Defending the Defenders: Enhancing the Capacities of American Militant Democracy

Many countries have experienced democratic declines as elected executives deploy a populist threat to entrench themselves in power. In response, a cottage industry of constitutional scholarship has sprung up proposing “guardrails” for democracy. These fall under two headings: bureaucratic and judicial. The former looks to independent actors seeded through the administrative state like election monitors; the latter to the power of judicial review. American scholars have revived the debate over “militant” democracy. Yet, they conceive militant democracy in terms of judicial, as opposed to bureaucratic, solutions. I claim that America’s militant democracy regime is doomed to remain inchoate and weak unless it explores deeper institutional reforms in the bureaucratic mode. The judicial remedy alone is insufficient. This article explains how the bureaucratic remedy could be deployed in the US.