The Wolf in the Sheep’s Clothing: How Democracies Learned to Defend Themselves

On 30 April 1928, a month before Germany went to the polls, Joseph Goebbels told the readers of his Berlin newspaper, Der Angriff, exactly why the Nazi Party wanted seats in the Reichstag. It was not to legislate, negotiate or govern. "We enter the Reichstag," he wrote, "to arm ourselves with democracy's weapons."¹ Parliamentary immunity, free rail passes, salaries paid by the Republic — all of it would be turned against the system that provided it. "We come as enemies! As the wolf attacks the sheep, so come we."²

No one could claim they had not been warned. A few weeks later the Nazis won twelve seats. Five years after that, a Reichstag in which they were the largest party voted away its own powers. The Weimar Republic was not overthrown by tanks in the street. It was dismantled, largely by legal means, by people who had announced their intentions in print. The question that has shadowed democratic thought ever since is short and uncomfortable: must a democracy allow itself to be voted out of existence?

The answer some democracies arrived at has a name — militant democracy — and its story runs from a Munich law faculty to the German Constitutional Court, from the Basque Country to Ankara and Jerusalem, and, as a pointed counter-example, to a polling booth in 1950s Australia.

A Republic Without Defences

The Weimar Constitution of 1919 was one of the most liberal documents of its age. It guaranteed free speech, free association and proportional representation so pure that a party needed only around 60,000 votes to win a seat. What it did not contain was any sense that some goals might be off limits. Any provision could be amended by a two-thirds majority. The constitution was, in the language of the jurists of the day, value-neutral: a set of procedures, not a set of commitments.

This was a deliberate philosophy. The great Austrian legal theorist Hans Kelsen, whose thinking shaped much of interwar constitutional law, held that a democracy which tried to protect itself against the will of the majority would cease to be a democracy at all. If the people wanted something else, that was their right.

The Republic did try to defend itself, fitfully. After nationalists assassinated Foreign Minister Walther Rathenau in 1922, the Reichstag passed a Law for the Protection of the Republic that allowed extremist organisations to be banned. But the judiciary that applied it was overwhelmingly conservative and drawn from the old imperial order. When Hitler attempted his armed putsch in Munich in November 1923, he was convicted of high treason, sentenced to five years, and released after about nine months, having used his comfortable imprisonment to dictate Mein Kampf.

The failure of the putsch taught Hitler the lesson Goebbels would later spell out. Power would be taken legally. In 1930, testifying at the Leipzig trial of three army officers accused of Nazi agitation, Hitler swore under oath that his movement would come to power only by constitutional means — and added, in the same breath, that once it did, heads would roll. The court took him at his word on the first point.

The Great Depression did the rest. In September 1930 the Nazis leapt from 12 seats to 107. By July 1932 they held 230 and were the largest party in the chamber. On 30 January 1933, President Hindenburg appointed Hitler chancellor, entirely in accordance with the constitution.

What followed took less than two months. On the night of 27 February the Reichstag building burned. The next day an emergency decree suspended freedom of speech, assembly and the press, and permitted detention without trial. Communist deputies were arrested or went into hiding. On 23 March 1933, meeting in the Kroll Opera House with SA men lining the aisles, the Reichstag passed the Enabling Act, handing the government the power to make laws without parliament. The vote was 444 to 94. Only the Social Democrats voted no. Their leader, Otto Wels, told the chamber that the Nazis could take their lives and their freedom but not their honour. Within weeks his party was banned.

The two-thirds majority required to change the constitution had been achieved. On paper, the procedure had been followed.

The Exile Who Named It

Among the thousands of academics driven out of Germany that year was Karl Loewenstein, a Munich constitutional lawyer of Jewish background. He landed in the United States and took up a post at Amherst College, and from there he watched the pattern he had seen at home repeat itself across Europe: fascist movements entering parliaments, exploiting free speech and free assembly, and dismantling both once they had the numbers.

In 1937 he published a two-part essay in the American Political Science Review titled "Militant Democracy and Fundamental Rights."³ His argument was blunt. Fascism, he wrote, was less an ideology than a technique — a method of seizing power that depended on democratic tolerance to succeed. Democracies that insisted on neutrality toward their own destroyers were not being principled; they were being naive. Democracy, in his view, had to learn to fight fire with fire, even at the cost of restricting some freedoms to preserve the rest.

Loewenstein was not writing in a vacuum. He surveyed the defensive laws that several European states had already passed: bans on paramilitary formations and political uniforms in Czechoslovakia, Switzerland and the Netherlands, and Britain's Public Order Act of 1936, passed after Oswald Mosley's Blackshirts marched into the East End and met the barricades at Cable Street. These were, he argued, the beginnings of a democratic self-defence doctrine. What was missing was the will to apply it consistently.

Eight years later, the philosopher Karl Popper, another refugee from Central Europe, gave the idea its most quoted formulation. In The Open Society and Its Enemies (1945) he described the "paradox of tolerance":⁴ unlimited tolerance, extended even to the intolerant, would end in the destruction of tolerance itself.

By then, the argument was no longer academic. Much of Europe lay in ruins, and the people drafting new constitutions had lived through what Loewenstein described.

Building the Fortified Constitution

In September 1948, sixty-five delegates from the West German states gathered in Bonn as the Parliamentary Council to draft a constitution for the western zones. Many had been persecuted under the Nazis; some had sat in the Weimar Reichstag. They called their document a Basic Law rather than a constitution, a signal that it was meant to be provisional until Germany was reunited. It came into force on 23 May 1949, and it was built, clause by clause, against the memory of 1933.

Article 1 opens not with the state but with the individual: human dignity is inviolable. Article 79(3), the so-called eternity clause, places the core principles — dignity, democracy, federalism, the rule of law — beyond the reach of any amendment, however large the majority. The procedure that had killed Weimar could not be used again.

Then came the defensive weapons. Article 21(2) declared that parties which seek to undermine or abolish the "free democratic basic order"⁵ are unconstitutional — but only the new Federal Constitutional Court could say so. Article 18 allowed individuals who abuse fundamental freedoms to fight that order to forfeit them. Article 9(2) permitted the banning of associations directed against it. In 1950 a new domestic intelligence agency, the Federal Office for the Protection of the Constitution, was created to watch for threats. Germans had a name for the whole structure: wehrhafte Demokratie, a democracy capable of defending itself.

Karlsruhe Acts

The weapons were tested almost immediately. The Socialist Reich Party had been founded in 1949 by former Nazis. Its most prominent figure, Otto Ernst Remer, was the officer who had crushed the 20 July 1944 plot against Hitler in Berlin. In the Lower Saxony state election of May 1951, the party won 11 per cent of the vote. Chancellor Konrad Adenauer's government applied to have it banned.

On 23 October 1952, the Constitutional Court in Karlsruhe agreed. In doing so it defined, for the first time, what the "free democratic basic order"⁶ meant: human rights, popular sovereignty, the separation of powers, accountable government, an independent judiciary, a multi-party system and the right to form an opposition. The party was dissolved and its seats vacated.

The second ban was more contentious. The government had applied to outlaw the Communist Party of Germany (KPD) in 1951, but the court took five years to rule. When it did, on 17 August 1956, it banned the party, holding that it was not necessary to show that the KPD posed any immediate danger; its aims were enough. Critics at the time, and many since, saw the ruling as a product of the Cold War more than of constitutional necessity. A successor communist party was allowed to form in 1968 without interference.

The tension between protection and overreach resurfaced in 1972, when federal and state governments agreed a "Decree on Radicals"⁷ requiring loyalty checks for public servants. Thousands of applicants — teachers, postal workers, railway employees — were screened, and more than a thousand were refused employment, mostly on the left. The episode, known to its opponents as the Berufsverbote, became a lasting argument that the tools of militant democracy could be turned against ordinary dissent.

Karlsruhe did not ban another party for more than sixty years. An attempt to outlaw the far-right National Democratic Party (NPD) collapsed in 2003 when it emerged that the intelligence services had informants in the party's leadership, making it impossible to tell whose words the court was judging. A second attempt ended in 2017 with a striking verdict: the NPD was indeed anti-constitutional in its aims, but it was too small and too weak to have any realistic prospect of achieving them, and so could not be banned. The court had in effect added a new requirement — potential. Parliament responded by amending the Basic Law so that anti-constitutional parties could instead be cut off from public funding. In January 2024 the court did exactly that to the NPD, by then renamed Die Heimat.

The Idea Travels

Germany's model was the most elaborate, but other democracies facing their own threats built versions of it, each shaped by its own history.

Spain. For four decades the Basque separatist group ETA waged a campaign of bombings and shootings that killed more than 800 people. Its political wing, Batasuna, contested elections and held seats while refusing to condemn the violence. In 2002, the Spanish parliament passed a new Law on Political Parties, and in March 2003 the Supreme Court used it to outlaw Batasuna. The Spanish version is distinctive: it targets conduct — support for terrorism — rather than ideology. Spain's constitution has no eternity clause, and a party can argue for Basque independence, or even for abolishing the monarchy, so long as it does not aid political violence. In 2009, the European Court of Human Rights upheld the ban.

Turkey. No country has used party bans more often. Since the 1960s, the Turkish Constitutional Court has dissolved more than twenty parties, mostly for threatening the secular state or the territorial unity of the nation. The most dramatic case came in January 1998, when the court dissolved the Welfare Party (Refah) — which had won the most votes in the 1995 election and whose leader, Necmettin Erbakan, had been prime minister until the previous year. The European Court of Human Rights upheld that ban in 2003, accepting that Refah's plans for a plurality of religious legal systems were incompatible with democracy. But the Turkish courts also dissolved a succession of pro-Kurdish parties, and the Strasbourg court found several of those bans to be violations of the right to free association. The Turkish case shows the other side of the doctrine: militant democracy can defend a particular vision of the state as readily as democracy itself. In 2008 the governing AKP, founded by former Refah members including Recep Tayyip Erdoğan, escaped closure by a single vote on the Constitutional Court.

Israel. In 1965, Israel's Supreme Court upheld the exclusion of an Arab nationalist list, El-Ard, from the Knesset election on the grounds that it rejected the state's existence — even though no law yet provided for it. In 1985 the Knesset wrote the power into law: lists that deny Israel's existence as a Jewish and democratic state, or that incite racism, could be disqualified. The first target was on the far right. Rabbi Meir Kahane's Kach party, which advocated expelling Arabs, had won a seat in 1984; it was barred from the 1988 election, and the Supreme Court upheld the decision. After a Kach supporter murdered twenty-nine Palestinian worshippers in Hebron in 1994, the movement was outlawed as a terrorist organisation. The disqualification power has since been invoked repeatedly against Arab parties, and the Supreme Court has usually overturned those exclusions.

The Country That Said No

Australia offers the most instructive counterpoint, because it tried to ban a party and its people refused.

Robert Menzies won the December 1949 federal election in part on a promise to outlaw the Communist Party of Australia. The timing mattered. A bitter coal strike, led by communist union officials, had darkened the winter of 1949; Mao's forces had just taken China; and in June 1950 Australian troops were committed to Korea. That year Parliament passed the Communist Party Dissolution Act, which declared the party unlawful, seized its property, and empowered the government to declare individuals communists — leaving them to prove that they were not.

The unions and the party challenged the law in the High Court, and the leader of their legal team was the Labor deputy leader, H. V. Evatt. On 9 March 1951, the court struck the Act down by six votes to one. Parliament, the majority held, could not simply recite in a statute that a group was dangerous and thereby give itself a power the Constitution did not grant. As Justice Fullagar put it, "a stream cannot rise higher than its source."⁸

Menzies took the question to the people. After winning a double-dissolution election in April 1951, he put a referendum to voters on 22 September asking for constitutional power to ban communism. Evatt, now Labor leader, campaigned against it across the country, arguing that the government was asking for power to punish people for their beliefs. The referendum failed by roughly 52,000 votes out of more than four and a half million, winning majorities in only three of the six states.

Australia had not experienced a Weimar. It had never watched a parliament vote itself out of existence, and its voters, narrowly, decided that the open contest of ideas was a safer bet than giving the government power to decide which ideas could compete. The Communist Party of Australia continued to exist, never won a seat in the House of Representatives, and dissolved itself in 1991.

Why This Matters

Set side by side, these stories reveal a single pattern: militant democracy is a response to memory — each democracy draws the line of tolerance where its own history taught it to fear, and the tools it builds outlive the people who built them.

The Germans who wrote the Basic Law had watched a legal procedure deliver a dictatorship; they built a constitution that could not be used that way again. The Spanish had buried hundreds of victims of ETA; they drew their line at political violence, not political goals. Turkey's founders feared religious reaction and ethnic separatism, and their courts policed both with a zeal that eventually came to look less like the defence of democracy than the defence of a particular state. Australians, with no comparable trauma, looked at the same powers and decided the cure was worse than the disease.

This is the enduring dilemma. A democracy that cannot defend itself is exposed to anyone willing to use its freedoms as a ladder, as Goebbels promised to do. But a democracy that can ban parties hands a dangerous power to whoever holds office when the question arises. Loewenstein was writing about movements that openly boasted of their contempt for democracy. The harder cases are those in which the threat is disputed, and in which the people deciding who counts as the wolf are also competitors for the same votes.

Those cases are no longer hypothetical. In December 2024, Romania's Constitutional Court annulled the first round of a presidential election after intelligence reports alleged a coordinated, foreign-backed online campaign behind the surprise front-runner, Călin Georgescu, who was later barred from the rerun. In 2025, Moldova excluded parties accused of links to illicit Russian-backed financing from its parliamentary election. Supporters describe these as democracies protecting themselves from subversion; critics argue they set a precedent for courts and electoral bodies overruling voters.

Germany, where the idea was born, is having the same argument about Alternative für Deutschland, now one of the country's largest parties. In 2025 the domestic intelligence service classified the AfD as a confirmed right-wing extremist organisation; in February 2026 an administrative court in Cologne provisionally barred the agency from using that label while the full case proceeds. In mid-2026 a civil liberties organisation published a report of well over a thousand pages concluding that the party is unconstitutional, and more than a thousand lawyers, judges and prosecutors signed an open letter calling for ban proceedings. Only the federal government, the Bundestag or the Bundesrat can bring such a case. Advocates argue that the Basic Law exists precisely for this situation. Opponents warn that banning a party supported by millions of voters would deepen the grievances that fuel it — and that a failed case would hand the party a certificate of legitimacy.

The United States offers a sharp test of these ideas, because it has deliberately chosen not to build most of them. The First Amendment protects both religious practice and advocacy for changing the Constitution, including rolling back rights, so long as speech stops short of inciting imminent lawless action. There is no mechanism for banning a party, no eternity clause, and no intelligence agency that classifies parties by ideology. The nearest equivalent, the insurrection clause of the Fourteenth Amendment, was sharply limited by the Supreme Court in Trump v. Anderson in 2024.

That openness is being tested. In August 2025, Defense Secretary Pete Hegseth reposted a CNN segment on Doug Wilson, a self-described Christian nationalist pastor whose network of churches spans more than 150 congregations. In it, pastors from Wilson's network spoke in favour of households voting as a unit, with the husband casting the ballot, and one said he would support repealing the Nineteenth Amendment, which guarantees women the vote. Hegseth captioned the clip "All of Christ for All of Life."⁹ The Pentagon later said he supports women's right to vote. Repealing women's suffrage remains a fringe position, and critics of the "Christian nationalist" label argue it is too often stretched to cover ordinary religious conservatives. But the episode showed how an idea from the margins can gain visibility when people in office amplify it.

The formal danger is small. Repealing the Nineteenth Amendment would require two-thirds of both houses of Congress and ratification by three-quarters of the states. The Weimar lesson, however, was never about a single dramatic repeal. It was about democracy wearing away through lawful steps: emergency powers, pressure on courts and civil servants, and a gradual shift in what those in authority treat as acceptable to say. A democracy can keep every clause of its constitution and still lose the habits that make it work.

Nor would importing Germany's tools be a simple remedy. Turkey's experience shows that powers to exclude "anti-democratic" movements serve whoever holds them, and in a country as polarised as the United States, each side already accuses the other of threatening democracy. The American model is closer to Australia's choice in 1951: defending democracy through open contest rather than exclusion. That places the burden on courts, federalism, elections, a free press and civil society, including religious believers who reject these ideas on their own terms. It is a defence that depends less on law than on the willingness of citizens and officials to hold the line.

Ninety-eight years on, Goebbels' image still frames the debate. The difference is that he announced himself. The question militant democracies face today is what to do when the wolf's identity is itself the thing in dispute, and when everyone involved — voters, judges and parties alike — is standing inside the same fold.

Notes

1. Joseph Goebbels, "Why Do We Want to Join the Reichstag?", Der Angriff, 30 April 1928, reprinted in Der Angriff: Aufsätze aus der Kampfzeit (Munich: Zentralverlag der NSDAP, 1935), 71–73; trans. Randall Bytwerk, German Propaganda Archive, Calvin University.

2. Ibid.

3. Karl Loewenstein, "Militant Democracy and Fundamental Rights, I", American Political Science Review 31, no. 3 (June 1937): 417–32; and "Militant Democracy and Fundamental Rights, II", American Political Science Review 31, no. 4 (August 1937): 638–58.

4. Karl Popper, The Open Society and Its Enemies, vol. 1, The Spell of Plato (London: Routledge, 1945), ch. 7, n. 4.

5. Basic Law for the Federal Republic of Germany (Grundgesetz), 23 May 1949, art. 21(2).

6. Federal Constitutional Court, Socialist Reich Party case, judgment of 23 October 1952, BVerfGE 2, 1.

7. "Grundsätze zur Frage der verfassungsfeindlichen Kräfte im öffentlichen Dienst" (the Radikalenerlass), joint resolution of the Federal Chancellor and the state minister-presidents, 28 January 1972.

8. Australian Communist Party v Commonwealth (1951) 83 CLR 1, 258 (Fullagar J).

9. Pete Hegseth, post on X, 7 August 2025, resharing a CNN segment by Pamela Brown; reported in "Pentagon says Hegseth supports women's right to vote despite sharing video saying otherwise", CNN, 15 August 2025.

Sources for recent developments: Verfassungsblog (May 2025); Verfassungsblog (March 2026); Brussels Signal (February 2026); AfD-Verbot campaign / GFF report; Around Prague (August 2026).