The term “fighting democracy” was coined by the Federal Constitutional Court of Germany, which was set up in the aftermath of World War II as one of the lessons drawn from the collapse of the Weimar Republic. The Allies that occupied Germany after the war essentially dictated the establishment of the court, which was modeled along the lines of the U.S. Supreme Court. They viewed the existence of robust judicial activism as one of the most efficient safeguards in protecting democracy and repelling its potential destroyers.
Israel adopted the alternative term “defensive democracy” and used it mainly in the context of balancing between human rights and the war on terror, as well as the nullification of Knesset slates deemed hostile to the country’s existence.
In 1964, with the democratic putsch carried out by the Nazis in Germany in the 1930s uppermost in his mind, Supreme Court Justice Yoel Zussman went so far as to define the imperative of the defending of democracy as superseding the constitution itself.
Israel’s Basic Law on the Knesset – which prohibits the participation in elections of slates that incite to racism, oppose the existence of Israel as a Jewish and democratic state, or support an armed struggle against it – has been showcased over the years as a prime example of Israel’s aggressive defense of its democracy against enemies who seek to infiltrate its institutions from the outside.
Recent events, however, raise concerns that the defense of democracies is suffering from the affliction usually ascribed to generals: It is busy planning the last war rather than preparing for the next.
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While it focuses on the danger that extremist groups will move in from the fringes to capture center stage, the defensive democracy has ignored the growing threat from its enemies within. Israel and the United States are prime examples.
U.S. President Donald Trump is waging a blitzkrieg against democracy, while Israeli Prime Minister Benjamin Netanyahu has been managing a protracted war of attrition. But the aims, methods and circumstances that could ensure their success are remarkably similar.
Both rely on a radical, nationalist base that disdains liberal democracy and demands total loyalty to the leader. Both wield their power bases as a whip, with which they have changed their ruling parties from independent ideological forums into ongoing spectacles of flattery and fawning. Both torment the rule of law and seek to tame their Supreme Courts for ideological as well as personal reasons. Both are assaulting the free media, aided and abetted by loyalist journalists who disseminate their lies while delegitimizing their liberal colleagues.
Many may prefer to look the other way, but the writing on the wall is increasingly clear.
Naive commentators predicted a constitutional crisis this week after Trump exceeded his presidential authority by ordering the Department of Justice to launch an investigation clearly designed at obfuscating and obstructing the investigation into his alleged collusion with Russia, and were thus astonished when administration officials quickly complied and the GOP stayed silent.
Similarly, many Israelis are finding it harder and harder to reconcile their belief in the integrity and independence of their legal authorities with the ongoing and often clandestine meetings between the attorney general and a prime minister who is a suspect in several criminal probes – as well as Netanyahu’s undisguised intervention in the appointment of the next head of the Israel Police, which is investigating him.
The rule of law and equality before the law are cornerstones of a defensive democracy, but Trump and Netanyahu’s conduct highlights its weakened immune system and vulnerability to abuse.
In an age of nationalist populism broadcast on myriad independent social media platforms, checks and balances are no longer enough to protect democracy. But perhaps they never were. The vigor and vitality of democracies depend, first and foremost, on accepted norms of conduct and on the willingness of all actors, primarily leaders, to uphold them.
When leaders such as Trump and Netanyahu decide to openly and flagrantly break the rules, the walls that protect democracy begin to tumble down.