The European Union as ‘Militant Democracy’?

: In response to the rise of authoritarianism in Poland and Hungary, several prominent scholars have called upon the EU to intervene in order to protect its constitutional values. One of the strongest albeit controversial arguments in favour of an intervention is that the EU is a form of transnational ‘militant democracy’. This chapter partly agrees with this assessment. The post-WWII European ‘constitutional imagination’ is shaped by the interwar collapse of the European legal and political order. This led to the development of a new form of post-fascist constitutionalism founded upon a ‘fear of the people’. Within post-fascist constitutionalism, ‘Europe’ promises to save the European peoples from themselves. Nevertheless, this type of constitutionalism is not dominant in all the Member States. At least two other varieties of constitutionalism influence the EU Member States – ‘evolutionary constitutionalism’ and ‘post-communist constitutionalism’ – both of which have an ambiguous, yet intimate, relationship to the project of European integration. Abstract In response to the rise of authoritarianism in Poland and Hungary, several prominent scholars have called upon the EU to intervene in order to protect its constitutional values. One of the strongest albeit controversial arguments in favour of an intervention is that the EU is a form of transnational ‘militant democracy’. This chapter partly agrees with this assessment. The post-WWII European ‘constitutional imagination’ is shaped by the interwar collapse of the European legal and political order. This led to the development of a new form of post-fascist constitutionalism founded upon a ‘fear of the people’. Within post-fascist constitutionalism, ‘Europe’ promises to save the European peoples from themselves. Nevertheless, this type of constitutionalism is not dominant in all the Member States. At least two other varieties of constitutionalism influence the EU Member States – ‘evolutionary constitutionalism’ and ‘post-communist constitutionalism’ – both of which have an ambiguous, yet intimate, relationship to the project of European integration.

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Introduction
In response to the coronavirus outbreak in Europe, the prime minister of Hungary, Victor Orbán, declared a state of exception without any time limitation, raising the question of whether the European Union (EU) now has a dictatorship in its midst. 1 The recent state of exception, not withstanding its extremity, is not an altogether new development but rather the culmination of the turn to authoritarianism that has characterised Hungary's (and Poland's) recent past. In the last decade, both Hungary and Poland have undergone constitutional transformations 2 , formal or informal 3 , to such an extent that the scholarly consensus is now that these regimes are no longer compatible with the 'constitutional values' of the EU that the Member States are presumed to share 4 and that is the foundation of their mutual trust. 5 The overwhelming response from legal and political academia alike has been to call for an intervention from the EU, in one form or another. The EU Treaties allow for the Union to 'rule of law framework' 8 and systematic infringement actions 9 , to the protection of fundamental rights by national courts acting in their capacity as European courts. Attempts have been made to tie the EU Covid-19 Recovery and Resilience Facility as well as the EU budget to rule of law conditionality, however, as of yet with no success. 10 It is, however, by no means clear that the 'tools' currently available to the EU can deal effectively with the situation in Poland and Hungary. The Article 7 procedure is seen as ineffective for at least two reasons. First, because of the impossibly high threshold for the 'sanctioning arm' (unanimity minus the recalcitrant Member State). 11 Second, even if this obstacle could be overcome, withholding rights does not amount to an actual intervention that would remedy the situation; the EU might end up with a de facto authoritarian dependency rather than an authoritarian Member State. Neither has the Union as of yet been capable of sanctioning Poland and Hungary with any of the other 'tools' available to it. The limitations of using the infringement procedure is neatly illustrated by the fact that the ECJ could only deal with Orbán's court packing as a matter of age discrimination. 12 The ineffectiveness of this approach is highlighted by the fact that the judgement did not reinstate the Hungarian judges. Proposals such as 'reverse Solange' 13  The aim of this constitutional project became not so much to stabilise political power, but to permanently constrain or even repress it. In contrast to revolutionary constitutionalism, in which every generation should have its own revolution, this constitutional project aims to eliminate what it sees as 'extra-constitutional' manifestations of power. 27 The German Basic Law took this a step further with the introduction of an 'eternity clause' that made some aspects of the constitution unamendable, importantly the core constitutional value of the new order that gives everything else its meaning: human dignity. 28 The constitution is understood as an order of values that have to be balanced against one another. 29 Democracy is merely one 'value' amongst others.
Moreover, the political power of the people was 'disciplined' by empowering the constitutional court, by strengthening the judiciary vis-à-vis the executive and the legislature, and by banning 'anti-constitutional' political parties (mostly former fascist ruling parties or collaborating parties but also a few communist parties The view of the post-WWII constitutional project was that democracy's enemy -'totalitarianism' -could only be conquered through the creation of a strong union between the former enemies on the European continent. For the European Christian Democrats, 35 but perhaps to an even greater extent to the Americans, the creation of a federation in Europe became understood as the legal and political protection against the totalitarian subversion of democracy. 36 The fear in the post-WWII era was not merely, or even primarily, directed towards the return of Nazism in Germany or German aggression, but also to the 'communist threat' from without as well as within. European integration is integral to the development of the domestic constitutional settlement. However, the European level, Lindseth argues, cannot be conceived of as genuinely 'constitutional' but should rather be understood as conferred 'administrative' power that relies on Member State legitimacy for its efficacy and legitimacy. 8 The overall aim of the project of European integration was to stabilise and constrain the post-WWII regimes to ward off any form of political extremism on either the right or the left. 38 European integration had to provide the material conditions that would allow Western Europe to provide its people with a living standard that could outcompete the promises of material well- Electronic copy available at: https://ssrn.com/abstract=3761791 as it is by the 'constrained democracies'. Because of the lack of a constitutional rupture, the constitution was interpreted as an unbroken tradition and democracy was understood, as it was in the pre-WWII era, in terms of the sovereign will of the state expressed via Crown-in-Parliament. 'the people' (whether that is understood as the many, the masses or the poor). 59 Nevertheless, with the expansion of the franchise to gradually include women, the poor and the young, parliamentary government came to be understood as the authentic expression of democracy. Gradually the view became that the people expressed their sovereign will via Parliament.
This view persists within evolutionary constitutionalism today. Democracy is understood as a procedural framework for decision-making; not a substantive theory for a democratic 'content' in the form of fundamental rights or human dignity. 60 For the Scandinavian legal realists that dominated post-WWII legal academia in Sweden and Denmark, the conservatism, natural law philosophy and human rights thinking that influenced the Christian Democrats 61 was understood as an impediment to post-WWII democracy. 62 Post-WWII Scandinavia is Social Democratic rather than Christian Democratic, and for the Scandinavian Social Democrats strong individual rights are seen as obstacles to democracy conceived of as majority rule. 63 The Social Democratic interpretation of the interwar breakdown does not understand the underlying cause to be the 'excess of democracy' but rather the 'excess of the market' leading to economic inequality.
Democracy should therefore not be constrained but rather protected via social and economic policies that as a minimum could limit the impact of economic crises. 64 Social Democracy as well as legal realism is based on a belief in the 'primacy of politics' 65 over law, and for that reason, there is no call for a constitutional court to monitor democracy. 66 In the words of the Swedish legal realist, Vilhelm Lundstedt, the idea that the power of the state could be checked by universal and natural rights 'beyond' the political, such as property, was as 'meaningless as the chatter of a parrot'. 67 Parliament is essentially understood as its own guardian.
The idea of judicial review is not a part of evolutionary constitutionalism and is generally understood as a problematic 'political' exercise of power by the judiciary. As the Danish legal realist Alf Ross puts it, the judiciary is 'by its very nature' subject to the will of Parliament. 68 The constitution is interpreted not primarily by the courts but by Parliamentary praxis. 69 Evolutionary constitutionalism is not shaped by a revolutionary event but has rather evolved over centuries by insiders giving strategic concessions to outsiders in order to avoid revolutionary upheavals. 70  identical to the written constitution. 73 The 'real' constitution of the state is understood as a political rather than a legal creature, which evolves with the political and societal developments and constitutional conventions. 74 It is a 'living being' that is slowly transformed without the written constitution necessarily changing. With regard to the United Kingdom, Walter Bagehot famously argued that the British monarchical constitution had been transformed into a 'disguised republic'. 75 Within evolutionary constitutionalism, the constitution can be fundamentally transformed without a single constitutional law necessarily being repealed or amended.
In contrast to both post-fascist and revolutionary constitutionalism, the formal written constitution is not necessarily a means of introducing a new system of government. The amendment to the Swedish Regeringsform ('the Form of Government') of 1975 was seen not so much as the introduction of a new system of government but more as a codification of the constitutional praxis that evolved without any formal change to the constitution. 76 The schism between the formal written constitution and the real constitution had become so great that is was deemed necessary to 'modernise' the constitution and the period between 1922 and 1975 is now known as the 'constitution-less' period. 77 The constitutional amendment was in this sense an attempt to close the gap between the formal and the real constitution of Sweden, rather than a revolutionary event starting a new era.
In the United Kingdom, there have been calls for a constitutional modernization in the form of a written constitution since the end of WWII, and the since the 1970s the need for reform has been understood as even more pressing. 78  European integration has been a way for British elites to solve the impending crisis and 'conceptual sclerosis' of the British constitution without any significant involvement of the public and without any revolutionary event. 82 This process of 'modernization', however, cannot easily be reconciled with the constitutional ideology of evolutionary constitutionalism, namely parliamentary sovereignty. Being an EU Member State means governing oneself as a 'constrained democracy'. It means that, at least for the duration of membership, there is something above Parliament, namely, EU law. European integration, somewhat paradoxically, has allowed for the perpetuation of 'insider constitutionalism' in the UK, and for that reason it has indirectly allowed for the perpetuation of a constitutional project whose core ideology, the sovereignty of parliament, cannot easily be reconciled with EU law. Electronic copy available at: https://ssrn.com/abstract=3761791 Member States did not draw the same lesson from WWII as the post-fascist states had done.
Authoritarianism and totalitarianism were not understood as a product of an 'excess of democracy' leading to the collapse of the legal and political order. Rather, Nazism and later Communism were   In this way, the EU plays an uneasy role within post-communist constitutionalism. It is simultaneously the path to democracy and national self-determination and a threat to democracy by imposing checks on the sovereign will of these states. The post-communist Member States did not join the project of European integration to make a 'Ulysses pact'. In contrast to the post-fascist Member States, they are not afraid of their own peoples. For that reason, they cannot understand the EU as an extra layer of constitutional guarantees.
The Member States of the EU are not all of the same 'type' and for that reason the EU is characterised by a fundamental constitutional heterogeneity and a constitutional asymmetry. Only some of the Member States belong to the same post-fascist constitutional project as that of the Union. The constitutional heterogeneity and constitutional asymmetry present the Union with a fundamental problem that the recent constitutional developments in Poland and Hungary, extreme as they are, are merely an example of.