Democratic Militancy

 

 

NSDAP meeting at the Bürgerbräukeller, Munich, 1923. Photo by Heinrich Hoffmann, via Wikimedia Commons.

In October 1923, as everybody knows, a conspiracy of members of the National Socialist German Workers Party, its SA paramilitary force, and some rightwing army officers marched on the Munich headquarters of the German VII Military District (covering the state of Bavaria), with the plan of taking over the city militarily and using it as the base for a march on the national capital of Berlin, in emulation of Benito Mussolini's March on Rome of exactly a year earlier, in the hope of replacing Germany's five-year-old attempt at democracy with a Mussolini-style autocracy. The ensuing battle with the police and a group of loyalist soldiers did not work out very well for the Nazis, who lost 15 dead, but not so badly for their leader, 34-year-old Adolf Hitler, who earned a five-year sentence of Festunghaft, a particularly mild form of imprisonment, later reduced for good behavior to eight months (the same as the time Dinesh D'Souza did!), all the time he, Emil Maurice, and Karl Hess needed to draft Mein Kampf, published in 1925-26.

One other upshot of the incident for Hitler was his determination that next time, if there was a next time, he'd do it entirely by the book, as he told a courtroom in 1930: "The National Socialist Movement will seek to attain its aim in this state by constitutional means. The constitution shows us only the methods, not the goal. In this constitutional way, we will try to gain decisive majorities in the legislative bodies in order, in the moment this is successful, to pour the state into the mould that matches our ideas." (Ian Kershaw, Hitler, 1998) "Now we are strictly legal!" exclaimed Goebbels.

I used to think it was funny how Trump followed this procedure backwards, starting his political career by getting elected to the presidency more or less legitimately, and ending it with an illegal adventure even more ill-planned, shambolic, and doomed than the Beer Hall Putsch. 

But then he didn't (so far) get sent to prison, and there's a very strong possibility he'll get a second chance to do it the constitutional way, as his friends, increasingly drawn from the normie Republican world of the Heritage Foundation, Claremont Institute, Hillsdale College, and the like, develop an increasingly sophisticated understanding of how to make government work, or not work, in the case of the replacement of the career civil service with an army of political Schedule F hires who I assume will be charged with tearing down the regulation of everything from the financial system to the environment. They are prepared to turn IRS from auditing billionaire tax cheats back to auditing EITC recipients who filled out their paperwork in a public library and made a mistake on the form. They are prepared to transform the Justice Department into the agency for retribution against those whose loyalty to Emperor Trump is suspect. They have ideas for using the military to stamp out peaceful resistance. They have a bespoke Supreme Court ready to back them up on some of these designs and refuse to interfere with others (it won't let them get away with everything, no doubt, and it will defend its own prerogatives). The mold to pour the state into is largely in place. 

Or at least that's the substance of the leaks they've been planting in Politico and the legacy media. Why do they keep leaking it anyway? Are they all like Christopher Rufo, comic book villains who can't refrain from bragging publicly about their evil plans? Or is it a variant of the technique Trump's attorneys use to get the worst news out early to start normalizing it so that it's "old news" by the time it should be becoming a scandal?

Anyway, it struck me as worth thinking about how strange it is that democracy should extend a hand to antidemocracy in this way, offer it an opportunity to wrestle and win, according to the rules. Everything Hitler did from the general election of July 1932 to the abolition of the sovereignty of the federal states in January 1934 was something the Weimar constitution allowed him to do, with only two unconstitutional steps needed (the abolition of the upper house of parliament, and eliminating the office of president after Hindenburg died in August) before his dictatorial power became absolute. How far can Trump's people carry him, or rather themselves, without rousing serious resistance from a different branch?

This is a question raised by the Colorado ruling on Trump's presence on the state Republican party ballot, as the German historian Thomas Zimmer has been suggesting, under the assumption that the Supreme Court will overturn the state court's decision: 

... the discussion has disproportionally focused on the risk of doing something and tended to neglect the considerable dangers of doing nothing.

Beyond the question of who will be helped in an immediate political and electoral sense, the same is true for the broader discussion over how to assess the legal offensive against the ex-president normatively, as either good or bad (or anything in between) from a democratic perspective. The case against holding Trump accountable in Court rests on the very real dangers of acting in this way – but it doesn’t pay enough attention to the dangers of inaction. Although “inaction” is not even the right term: Not holding Trump accountable in court for his role in the attempt to nullify a democratic election, not enforcing the constitutional provisions against him *is* an active decision. And that action also has consequences.

If he were to be prevented from running in Colorado for the Republican nomination, it could be interpreted as interfering with the voting rights of his supporters (though not really, since, as Jeff Ryan pointed out in comments, nobody has a "right" to vote for an unqualified candidate, whether they're insurrectionists or just 13 years old) and this will harm people's trust in our democratic institutions. But if he isn't prevented, that's telling people attempting to nullify a democratic election is OK. And inviting him, or Tom Cotton or Josh Hawley, to try it again. It's not OK!

Zimmer offers a thought that originated in Germany, after the Third Reich: of a militant democracy, a democracy that is ready to fight (streitbare Demokratie), which would be more capable of defending itself against antidemocratic tendencies, as in Germany's own postwar Basic Law, which allows the censorship of material that is considered "hostile to the constitution", and even ban parties outright, although the conditions a court has to satisfy are extremely strict—

That these parties “seek to undermine or abolish the free democratic basic order or to endanger the existence of the Federal Republic of Germany” is a necessary, but not a sufficient condition for a ban. Before a party can be outlawed, two further conditions must be met: The party “must also take an actively belligerent, aggressive stance vis-à-vis the free democratic basic order”; and, crucially, “specific indications are required which suggest that it is at least possible that the party will achieve its anti-constitutional aims.”

—and it's only happened twice in the 75 years since the founding (banning the current fascist menace party, the Allianz für Deutschland or AfD, has never been considered, I don't think).

But also nothing has happened in Germany over the last 75 years comparable to what the Trumpers did after the 2020 election. Nor has anything in American history since the 1860s, and the worst war our country has ever endured, and issues that are still not revolved 160 years later.

Zimmer has nothing specific to offer for the very different constitutional regime of the US, beyond pointing out that the 14th Amendment Section 3 is a specific constitutional remedy. But he does clarify how important it is.

What if a decision like the one the Colorado Supreme Court just issued were to lead to a terrible “backlash” – to a violent response by Trump loyalists and MAGA fanatics? That is a distinct possibility. But let’s acknowledge that this isn’t an argument about the decision being “undemocratic” or the courts taking power away from the people. That’s just an indication of how severe the danger already is.

And the rhetoric of white supremacy and strongman rule coming from the Trump campaign and all the Republican presidential campaigns isn't coming in a vacuum, it's coming out of that. We probably can't do it the German way, and we probably wouldn't even want to, but we need to find something.

Cross-posted at The Rectification of Names.