordered “liberty” that leads to invasions and disruptions of legislatures and elections.

In light of these developments, I’ve been compelled (like many other Americans) to look more closely at Section 3 of the Fourteenth Amendment:

No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability.

That’s a remarkably broad provision. If you ever served in any governmental role—whether at the federal or state level—and “engaged in insurrection or rebellion” against the constitutional government of the United States (“or given aid or comfort to the enemies thereof”), you are barred from holding any federal or state office unless each house of Congress votes with a two-thirds majority to remove that bar. Note that this is a distinct penalty from the possible penalties for impeachment—that is to say, it’s broader. A federal officeholder impeached and convicted in Congress may be both removed from office and barred from holding future federal office (as I discussed in my initial response essay). But under the Fourteenth Amendment (and the newer, stronger federal unity that the Civil War Amendments imposed), a person who, while holding federal office, either “engaged in” or gave “aid or comfort” to insurrection is supposed to be barred from holding even state-level elected or appointed government positions. (The Fourteenth Amendment is careful to include not only “any state Legislature” but also any “executive or judicial officer of any State”—at the very least, anyone in charge of decision-making in any of the three branches of government.)

It’s difficult even with the most generous reading of the facts as we have them today, the week after the failed coup attempt, to deny that President Trump gave “aid or comfort” to insurrectionists. He persisted in doing so even after the insurrection failed. By the terms of the Fourteenth Amendment’s Section 3, not to mention the specific federal statutes 18 USC 2383 and 18 USC 2384 taken together, it seems possible that he may face one or more bars to serving in future federal offices, even if he should want to run again for president in 2024.

In other words, our system already contemplates limiting the democratic participation of those who have acted antidemocratically. What’s more, when one is holding an office such as the presidency, in which merely making certain statements (or tweets) may result in pardons or executive orders, the antidemocratic acts may be speech acts. (When the president speaks, it may compel action, or amount to action, in ways that ordinary communicative speech doesn’t.) Our system may reasonably bar antidemocratic actors from holding positions in which their speech may amount to governmental action.

So what I’ve gotten to here, via a circuitous route perhaps, is that I find myself disagreeing with Kogelmann when he says “I think restricting the participation of the antidemocratic is inconsistent with basic democratic principles.” We may want to say the something that cuts in the opposite direction—that when antidemocratic actors use their power to undercut democratic principles, it may be appropriate to restrict their participation, perhaps permanently. Kogelmann explains at one point that “our choice is between the certainty of unequal influence (which happens if we preemptively exclude those we deem antidemocratic) or the possibility of unequal influence (which may or may not happen if the antidemocratic party actually wins election).” But when the certainty of antidemocratic intentions is well-established by past acts—as it clearly has been in President Trump’s case—can we really say we’re uncertain what he will do if he retains governmental power or acquires it again?

What I believe I detect in our system as it stands is an effort to strike Karl Popper’s conception of a tolerance of antidemocratic ideas that is not unlimited tolerance—that properly results in taking steps to stop antidemocratic forces from overrunning democratic institutions.

I find myself strongly in agreement with Jason Kuznicki’s argument that the “problem of democratic exclusion is a subset of a larger problem, namely that of unequal civil rights.” That’s surely true, and, like Kuznicki, I remain unconvinced “that it makes sense to treat the franchise as the prime mover of the set.” Kuznicki spells out how being able to vote doesn’t automatically resolve what a repressive society may be doing to your particular subgroup or demographic. That said, I’m heartened by the recent Senate runoff election in Georgia—not so much because it resulted in Democratic victories in the state’s two Senate races as because it demonstrated an occasion in which the power of the franchise did not merely cause governmental change but also was an issue at the very heart of the election. Georgia’s incumbent officials have labored for years to make it more difficult for its minority citizens to vote. It is satisfying to see the state’s minority voters turn out in force to turn out antidemocratic incumbents.

I find myself in some agreement but also in some disagreement with Kogelmann’s followup response. Let’s take my major disagreement first. Kogelmann writes that “If the system of government is designed properly, then there is no need to restrict the participation rights of the antidemocratic.” Here I think he gives too much credit to design. My view is that governmental systems are analogous in some ways to the mathematical systems described by Kurt Gödel’s incompleteness theorems. That is, even the best-designed governmental systems are, like Gödel’s arithmetical systems, doomed to be incomplete or inconsistent if we try to base them on any basic set of axiomatic principles. Bear with me here—I’m only drawing an analogy—but I think Gödel’s discoveries hint at a fundamental truth, which is that even the best-designed governmental system is subject to being gamed and subverted by actors who exploit its incompleteness or inconsistency.

This has been President Trump’s practice throughout his administration—like the amateur burglar who walks down a neighborhood street trying every front door in the hope of finding one unlocked, President Trump has never encountered a presumed limit on his power that he did not attempt to test to destruction. It may be fairly said that earlier presidents have tested well-accepted norms and principles too—I can hardly deny this—but the testing-to-destruction approach to government seems to be a Trumpian innovation.

This means we can design the best government we can think of, with a Maginot Line of safeguards based on whatever the past abuses have been, but that’s no guarantee that future antidemocratic actors won’t find and seek new weaknesses.

And there always will be new weaknesses. What we have to do in anticipation of that development is try to strengthen individual rights and individual autonomy as much as possible, so that at least the polis has a fighting chance to restore ordered liberty when anti-democratic actors have labored to bring it down. This, I think, is what Kuznicki is getting at in his essay.

Kogelmann further writes, however, that he sees a limit to this approach: “In particular, constitutions designed to protect liberal rights will do so only if a sufficient number of persons populating the government are liberal. If there are not enough persons in government committed to the liberal project, then constitutional guarantees don’t mean much.”

That’s also surely true, and one of the great challenges of democratic governments is finding ways to enforce and revitalize and encourage a general shared commitment to democratic values. It seems clear that we’ve fallen short in the United States in this regard, given that some major fraction of the population believes that when their candidate loses, this in itself is evidence that the election was “rigged.” Kogelmann’s reminder that the Sedition Act of 1798 was breathtakingly antidemocratic is helpful here. Whatever we do to preserve ourselves from antidemocratic actors going forward, we dare not go so far as to suppress and punish dissent in a wholesale way. Better to distinguish between antidemocratic acts, which we can limit, and antidemocratic speech, which is generally allowed—except of course for government officials whose speech is itself a proximate cause of insurrection, sedition, and lawless violence.

Ghorayeb’s “wrap-up” is so generous to my earlier contribution that it feels almost churlish to take issue with her. Still, I must underscore one important difference I have with her view of where we are now. I respect her assessment that other administrations and other governments have lurched in antidemocratic directions from time to time. But she concludes that “by general liberal metrics, Trump was not a huge deviation from the norm when it came to antidemocratic behavior.” And I just can’t see it that way.

To be clear, even at the outset I disagreed with her view that Trump was no real departure from the status quo, although I didn’t draw so much attention to our differences before. But in light of Trump’s recent full-court press to overturn the election that didn’t give him the results he wanted—and to direct his loyalists to break into the Capitol and intimidate the House and Senate out of validating what all the evidence tells us are essentially sound vote counts—I have to say that Trump is, in fact, monstrously, aggressively different in kind as well as in degree from earlier presidents.

If any of dozens, or perhaps hundreds, of variables had been different (if the mob faction seeking to disrupt the Senate hadn’t been lured by the aptly named Officer Goodman away from the Senate chamber, for example), I might not feel entirely safe writing down the words I’m sharing with you today. And, to be frank, I’m not one hundred percent comfortable about it even so.

But what I’ve seen in the events of last week is proof, in my mind, that Popper was right both to support tolerance of antidemocratic ideas and to oppose unlimited tolerance of them. Yes, we need to hear criticism—even antidemocratic criticism—and respond to it when we can with reasoned debate. But the open society absolutely requires that there must be a baseline of democratic resistance to authoritarianism, no matter how tempting allegiance to any particular authoritarian may be.

And I here I must take a moment to praise President Trump’s two primary virtues—to wit, his short attention span and his incompetence at governing. Trump’s virtues saved us this time. But we dare not assume that the next would-be Trump will be quite so virtuous.

Democracy’s Crevices: A Response and a Wrap-Up

I am grateful to Brian Kogelmann, Jason Kuznicki, and Mike Godwin for their thoughtful responses to my essay. I wanted to wait to respond to all responses in one shot, though each thoughtful point made could merit essays exploring them on their own.

I want to start with Brian Kogelmann’s response, which in my view most strongly rejected the idea that restricting electoral participation can still be democratic. I agreed with most of what Kogelmann wrote; in fact, I would argue that managing economic inequality in the demos is far more consequential than managing political rhetoric and that my analogy does not fully map on to Dworkin’s. Kogelmann makes the point that in regulating money in elections, we do not create new inequalities in political influence. However, regulating electoral participation of antidemocratic candidates creates a new form of inequality where a specific group of people cannot influence the political decisions that bind them. This is a valid concern, and why I have argued for regulation that is both context-dependent and cautionary.

This is also why I would be reluctant to regulate the participation of simply anyone conceived to be as antidemocratic. The reason I brought up Kahane and his party—which Israel decided to ban—was not only because Kahane’s promises were antidemocratic. Rather, it is because his promises were playing off a power imbalance that already existed between the people his party purported to represent and Palestinians experiencing occupation and discrimination. As such, the analogy between regulating the participation of Kahane and regulating the participation of a billionaire abusing campaign finance have not seemed all that different. Like regulating the billionaire’s expenditures, preventing Kahane from enacting internationally illegal policies of forcible transfer need not level down someone like Kahane below the average democratic participant. Other options, such as Kirshner’s example of removing policies from one’s platform, could still exist. I have argued, however, that whether this is expedient is another question. There are likely better ways to combat forcible transfer than merely limiting the content of a platform, as platforms do not set policies; they merely impact the electoral environment (albeit in possibly corrosive manners).

This brings me to Jason Kuznicki’s essay, which rightfully points out that we cannot simply rely on democracy to protect vulnerable people from intolerance. Kuznicki’s view, to me, is reminiscent of Ronald Dworkin’s and Thomas Christiano’s debate with Jeremy Waldron over judicial review. That is, Dworkin and Christiano maintain that we need other safeguards like the constitution and judicial review to protect people against democratic decisions that could potentially harm them. The problem of course, as pointed out by Waldron, is that now we risk being antidemocratic in another way. Namely, we risk nullifying the democratic will via the decisions of unelected judges. I will not explore the intricacies of that debate, but I bring it up to note that there are other challenges when attempting to balance the maintenance of a democratic society with individual liberties.

Nonetheless, prevention through non-electoral constraints can often be more practical than restricting electoral participation. The only issue is whether it is more democratic, or whether it is democratic at all. It solves one problem; namely, the problem of threatening others’ basic rights that the antidemocrat may wish to undermine. But it does not solve the paradox; namely, the issue of using undemocratic means to preserve democratic society. Therefore, at some stage, there is still an action that risks reproducing a democratic paradox, whether it’s at the point of election or at striking down laws proposed by elected governments. When the courts struck down Trump’s Muslim bans, for instance, were they working against democracy by nullifying one of the promises under which Trump was elected?

One may bite the bullet in either direction. From Kuznicki’s perspective, where we would be inclined to create safeguards that protect the liberties of a small group of individuals, we may bite the bullet and say we do not value all elements of democracy. In another way, we can bite the bullet through permitting a nullification of the democratic will by permitting courts to strike down policies that may be in place through popular demand. We could say, for instance, that the highest priority is not democracy per se but the preservation of the individual’s rights.

My initial concern, however, was shorter term. In particular, I have been concerned about the actual electoral process eroding the health of a democratic society because of the power political campaigns have to constitute norms for others. If we have a strong judiciary but permit someone with a platform of forcible transfer or ethnic cleansing to run a public campaign, the concern is not only the actual realization of this goal but the message to the campaign’s targets: your livelihood is a choice-sensitive issue in the democratic process. This makes the participation of targeted groups in the electoral process unequal to the participation of those whose basic securities are not threatened on the ballot. Of course, the language here is vague: what does it mean to have one’s livelihood threatened? Must it be forcible transfer, or does economic austerity count? Perhaps there is no answer, making the contradiction only resolvable in theory.

This brings me to Mike Godwin’s response, which has a “don’t give up” message and claims we should still seek out a “principle for responding to antidemocratic individuals and factions.”

I first have to say that like Godwin, I found that Karl Popper infographic irritating and simplistic. The issue is certainly more complex than rejecting intolerance to preserve tolerance. I also agree with Godwin that in the future, there might be a political candidate that is more effective than Trump at undermining democracy, and so my point was not that there are no concerns to be had at all regarding Trump’s presidency. Rather, my point was that by general liberal metrics, Trump was not a huge deviation from the norm when it came to antidemocratic behavior. More importantly, I noted that Trump’s opposition willingly voted to give him powers that any democratic actors would be hesitant to give to someone they perceived to be an authoritarian. This may also give us the opportunity to bring in Kuznicki’s point that this problem goes beyond the electoral process. One of the primary issues in America (and here in Canada, for that matter) is that there is a bipartisan consensus on fundamentally antidemocratic behaviors such as war, mass incarceration, and mass surveillance. As such, what might be needed for a stronger democracy is simply better opposition, or stronger movements that are able to put pressure on politicians against antidemocratic behaviors.

Finally, I agree with Godwin’s invocation of the Popperian notion that reasoned discourse with corrosive groups can be productive. There are numerous issues I agree about with people that would be considered corrosively “far-right,” such as my opposition to reckless foreign interventionism (albeit for very different reasons than many of these people). As Godwin notes, the antidemocrat can be right twice a day and a democracy ought to respond with flexibility and adaptability. This is also an excellent point and underlies my reluctance to restrict speech in most domains. Trump’s critique of the media, for instance, could have actually brought forth fruitful discussion about oligarchy in media and actual “fake” or biased news. We could have discussed the media’s role in manufacturing consent for war or stirring discontent and rivalry among citizens for views. In my view, we missed out on this opportunity by dismissing critique based on who it came from, or by attempting to find common ground with people we would otherwise not attempt to find common ground with.

Ultimately, the maintenance of democracy is complex and difficult. It will involve many tries before even reaching the right track and striving for democracy is an endeavor far beyond the scope of the electoral process. I was happy to participate in this exchange, which has left me much to think about when it comes to building a healthier and more cooperative society.