This article proposes a critique of "militant democracy," defined as the legal restriction of democratic freedoms for the purpose of insulating democratic regimes from the threat of being overthrown by legal means. The argument we advance is that this conceptual framework is inadequate for addressing the problem it is meant to solve, since restricting the freedom of its supposed "enemies" may make democracy more prone to authoritarian abuse, rather than less, in the long run. To demonstrate this, we first turn to the theory of militant democracy, both in its earliest articulations by Karl Loewenstein and Carl Schmitt, and in the more recent theoretical literature on this topic. In the second part, we show that the inherent arbitrariness of militant democracy has been reflected in a concrete expansion in the range of targets to which the logic of militant democracy has been applied: from fascism during the inter-war years, to communism during the Cold War, up to several forms of religious practice in the present day. Those who are for democracy cannot allow themselves to be caught in the dangerous contradiction of using the means of dictatorship to defend democracy. One must remain faithful to one's flag even when the ship is sinking; and in the abyss one can only carry the hope that the ideal of freedom is indestructible, and the more deeply it sinks the more it will one day return to life with greater passion.Hans Kelsen (1932)

Much is said of the danger to liberty from the Army program for deporting and detaining these citizens of Japanese extraction. But a judicial construction of the due process clause that will sustain this order is a far more subtle blow to liberty than the promulgation of the order itself. A military order, however unconstitutional, is not apt to last longer than the military emergency. Even during that period a succeeding commander may revoke it all. But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens. The principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes.Justice Robert Jackson, dissent, Korematsu v. the United States 1 Homeland security is not a temporary measure just to meet one crisis. Many of the steps we have now been forced to take will become permanent in American life. They represent an understanding of the world as it is, and dangers we must guard against perhaps for decades to come. I think of it as the new normalcy. Vice President Richard Cheney 2Five years after September 11, the troubled relationship between constitutionalism and exceptional emergency powers has become a familiar trope in legal and political theory. Issues such as the legal status of emergencies, the aggrandizement of executive power, and the relative desirability of "norming the exception" are once more on the map. 3 As the above quotations demonstrate (albeit from opposite perspectives), concepts such as emergency powers, the norm, and the exception are not confined to the realm of political philosophy; they are central features of our political world, without which the recent development and prospects of constitutional democracy, in the United States and elsewhere, cannot be fully assessed. 4 If permanent emergency powers are part the "new normalcy" referred to by Vice President Cheney, then it is important to think critically about this central category in political life. This article hopes to contribute to this task by engaging with both the theoretical basis of different understandings of emergencies and the consequences of concrete applications of various models.

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