Issacharoff on SSRN: Fragile Democracies

Sam Issacharoff's compelling new paper, Fragile Democracies, is not a work of legal history, but draws on examples from the history of the U.S., Germany, the USSR and other nations to raise the question of whether democracies more fragile than the United States need stronger tools to guard against antidemocratic elements. It will be of interest to historians working on democracy, free speech and political rights, and comparative legal history. Here's the Abstract:

Democratic regimes around the world find themselves besieged by antidemocratic groups that seek to use the electoral arena as a forum to propagandize their cause and rally their supporters. Virtually all democratic countries respond by restricting the participation of groups or political parties deemed to be beyond the range of tolerable conduct or viewpoints. The prohibition of certain views raises serious problems for any liberal theory in which legitimacy turns on the democratic consent of the governed. When stripped down to the essential, all definitions of democracy return ultimately to the primacy of electoral choice and the presumptive claim of the majority to rule. The removal of certain political views from the electoral arena calls into question the legitimacy of the choices that are then permitted to the citizenry and, by extension, the entire democratic enterprise.

This article asks under what circumstances may democratic governments act (perhaps, must they act) to ensure that their state apparatus not be captured wholesale for socially destructive forms of intolerance. The problem of democratic intolerance takes on special meaning in deeply fractured societies, in which the electoral arena may serve as a parallel or even secondary front for extraparliamentary mobilizations. Such democratic societies are not without recourse to the threat of being compromised from within. At the descriptive level, the prime method is the prohibition on extremist participation in the electoral arena, a practice which exists with surprising regularity across the range of democratic societies. Seemingly the world has learned something since the use of the electoral arena as the springboard for fascist mobilizations to power in Germany and Italy.

The primary concern in this article is with the institutional considerations that either do or should govern restrictions on political participation, with particular attention to how these have been assessed by reviewing courts in a variety of countries, including India, Israel, Turkey, the Ukraine, and the United States. The article distinguishes among the types of parties that may be banned or impeded, with the greatest attention being given to mass antidemocratic parties that actually seek to win elections. Further lines are drawn among types of prohibitions, ranging from the use of criminal sanctions in the U.S. to party prohibitions in most European countries to restrictions on electoral speech and conduct in India. Ultimately, the argument is that democratic societies must have weapons of self-preservation available to them, but that strong institutional protections must be in place before they may be deployed.