As Good as It Gets

Party Bans and Democratic Militancy

Abstract

A party can only be banned if it “actively seeks” to undermine or abolish the constitutional order, and that requires conclusive evidence of planned action with at least the prospect of success. The bar is understandably set very high, rendering the prohibition largely ineffective against the most threatening form of democratic decay in our societies: the gradual rotting away of constitutional institutions instigated by unscrupulous agents and skilled demagogues operating in a toxic atmosphere of political alienation, shrillness, and anxiety. The only suitable remedy against this cultural malaise is what John Stuart Mill once called “a strong barrier of moral conviction” – intellectual militancy by concerned citizens in the public sphere, instead of institutional militancy by government officials in the courtroom. In the end, the fate of constitutional democracy is in the hands of ordinary people, not engraved on some perfectly contrived juridical formula. I am afraid this is as good as it gets.