The conclusion of Invisible Fatherland reviews the book’s findings with a view to the rise of Nazism and the concept of militant democracy. Juxtaposing the republic’s constitutional patriotism with Nazi ideology, the author highlights the clash between two diametrically opposed “ways of life.” While Nazism was a violent political order that dehumanized marginalized groups, Weimar democracy embraced plural and hybrid identifications. Although the republic ultimately fell to the Nazi threat, the study argues that its constitutional patriotism remains a positive legacy of Western-style democracy. By reframing the narrative, Invisible Fatherland provides a forward-looking, “glass-half-full” perspective on one of history’s most misunderstood democratic experiments

The fifth chapter of Invisible Fatherland examines the relationship between the Weimar Republic’s symbolic legitimacy and far-right political violence. It focuses on the assassination of Foreign Minister Walther Rathenau by nationalist fanatics in June 1922. The chapter explores how the republican government rallied public support and reinforced the republic’s authority. Rathenau’s state funeral and pro-democratic mass rallies united Germans across class and faith in mourning and defiance. The republic’s response framed the murder as part of a broader pattern of far-right violence, implicating even the more respectable factions of the far right in extremist crimes. This framing allowed Weimar democrats to discredit their political opponents and strengthen democratic alliances. The chapter argues that Rathenau’s funeral marked a pivotal moment when a democratic symbolism of sacrifice and solidarity emerged. This moment shows how symbolic acts can fortify democratic ideals during periods of political crisis.

The chapter examines the relatively underexplored relations of property, sovereignty, and security underlying transitional justice by focusing on the national and “European” legal space of Polish lustration and postsocialist Eastern European transitional justice more generally from a critical legal and social-materialist perspective. The chapter offers an analysis of the key European resolutions, the rulings of the European Court of Human Rights, the legal doctrine of “militant democracy,” and the landmark verdicts of Poland’s Constitutional Tribunal concerning lustration. In particular, this analysis critically interrogates the public–private distribution of responsibility, the problem of corporate sovereignty and immunity, and the authoritarian logic of security underpinning neoliberal and liberal capitalist citizenship. While highlighting the importance of the interdependence of legal rights and struggles, the chapter urges us to go beyond the binary of liberalism and authoritarianism and attend to the ways in which rightwing authoritarian populism grows out of liberal legal and capitalist institutions and frameworks.

Constitutional hardball consists of practices that are consistent with the formal requirements of constitutional democracy but that destabilize and potentially transform it. This Chapter examines why political actors engage in hardball, focusing first on their short-term political motivations and then turning to the function of constitutional hardball within reasonably well-functioning constitutional democracies. The Chapter ends with a discussion of what might be done to convert constitutional hardball into ordinary political maneuvering, conclude that such efforts are unlikely to succeed and might be inappropriate (though not illiberal) efforts to halt more or less ordinary transformations in political practices.

Recent years have witnessed the rise of a range of authoritarian populist, illiberal, far-right, nativist, and extremist parties. We have seen democratic structures threatened or incrementally dismantled through the subversion of an established democratic party by an outsider or ascendance of the extremist wing of a right-wing party. Parties and party leaders occupying an ill-defined space on the political spectrum today generally present a much greater threat to democratic governance than overtly antidemocratic fringe outfits. The ambiguity of such parties, their growing size, their entry into government, the subversion of “good” democratic parties by a “bad” leadership, and the rise of the “shadow party” mean that contemporary political party threats seriously frustrate the possibility of remedial action afforded by existing public law and policy mechanisms. They also require us to reflect anew on crafting novel remedies and to revisit our assumptions about parties as creatures of central constitutional importance.

This chapter explores the link between eternity clauses and electoral democracy by looking at two instances of unamendable democracy: party bans, both direct and indirect, and the protection of parliamentary mandates. These two approaches are illustrated via a range of case studies: the ban of anti-democratic parties in Germany; bans of ethnic, separatist, and religious parties in Turkey; indirect unamendability and its chilling effect on party competition in Israel; and the judicial protection of parliamentary mandates as unamendable in Czechia. Whereas such measures are adopted in the name of protecting democracy, the analysis here indicates that courts will not always strike the right balance between safeguarding and unduly narrowing democratic commitments. In some cases, they may even unintentionally undermine multipartyism itself or significantly influence electoral outcomes. Thus, the bluntness and open-ended nature of unamendability risks having a chilling effect on electoral democracy in both fragile and more stable democratic contexts.

References to “Weimar” have played an increasingly important role in trying to make sense of the present, and also to mobilize various constituencies. Related to the diagnosis of contemporary political movements as fascist or neo-fascist, there is the question of whether some of the lessons drawn in the postwar period from the failures of Weimar – especially the ones that inspired the creation of the legal toolkit generally known as “militant democracy” – should be central to attempts to defend democracy today. This chapter engages both issues and argues that the toolkit of militant democracy remains valuable in many ways – but that its instruments are often not well suited to dealing with today’s challenges to democracy.

During the era of democratic optimism that took off in the wake of the Second World War, scholars believed that democracy worked tolerably well in polities that exhibited wide institutional variation. Comparativists consequently focused on courts, rights, and constitutional values while sharply disagreeing over the extent of American exceptionalism. In his seminal contribution to this literature in A Lighter Touch: American Constitutional Principles in Comparative Perspective, Gary Jacobsohn provocatively argues that the United States is not a paradigmatic example of a nation built on constitutional values. Jacobsohn concludes that the American Constitution applies with a “lighter” touch than in many of its peer democracies which might prove problematic were the Constitution to undergo a stress test. With the advent of democratic erosion in the twenty-first century, scholars have turned pessimistic about democracy’s prospects. This paper argues that scholars will need to focus on structural issues – rather than courts, rights, and values – and the role that constitutional design may play in stemming or facilitating democratic erosion in America. The problem is not that the American Constitution applies with a lighter touch, as Jacobsohn argues, but that it applies with a heavy, almost Trumpian hand under the conditions of contemporary American democracy.

Using the case of France, this paper seeks to expand Gary Jacobsohn’s concept of “dual constitutional identity” by examining the tensions between the democratic component and the religious component of dual constitutional identities. I argue that constitutional identities are protected by a common set of mechanisms derived from militant democracy: bans/dissolution of political parties, eternity clauses and states of emergency. In the case of dual constitutional identities, militant democracy is used as a tool to protect the state religion from real or imagined threats from religious minorities – doing so in the name of democracy rather than in the name of religion. The democratic trajectory of France illuminates how constitutional identities tying a religious (or secular) identity to democratic principles and giving their courts the tools of militant democracy to police constitutional faith may in fact threaten the very foundations of democracy.

This chapter focuses on the origins of the institutions that would evolve into the European Union. Norman argues that a focus on perceptions of fragility provides a fruitful but underexplored perspective on the creation of the early institutions of European postwar political cooperation. The design of these institutions were informed by perceptions of fragility associated with democratic governance. The conventional functionalist story of the EU, where cooperative institutions were set up to prevent new conflicts between the formerly warring countries, while not inaccurate, obscures how the reconstruction of the European political order was also an answer to the breakdown of European democracy before the war. Notions of democracy’s fragility informed the functionalist perspective on politics as well as the perceived for a ‘militant’ protection of democratic institutions. Apart from shaping the origins of the European political order, the chapter argues that perceptions of fragility have continued to inform the institutional development of the EU and even ongoing efforts to strengthen its democratic aspects.

The best remedy to populism in power is for liberal democrats to win elections, and in all populist regimes discussed in this book - Poland, Hungary, the Philippines, India, and Brazil - this remains a possibility, though in some countries (Hungary) it is more difficult than in others (Poland). Successful electoral strategies to defeat populism require coalition-making and high electoral turnout. Extra-electoral remedies, such as militant democracy or "cordon sanitaire", are less feasible and less compatible with democratic principles. The most important challenge is developing credible liberal-democratic policies to counter populist ones, which do not disparage the values of community, patriotism or collective pride. Liberalism has sufficient intellectual resources to support these values, now claimed by populist leaders.