From phobic to militant democracy, constitutionally

Modern liberal democracy can easily become phobic, but is hesitant to act as a militant democracy. It is anxious and fearful about election results in several Western countries - e.g. the recent congressional midterm elections - where the choices of the electorate may call into question the very values of liberal democracy. On the other hand, as a militant democracy, it must respect constitutional legitimacy and democratic pluralism.

Engels recalls the notorious phrase uttered in 1849 by Odilon Barrot, head of the council of ministers under President Louis-Napoleon Bonaparte, when addressing the French National Assembly: "La legalite nous tue." Legality kills us. Transposing this phrase to the present context, we can say that it raises the question of the difficult balance between democratic fear and constitutional defense.

After the adoption of the first instance...