Introduction the Flight from Fascism
In April 1933, shortly after his appointment as Chancellor, Adolf Hitler passed the “Law
to Restore the Professional Civil Service,”1 which, with few exceptions, removed non-Aryans
from government positions, targeting Jews in particular.2 For the thousands of German Jewish
intellectuals working in government service and teaching at German universities, this law was
cataclysmic, removing them from positions they had occupied for decades, and severing them
from the life that they labored to build.3 Statistically, in 1933, following passage of the law, more
than 16 percent of university faculty lost their jobs, and over the next six years, especially after
passage of further restrictions, this number rose to greater than one-fourth of all university
teachers.4 Social scientists and political scientists were especially hard hit, with some universities
1Gesetz zur Wiederherstellung des Berufsbeamtentums
2Claus-Dieter Krohn, Intellectuals in Exile: Refugee Scholars and the New School for Social Research
(Cambridge: The University of Massachusetts Press, 1993), 12.
3For further information on the émigrés and their experiences, see Peter M. Rutkoff and William B. Scott,
New School: A History of the New School for Social Research (New York: Free Press, 1986); Donald P. Kent, The
Refugee Intellectual: The Americanization of the Immigrants 1933-1951 (New York: Columbia University Press,
1953); Maurice B. Davie, Refugees in America: Report of the Committee for the Study of Recent Immigration from
Europe (New York: Harper & Brothers, 1947); H. Stuart Hughes, The Sea Change: The Migration of Social
Thought, 1930-1945 (New York: Harper & Row, 1975); Anthony Heilbut, Exiled in Paradise: German Refugee
Artists and Intellectuals in America From the 1930s to the Present (Boston: University of California Press, 1983).
Herz discusses his immigration experience at length in his biography, which is reviewed in Chapter Three.
4Krohn, Intellectuals in Exile, 12.
losing over 50% of their staff, resulting in “the eliminat[ion] of an entire [new] research tradition
critical of the historicism and idealism long dominant in German thinking.”
For many of these dismissed university professors, leaving Germany was the best option,
and aided by newly formed international rescue committees, over 50% of those who lost their
jobs in 1933 – 650 total – immigrated from Germany. By the end of the 1930s this number had
risen to over 1,700, and, including doctors, lawyers, artists and writers, to over 12,000. While
initially most of these émigrés chose to remain in Europe to stay closer to Germany, faced with
Hitler’s march across Europe, as well as the difficulty of “shedding one’s status as an alien in
Europe,” ever growing numbers of intellectuals chose to leave Europe for America, until by the
start of World War II by far the largest proportion of German émigrés had found residence in the
United States. In America, these intellectuals saw President Franklin D. Roosevelt, and
especially his New Deal, as the heir to their progressive work during the failed Weimar Republic,
and appreciated the ease with which they, as immigrants in a country full of immigrants, could
blend into society at large, making “the process of reintegration exceedingly simple.”
Despite this openness, the path of the German Jewish immigrant was fraught with
difficulties. These scholars were forced to compete for scarce permanent teaching positions at
xenophobic and anti-Semitic American universities that regarded them with suspicion. It was
only after American universities realized the positive benefit German faculty members had on the
academic quality of departments that a larger number of teaching positions became available, and
American institutions became more willing to hire Germans. Even after securing teaching
positions, these intellectuals still had to cope with the psychological consequences of their
sudden dismissals and forced immigrations, and watch as Hitler and Nazi Germany successfully
conquered much of Europe, spreading fascism across the European continent throughout the
1930s and 1940s.
Such experiences profoundly altered the worldview of some of these émigrés, causing
them to both reassess their academic work, as well as look at the world through new, pessimistic
eyes. This thesis tells the story of two of Jewish German émigré intellectuals, Karl Loewenstein
(1891–1973) and John H. Herz (1908-2005), and how they responded, through their work, to
their immigrant experience and the dilemma to democracy presented by fascism’s widespread
success. While both are ancillary figures in the greater history of the émigrés, their work – and
especially Loewenstein’s – showcase how scholars attempted to understand the new world they
found themselves a part of, as well as to protect the nation that had become their home and
represented the last bastion of democracy and free thought.
After his immigration to the United States in 1933, Loewenstein began to research the
ways in which democracies could defend themselves from fascism. Faced with the apparent
prospect of an endless, creeping tide of fascism, spreading across the globe and consuming
democratic nations from within, he argued for the adoption of militant democracy, or the idea
that democracies must proactively defend themselves against internal fascist threats. According
to Loewenstein, fascists were able to abuse the fundamental rights granted to them by democratic
constitutions – namely freedom of speech, press and assembly, and equal participation in the
electoral process – to destroy democracy from within. The key to defending democracy and
defeating fascists was to deny them these fundamental rights through temporary restrictive
legislation. Loewenstein presented this idea in four academic articles published in 1935 and
1937.
Confronted with the success of Hitler and Germany throughout the 1930s, Loewenstein
continued to develop his theory of militant democracy, and by 1938 had come to believe that
beyond temporary legislation, it was necessary for democracies to transform their legislative and
executive branches into smaller, more responsive bodies better able to cope with emergent
situations and the speed of the modern state. Key to understanding this evolution is
Loewenstein’s growing pessimism towards the future prospects of democracy, rooted in his
forced immigration from Germany, as well as his mounting anxiety about fascism. In 1935 and
1937 he still approached the conflict between democracy and fascism as an objective academic,
but by 1938 he became increasingly personally involved with the defense of democracy, arguing
urgently for the quick adoption of militant democracy in the United States in order to protect
America from the dire fascist threat.
This personal involvement manifested itself in an extensive campaign of public advocacy
for the passage of restrictive legislation in the United States. While he never revealed his entire
theory (especially his belief in the necessity to transform the American system), from 1938 until
1947 Loewenstein attempted, through book reviews, speeches and a pamphlet, to convince the
public of the necessity of restricting the right of fascists, as well as of the threat posed to
America by a hidden Fifth Column of fascist and fascist sympathizers poised to aid Hitler in
destroying the United States. This campaign took on a particular urgency in the aftermath of the
surprising and rapid defeat of France in 1940. Following this defeat, Loewenstein attempted to
do whatever he could to convince the general public of the urgent need to use militant democracy
in America, including presenting himself as a defender of traditional Anglo-Saxon Christian
American society, despite his nationality and ethnic heritage.
Following the attack on Pearl Harbor and the American entrance into the war,
Loewenstein, like many other German émigrés, joined the American government, eventually
assisting in denazification by interviewing Nazis as part of the Nuremburg prosecution. Even
after the final defeat of Hitler, Loewenstein’s advocacy for militant democracy continued, and he
remained pessimistic and anxious about fascism. He was publicly critical of denazification,
believing that the German citizenry were unrepentant, and that the American failure to effectively
root out and punish Nazis had set the stage for the reemergence of fascist Germany and the
continuation of the threat to the United States and democracy. During this period, Loewenstein’s
understanding of militant democracy continued to evolve as well, until, by 1944, he had come to
believe that it was impossible for democracies and fascist states to coexist.
Unfortunately, Loewenstein’s pessimism, his particular views on fascism, his public
campaign of advocacy for militant democracy and even the evolutions of this theory throughout
the 1930s and early 1940s are entirely missing from the historiography. Over the past two
decades, as scholars have confronted issues of domestic terrorism, human rights reforms and
sovereignty in the wake of the Cold War, they have returned to the idea of militant democracy as
a starting point for their research. As part of this research, Loewenstein has a newfound relevance
among political scientists, especially when examining democratic responses to national threats.
Little research has been done into Loewenstein for Loewenstein’s own sake. Virtually
every scholar writing about him does so in the context of another event, and their work gives the
impression that Loewenstein’s theory of militant democracy simply appeared in 1937, fully
formed, and remained static over the next decade. The best examination of Loewenstein’s life
and work to date is Markus Lang’s biography of Loewenstein, Karl Loewenstein:
Transatlantischer Denker der Politik, published in 2007 and based on Lang’s earlier dissertation.
However, even Lang’s biography is deficient, devoting only fifteen pages to Loewenstein’s work
on militant democracy, with no mention, beyond a single footnote, of Loewenstein’s campaign of
public advocacy for adoption of militant democracy in the United States. Instead, Lang opts to
focus on Loewenstein’s role in the development of political science as a field, and seeks to
integrate Loewenstein into the growing category of émigré transatlantic intellectuals who, by
leaving Germany, offered an implicit critique of the Nazi regime. Lang reiterated this approach
in a chapter on Loewenstein, “Karl Loewenstein: From Public Law to Political Science,” as part
of German Scholars in Exile: New Studies in Intellectual History, published in 2011.
The majority of works on Loewenstein and militant democracy, on the other hand, use
Loewenstein’s theories as part of a commentary on a present day dilemma – for example
terrorism – and devote little more than a footnote to Loewenstein or his work. There is no hint of
Loewenstein’s public advocacy for militant democracy, or of any evolution within his theory
throughout the 1930s and early 1940s. Typical of this category of works is a recent dissertation
on Loewenstein, “Militant Democracy,” by Svetlana Tyulkina, finished in 2011. While Tyulkina
does an excellent job of tracing the influence of Loewenstein’s work in the modern world, as
well as highlighting examples of legislation and constitutional amendments today that are
examples of militant democracy, she spends no time exploring the development of the theory, or
the greater intellectual context within which Loewenstein worked. Martin Klamt follows a
similar approach in his chapter, “Militant Democracy and the Democratic Dilemma: Different
Ways of Protecting Democratic Constitutions,” in Explorations in Legal Culture, published in
2007.
The only mention of Loewenstein’s public campaign for militant democracy is found not
in a work within the Loewenstein historiography, but rather in an article about the German Jurist
Carl Schmitt’s interrogations as part of the Nuremburg Trials. Loewenstein, in his capacity as an
officer with the U.S. Military Government in Berlin (1945-1947), pressed American officials to
arrest Schmitt. While describing Loewenstein and Schmitt, Joseph W. Bendersky references a
letter to the editors of The New York Times written by Loewenstein that was highly critical of
denazification.18 This letter, along with others composed by him on the same subject, were part
of Loewenstein’s post-war campaign for the application of militant democracy in defeated
Germany. Beyond this reference, as well as the one found in Lang’s biography, no other
references to Loewenstein’s public statements exist.
**
Like Karl Loewenstein, John H. Herz’s immigration from Germany left him sharply
pessimistic. After arriving in America in 1938, while studying at Princeton, he began to
investigate the way in which international relations functioned, and how and why states came
into conflict with one another. Like Loewenstein, Herz joined the American government during
the war to help combat Nazism, and after the war was highly critical of denazification. During
this period, Herz concluded that man was inherently concerned with his personal security, and
that the knowledge that other men held the potential to kill him led to a state of constant,
potential violence, regardless of actual intent. Relations between nations were this
anthropological state, termed the security dilemma, writ large. Despite his pessimistic
anthropological view, Herz believed that, through a combination of measured realism and
idealism known as Liberal Realism, a peaceful world system could be achieved. Thus man,
cognizant of his nature, could overcome his native state and work towards a peaceful future.
While Herz acknowledged this future was unlikely to come to pass, his theory still held
the possibility for a world in which nations, independent of their political ideology, by pursuing
Liberal Realism, could peacefully coexist. Written in the years before World War II and the
beginning of the Cold War in the late 1940s, Herz’s theory was fundamentally concerned with
describing a world in which nations of competing ideological orientations, in particular
18 Joseph W. Bendersky, “Carl Schmitt’s Path to Nuremburg: A Sixty-Year Assesment,” TELOS 139 (2007):
21.
democracy and communism, could avoid destructive war. This potential for peace represents a
working out of Herz’s pessimism, despite his biography and worldview, and, in contrast with
Loewenstein, shows how unusual Loewenstein’s particular solution to the conflict between
fascism and democracy was.
Compared to Loewenstein, the Herz historiography is considerably smaller, arising only
in the past ten years, and focuses on Herz’s role in the development of international relations as a
field, and his participation in the wider community of such scholars in the post-War world. As
yet, no scholar has compared Herz to other émigré intellectuals, or explored the relationship
between his theories and Loewenstein’s militant democracy. Today, the leading academics
working on Herz are Peter Stirk, Jana Puglierin, Christian Hacke and Ken Booth. Puglierin has
written the only contemporary monograph on Herz, John H. Herz: Leben und Denken zwischen
Idealismus und Realismus, Deutschland und Amerika, published in German in 2011 and
developed from an earlier dissertation. Puglierin also helped edit a 2007 issue of International
Relations (a publication that Herz contributed to throughout his life) devoted to Herz’s work. In
this issue she, along with Hacke, contributed two articles on Herz’s life and work, “John H.
Herz: Balancing Utopia and Reality,” and “Toward Being a ‘Traveller Between All Worlds’.”
Along with Hacke and Puglierin, Ken Booth has written on Herz’s Political Realism and
Political Idealism in “Navigating the ‘Absolute Novum’: John H. Herz’s Political Realism and
Political Idealism.”
Peter Stirk also contributed to the Herz issue of International Relations. In “John H. Herz
and the International Law of the Third Reich,” he explores Herz’s conception of Nazi
international law and his work on this subject. Stirk also mentions Herz in a work on Carl
Schmitt, Carl Schmitt, Crown Jurist of the Third Reich: On Preemptive War, Military
Occupation, and World Empire, presenting Herz’s understanding of international relations as an
alternative to Schmitt’s.19 Looking forward, with the recent release of Herz’s papers, catalogued
at the University at Albany as part of their Jewish immigrants collection, it is likely that more
works devoted to his life and theories will be forthcoming.20
**
The story of Loewenstein and Herz is, fundamentally, a story of their pessimism, and
how this pessimism manifested itself in both their academic work and public discourse. Chapter
one provides a detailed analysis of Loewenstein’s academic work on militant democracy,
beginning in 1935 and ending in 1938. In this work, the evolution of militant democracy can be
first observed, as well as Loewenstein’s growing concern with fascism and the threat posed by
fascists to the United States. The second chapter explores Loewenstein’s public advocacy for the
adoption of antifascist legislation in the United States, beginning in 1938 and concluding with
his critique of denazification following his departure from government service in 1947.
Throughout this period, despite the defeat of Hitler by the Allies in 1945, Loewenstein remained
acutely anxious about fascism, and had little hope for the future of democracy. Chapter
19 Peter M. R. Stirk, Carl Schmitt, Crown Jurist of the Third Reich: On Preemptive War, Military Occupation,
and World Empire (London: Edwin Mellon Press, 2005).
20 Herz and Loewenstein were by no means the only scholars of international conflict working during this
period. Among many others, Carl Schmitt and Hans J. Morgenthau deserve particular mention. Schmitt, who stayed
behind in Germany and briefly joined the Nazi regime until he fell afoul of the SS in 1936, described the ‘equal
chance,’ an important theory to be aware of when reading Loewenstein, in his 1932 work Legality and Legitimacy.
See Carl Schmitt, Legality and Legitimacy, trans. Jeffrey Seitzer (Durham: Duke University Press, 2004): 28-33. For
secondary literature on Schmitt, see William E. Scheuerman, Carl Schmitt: The End of Law (London: Rowman &
Littlefield, 1999); Joseph W. Bendersky, Carl Schmitt, Theorist for the Reich (Princeton: Princeton University Press,
1983); Michael G. Satler, Carl Schmitt: Law as Politics, Ideology and Strategic Myth (New York, Routledge, 2012);
Benno Gerhard Teschke, “Fatal Attraction: A Critique of Carl Schmitt’s International Political and Legal Theory,”
International Theory 3 (2011): 179-227. Morgenthau, another German Jewish émigré, had a similar understanding
of anthropology and international relations to Herz, but believed that, based on man’s inherently violent nature, a
peaceful world order free of war was impossible, and that international relations would be inevitably plagued by
conflict and confrontation. See Hans J. Morgenthau, Scientific Man Versus Power Politics (Chicago: University of
Chicago Press, 1946); Hans J. Morgenthau, Politics Among Nations: The Struggle for Power and Peace (New York:
Alfred A. Knopf, 1948); Hans J. Morgenthau, In Defense of the National Interest (New York: Alfred Knopf, 1951).
For secondary literature on Morgenthau, see see William E. Scheuermann, Morgenthau (New York: Polity, 2008);
Michaela Neacsu, Hans J. Morgenthau’s Theory of International Relations: Disenchantment and Re-Enchantment
(New York: Palgrave Macmillian, 2010); Michael C. Williams, Realism Reconsidered: The Legacy of Hans
Morgenthau in International Relations (Oxford: Oxford University Press, 2007).
three moves beyond Loewenstein, focusing instead on Herz, and examines the relationship
between the two scholars, and how Herz, despite his similar biography and worldview,
developed a markedly different solution to the dilemma facing democracy. Finally, the
conclusion reflects on the position of militant democracy today, and how Loewenstein and
Herz’s worldviews evolved in the decades following World War II. While Herz remained
optimistic, Loewenstein, despite the emergence of a democratic Germany, remained pessimistic
until the end of his days.
Chapter One
The Academic: Karl Loewenstein and the Development
of Militant Democracy
“If democracy is convinced that it has not yet fulfilled its
destination, it must fight on its own plane a technique
which serves only the purpose of power. Democracy must become
militant.”
Karl Loewenstein was born in Munich, Germany in 1891 to a family of wealthy Jewish
Bavarian industrialists, and traveled extensively during his childhood, including time spent living
in England and South America. After several years at universities in Munich, Heidelberg – where
he studied under Max Weber – Paris and Berlin, he received a law degree in 1914. During World
War I he spent 1915 serving with the German infantry, and was admitted into the
German bar in 1918. A year later Loewenstein received his doctorate in civil and ecclesiastical
law at Munich. After practicing law throughout the 1920s in and around Munich, Loewenstein
entered academia and became a lecturer at the University of Munich School of Law in 1931. He
was forced to resign this position in 1933 as a consequence of the Nazi’s efforts to purge
nonAryans from public service, and shortly thereafter left Germany for the United States. While
in
America, with the help of the Emergency Committee in Aid of Displaced German Scholars,
Loewenstein secured a two-year teaching position at Yale University in 1935, and in 1936
accepted a permanent position teaching political science at Amherst College.
**
During this period, shortly after immigrating to the United States, Karl Loewenstein
began writing academic articles about the spread of fascism, and, in particular, what steps the
remaining western democracies should undertake to protect themselves from internal fascists
threats. These articles provide much of the basis for the future importance of Loewenstein’s
work, and show a clear progression of thought that mirrors European political developments
throughout the 1930s. In the first of these articles, “Autocracy Versus Democracy in
Contemporary Europe I and II,” published in The American Political Science Review in 1935,
Loewenstein examines the political makeup of Europe, as well as the prospect of the remaining
democratic nations of succumbing to internal fascist movements. Within this analysis, he first
describes what he later terms militant democracy, the idea that democratic nations must
proactively defend themselves against fascism, as fascists are all too capable of utilizing
democratic principles to enable their ascent to power. No longer are these principles alone
sufficient to protect the state – rather, these principles, and in particular the democratic belief in
fundamental rights, in many ways enable the fascists to succeed.
Loewenstein continued his inquiry into the conflict between democracy and fascism in a
pair of 1937 articles, “Militant Democracy and Fundamental Rights I and II,” again published in
The American Political Science Review. These two articles continue his examination of fascism,
while investigating the similarities between European fascists movements, and the steps these
movements undertook to transition from the political fringe to the sole governmental authority
within a state. Loewenstein also continues to outline possible steps that democratic nations must
take to resist the spread of fascism, including what antifascist legislation has already been
enacted by democratic states, and how these laws, which are examples of militant democracy in
action, work to protect the democratic state.
Although much of the content of this article is similar to the earlier “Autocracy Versus
Democracy I and II,” Loewenstein’s tone throughout is noticeably more alarmist. As he has
witnessed the progressive spread and success of fascism throughout Europe, his hope for the
continued existence of democratic states has waned. Further, the steps outlined by Loewenstein
in “Militant Democracy” are a temporary abandonment of many of the principles and rights held
most dear to democratic nations – an abandonment, that, in Loewenstein’s eyes, is necessary for
the defense of democracy in the long term. This abandonment, forced upon democratic nations
by the unique nature of the fascist threat, is one of the most fascinating elements of
Loewenstein’s work during this period, and reflects both his pessimism – rooted in his recent in
his recent immigration – as well as his growing anxiety about fascism.
Loewenstein continues this argument in his next pair of articles, “Legislative Control of
Extremism in European Democracies I and II,” published in Columbia Law Review in 1938.
Similar to “Militant Democracy,” in these articles Loewenstein surveys existing anti-fascist
legislation, and, in technical legal language appropriate for a law journal, analyzes the way in
which these laws effectively deprive fascist groups of the tools necessary to seize power from the
existing democratic system. Even when writing in such a legalistic context, Loewenstein cannot
help but reaffirm the pessimistic way in which he views the prospects of the democratic states, as
well as reveal his continued anxiety about the threat posed by fascism to the west. Even here he
presents the conflict between fascism and democracy as a war, arguing that everything possible
must be done to protect democratic institutions, no matter the cost.
Loewenstein published another article in 1938 on militant democracy, “The Balance of
Legislative and Executive Power: A Study in Comparative Constitutional Law,” in The
University of Chicago Law Review. Importantly, in this article, Loewenstein expands on his
original theory of militant democracy, and argues for the necessity of implementing fundamental
changes to the political process of the United States in order create a smaller and more
responsive legislature better able to cope with the demands of a modern state, along with a more
powerful, active executive. Unlike the temporary antifascist legislation, these proposed changes
would be permanent, and represent a radicalization of Loewenstein’s thought, as well as the
evolution of a second level to his theory of militant democracy, encompassing both temporary
and permanent measures.
Examining Loewenstein’s articles during this period reveals the growing alarm with
which Loewenstein describes the spread of fascism, transforming the dry, academic examination
of fascism as a new political movement in 1935 into the panic of the late 1930s. Loewenstein
believed that if radical steps were not taken, then the remaining democratic nations, including the
United States, would fall to internal subversive fascist elements. This mounting anxiety reveals a
fundamental change in Loewenstein’s outlook. He became, like so many other Jewish
intellectuals who were forced to flee Germany after the Nazi Party seized power in 1933, a
pessimist. He was no longer content to simply hope that democratic principles, human nature and
inevitable progress were safeguards against the darker forces of humanity embodied by fascism.
Instead, democratic nations must participate in an active fight against fascism, taking whatever
steps are necessary in order to prevent their internal destruction at the hands of fascist agitators.
**
Loewenstein’s first examination of fascism and the prospects of its further spread
throughout Europe can be found in “Autocracy Versus Democracy in Cotemporary Europe I and
II,” published in 1935. These articles are the beginning of a new era in Loewenstein’s research
and writing. The tone that Loewenstein takes throughout these article – that of an objective
academic investigating a new political development – and the way he describes fascism are
significant, and stand in contrast to his later works, where his personal involvement in the
protection of democracy and his anxiety are much clearer. Beyond showing the development of
his theory of militant democracy, “Autocracy Versus Democracy I and II” show the beginning of
Loewenstein’s transformation from academic to advocate.
Loewenstein’s work here is a reflection of the political climate of Europe in the early to
mid 1930s. Between 1933, when Loewenstein fled from Germany, and 1935, when he published
“Autocracy Versus Democracy I and II,” Germany had reemerged as one of the Great Powers on
the European continent, while the European democracies, suffering through the Great
Depression, became increasingly unstable. Hitler, by pursuing an aggressive foreign policy that
took advantage of the worsening relationship between England and France, was able to press
Germany’s diplomatic position, forcing concessions from England and France on provisions
from the Treaty of Versailles. Simultaneously, while fascist Germany prospered, the political
power of France waned. Beset by serious internal strife and economic turmoil, French politics
throughout the 1930s was increasingly dominated by the radicalized elements of the far left and
far right, with the possibility of outright revolution by either group festering just below the
surface.
The position of the smaller democratic powers in Europe was particularly treacherous.
Faced with the decline of France and the reemergence of Germany, these small powers –
including Czechoslovakia, Belgium, Poland and the Baltic States – were forced to contend with
an evolving international political landscape as well as internal unrest at the hands of the
unemployed and dissatisfied who looked to Germany and Russia for an example of the proper
response to the Depression. Read within the context of the unstable political landscape,
Loewenstein’s analysis becomes more meaningful, as well as a clear response to the new reality
of European politics in 1935.
Loewenstein begins by summarizing the “political scene of contemporary Europe,”
pointing out that the European states, “are aligned in two fundamentally antagonistic camps,”
democracy and liberalism, and autocracy. Loewenstein believes that Great Britain, the Irish Free
State, France, Belgium, the Netherlands, Sweden, Norway, Denmark, Finland, Switzerland and
Czechoslovakia fall into the former category, while Russia, Turkey, Germany, Italy, Portugal,
Austria, Poland, Yugoslavia, Bulgaria, Rumania, Hungary, Estonia and Latvia compromise the
latter. According to Loewenstein, in 1935 “by far the greater part of European territory and of
European population is under dictatorial rule of one type or another,” and, facing this reality, it is
necessary to examine the prospects of the remaining democratic nations for becoming autocratic
dictatorships.
Before undertaking this examination, Loewenstein briefly reviews the political history of
democratic and autocratic forms of government, taking pains to point out that “the rationalization
of government by the devices of free self-expression called democracy is a comparatively new
phenomenon,” and that for the large part of human history man has lived under autocratic
systems. Beyond the accuracy of this assertion, which functions to dispel much of the surprise
surrounding the spread of dictatorships, as in many ways this spread can be seen as simply
reverting to the mean, Loewenstein’s comments here do much to reveal the tone he takes
throughout the article. At this stage Loewenstein is still attempting to approach his subject with
an element of academic objectivity and distance. It is unclear at this point how he personally
feels about autocracy, and in particular fascism, and what greater meaning he attaches to the
prospect of the further spread of autocracy throughout the remaining democratic European
nations. This attempt at objectivity is further evident in Loewenstein’s acknowledgement of the
unique nature of this spread of autocratic governments. While “to the observer of history,” the
reemergence of “Caesarism” is not surprising, the speed by which “the new dictatorial wave” has
spread is unique, and prompts “deep concern to everybody who values democracy as a higher
step of mankind toward progress and civilization.” By writing as such, Loewenstein is couching
his analysis. For those who believe that democracy is the next step in mankind’s march of
progress, fascism is a threat; but this belief is neither universally held nor necessarily correct.
Importantly, in this first section, and in line with the title of the article, Loewenstein
contrasts democracy and autocracy in general, and places both Russia and Germany, despite their
opposing worldviews, within the autocratic category. Lowenstein acknowledges this relationship
early on, pointing out that his use of autocracy as a descriptive term “embraces not only the
fascist variety as presented by Italy and Germany, but also the communistic form of dictatorship
in Russia.” This distinction is significant, as for the majority of his following articles, and, in
fact, most of “Autocracy Versus Democracy,” he almost exclusively discusses the prospect of the
continued spread of fascism, ignoring the obvious parallels between Russia and Germany, and
the crimes of Stalin and Hitler.
**
After briefly outlining the historical background of fascism, Loewenstein begins his
analysis of the odds of the remaining democratic European nations for becoming fascist.
Loewenstein first attempts to “distinguish between the general tendencies of the replacement of
democratic by autocratic rule and the specific conditions arising from the economic and political
situation of a given country.” Loewenstein here is presenting the adoption of fascism as the
consequence of two diverse factors: those that are general and exist regardless of particular
circumstance, and those that are the direct result of the Great Depression and economic unrest.
In general, much of fascism’s appeal comes from fulfilling what Loewenstein terms “the
missionary spirit,” or the “individual’s obsession by belief in the absolute and indisputable value
of his own devotion to a new basic principle of life,” which causes him to preach this ideology at
every turn. The proponents of this new ideology act as missionaries, spreading the doctrine of
fascism like a religion. This spread is further facilitated by local concepts of nationalism and
regionalism, as within these beliefs fascism can be seen as a unifying ideology to help reunite
populations that have been previously separated.
As to the particular, the appeal of fascism reflects the generally held belief that economic
change requires a change in government. For populaces suffering under the spreading worldwide
Great Depression, “national economic autarchy has become the catchword of the day,” which
can only be achieved by an active government that interferes with the economy. This, in turn,
necessitates an organized, centralized authority unfetered by private interests, and logically, the
concentration of “political power in the hands of a government strong enough to cope with the
obstacles during the transition period [from unplanned to planned economy].” Facing this crisis,
“dictation from above becomes necessary, even where the spirit of the nation abhors compulsory
methods of suppression of free institutions.” Thus, fascism is seen as the solution to economic
depression, and the poorer the economic situation in a particular nation, the greater the prospects
for this nation adopting fascism.
Beyond the two different motivations leading to the support of fascism, democracy in
Europe is further threatened by the “facilities afforded by the fascist technique,” namely the
encouragement of apathy and silence, which causes citizens who recognize the threat to do
nothing. This encouragement in many way stems from what Lowenstein describes as the
“science” of introducing fascism into a democratic state, which is a “typical procedure applicable
to almost any state under the rule of democracy.” To Loewenstein, this science is a
“rationalized and pre-calculated routine progressing, step by step, on the basis of experience and
precedent,” and is aided by democracy itself. Although not fully explained, what Loewenstein is
claiming is that the institutions of democracy provide fascism with the tools needed for the
destruction of the existing government.
This passage is, for several reasons, one of the most important of the article.
Loewenstein’s description of the way in which fascism actually utilizes the democratic process to
destroy democracy itself is important. While he is by no means the first scholar to highlight the
problems of relying on democratic ideals alone to protect the democratic state, he is one of the
first to propose the solution that is first alluded to in “Autocracy Versus Democracy.” This
passage is the beginning of what eventually will evolve in later articles into his theory of militant
democracy. As he succinctly summarizes, in many fascist states, “the democratic constitution
became the main obstacle against [the state’s] maintenance and the best tool for its destruction.”
According to Loewenstein, this phenomenon can be readily observed in the
circumstances surrounding Hitler’s rise to power in Germany. While much of Hitler’s appeal
came from his ability to tap into the public’s anger with the Treaty of Versailles and the other
Western powers, he would have never been able to assume power (or even rise beyond a petty
demagogue) without being enabled by the “generous and lenient Weimar republic,” which
fashioned the mechanisms for its own doom by allowing “the existence of a resolute competition
to the legal authority of the state.” For Loewenstein, the Weimar government was destined to
failure “from the beginning... because it was pacifist instead of militant.” Here, again, the seeds
(and even language) of his later writings can be observed, and by providing concrete evidence of
the validity of his analysis, Loewenstein makes the threat posed by fascism to democracies seem
all the more acute. If democratic governments wait until the fascists have begun to implement
their scientific process, it is too late. The defensive measures must be undertaken proactively, and
long before the fascist party prepares to assume power.
After reviewing the actual process by which a fascist government subverts a democratic
state, Loewenstein begins his specific examination of the prospects of each remaining democratic
nation for becoming fascist in “Autocracy Versus Democracy in Central Europe, II,” again
published in in the American Political Science Review in 1935. For the purposes of this thesis,
the importance of these predictions lies in what they reveal about Loewenstein’s understanding
of fascism and his worldview in 1935, and not in their eventual accuracy, as eerily prescient as
they may be. Much of Loewenstein’s analysis here rests on his contention that, beyond economic
prosperity, the single most important factor in determining a nation’s ability to
For many of these dismissed university professors, leaving Germany was the best option, and
aided by newly formed international rescue committees, over 50% of those who lost their jobs in
1933 – 650 total – immigrated from Germany. By the end of the 1930s this number had risen to
over 1,700, and, including doctors, lawyers, artists and writers, to over 12,000. While initially
most of these émigrés chose to remain in Europe to stay closer to Germany, faced with Hitler’s
march across Europe, as well as the difficulty of “shedding one’s status as an alien in Europe,”
ever growing numbers of intellectuals chose to leave Europe for America, until by the start of
World War II by far the largest proportion of German émigrés had found residence in the United
States. In America, these intellectuals saw President Franklin D. Roosevelt, and especially his
New Deal, as the heir to their progressive work during the failed Weimar Republic, and
appreciated the ease with which they, as immigrants in a country full of immigrants, could blend
into society at large, making “the process of reintegration exceedingly simple.”
Despite this openness, the path of the German Jewish immigrant was fraught with
difficulties. These scholars were forced to compete for scarce permanent teaching positions at
xenophobic and anti-Semitic American universities that regarded them with suspicion. It was
only after American universities realized the positive benefit German faculty members had on the
academic quality of departments that a larger number of teaching positions became available, and
American institutions became more willing to hire Germans. Even after securing teaching
positions, these intellectuals still had to cope with the psychological consequences of their
sudden dismissals and forced immigrations, and watch as Hitler and Nazi Germany successfully
conquered much of Europe, spreading fascism across the European continent throughout the
1930s and 1940s.
Such experiences profoundly altered the worldview of some of these émigrés, causing
them to both reassess their academic work, as well as look at the world through new, pessimistic
eyes. This thesis tells the story of two of Jewish German émigré intellectuals, Karl Loewenstein
(1891–1973) and John H. Herz (1908-2005), and how they responded, through their work, to
their immigrant experience and the dilemma to democracy presented by fascism’s widespread
success. While both are ancillary figures in the greater history of the émigrés, their work – and
especially Loewenstein’s – showcase how scholars attempted to understand the new world they
found themselves a part of, as well as to protect the nation that had become their home and
represented the last bastion of democracy and free thought.
After his immigration to the United States in 1933, Loewenstein began to research the
ways in which democracies could defend themselves from fascism. Faced with the apparent
prospect of an endless, creeping tide of fascism, spreading across the globe and consuming
democratic nations from within, he argued for the adoption of militant democracy, or the idea
that democracies must proactively defend themselves against internal fascist threats. According
to Loewenstein, fascists were able to abuse the fundamental rights granted to them by democratic
constitutions – namely freedom of speech, press and assembly, and equal participation in the
electoral process – to destroy democracy from within. The key to defending democracy and
defeating fascists was to deny them these fundamental rights through temporary restrictive
legislation. Loewenstein presented this idea in four academic articles published in 1935 and
1937.
Confronted with the success of Hitler and Germany throughout the 1930s, Loewenstein
continued to develop his theory of militant democracy, and by 1938 had come to believe that
beyond temporary legislation, it was necessary for democracies to transform their legislative and
executive branches into smaller, more responsive bodies better able to cope with emergent
situations and the speed of the modern state. Key to understanding this evolution is
Loewenstein’s growing pessimism towards the future prospects of democracy, rooted in his
forced immigration from Germany, as well as his mounting anxiety about fascism. In 1935 and
1937 he still approached the conflict between democracy and fascism as an objective academic,
but by 1938 he became increasingly personally involved with the defense of democracy, arguing
urgently for the quick adoption of militant democracy in the United States in order to protect
America from the dire fascist threat.
This personal involvement manifested itself in an extensive campaign of public advocacy
for the passage of restrictive legislation in the United States. While he never revealed his entire
theory (especially his belief in the necessity to transform the American system), from 1938 until
1947 Loewenstein attempted, through book reviews, speeches and a pamphlet, to convince the
public of the necessity of restricting the right of fascists, as well as of the threat posed to
America by a hidden Fifth Column of fascist and fascist sympathizers poised to aid Hitler in
destroying the United States. This campaign took on a particular urgency in the aftermath of the
surprising and rapid defeat of France in 1940. Following this defeat, Loewenstein attempted to
do whatever he could to convince the general public of the urgent need to use militant democracy
in America, including presenting himself as a defender of traditional Anglo-Saxon Christian
American society, despite his nationality and ethnic heritage.
Following the attack on Pearl Harbor and the American entrance into the war,
Loewenstein, like many other German émigrés, joined the American government, eventually
assisting in denazification by interviewing Nazis as part of the Nuremburg prosecution. Even
after the final defeat of Hitler, Loewenstein’s advocacy for militant democracy continued, and he
remained pessimistic and anxious about fascism. He was publicly critical of denazification,
believing that the German citizenry were unrepentant, and that the American failure to effectively
root out and punish Nazis had set the stage for the reemergence of fascist Germany and the
continuation of the threat to the United States and democracy. During this period, Loewenstein’s
understanding of militant democracy continued to evolve as well, until, by 1944, he had come to
believe that it was impossible for democracies and fascist states to coexist.
Unfortunately, Loewenstein’s pessimism, his particular views on fascism, his public
campaign of advocacy for militant democracy and even the evolutions of this theory throughout
the 1930s and early 1940s are entirely missing from the historiography. Over the past two
decades, as scholars have confronted issues of domestic terrorism, human rights reforms and
sovereignty in the wake of the Cold War, they have returned to the idea of militant democracy as
a starting point for their research. As part of this research, Loewenstein has a newfound relevance
among political scientists, especially when examining democratic responses to national threats.
Little research has been done into Loewenstein for Loewenstein’s own sake. Virtually
every scholar writing about him does so in the context of another event, and their work gives the
impression that Loewenstein’s theory of militant democracy simply appeared in 1937, fully
formed, and remained static over the next decade. The best examination of Loewenstein’s life
and work to date is Markus Lang’s biography of Loewenstein, Karl Loewenstein:
Transatlantischer Denker der Politik, published in 2007 and based on Lang’s earlier dissertation.
However, even Lang’s biography is deficient, devoting only fifteen pages to Loewenstein’s work
on militant democracy, with no mention, beyond a single footnote, of Loewenstein’s campaign of
public advocacy for adoption of militant democracy in the United States. Instead, Lang opts to
focus on Loewenstein’s role in the development of political science as a field, and seeks to
integrate Loewenstein into the growing category of émigré transatlantic intellectuals who, by
leaving Germany, offered an implicit critique of the Nazi regime. Lang reiterated this approach
in a chapter on Loewenstein, “Karl Loewenstein: From Public Law to Political Science,” as part
of German Scholars in Exile: New Studies in Intellectual History, published in 2011.
The majority of works on Loewenstein and militant democracy, on the other hand, use
Loewenstein’s theories as part of a commentary on a present day dilemma – for example
terrorism – and devote little more than a footnote to Loewenstein or his work. There is no hint of
Loewenstein’s public advocacy for militant democracy, or of any evolution within his theory
throughout the 1930s and early 1940s. Typical of this category of works is a recent dissertation
on Loewenstein, “Militant Democracy,” by Svetlana Tyulkina, finished in 2011. While Tyulkina
does an excellent job of tracing the influence of Loewenstein’s work in the modern world, as
well as highlighting examples of legislation and constitutional amendments today that are
examples of militant democracy, she spends no time exploring the development of the theory, or
the greater intellectual context within which Loewenstein worked. Martin Klamt follows a
similar approach in his chapter, “Militant Democracy and the Democratic Dilemma: Different
Ways of Protecting Democratic Constitutions,” in Explorations in Legal Culture, published in
2007.
The only mention of Loewenstein’s public campaign for militant democracy is found not
in a work within the Loewenstein historiography, but rather in an article about the German Jurist
Carl Schmitt’s interrogations as part of the Nuremburg Trials. Loewenstein, in his capacity as an
officer with the U.S. Military Government in Berlin (1945-1947), pressed American officials to
arrest Schmitt. While describing Loewenstein and Schmitt, Joseph W. Bendersky references a
letter to the editors of The New York Times written by Loewenstein that was highly critical of
denazification.18 This letter, along with others composed by him on the same subject, were part
of Loewenstein’s post-war campaign for the application of militant democracy in defeated
Germany. Beyond this reference, as well as the one found in Lang’s biography, no other
references to Loewenstein’s public statements exist.
**
Like Karl Loewenstein, John H. Herz’s immigration from Germany left him sharply
pessimistic. After arriving in America in 1938, while studying at Princeton, he began to
investigate the way in which international relations functioned, and how and why states came
into conflict with one another. Like Loewenstein, Herz joined the American government during
the war to help combat Nazism, and after the war was highly critical of denazification. During
this period, Herz concluded that man was inherently concerned with his personal security, and
that the knowledge that other men held the potential to kill him led to a state of constant,
potential violence, regardless of actual intent. Relations between nations were this
anthropological state, termed the security dilemma, writ large. Despite his pessimistic
anthropological view, Herz believed that, through a combination of measured realism and
idealism known as Liberal Realism, a peaceful world system could be achieved. Thus man,
cognizant of his nature, could overcome his native state and work towards a peaceful future.
While Herz acknowledged this future was unlikely to come to pass, his theory still held
the possibility for a world in which nations, independent of their political ideology, by pursuing
Liberal Realism, could peacefully coexist. Written in the years before World War II and the
beginning of the Cold War in the late 1940s, Herz’s theory was fundamentally concerned with
describing a world in which nations of competing ideological orientations, in particular
18 Joseph W. Bendersky, “Carl Schmitt’s Path to Nuremburg: A Sixty-Year Assesment,” TELOS 139 (2007):
21.
democracy and communism, could avoid destructive war. This potential for peace represents a
working out of Herz’s pessimism, despite his biography and worldview, and, in contrast with
Loewenstein, shows how unusual Loewenstein’s particular solution to the conflict between
fascism and democracy was.
Compared to Loewenstein, the Herz historiography is considerably smaller, arising only
in the past ten years, and focuses on Herz’s role in the development of international relations as a
field, and his participation in the wider community of such scholars in the post-War world. As
yet, no scholar has compared Herz to other émigré intellectuals, or explored the relationship
between his theories and Loewenstein’s militant democracy. Today, the leading academics
working on Herz are Peter Stirk, Jana Puglierin, Christian Hacke and Ken Booth. Puglierin has
written the only contemporary monograph on Herz, John H. Herz: Leben und Denken zwischen
Idealismus und Realismus, Deutschland und Amerika, published in German in 2011 and
developed from an earlier dissertation. Puglierin also helped edit a 2007 issue of International
Relations (a publication that Herz contributed to throughout his life) devoted to Herz’s work. In
this issue she, along with Hacke, contributed two articles on Herz’s life and work, “John H.
Herz: Balancing Utopia and Reality,” and “Toward Being a ‘Traveller Between All Worlds’.”
Along with Hacke and Puglierin, Ken Booth has written on Herz’s Political Realism and
Political Idealism in “Navigating the ‘Absolute Novum’: John H. Herz’s Political Realism and
Political Idealism.”
Peter Stirk also contributed to the Herz issue of International Relations. In “John H. Herz
and the International Law of the Third Reich,” he explores Herz’s conception of Nazi
international law and his work on this subject. Stirk also mentions Herz in a work on Carl
Schmitt, Carl Schmitt, Crown Jurist of the Third Reich: On Preemptive War, Military
Occupation, and World Empire, presenting Herz’s understanding of international relations as an
alternative to Schmitt’s.19 Looking forward, with the recent release of Herz’s papers, catalogued
at the University at Albany as part of their Jewish immigrants collection, it is likely that more
works devoted to his life and theories will be forthcoming.20
**
The story of Loewenstein and Herz is, fundamentally, a story of their pessimism, and
how this pessimism manifested itself in both their academic work and public discourse. Chapter
one provides a detailed analysis of Loewenstein’s academic work on militant democracy,
beginning in 1935 and ending in 1938. In this work, the evolution of militant democracy can be
first observed, as well as Loewenstein’s growing concern with fascism and the threat posed by
fascists to the United States. The second chapter explores Loewenstein’s public advocacy for the
adoption of antifascist legislation in the United States, beginning in 1938 and concluding with
his critique of denazification following his departure from government service in 1947.
Throughout this period, despite the defeat of Hitler by the Allies in 1945, Loewenstein remained
acutely anxious about fascism, and had little hope for the future of democracy. Chapter
21 Peter M. R. Stirk, Carl Schmitt, Crown Jurist of the Third Reich: On Preemptive War, Military Occupation,
and World Empire (London: Edwin Mellon Press, 2005).
22 Herz and Loewenstein were by no means the only scholars of international conflict working during this
period. Among many others, Carl Schmitt and Hans J. Morgenthau deserve particular mention. Schmitt, who stayed
behind in Germany and briefly joined the Nazi regime until he fell afoul of the SS in 1936, described the ‘equal
chance,’ an important theory to be aware of when reading Loewenstein, in his 1932 work Legality and Legitimacy.
See Carl Schmitt, Legality and Legitimacy, trans. Jeffrey Seitzer (Durham: Duke University Press, 2004): 28-33. For
secondary literature on Schmitt, see William E. Scheuerman, Carl Schmitt: The End of Law (London: Rowman &
Littlefield, 1999); Joseph W. Bendersky, Carl Schmitt, Theorist for the Reich (Princeton: Princeton University Press,
1983); Michael G. Satler, Carl Schmitt: Law as Politics, Ideology and Strategic Myth (New York, Routledge, 2012);
Benno Gerhard Teschke, “Fatal Attraction: A Critique of Carl Schmitt’s International Political and Legal Theory,”
International Theory 3 (2011): 179-227. Morgenthau, another German Jewish émigré, had a similar understanding
of anthropology and international relations to Herz, but believed that, based on man’s inherently violent nature, a
peaceful world order free of war was impossible, and that international relations would be inevitably plagued by
conflict and confrontation. See Hans J. Morgenthau, Scientific Man Versus Power Politics (Chicago: University of
Chicago Press, 1946); Hans J. Morgenthau, Politics Among Nations: The Struggle for Power and Peace (New York:
Alfred A. Knopf, 1948); Hans J. Morgenthau, In Defense of the National Interest (New York: Alfred Knopf, 1951).
For secondary literature on Morgenthau, see see William E. Scheuermann, Morgenthau (New York: Polity, 2008);
Michaela Neacsu, Hans J. Morgenthau’s Theory of International Relations: Disenchantment and Re-Enchantment
(New York: Palgrave Macmillian, 2010); Michael C. Williams, Realism Reconsidered: The Legacy of Hans
Morgenthau in International Relations (Oxford: Oxford University Press, 2007).
three moves beyond Loewenstein, focusing instead on Herz, and examines the relationship
between the two scholars, and how Herz, despite his similar biography and worldview,
developed a markedly different solution to the dilemma facing democracy. Finally, the
conclusion reflects on the position of militant democracy today, and how Loewenstein and
Herz’s worldviews evolved in the decades following World War II. While Herz remained
optimistic, Loewenstein, despite the emergence of a democratic Germany, remained pessimistic
until the end of his days.
Chapter One
The Academic: Karl Loewenstein and the Development
of Militant Democracy
“If democracy is convinced that it has not yet fulfilled its
destination, it must fight on its own plane a technique
which serves only the purpose of power. Democracy must become
militant.”
Karl Loewenstein was born in Munich, Germany in 1891 to a family of wealthy Jewish
Bavarian industrialists, and traveled extensively during his childhood, including time spent living
in England and South America. After several years at universities in Munich, Heidelberg – where
he studied under Max Weber – Paris and Berlin, he received a law degree in 1914. During World
War I he spent 1915 serving with the German infantry, and was admitted into the
German bar in 1918. A year later Loewenstein received his doctorate in civil and ecclesiastical
law at Munich. After practicing law throughout the 1920s in and around Munich, Loewenstein
entered academia and became a lecturer at the University of Munich School of Law in 1931. He
was forced to resign this position in 1933 as a consequence of the Nazi’s efforts to purge
nonAryans from public service, and shortly thereafter left Germany for the United States. While
in
America, with the help of the Emergency Committee in Aid of Displaced German Scholars,
Loewenstein secured a two-year teaching position at Yale University in 1935, and in 1936
accepted a permanent position teaching political science at Amherst College.
**
During this period, shortly after immigrating to the United States, Karl Loewenstein
began writing academic articles about the spread of fascism, and, in particular, what steps the
remaining western democracies should undertake to protect themselves from internal fascists
threats. These articles provide much of the basis for the future importance of Loewenstein’s
work, and show a clear progression of thought that mirrors European political developments
throughout the 1930s. In the first of these articles, “Autocracy Versus Democracy in
Contemporary Europe I and II,” published in The American Political Science Review in 1935,
Loewenstein examines the political makeup of Europe, as well as the prospect of the remaining
democratic nations of succumbing to internal fascist movements. Within this analysis, he first
describes what he later terms militant democracy, the idea that democratic nations must
proactively defend themselves against fascism, as fascists are all too capable of utilizing
democratic principles to enable their ascent to power. No longer are these principles alone
sufficient to protect the state – rather, these principles, and in particular the democratic belief in
fundamental rights, in many ways enable the fascists to succeed.
Loewenstein continued his inquiry into the conflict between democracy and fascism in a
pair of 1937 articles, “Militant Democracy and Fundamental Rights I and II,” again published in
The American Political Science Review. These two articles continue his examination of fascism,
while investigating the similarities between European fascists movements, and the steps these
movements undertook to transition from the political fringe to the sole governmental authority
within a state. Loewenstein also continues to outline possible steps that democratic nations must
take to resist the spread of fascism, including what antifascist legislation has already been
enacted by democratic states, and how these laws, which are examples of militant democracy in
action, work to protect the democratic state.
Although much of the content of this article is similar to the earlier “Autocracy Versus
Democracy I and II,” Loewenstein’s tone throughout is noticeably more alarmist. As he has
witnessed the progressive spread and success of fascism throughout Europe, his hope for the
continued existence of democratic states has waned. Further, the steps outlined by Loewenstein
in “Militant Democracy” are a temporary abandonment of many of the principles and rights held
most dear to democratic nations – an abandonment, that, in Loewenstein’s eyes, is necessary for
the defense of democracy in the long term. This abandonment, forced upon democratic nations
by the unique nature of the fascist threat, is one of the most fascinating elements of
Loewenstein’s work during this period, and reflects both his pessimism – rooted in his recent in
his recent immigration – as well as his growing anxiety about fascism.
Loewenstein continues this argument in his next pair of articles, “Legislative Control of
Extremism in European Democracies I and II,” published in Columbia Law Review in 1938.
Similar to “Militant Democracy,” in these articles Loewenstein surveys existing anti-fascist
legislation, and, in technical legal language appropriate for a law journal, analyzes the way in
which these laws effectively deprive fascist groups of the tools necessary to seize power from the
existing democratic system. Even when writing in such a legalistic context, Loewenstein cannot
help but reaffirm the pessimistic way in which he views the prospects of the democratic states, as
well as reveal his continued anxiety about the threat posed by fascism to the west. Even here he
presents the conflict between fascism and democracy as a war, arguing that everything possible
must be done to protect democratic institutions, no matter the cost.
Loewenstein published another article in 1938 on militant democracy, “The Balance of
Legislative and Executive Power: A Study in Comparative Constitutional Law,” in The
University of Chicago Law Review. Importantly, in this article, Loewenstein expands on his
original theory of militant democracy, and argues for the necessity of implementing fundamental
changes to the political process of the United States in order create a smaller and more
responsive legislature better able to cope with the demands of a modern state, along with a more
powerful, active executive. Unlike the temporary antifascist legislation, these proposed changes
would be permanent, and represent a radicalization of Loewenstein’s thought, as well as the
evolution of a second level to his theory of militant democracy, encompassing both temporary
and permanent measures.
Examining Loewenstein’s articles during this period reveals the growing alarm with
which Loewenstein describes the spread of fascism, transforming the dry, academic examination
of fascism as a new political movement in 1935 into the panic of the late 1930s. Loewenstein
believed that if radical steps were not taken, then the remaining democratic nations, including the
United States, would fall to internal subversive fascist elements. This mounting anxiety reveals a
fundamental change in Loewenstein’s outlook. He became, like so many other Jewish
intellectuals who were forced to flee Germany after the Nazi Party seized power in 1933, a
pessimist. He was no longer content to simply hope that democratic principles, human nature and
inevitable progress were safeguards against the darker forces of humanity embodied by fascism.
Instead, democratic nations must participate in an active fight against fascism, taking whatever
steps are necessary in order to prevent their internal destruction at the hands of fascist agitators.
**
Loewenstein’s first examination of fascism and the prospects of its further spread
throughout Europe can be found in “Autocracy Versus Democracy in Cotemporary Europe I and
II,” published in 1935. These articles are the beginning of a new era in Loewenstein’s research
and writing. The tone that Loewenstein takes throughout these article – that of an objective
academic investigating a new political development – and the way he describes fascism are
significant, and stand in contrast to his later works, where his personal involvement in the
protection of democracy and his anxiety are much clearer. Beyond showing the development of
his theory of militant democracy, “Autocracy Versus Democracy I and II” show the beginning of
Loewenstein’s transformation from academic to advocate.
Loewenstein’s work here is a reflection of the political climate of Europe in the early to
mid 1930s. Between 1933, when Loewenstein fled from Germany, and 1935, when he published
“Autocracy Versus Democracy I and II,” Germany had reemerged as one of the Great Powers on
the European continent, while the European democracies, suffering through the Great
Depression, became increasingly unstable. Hitler, by pursuing an aggressive foreign policy that
took advantage of the worsening relationship between England and France, was able to press
Germany’s diplomatic position, forcing concessions from England and France on provisions
from the Treaty of Versailles. Simultaneously, while fascist Germany prospered, the political
power of France waned. Beset by serious internal strife and economic turmoil, French politics
throughout the 1930s was increasingly dominated by the radicalized elements of the far left and
far right, with the possibility of outright revolution by either group festering just below the
surface.
The position of the smaller democratic powers in Europe was particularly treacherous.
Faced with the decline of France and the reemergence of Germany, these small powers –
including Czechoslovakia, Belgium, Poland and the Baltic States – were forced to contend with
an evolving international political landscape as well as internal unrest at the hands of the
unemployed and dissatisfied who looked to Germany and Russia for an example of the proper
response to the Depression. Read within the context of the unstable political landscape,
Loewenstein’s analysis becomes more meaningful, as well as a clear response to the new reality
of European politics in 1935.
Loewenstein begins by summarizing the “political scene of contemporary Europe,”
pointing out that the European states, “are aligned in two fundamentally antagonistic camps,”
democracy and liberalism, and autocracy. Loewenstein believes that Great Britain, the Irish Free
State, France, Belgium, the Netherlands, Sweden, Norway, Denmark, Finland, Switzerland and
Czechoslovakia fall into the former category, while Russia, Turkey, Germany, Italy, Portugal,
Austria, Poland, Yugoslavia, Bulgaria, Rumania, Hungary, Estonia and Latvia compromise the
latter. According to Loewenstein, in 1935 “by far the greater part of European territory and of
European population is under dictatorial rule of one type or another,” and, facing this reality, it is
necessary to examine the prospects of the remaining democratic nations for becoming autocratic
dictatorships.
Before undertaking this examination, Loewenstein briefly reviews the political history of
democratic and autocratic forms of government, taking pains to point out that “the rationalization
of government by the devices of free self-expression called democracy is a comparatively new
phenomenon,” and that for the large part of human history man has lived under autocratic
systems. Beyond the accuracy of this assertion, which functions to dispel much of the surprise
surrounding the spread of dictatorships, as in many ways this spread can be seen as simply
reverting to the mean, Loewenstein’s comments here do much to reveal the tone he takes
throughout the article. At this stage Loewenstein is still attempting to approach his subject with
an element of academic objectivity and distance. It is unclear at this point how he personally
feels about autocracy, and in particular fascism, and what greater meaning he attaches to the
prospect of the further spread of autocracy throughout the remaining democratic European
nations. This attempt at objectivity is further evident in Loewenstein’s acknowledgement of the
unique nature of this spread of autocratic governments. While “to the observer of history,” the
reemergence of “Caesarism” is not surprising, the speed by which “the new dictatorial wave” has
spread is unique, and prompts “deep concern to everybody who values democracy as a higher
step of mankind toward progress and civilization.” By writing as such, Loewenstein is couching
his analysis. For those who believe that democracy is the next step in mankind’s march of
progress, fascism is a threat; but this belief is neither universally held nor necessarily correct.
Importantly, in this first section, and in line with the title of the article, Loewenstein
contrasts democracy and autocracy in general, and places both Russia and Germany, despite their
opposing worldviews, within the autocratic category. Lowenstein acknowledges this relationship
early on, pointing out that his use of autocracy as a descriptive term “embraces not only the
fascist variety as presented by Italy and Germany, but also the communistic form of dictatorship
in Russia.” This distinction is significant, as for the majority of his following articles, and, in
fact, most of “Autocracy Versus Democracy,” he almost exclusively discusses the prospect of the
continued spread of fascism, ignoring the obvious parallels between Russia and Germany, and
the crimes of Stalin and Hitler.
**
After briefly outlining the historical background of fascism, Loewenstein begins his
analysis of the odds of the remaining democratic European nations for becoming fascist.
Loewenstein first attempts to “distinguish between the general tendencies of the replacement of
democratic by autocratic rule and the specific conditions arising from the economic and political
situation of a given country.” Loewenstein here is presenting the adoption of fascism as the
consequence of two diverse factors: those that are general and exist regardless of particular
circumstance, and those that are the direct result of the Great Depression and economic unrest.
In general, much of fascism’s appeal comes from fulfilling what Loewenstein terms “the
missionary spirit,” or the “individual’s obsession by belief in the absolute and indisputable value
of his own devotion to a new basic principle of life,” which causes him to preach this ideology at
every turn. The proponents of this new ideology act as missionaries, spreading the doctrine of
fascism like a religion. This spread is further facilitated by local concepts of nationalism and
regionalism, as within these beliefs fascism can be seen as a unifying ideology to help reunite
populations that have been previously separated.
As to the particular, the appeal of fascism reflects the generally held belief that economic
change requires a change in government. For populaces suffering under the spreading worldwide
Great Depression, “national economic autarchy has become the catchword of the day,” which
can only be achieved by an active government that interferes with the economy. This, in turn,
necessitates an organized, centralized authority unfetered by private interests, and logically, the
concentration of “political power in the hands of a government strong enough to cope with the
obstacles during the transition period [from unplanned to planned economy].” Facing this crisis,
“dictation from above becomes necessary, even where the spirit of the nation abhors compulsory
methods of suppression of free institutions.” Thus, fascism is seen as the solution to economic
depression, and the poorer the economic situation in a particular nation, the greater the prospects
for this nation adopting fascism.
Beyond the two different motivations leading to the support of fascism, democracy in
Europe is further threatened by the “facilities afforded by the fascist technique,” namely the
encouragement of apathy and silence, which causes citizens who recognize the threat to do
nothing. This encouragement in many way stems from what Lowenstein describes as the
“science” of introducing fascism into a democratic state, which is a “typical procedure applicable
to almost any state under the rule of democracy.” To Loewenstein, this science is a
“rationalized and pre-calculated routine progressing, step by step, on the basis of experience and
precedent,” and is aided by democracy itself. Although not fully explained, what Loewenstein is
claiming is that the institutions of democracy provide fascism with the tools needed for the
destruction of the existing government.
This passage is, for several reasons, one of the most important of the article.
Loewenstein’s description of the way in which fascism actually utilizes the democratic process to
destroy democracy itself is important. While he is by no means the first scholar to highlight the
problems of relying on democratic ideals alone to protect the democratic state, he is one of the
first to propose the solution that is first alluded to in “Autocracy Versus Democracy.” This
passage is the beginning of what eventually will evolve in later articles into his theory of militant
democracy. As he succinctly summarizes, in many fascist states, “the democratic constitution
became the main obstacle against [the state’s] maintenance and the best tool for its destruction.”
According to Loewenstein, this phenomenon can be readily observed in the
circumstances surrounding Hitler’s rise to power in Germany. While much of Hitler’s appeal
came from his ability to tap into the public’s anger with the Treaty of Versailles and the other
Western powers, he would have never been able to assume power (or even rise beyond a petty
demagogue) without being enabled by the “generous and lenient Weimar republic,” which
fashioned the mechanisms for its own doom by allowing “the existence of a resolute competition
to the legal authority of the state.” For Loewenstein, the Weimar government was destined to
failure “from the beginning... because it was pacifist instead of militant.” Here, again, the seeds
(and even language) of his later writings can be observed, and by providing concrete evidence of
the validity of his analysis, Loewenstein makes the threat posed by fascism to democracies seem
all the more acute. If democratic governments wait until the fascists have begun to implement
their scientific process, it is too late. The defensive measures must be undertaken proactively, and
long before the fascist party prepares to assume power.
After reviewing the actual process by which a fascist government subverts a democratic
state, Loewenstein begins his specific examination of the prospects of each remaining democratic
nation for becoming fascist in “Autocracy Versus Democracy in Central Europe, II,” again
published in in the American Political Science Review in 1935. For the purposes of this thesis,
the importance of these predictions lies in what they reveal about Loewenstein’s understanding
of fascism and his worldview in 1935, and not in their eventual accuracy, as eerily prescient as
they may be. Much of Loewenstein’s analysis here rests on his contention that, beyond economic
prosperity, the single most important factor in determining a nation’s ability to
For many of these dismissed university professors, leaving Germany was the best option, and
aided by newly formed international rescue committees, over 50% of those who lost their jobs in
1933 – 650 total – immigrated from Germany. By the end of the 1930s this number had risen to
over 1,700, and, including doctors, lawyers, artists and writers, to over 12,000. While initially
most of these émigrés chose to remain in Europe to stay closer to Germany, faced with Hitler’s
march across Europe, as well as the difficulty of “shedding one’s status as an alien in Europe,”
ever growing numbers of intellectuals chose to leave Europe for America, until by the start of
World War II by far the largest proportion of German émigrés had found residence in the United
States. In America, these intellectuals saw President Franklin D. Roosevelt, and especially his
New Deal, as the heir to their progressive work during the failed Weimar Republic, and
appreciated the ease with which they, as immigrants in a country full of immigrants, could blend
into society at large, making “the process of reintegration exceedingly simple.”
Despite this openness, the path of the German Jewish immigrant was fraught with
difficulties. These scholars were forced to compete for scarce permanent teaching positions at
xenophobic and anti-Semitic American universities that regarded them with suspicion. It was
only after American universities realized the positive benefit German faculty members had on the
academic quality of departments that a larger number of teaching positions became available, and
American institutions became more willing to hire Germans. Even after securing teaching
positions, these intellectuals still had to cope with the psychological consequences of their
sudden dismissals and forced immigrations, and watch as Hitler and Nazi Germany successfully
conquered much of Europe, spreading fascism across the European continent throughout the
1930s and 1940s.
Such experiences profoundly altered the worldview of some of these émigrés, causing
them to both reassess their academic work, as well as look at the world through new, pessimistic
eyes. This thesis tells the story of two of Jewish German émigré intellectuals, Karl Loewenstein
(1891–1973) and John H. Herz (1908-2005), and how they responded, through their work, to
their immigrant experience and the dilemma to democracy presented by fascism’s widespread
success. While both are ancillary figures in the greater history of the émigrés, their work – and
especially Loewenstein’s – showcase how scholars attempted to understand the new world they
found themselves a part of, as well as to protect the nation that had become their home and
represented the last bastion of democracy and free thought.
After his immigration to the United States in 1933, Loewenstein began to research the
ways in which democracies could defend themselves from fascism. Faced with the apparent
prospect of an endless, creeping tide of fascism, spreading across the globe and consuming
democratic nations from within, he argued for the adoption of militant democracy, or the idea
that democracies must proactively defend themselves against internal fascist threats. According
to Loewenstein, fascists were able to abuse the fundamental rights granted to them by democratic
constitutions – namely freedom of speech, press and assembly, and equal participation in the
electoral process – to destroy democracy from within. The key to defending democracy and
defeating fascists was to deny them these fundamental rights through temporary restrictive
legislation. Loewenstein presented this idea in four academic articles published in 1935 and
1937.
Confronted with the success of Hitler and Germany throughout the 1930s, Loewenstein
continued to develop his theory of militant democracy, and by 1938 had come to believe that
beyond temporary legislation, it was necessary for democracies to transform their legislative and
executive branches into smaller, more responsive bodies better able to cope with emergent
situations and the speed of the modern state. Key to understanding this evolution is
Loewenstein’s growing pessimism towards the future prospects of democracy, rooted in his
forced immigration from Germany, as well as his mounting anxiety about fascism. In 1935 and
1937 he still approached the conflict between democracy and fascism as an objective academic,
but by 1938 he became increasingly personally involved with the defense of democracy, arguing
urgently for the quick adoption of militant democracy in the United States in order to protect
America from the dire fascist threat.
This personal involvement manifested itself in an extensive campaign of public advocacy
for the passage of restrictive legislation in the United States. While he never revealed his entire
theory (especially his belief in the necessity to transform the American system), from 1938 until
1947 Loewenstein attempted, through book reviews, speeches and a pamphlet, to convince the
public of the necessity of restricting the right of fascists, as well as of the threat posed to
America by a hidden Fifth Column of fascist and fascist sympathizers poised to aid Hitler in
destroying the United States. This campaign took on a particular urgency in the aftermath of the
surprising and rapid defeat of France in 1940. Following this defeat, Loewenstein attempted to
do whatever he could to convince the general public of the urgent need to use militant democracy
in America, including presenting himself as a defender of traditional Anglo-Saxon Christian
American society, despite his nationality and ethnic heritage.
Following the attack on Pearl Harbor and the American entrance into the war,
Loewenstein, like many other German émigrés, joined the American government, eventually
assisting in denazification by interviewing Nazis as part of the Nuremburg prosecution. Even
after the final defeat of Hitler, Loewenstein’s advocacy for militant democracy continued, and he
remained pessimistic and anxious about fascism. He was publicly critical of denazification,
believing that the German citizenry were unrepentant, and that the American failure to effectively
root out and punish Nazis had set the stage for the reemergence of fascist Germany and the
continuation of the threat to the United States and democracy. During this period, Loewenstein’s
understanding of militant democracy continued to evolve as well, until, by 1944, he had come to
believe that it was impossible for democracies and fascist states to coexist.
Unfortunately, Loewenstein’s pessimism, his particular views on fascism, his public
campaign of advocacy for militant democracy and even the evolutions of this theory throughout
the 1930s and early 1940s are entirely missing from the historiography. Over the past two
decades, as scholars have confronted issues of domestic terrorism, human rights reforms and
sovereignty in the wake of the Cold War, they have returned to the idea of militant democracy as
a starting point for their research. As part of this research, Loewenstein has a newfound relevance
among political scientists, especially when examining democratic responses to national threats.
Little research has been done into Loewenstein for Loewenstein’s own sake. Virtually
every scholar writing about him does so in the context of another event, and their work gives the
impression that Loewenstein’s theory of militant democracy simply appeared in 1937, fully
formed, and remained static over the next decade. The best examination of Loewenstein’s life
and work to date is Markus Lang’s biography of Loewenstein, Karl Loewenstein:
Transatlantischer Denker der Politik, published in 2007 and based on Lang’s earlier dissertation.
However, even Lang’s biography is deficient, devoting only fifteen pages to Loewenstein’s work
on militant democracy, with no mention, beyond a single footnote, of Loewenstein’s campaign of
public advocacy for adoption of militant democracy in the United States. Instead, Lang opts to
focus on Loewenstein’s role in the development of political science as a field, and seeks to
integrate Loewenstein into the growing category of émigré transatlantic intellectuals who, by
leaving Germany, offered an implicit critique of the Nazi regime. Lang reiterated this approach
in a chapter on Loewenstein, “Karl Loewenstein: From Public Law to Political Science,” as part
of German Scholars in Exile: New Studies in Intellectual History, published in 2011.
The majority of works on Loewenstein and militant democracy, on the other hand, use
Loewenstein’s theories as part of a commentary on a present day dilemma – for example
terrorism – and devote little more than a footnote to Loewenstein or his work. There is no hint of
Loewenstein’s public advocacy for militant democracy, or of any evolution within his theory
throughout the 1930s and early 1940s. Typical of this category of works is a recent dissertation
on Loewenstein, “Militant Democracy,” by Svetlana Tyulkina, finished in 2011. While Tyulkina
does an excellent job of tracing the influence of Loewenstein’s work in the modern world, as
well as highlighting examples of legislation and constitutional amendments today that are
examples of militant democracy, she spends no time exploring the development of the theory, or
the greater intellectual context within which Loewenstein worked. Martin Klamt follows a
similar approach in his chapter, “Militant Democracy and the Democratic Dilemma: Different
Ways of Protecting Democratic Constitutions,” in Explorations in Legal Culture, published in
2007.
The only mention of Loewenstein’s public campaign for militant democracy is found not
in a work within the Loewenstein historiography, but rather in an article about the German Jurist
Carl Schmitt’s interrogations as part of the Nuremburg Trials. Loewenstein, in his capacity as an
officer with the U.S. Military Government in Berlin (1945-1947), pressed American officials to
arrest Schmitt. While describing Loewenstein and Schmitt, Joseph W. Bendersky references a
letter to the editors of The New York Times written by Loewenstein that was highly critical of
denazification.18 This letter, along with others composed by him on the same subject, were part
of Loewenstein’s post-war campaign for the application of militant democracy in defeated
Germany. Beyond this reference, as well as the one found in Lang’s biography, no other
references to Loewenstein’s public statements exist.
**
Like Karl Loewenstein, John H. Herz’s immigration from Germany left him sharply
pessimistic. After arriving in America in 1938, while studying at Princeton, he began to
investigate the way in which international relations functioned, and how and why states came
into conflict with one another. Like Loewenstein, Herz joined the American government during
the war to help combat Nazism, and after the war was highly critical of denazification. During
this period, Herz concluded that man was inherently concerned with his personal security, and
that the knowledge that other men held the potential to kill him led to a state of constant,
potential violence, regardless of actual intent. Relations between nations were this
anthropological state, termed the security dilemma, writ large. Despite his pessimistic
anthropological view, Herz believed that, through a combination of measured realism and
idealism known as Liberal Realism, a peaceful world system could be achieved. Thus man,
cognizant of his nature, could overcome his native state and work towards a peaceful future.
While Herz acknowledged this future was unlikely to come to pass, his theory still held
the possibility for a world in which nations, independent of their political ideology, by pursuing
Liberal Realism, could peacefully coexist. Written in the years before World War II and the
beginning of the Cold War in the late 1940s, Herz’s theory was fundamentally concerned with
describing a world in which nations of competing ideological orientations, in particular
18 Joseph W. Bendersky, “Carl Schmitt’s Path to Nuremburg: A Sixty-Year Assesment,” TELOS 139 (2007):
21.
democracy and communism, could avoid destructive war. This potential for peace represents a
working out of Herz’s pessimism, despite his biography and worldview, and, in contrast with
Loewenstein, shows how unusual Loewenstein’s particular solution to the conflict between
fascism and democracy was.
Compared to Loewenstein, the Herz historiography is considerably smaller, arising only
in the past ten years, and focuses on Herz’s role in the development of international relations as a
field, and his participation in the wider community of such scholars in the post-War world. As
yet, no scholar has compared Herz to other émigré intellectuals, or explored the relationship
between his theories and Loewenstein’s militant democracy. Today, the leading academics
working on Herz are Peter Stirk, Jana Puglierin, Christian Hacke and Ken Booth. Puglierin has
written the only contemporary monograph on Herz, John H. Herz: Leben und Denken zwischen
Idealismus und Realismus, Deutschland und Amerika, published in German in 2011 and
developed from an earlier dissertation. Puglierin also helped edit a 2007 issue of International
Relations (a publication that Herz contributed to throughout his life) devoted to Herz’s work. In
this issue she, along with Hacke, contributed two articles on Herz’s life and work, “John H.
Herz: Balancing Utopia and Reality,” and “Toward Being a ‘Traveller Between All Worlds’.”
Along with Hacke and Puglierin, Ken Booth has written on Herz’s Political Realism and
Political Idealism in “Navigating the ‘Absolute Novum’: John H. Herz’s Political Realism and
Political Idealism.”
Peter Stirk also contributed to the Herz issue of International Relations. In “John H. Herz
and the International Law of the Third Reich,” he explores Herz’s conception of Nazi
international law and his work on this subject. Stirk also mentions Herz in a work on Carl
Schmitt, Carl Schmitt, Crown Jurist of the Third Reich: On Preemptive War, Military
Occupation, and World Empire, presenting Herz’s understanding of international relations as an
alternative to Schmitt’s.19 Looking forward, with the recent release of Herz’s papers, catalogued
at the University at Albany as part of their Jewish immigrants collection, it is likely that more
works devoted to his life and theories will be forthcoming.20
**
The story of Loewenstein and Herz is, fundamentally, a story of their pessimism, and
how this pessimism manifested itself in both their academic work and public discourse. Chapter
one provides a detailed analysis of Loewenstein’s academic work on militant democracy,
beginning in 1935 and ending in 1938. In this work, the evolution of militant democracy can be
first observed, as well as Loewenstein’s growing concern with fascism and the threat posed by
fascists to the United States. The second chapter explores Loewenstein’s public advocacy for the
adoption of antifascist legislation in the United States, beginning in 1938 and concluding with
his critique of denazification following his departure from government service in 1947.
Throughout this period, despite the defeat of Hitler by the Allies in 1945, Loewenstein remained
acutely anxious about fascism, and had little hope for the future of democracy. Chapter
23 Peter M. R. Stirk, Carl Schmitt, Crown Jurist of the Third Reich: On Preemptive War, Military Occupation,
and World Empire (London: Edwin Mellon Press, 2005).
24 Herz and Loewenstein were by no means the only scholars of international conflict working during this
period. Among many others, Carl Schmitt and Hans J. Morgenthau deserve particular mention. Schmitt, who stayed
behind in Germany and briefly joined the Nazi regime until he fell afoul of the SS in 1936, described the ‘equal
chance,’ an important theory to be aware of when reading Loewenstein, in his 1932 work Legality and Legitimacy.
See Carl Schmitt, Legality and Legitimacy, trans. Jeffrey Seitzer (Durham: Duke University Press, 2004): 28-33. For
secondary literature on Schmitt, see William E. Scheuerman, Carl Schmitt: The End of Law (London: Rowman &
Littlefield, 1999); Joseph W. Bendersky, Carl Schmitt, Theorist for the Reich (Princeton: Princeton University Press,
1983); Michael G. Satler, Carl Schmitt: Law as Politics, Ideology and Strategic Myth (New York, Routledge, 2012);
Benno Gerhard Teschke, “Fatal Attraction: A Critique of Carl Schmitt’s International Political and Legal Theory,”
International Theory 3 (2011): 179-227. Morgenthau, another German Jewish émigré, had a similar understanding
of anthropology and international relations to Herz, but believed that, based on man’s inherently violent nature, a
peaceful world order free of war was impossible, and that international relations would be inevitably plagued by
conflict and confrontation. See Hans J. Morgenthau, Scientific Man Versus Power Politics (Chicago: University of
Chicago Press, 1946); Hans J. Morgenthau, Politics Among Nations: The Struggle for Power and Peace (New York:
Alfred A. Knopf, 1948); Hans J. Morgenthau, In Defense of the National Interest (New York: Alfred Knopf, 1951).
For secondary literature on Morgenthau, see see William E. Scheuermann, Morgenthau (New York: Polity, 2008);
Michaela Neacsu, Hans J. Morgenthau’s Theory of International Relations: Disenchantment and Re-Enchantment
(New York: Palgrave Macmillian, 2010); Michael C. Williams, Realism Reconsidered: The Legacy of Hans
Morgenthau in International Relations (Oxford: Oxford University Press, 2007).
three moves beyond Loewenstein, focusing instead on Herz, and examines the relationship
between the two scholars, and how Herz, despite his similar biography and worldview,
developed a markedly different solution to the dilemma facing democracy. Finally, the
conclusion reflects on the position of militant democracy today, and how Loewenstein and
Herz’s worldviews evolved in the decades following World War II. While Herz remained
optimistic, Loewenstein, despite the emergence of a democratic Germany, remained pessimistic
until the end of his days.
Chapter One
The Academic: Karl Loewenstein and the Development
of Militant Democracy
“If democracy is convinced that it has not yet fulfilled its
destination, it must fight on its own plane a technique
which serves only the purpose of power. Democracy must become
militant.”
Karl Loewenstein was born in Munich, Germany in 1891 to a family of wealthy Jewish
Bavarian industrialists, and traveled extensively during his childhood, including time spent living
in England and South America. After several years at universities in Munich, Heidelberg – where
he studied under Max Weber – Paris and Berlin, he received a law degree in 1914. During World
War I he spent 1915 serving with the German infantry, and was admitted into the
German bar in 1918. A year later Loewenstein received his doctorate in civil and ecclesiastical
law at Munich. After practicing law throughout the 1920s in and around Munich, Loewenstein
entered academia and became a lecturer at the University of Munich School of Law in 1931. He
was forced to resign this position in 1933 as a consequence of the Nazi’s efforts to purge
nonAryans from public service, and shortly thereafter left Germany for the United States. While
in
America, with the help of the Emergency Committee in Aid of Displaced German Scholars,
Loewenstein secured a two-year teaching position at Yale University in 1935, and in 1936
accepted a permanent position teaching political science at Amherst College.
**
During this period, shortly after immigrating to the United States, Karl Loewenstein
began writing academic articles about the spread of fascism, and, in particular, what steps the
remaining western democracies should undertake to protect themselves from internal fascists
threats. These articles provide much of the basis for the future importance of Loewenstein’s
work, and show a clear progression of thought that mirrors European political developments
throughout the 1930s. In the first of these articles, “Autocracy Versus Democracy in
Contemporary Europe I and II,” published in The American Political Science Review in 1935,
Loewenstein examines the political makeup of Europe, as well as the prospect of the remaining
democratic nations of succumbing to internal fascist movements. Within this analysis, he first
describes what he later terms militant democracy, the idea that democratic nations must
proactively defend themselves against fascism, as fascists are all too capable of utilizing
democratic principles to enable their ascent to power. No longer are these principles alone
sufficient to protect the state – rather, these principles, and in particular the democratic belief in
fundamental rights, in many ways enable the fascists to succeed.
Loewenstein continued his inquiry into the conflict between democracy and fascism in a
pair of 1937 articles, “Militant Democracy and Fundamental Rights I and II,” again published in
The American Political Science Review. These two articles continue his examination of fascism,
while investigating the similarities between European fascists movements, and the steps these
movements undertook to transition from the political fringe to the sole governmental authority
within a state. Loewenstein also continues to outline possible steps that democratic nations must
take to resist the spread of fascism, including what antifascist legislation has already been
enacted by democratic states, and how these laws, which are examples of militant democracy in
action, work to protect the democratic state.
Although much of the content of this article is similar to the earlier “Autocracy Versus
Democracy I and II,” Loewenstein’s tone throughout is noticeably more alarmist. As he has
witnessed the progressive spread and success of fascism throughout Europe, his hope for the
continued existence of democratic states has waned. Further, the steps outlined by Loewenstein
in “Militant Democracy” are a temporary abandonment of many of the principles and rights held
most dear to democratic nations – an abandonment, that, in Loewenstein’s eyes, is necessary for
the defense of democracy in the long term. This abandonment, forced upon democratic nations
by the unique nature of the fascist threat, is one of the most fascinating elements of
Loewenstein’s work during this period, and reflects both his pessimism – rooted in his recent in
his recent immigration – as well as his growing anxiety about fascism.
Loewenstein continues this argument in his next pair of articles, “Legislative Control of
Extremism in European Democracies I and II,” published in Columbia Law Review in 1938.
Similar to “Militant Democracy,” in these articles Loewenstein surveys existing anti-fascist
legislation, and, in technical legal language appropriate for a law journal, analyzes the way in
which these laws effectively deprive fascist groups of the tools necessary to seize power from the
existing democratic system. Even when writing in such a legalistic context, Loewenstein cannot
help but reaffirm the pessimistic way in which he views the prospects of the democratic states, as
well as reveal his continued anxiety about the threat posed by fascism to the west. Even here he
presents the conflict between fascism and democracy as a war, arguing that everything possible
must be done to protect democratic institutions, no matter the cost.
Loewenstein published another article in 1938 on militant democracy, “The Balance of
Legislative and Executive Power: A Study in Comparative Constitutional Law,” in The
University of Chicago Law Review. Importantly, in this article, Loewenstein expands on his
original theory of militant democracy, and argues for the necessity of implementing fundamental
changes to the political process of the United States in order create a smaller and more
responsive legislature better able to cope with the demands of a modern state, along with a more
powerful, active executive. Unlike the temporary antifascist legislation, these proposed changes
would be permanent, and represent a radicalization of Loewenstein’s thought, as well as the
evolution of a second level to his theory of militant democracy, encompassing both temporary
and permanent measures.
Examining Loewenstein’s articles during this period reveals the growing alarm with
which Loewenstein describes the spread of fascism, transforming the dry, academic examination
of fascism as a new political movement in 1935 into the panic of the late 1930s. Loewenstein
believed that if radical steps were not taken, then the remaining democratic nations, including the
United States, would fall to internal subversive fascist elements. This mounting anxiety reveals a
fundamental change in Loewenstein’s outlook. He became, like so many other Jewish
intellectuals who were forced to flee Germany after the Nazi Party seized power in 1933, a
pessimist. He was no longer content to simply hope that democratic principles, human nature and
inevitable progress were safeguards against the darker forces of humanity embodied by fascism.
Instead, democratic nations must participate in an active fight against fascism, taking whatever
steps are necessary in order to prevent their internal destruction at the hands of fascist agitators.
**
Loewenstein’s first examination of fascism and the prospects of its further spread
throughout Europe can be found in “Autocracy Versus Democracy in Cotemporary Europe I and
II,” published in 1935. These articles are the beginning of a new era in Loewenstein’s research
and writing. The tone that Loewenstein takes throughout these article – that of an objective
academic investigating a new political development – and the way he describes fascism are
significant, and stand in contrast to his later works, where his personal involvement in the
protection of democracy and his anxiety are much clearer. Beyond showing the development of
his theory of militant democracy, “Autocracy Versus Democracy I and II” show the beginning of
Loewenstein’s transformation from academic to advocate.
Loewenstein’s work here is a reflection of the political climate of Europe in the early to
mid 1930s. Between 1933, when Loewenstein fled from Germany, and 1935, when he published
“Autocracy Versus Democracy I and II,” Germany had reemerged as one of the Great Powers on
the European continent, while the European democracies, suffering through the Great
Depression, became increasingly unstable. Hitler, by pursuing an aggressive foreign policy that
took advantage of the worsening relationship between England and France, was able to press
Germany’s diplomatic position, forcing concessions from England and France on provisions
from the Treaty of Versailles. Simultaneously, while fascist Germany prospered, the political
power of France waned. Beset by serious internal strife and economic turmoil, French politics
throughout the 1930s was increasingly dominated by the radicalized elements of the far left and
far right, with the possibility of outright revolution by either group festering just below the
surface.
The position of the smaller democratic powers in Europe was particularly treacherous.
Faced with the decline of France and the reemergence of Germany, these small powers –
including Czechoslovakia, Belgium, Poland and the Baltic States – were forced to contend with
an evolving international political landscape as well as internal unrest at the hands of the
unemployed and dissatisfied who looked to Germany and Russia for an example of the proper
response to the Depression. Read within the context of the unstable political landscape,
Loewenstein’s analysis becomes more meaningful, as well as a clear response to the new reality
of European politics in 1935.
Loewenstein begins by summarizing the “political scene of contemporary Europe,”
pointing out that the European states, “are aligned in two fundamentally antagonistic camps,”
democracy and liberalism, and autocracy. Loewenstein believes that Great Britain, the Irish Free
State, France, Belgium, the Netherlands, Sweden, Norway, Denmark, Finland, Switzerland and
Czechoslovakia fall into the former category, while Russia, Turkey, Germany, Italy, Portugal,
Austria, Poland, Yugoslavia, Bulgaria, Rumania, Hungary, Estonia and Latvia compromise the
latter. According to Loewenstein, in 1935 “by far the greater part of European territory and of
European population is under dictatorial rule of one type or another,” and, facing this reality, it is
necessary to examine the prospects of the remaining democratic nations for becoming autocratic
dictatorships.
Before undertaking this examination, Loewenstein briefly reviews the political history of
democratic and autocratic forms of government, taking pains to point out that “the rationalization
of government by the devices of free self-expression called democracy is a comparatively new
phenomenon,” and that for the large part of human history man has lived under autocratic
systems. Beyond the accuracy of this assertion, which functions to dispel much of the surprise
surrounding the spread of dictatorships, as in many ways this spread can be seen as simply
reverting to the mean, Loewenstein’s comments here do much to reveal the tone he takes
throughout the article. At this stage Loewenstein is still attempting to approach his subject with
an element of academic objectivity and distance. It is unclear at this point how he personally
feels about autocracy, and in particular fascism, and what greater meaning he attaches to the
prospect of the further spread of autocracy throughout the remaining democratic European
nations. This attempt at objectivity is further evident in Loewenstein’s acknowledgement of the
unique nature of this spread of autocratic governments. While “to the observer of history,” the
reemergence of “Caesarism” is not surprising, the speed by which “the new dictatorial wave” has
spread is unique, and prompts “deep concern to everybody who values democracy as a higher
step of mankind toward progress and civilization.” By writing as such, Loewenstein is couching
his analysis. For those who believe that democracy is the next step in mankind’s march of
progress, fascism is a threat; but this belief is neither universally held nor necessarily correct.
Importantly, in this first section, and in line with the title of the article, Loewenstein
contrasts democracy and autocracy in general, and places both Russia and Germany, despite their
opposing worldviews, within the autocratic category. Lowenstein acknowledges this relationship
early on, pointing out that his use of autocracy as a descriptive term “embraces not only the
fascist variety as presented by Italy and Germany, but also the communistic form of dictatorship
in Russia.” This distinction is significant, as for the majority of his following articles, and, in
fact, most of “Autocracy Versus Democracy,” he almost exclusively discusses the prospect of the
continued spread of fascism, ignoring the obvious parallels between Russia and Germany, and
the crimes of Stalin and Hitler.
**
After briefly outlining the historical background of fascism, Loewenstein begins his
analysis of the odds of the remaining democratic European nations for becoming fascist.
Loewenstein first attempts to “distinguish between the general tendencies of the replacement of
democratic by autocratic rule and the specific conditions arising from the economic and political
situation of a given country.” Loewenstein here is presenting the adoption of fascism as the
consequence of two diverse factors: those that are general and exist regardless of particular
circumstance, and those that are the direct result of the Great Depression and economic unrest.
In general, much of fascism’s appeal comes from fulfilling what Loewenstein terms “the
missionary spirit,” or the “individual’s obsession by belief in the absolute and indisputable value
of his own devotion to a new basic principle of life,” which causes him to preach this ideology at
every turn. The proponents of this new ideology act as missionaries, spreading the doctrine of
fascism like a religion. This spread is further facilitated by local concepts of nationalism and
regionalism, as within these beliefs fascism can be seen as a unifying ideology to help reunite
populations that have been previously separated.
As to the particular, the appeal of fascism reflects the generally held belief that economic
change requires a change in government. For populaces suffering under the spreading worldwide
Great Depression, “national economic autarchy has become the catchword of the day,” which
can only be achieved by an active government that interferes with the economy. This, in turn,
necessitates an organized, centralized authority unfetered by private interests, and logically, the
concentration of “political power in the hands of a government strong enough to cope with the
obstacles during the transition period [from unplanned to planned economy].” Facing this crisis,
“dictation from above becomes necessary, even where the spirit of the nation abhors compulsory
methods of suppression of free institutions.” Thus, fascism is seen as the solution to economic
depression, and the poorer the economic situation in a particular nation, the greater the prospects
for this nation adopting fascism.
Beyond the two different motivations leading to the support of fascism, democracy in
Europe is further threatened by the “facilities afforded by the fascist technique,” namely the
encouragement of apathy and silence, which causes citizens who recognize the threat to do
nothing. This encouragement in many way stems from what Lowenstein describes as the
“science” of introducing fascism into a democratic state, which is a “typical procedure applicable
to almost any state under the rule of democracy.” To Loewenstein, this science is a
“rationalized and pre-calculated routine progressing, step by step, on the basis of experience and
precedent,” and is aided by democracy itself. Although not fully explained, what Loewenstein is
claiming is that the institutions of democracy provide fascism with the tools needed for the
destruction of the existing government.
This passage is, for several reasons, one of the most important of the article.
Loewenstein’s description of the way in which fascism actually utilizes the democratic process to
destroy democracy itself is important. While he is by no means the first scholar to highlight the
problems of relying on democratic ideals alone to protect the democratic state, he is one of the
first to propose the solution that is first alluded to in “Autocracy Versus Democracy.” This
passage is the beginning of what eventually will evolve in later articles into his theory of militant
democracy. As he succinctly summarizes, in many fascist states, “the democratic constitution
became the main obstacle against [the state’s] maintenance and the best tool for its destruction.”
According to Loewenstein, this phenomenon can be readily observed in the
circumstances surrounding Hitler’s rise to power in Germany. While much of Hitler’s appeal
came from his ability to tap into the public’s anger with the Treaty of Versailles and the other
Western powers, he would have never been able to assume power (or even rise beyond a petty
demagogue) without being enabled by the “generous and lenient Weimar republic,” which
fashioned the mechanisms for its own doom by allowing “the existence of a resolute competition
to the legal authority of the state.” For Loewenstein, the Weimar government was destined to
failure “from the beginning... because it was pacifist instead of militant.” Here, again, the seeds
(and even language) of his later writings can be observed, and by providing concrete evidence of
the validity of his analysis, Loewenstein makes the threat posed by fascism to democracies seem
all the more acute. If democratic governments wait until the fascists have begun to implement
their scientific process, it is too late. The defensive measures must be undertaken proactively, and
long before the fascist party prepares to assume power.
After reviewing the actual process by which a fascist government subverts a democratic
state, Loewenstein begins his specific examination of the prospects of each remaining democratic
nation for becoming fascist in “Autocracy Versus Democracy in Central Europe, II,” again
published in in the American Political Science Review in 1935. For the purposes of this thesis,
the importance of these predictions lies in what they reveal about Loewenstein’s understanding
of fascism and his worldview in 1935, and not in their eventual accuracy, as eerily prescient as
they may be. Much of Loewenstein’s analysis here rests on his contention that, beyond economic
prosperity, the single most important factor in determining a nation’s ability to
For many of these dismissed university professors, leaving Germany was the best option, and
aided by newly formed international rescue committees, over 50% of those who lost their jobs in
1933 – 650 total – immigrated from Germany. By the end of the 1930s this number had risen to
over 1,700, and, including doctors, lawyers, artists and writers, to over 12,000. While initially
most of these émigrés chose to remain in Europe to stay closer to Germany, faced with Hitler’s
march across Europe, as well as the difficulty of “shedding one’s status as an alien in Europe,”
ever growing numbers of intellectuals chose to leave Europe for America, until by the start of
World War II by far the largest proportion of German émigrés had found residence in the United
States. In America, these intellectuals saw President Franklin D. Roosevelt, and especially his
New Deal, as the heir to their progressive work during the failed Weimar Republic, and
appreciated the ease with which they, as immigrants in a country full of immigrants, could blend
into society at large, making “the process of reintegration exceedingly simple.”
Despite this openness, the path of the German Jewish immigrant was fraught with
difficulties. These scholars were forced to compete for scarce permanent teaching positions at
xenophobic and anti-Semitic American universities that regarded them with suspicion. It was
only after American universities realized the positive benefit German faculty members had on the
academic quality of departments that a larger number of teaching positions became available, and
American institutions became more willing to hire Germans. Even after securing teaching
positions, these intellectuals still had to cope with the psychological consequences of their
sudden dismissals and forced immigrations, and watch as Hitler and Nazi Germany successfully
conquered much of Europe, spreading fascism across the European continent throughout the
1930s and 1940s.
Such experiences profoundly altered the worldview of some of these émigrés, causing
them to both reassess their academic work, as well as look at the world through new, pessimistic
eyes. This thesis tells the story of two of Jewish German émigré intellectuals, Karl Loewenstein
(1891–1973) and John H. Herz (1908-2005), and how they responded, through their work, to
their immigrant experience and the dilemma to democracy presented by fascism’s widespread
success. While both are ancillary figures in the greater history of the émigrés, their work – and
especially Loewenstein’s – showcase how scholars attempted to understand the new world they
found themselves a part of, as well as to protect the nation that had become their home and
represented the last bastion of democracy and free thought.
After his immigration to the United States in 1933, Loewenstein began to research the
ways in which democracies could defend themselves from fascism. Faced with the apparent
prospect of an endless, creeping tide of fascism, spreading across the globe and consuming
democratic nations from within, he argued for the adoption of militant democracy, or the idea
that democracies must proactively defend themselves against internal fascist threats. According
to Loewenstein, fascists were able to abuse the fundamental rights granted to them by democratic
constitutions – namely freedom of speech, press and assembly, and equal participation in the
electoral process – to destroy democracy from within. The key to defending democracy and
defeating fascists was to deny them these fundamental rights through temporary restrictive
legislation. Loewenstein presented this idea in four academic articles published in 1935 and
1937.
Confronted with the success of Hitler and Germany throughout the 1930s, Loewenstein
continued to develop his theory of militant democracy, and by 1938 had come to believe that
beyond temporary legislation, it was necessary for democracies to transform their legislative and
executive branches into smaller, more responsive bodies better able to cope with emergent
situations and the speed of the modern state. Key to understanding this evolution is
Loewenstein’s growing pessimism towards the future prospects of democracy, rooted in his
forced immigration from Germany, as well as his mounting anxiety about fascism. In 1935 and
1937 he still approached the conflict between democracy and fascism as an objective academic,
but by 1938 he became increasingly personally involved with the defense of democracy, arguing
urgently for the quick adoption of militant democracy in the United States in order to protect
America from the dire fascist threat.
This personal involvement manifested itself in an extensive campaign of public advocacy
for the passage of restrictive legislation in the United States. While he never revealed his entire
theory (especially his belief in the necessity to transform the American system), from 1938 until
1947 Loewenstein attempted, through book reviews, speeches and a pamphlet, to convince the
public of the necessity of restricting the right of fascists, as well as of the threat posed to
America by a hidden Fifth Column of fascist and fascist sympathizers poised to aid Hitler in
destroying the United States. This campaign took on a particular urgency in the aftermath of the
surprising and rapid defeat of France in 1940. Following this defeat, Loewenstein attempted to
do whatever he could to convince the general public of the urgent need to use militant democracy
in America, including presenting himself as a defender of traditional Anglo-Saxon Christian
American society, despite his nationality and ethnic heritage.
Following the attack on Pearl Harbor and the American entrance into the war,
Loewenstein, like many other German émigrés, joined the American government, eventually
assisting in denazification by interviewing Nazis as part of the Nuremburg prosecution. Even
after the final defeat of Hitler, Loewenstein’s advocacy for militant democracy continued, and he
remained pessimistic and anxious about fascism. He was publicly critical of denazification,
believing that the German citizenry were unrepentant, and that the American failure to effectively
root out and punish Nazis had set the stage for the reemergence of fascist Germany and the
continuation of the threat to the United States and democracy. During this period, Loewenstein’s
understanding of militant democracy continued to evolve as well, until, by 1944, he had come to
believe that it was impossible for democracies and fascist states to coexist.
Unfortunately, Loewenstein’s pessimism, his particular views on fascism, his public
campaign of advocacy for militant democracy and even the evolutions of this theory throughout
the 1930s and early 1940s are entirely missing from the historiography. Over the past two
decades, as scholars have confronted issues of domestic terrorism, human rights reforms and
sovereignty in the wake of the Cold War, they have returned to the idea of militant democracy as
a starting point for their research. As part of this research, Loewenstein has a newfound relevance
among political scientists, especially when examining democratic responses to national threats.
Little research has been done into Loewenstein for Loewenstein’s own sake. Virtually
every scholar writing about him does so in the context of another event, and their work gives the
impression that Loewenstein’s theory of militant democracy simply appeared in 1937, fully
formed, and remained static over the next decade. The best examination of Loewenstein’s life
and work to date is Markus Lang’s biography of Loewenstein, Karl Loewenstein:
Transatlantischer Denker der Politik, published in 2007 and based on Lang’s earlier dissertation.
However, even Lang’s biography is deficient, devoting only fifteen pages to Loewenstein’s work
on militant democracy, with no mention, beyond a single footnote, of Loewenstein’s campaign of
public advocacy for adoption of militant democracy in the United States. Instead, Lang opts to
focus on Loewenstein’s role in the development of political science as a field, and seeks to
integrate Loewenstein into the growing category of émigré transatlantic intellectuals who, by
leaving Germany, offered an implicit critique of the Nazi regime. Lang reiterated this approach
in a chapter on Loewenstein, “Karl Loewenstein: From Public Law to Political Science,” as part
of German Scholars in Exile: New Studies in Intellectual History, published in 2011.
The majority of works on Loewenstein and militant democracy, on the other hand, use
Loewenstein’s theories as part of a commentary on a present day dilemma – for example
terrorism – and devote little more than a footnote to Loewenstein or his work. There is no hint of
Loewenstein’s public advocacy for militant democracy, or of any evolution within his theory
throughout the 1930s and early 1940s. Typical of this category of works is a recent dissertation
on Loewenstein, “Militant Democracy,” by Svetlana Tyulkina, finished in 2011. While Tyulkina
does an excellent job of tracing the influence of Loewenstein’s work in the modern world, as
well as highlighting examples of legislation and constitutional amendments today that are
examples of militant democracy, she spends no time exploring the development of the theory, or
the greater intellectual context within which Loewenstein worked. Martin Klamt follows a
similar approach in his chapter, “Militant Democracy and the Democratic Dilemma: Different
Ways of Protecting Democratic Constitutions,” in Explorations in Legal Culture, published in
2007.
The only mention of Loewenstein’s public campaign for militant democracy is found not
in a work within the Loewenstein historiography, but rather in an article about the German Jurist
Carl Schmitt’s interrogations as part of the Nuremburg Trials. Loewenstein, in his capacity as an
officer with the U.S. Military Government in Berlin (1945-1947), pressed American officials to
arrest Schmitt. While describing Loewenstein and Schmitt, Joseph W. Bendersky references a
letter to the editors of The New York Times written by Loewenstein that was highly critical of
denazification.18 This letter, along with others composed by him on the same subject, were part
of Loewenstein’s post-war campaign for the application of militant democracy in defeated
Germany. Beyond this reference, as well as the one found in Lang’s biography, no other
references to Loewenstein’s public statements exist.
**
Like Karl Loewenstein, John H. Herz’s immigration from Germany left him sharply
pessimistic. After arriving in America in 1938, while studying at Princeton, he began to
investigate the way in which international relations functioned, and how and why states came
into conflict with one another. Like Loewenstein, Herz joined the American government during
the war to help combat Nazism, and after the war was highly critical of denazification. During
this period, Herz concluded that man was inherently concerned with his personal security, and
that the knowledge that other men held the potential to kill him led to a state of constant,
potential violence, regardless of actual intent. Relations between nations were this
anthropological state, termed the security dilemma, writ large. Despite his pessimistic
anthropological view, Herz believed that, through a combination of measured realism and
idealism known as Liberal Realism, a peaceful world system could be achieved. Thus man,
cognizant of his nature, could overcome his native state and work towards a peaceful future.
While Herz acknowledged this future was unlikely to come to pass, his theory still held
the possibility for a world in which nations, independent of their political ideology, by pursuing
Liberal Realism, could peacefully coexist. Written in the years before World War II and the
beginning of the Cold War in the late 1940s, Herz’s theory was fundamentally concerned with
describing a world in which nations of competing ideological orientations, in particular
18 Joseph W. Bendersky, “Carl Schmitt’s Path to Nuremburg: A Sixty-Year Assesment,” TELOS 139 (2007):
21.
democracy and communism, could avoid destructive war. This potential for peace represents a
working out of Herz’s pessimism, despite his biography and worldview, and, in contrast with
Loewenstein, shows how unusual Loewenstein’s particular solution to the conflict between
fascism and democracy was.
Compared to Loewenstein, the Herz historiography is considerably smaller, arising only
in the past ten years, and focuses on Herz’s role in the development of international relations as a
field, and his participation in the wider community of such scholars in the post-War world. As
yet, no scholar has compared Herz to other émigré intellectuals, or explored the relationship
between his theories and Loewenstein’s militant democracy. Today, the leading academics
working on Herz are Peter Stirk, Jana Puglierin, Christian Hacke and Ken Booth. Puglierin has
written the only contemporary monograph on Herz, John H. Herz: Leben und Denken zwischen
Idealismus und Realismus, Deutschland und Amerika, published in German in 2011 and
developed from an earlier dissertation. Puglierin also helped edit a 2007 issue of International
Relations (a publication that Herz contributed to throughout his life) devoted to Herz’s work. In
this issue she, along with Hacke, contributed two articles on Herz’s life and work, “John H.
Herz: Balancing Utopia and Reality,” and “Toward Being a ‘Traveller Between All Worlds’.”
Along with Hacke and Puglierin, Ken Booth has written on Herz’s Political Realism and
Political Idealism in “Navigating the ‘Absolute Novum’: John H. Herz’s Political Realism and
Political Idealism.”
Peter Stirk also contributed to the Herz issue of International Relations. In “John H. Herz
and the International Law of the Third Reich,” he explores Herz’s conception of Nazi
international law and his work on this subject. Stirk also mentions Herz in a work on Carl
Schmitt, Carl Schmitt, Crown Jurist of the Third Reich: On Preemptive War, Military
Occupation, and World Empire, presenting Herz’s understanding of international relations as an
alternative to Schmitt’s.19 Looking forward, with the recent release of Herz’s papers, catalogued
at the University at Albany as part of their Jewish immigrants collection, it is likely that more
works devoted to his life and theories will be forthcoming.20
**
The story of Loewenstein and Herz is, fundamentally, a story of their pessimism, and
how this pessimism manifested itself in both their academic work and public discourse. Chapter
one provides a detailed analysis of Loewenstein’s academic work on militant democracy,
beginning in 1935 and ending in 1938. In this work, the evolution of militant democracy can be
first observed, as well as Loewenstein’s growing concern with fascism and the threat posed by
fascists to the United States. The second chapter explores Loewenstein’s public advocacy for the
adoption of antifascist legislation in the United States, beginning in 1938 and concluding with
his critique of denazification following his departure from government service in 1947.
Throughout this period, despite the defeat of Hitler by the Allies in 1945, Loewenstein remained
acutely anxious about fascism, and had little hope for the future of democracy. Chapter
25 Peter M. R. Stirk, Carl Schmitt, Crown Jurist of the Third Reich: On Preemptive War, Military Occupation,
and World Empire (London: Edwin Mellon Press, 2005).
26 Herz and Loewenstein were by no means the only scholars of international conflict working during this
period. Among many others, Carl Schmitt and Hans J. Morgenthau deserve particular mention. Schmitt, who stayed
behind in Germany and briefly joined the Nazi regime until he fell afoul of the SS in 1936, described the ‘equal
chance,’ an important theory to be aware of when reading Loewenstein, in his 1932 work Legality and Legitimacy.
See Carl Schmitt, Legality and Legitimacy, trans. Jeffrey Seitzer (Durham: Duke University Press, 2004): 28-33. For
secondary literature on Schmitt, see William E. Scheuerman, Carl Schmitt: The End of Law (London: Rowman &
Littlefield, 1999); Joseph W. Bendersky, Carl Schmitt, Theorist for the Reich (Princeton: Princeton University Press,
1983); Michael G. Satler, Carl Schmitt: Law as Politics, Ideology and Strategic Myth (New York, Routledge, 2012);
Benno Gerhard Teschke, “Fatal Attraction: A Critique of Carl Schmitt’s International Political and Legal Theory,”
International Theory 3 (2011): 179-227. Morgenthau, another German Jewish émigré, had a similar understanding
of anthropology and international relations to Herz, but believed that, based on man’s inherently violent nature, a
peaceful world order free of war was impossible, and that international relations would be inevitably plagued by
conflict and confrontation. See Hans J. Morgenthau, Scientific Man Versus Power Politics (Chicago: University of
Chicago Press, 1946); Hans J. Morgenthau, Politics Among Nations: The Struggle for Power and Peace (New York:
Alfred A. Knopf, 1948); Hans J. Morgenthau, In Defense of the National Interest (New York: Alfred Knopf, 1951).
For secondary literature on Morgenthau, see see William E. Scheuermann, Morgenthau (New York: Polity, 2008);
Michaela Neacsu, Hans J. Morgenthau’s Theory of International Relations: Disenchantment and Re-Enchantment
(New York: Palgrave Macmillian, 2010); Michael C. Williams, Realism Reconsidered: The Legacy of Hans
Morgenthau in International Relations (Oxford: Oxford University Press, 2007).
three moves beyond Loewenstein, focusing instead on Herz, and examines the relationship
between the two scholars, and how Herz, despite his similar biography and worldview,
developed a markedly different solution to the dilemma facing democracy. Finally, the
conclusion reflects on the position of militant democracy today, and how Loewenstein and
Herz’s worldviews evolved in the decades following World War II. While Herz remained
optimistic, Loewenstein, despite the emergence of a democratic Germany, remained pessimistic
until the end of his days.
Chapter One
The Academic: Karl Loewenstein and the Development
of Militant Democracy
“If democracy is convinced that it has not yet fulfilled its
destination, it must fight on its own plane a technique
which serves only the purpose of power. Democracy must become
militant.”
Karl Loewenstein was born in Munich, Germany in 1891 to a family of wealthy Jewish
Bavarian industrialists, and traveled extensively during his childhood, including time spent living
in England and South America. After several years at universities in Munich, Heidelberg – where
he studied under Max Weber – Paris and Berlin, he received a law degree in 1914. During World
War I he spent 1915 serving with the German infantry, and was admitted into the
German bar in 1918. A year later Loewenstein received his doctorate in civil and ecclesiastical
law at Munich. After practicing law throughout the 1920s in and around Munich, Loewenstein
entered academia and became a lecturer at the University of Munich School of Law in 1931. He
was forced to resign this position in 1933 as a consequence of the Nazi’s efforts to purge
nonAryans from public service, and shortly thereafter left Germany for the United States. While
in
America, with the help of the Emergency Committee in Aid of Displaced German Scholars,
Loewenstein secured a two-year teaching position at Yale University in 1935, and in 1936
accepted a permanent position teaching political science at Amherst College.
**
During this period, shortly after immigrating to the United States, Karl Loewenstein
began writing academic articles about the spread of fascism, and, in particular, what steps the
remaining western democracies should undertake to protect themselves from internal fascists
threats. These articles provide much of the basis for the future importance of Loewenstein’s
work, and show a clear progression of thought that mirrors European political developments
throughout the 1930s. In the first of these articles, “Autocracy Versus Democracy in
Contemporary Europe I and II,” published in The American Political Science Review in 1935,
Loewenstein examines the political makeup of Europe, as well as the prospect of the remaining
democratic nations of succumbing to internal fascist movements. Within this analysis, he first
describes what he later terms militant democracy, the idea that democratic nations must
proactively defend themselves against fascism, as fascists are all too capable of utilizing
democratic principles to enable their ascent to power. No longer are these principles alone
sufficient to protect the state – rather, these principles, and in particular the democratic belief in
fundamental rights, in many ways enable the fascists to succeed.
Loewenstein continued his inquiry into the conflict between democracy and fascism in a
pair of 1937 articles, “Militant Democracy and Fundamental Rights I and II,” again published in
The American Political Science Review. These two articles continue his examination of fascism,
while investigating the similarities between European fascists movements, and the steps these
movements undertook to transition from the political fringe to the sole governmental authority
within a state. Loewenstein also continues to outline possible steps that democratic nations must
take to resist the spread of fascism, including what antifascist legislation has already been
enacted by democratic states, and how these laws, which are examples of militant democracy in
action, work to protect the democratic state.
Although much of the content of this article is similar to the earlier “Autocracy Versus
Democracy I and II,” Loewenstein’s tone throughout is noticeably more alarmist. As he has
witnessed the progressive spread and success of fascism throughout Europe, his hope for the
continued existence of democratic states has waned. Further, the steps outlined by Loewenstein
in “Militant Democracy” are a temporary abandonment of many of the principles and rights held
most dear to democratic nations – an abandonment, that, in Loewenstein’s eyes, is necessary for
the defense of democracy in the long term. This abandonment, forced upon democratic nations
by the unique nature of the fascist threat, is one of the most fascinating elements of
Loewenstein’s work during this period, and reflects both his pessimism – rooted in his recent in
his recent immigration – as well as his growing anxiety about fascism.
Loewenstein continues this argument in his next pair of articles, “Legislative Control of
Extremism in European Democracies I and II,” published in Columbia Law Review in 1938.
Similar to “Militant Democracy,” in these articles Loewenstein surveys existing anti-fascist
legislation, and, in technical legal language appropriate for a law journal, analyzes the way in
which these laws effectively deprive fascist groups of the tools necessary to seize power from the
existing democratic system. Even when writing in such a legalistic context, Loewenstein cannot
help but reaffirm the pessimistic way in which he views the prospects of the democratic states, as
well as reveal his continued anxiety about the threat posed by fascism to the west. Even here he
presents the conflict between fascism and democracy as a war, arguing that everything possible
must be done to protect democratic institutions, no matter the cost.
Loewenstein published another article in 1938 on militant democracy, “The Balance of
Legislative and Executive Power: A Study in Comparative Constitutional Law,” in The
University of Chicago Law Review. Importantly, in this article, Loewenstein expands on his
original theory of militant democracy, and argues for the necessity of implementing fundamental
changes to the political process of the United States in order create a smaller and more
responsive legislature better able to cope with the demands of a modern state, along with a more
powerful, active executive. Unlike the temporary antifascist legislation, these proposed changes
would be permanent, and represent a radicalization of Loewenstein’s thought, as well as the
evolution of a second level to his theory of militant democracy, encompassing both temporary
and permanent measures.
Examining Loewenstein’s articles during this period reveals the growing alarm with
which Loewenstein describes the spread of fascism, transforming the dry, academic examination
of fascism as a new political movement in 1935 into the panic of the late 1930s. Loewenstein
believed that if radical steps were not taken, then the remaining democratic nations, including the
United States, would fall to internal subversive fascist elements. This mounting anxiety reveals a
fundamental change in Loewenstein’s outlook. He became, like so many other Jewish
intellectuals who were forced to flee Germany after the Nazi Party seized power in 1933, a
pessimist. He was no longer content to simply hope that democratic principles, human nature and
inevitable progress were safeguards against the darker forces of humanity embodied by fascism.
Instead, democratic nations must participate in an active fight against fascism, taking whatever
steps are necessary in order to prevent their internal destruction at the hands of fascist agitators.
**
Loewenstein’s first examination of fascism and the prospects of its further spread
throughout Europe can be found in “Autocracy Versus Democracy in Cotemporary Europe I and
II,” published in 1935. These articles are the beginning of a new era in Loewenstein’s research
and writing. The tone that Loewenstein takes throughout these article – that of an objective
academic investigating a new political development – and the way he describes fascism are
significant, and stand in contrast to his later works, where his personal involvement in the
protection of democracy and his anxiety are much clearer. Beyond showing the development of
his theory of militant democracy, “Autocracy Versus Democracy I and II” show the beginning of
Loewenstein’s transformation from academic to advocate.
Loewenstein’s work here is a reflection of the political climate of Europe in the early to
mid 1930s. Between 1933, when Loewenstein fled from Germany, and 1935, when he published
“Autocracy Versus Democracy I and II,” Germany had reemerged as one of the Great Powers on
the European continent, while the European democracies, suffering through the Great
Depression, became increasingly unstable. Hitler, by pursuing an aggressive foreign policy that
took advantage of the worsening relationship between England and France, was able to press
Germany’s diplomatic position, forcing concessions from England and France on provisions
from the Treaty of Versailles. Simultaneously, while fascist Germany prospered, the political
power of France waned. Beset by serious internal strife and economic turmoil, French politics
throughout the 1930s was increasingly dominated by the radicalized elements of the far left and
far right, with the possibility of outright revolution by either group festering just below the
surface.
The position of the smaller democratic powers in Europe was particularly treacherous.
Faced with the decline of France and the reemergence of Germany, these small powers –
including Czechoslovakia, Belgium, Poland and the Baltic States – were forced to contend with
an evolving international political landscape as well as internal unrest at the hands of the
unemployed and dissatisfied who looked to Germany and Russia for an example of the proper
response to the Depression. Read within the context of the unstable political landscape,
Loewenstein’s analysis becomes more meaningful, as well as a clear response to the new reality
of European politics in 1935.
Loewenstein begins by summarizing the “political scene of contemporary Europe,”
pointing out that the European states, “are aligned in two fundamentally antagonistic camps,”
democracy and liberalism, and autocracy. Loewenstein believes that Great Britain, the Irish Free
State, France, Belgium, the Netherlands, Sweden, Norway, Denmark, Finland, Switzerland and
Czechoslovakia fall into the former category, while Russia, Turkey, Germany, Italy, Portugal,
Austria, Poland, Yugoslavia, Bulgaria, Rumania, Hungary, Estonia and Latvia compromise the
latter. According to Loewenstein, in 1935 “by far the greater part of European territory and of
European population is under dictatorial rule of one type or another,” and, facing this reality, it is
necessary to examine the prospects of the remaining democratic nations for becoming autocratic
dictatorships.
Before undertaking this examination, Loewenstein briefly reviews the political history of
democratic and autocratic forms of government, taking pains to point out that “the rationalization
of government by the devices of free self-expression called democracy is a comparatively new
phenomenon,” and that for the large part of human history man has lived under autocratic
systems. Beyond the accuracy of this assertion, which functions to dispel much of the surprise
surrounding the spread of dictatorships, as in many ways this spread can be seen as simply
reverting to the mean, Loewenstein’s comments here do much to reveal the tone he takes
throughout the article. At this stage Loewenstein is still attempting to approach his subject with
an element of academic objectivity and distance. It is unclear at this point how he personally
feels about autocracy, and in particular fascism, and what greater meaning he attaches to the
prospect of the further spread of autocracy throughout the remaining democratic European
nations. This attempt at objectivity is further evident in Loewenstein’s acknowledgement of the
unique nature of this spread of autocratic governments. While “to the observer of history,” the
reemergence of “Caesarism” is not surprising, the speed by which “the new dictatorial wave” has
spread is unique, and prompts “deep concern to everybody who values democracy as a higher
step of mankind toward progress and civilization.” By writing as such, Loewenstein is couching
his analysis. For those who believe that democracy is the next step in mankind’s march of
progress, fascism is a threat; but this belief is neither universally held nor necessarily correct.
Importantly, in this first section, and in line with the title of the article, Loewenstein
contrasts democracy and autocracy in general, and places both Russia and Germany, despite their
opposing worldviews, within the autocratic category. Lowenstein acknowledges this relationship
early on, pointing out that his use of autocracy as a descriptive term “embraces not only the
fascist variety as presented by Italy and Germany, but also the communistic form of dictatorship
in Russia.” This distinction is significant, as for the majority of his following articles, and, in
fact, most of “Autocracy Versus Democracy,” he almost exclusively discusses the prospect of the
continued spread of fascism, ignoring the obvious parallels between Russia and Germany, and
the crimes of Stalin and Hitler.
**
After briefly outlining the historical background of fascism, Loewenstein begins his
analysis of the odds of the remaining democratic European nations for becoming fascist.
Loewenstein first attempts to “distinguish between the general tendencies of the replacement of
democratic by autocratic rule and the specific conditions arising from the economic and political
situation of a given country.” Loewenstein here is presenting the adoption of fascism as the
consequence of two diverse factors: those that are general and exist regardless of particular
circumstance, and those that are the direct result of the Great Depression and economic unrest.
In general, much of fascism’s appeal comes from fulfilling what Loewenstein terms “the
missionary spirit,” or the “individual’s obsession by belief in the absolute and indisputable value
of his own devotion to a new basic principle of life,” which causes him to preach this ideology at
every turn. The proponents of this new ideology act as missionaries, spreading the doctrine of
fascism like a religion. This spread is further facilitated by local concepts of nationalism and
regionalism, as within these beliefs fascism can be seen as a unifying ideology to help reunite
populations that have been previously separated.
As to the particular, the appeal of fascism reflects the generally held belief that economic
change requires a change in government. For populaces suffering under the spreading worldwide
Great Depression, “national economic autarchy has become the catchword of the day,” which
can only be achieved by an active government that interferes with the economy. This, in turn,
necessitates an organized, centralized authority unfetered by private interests, and logically, the
concentration of “political power in the hands of a government strong enough to cope with the
obstacles during the transition period [from unplanned to planned economy].” Facing this crisis,
“dictation from above becomes necessary, even where the spirit of the nation abhors compulsory
methods of suppression of free institutions.” Thus, fascism is seen as the solution to economic
depression, and the poorer the economic situation in a particular nation, the greater the prospects
for this nation adopting fascism.
Beyond the two different motivations leading to the support of fascism, democracy in
Europe is further threatened by the “facilities afforded by the fascist technique,” namely the
encouragement of apathy and silence, which causes citizens who recognize the threat to do
nothing. This encouragement in many way stems from what Lowenstein describes as the
“science” of introducing fascism into a democratic state, which is a “typical procedure applicable
to almost any state under the rule of democracy.” To Loewenstein, this science is a
“rationalized and pre-calculated routine progressing, step by step, on the basis of experience and
precedent,” and is aided by democracy itself. Although not fully explained, what Loewenstein is
claiming is that the institutions of democracy provide fascism with the tools needed for the
destruction of the existing government.
This passage is, for several reasons, one of the most important of the article.
Loewenstein’s description of the way in which fascism actually utilizes the democratic process to
destroy democracy itself is important. While he is by no means the first scholar to highlight the
problems of relying on democratic ideals alone to protect the democratic state, he is one of the
first to propose the solution that is first alluded to in “Autocracy Versus Democracy.” This
passage is the beginning of what eventually will evolve in later articles into his theory of militant
democracy. As he succinctly summarizes, in many fascist states, “the democratic constitution
became the main obstacle against [the state’s] maintenance and the best tool for its destruction.”
According to Loewenstein, this phenomenon can be readily observed in the
circumstances surrounding Hitler’s rise to power in Germany. While much of Hitler’s appeal
came from his ability to tap into the public’s anger with the Treaty of Versailles and the other
Western powers, he would have never been able to assume power (or even rise beyond a petty
demagogue) without being enabled by the “generous and lenient Weimar republic,” which
fashioned the mechanisms for its own doom by allowing “the existence of a resolute competition
to the legal authority of the state.” For Loewenstein, the Weimar government was destined to
failure “from the beginning... because it was pacifist instead of militant.” Here, again, the seeds
(and even language) of his later writings can be observed, and by providing concrete evidence of
the validity of his analysis, Loewenstein makes the threat posed by fascism to democracies seem
all the more acute. If democratic governments wait until the fascists have begun to implement
their scientific process, it is too late. The defensive measures must be undertaken proactively, and
long before the fascist party prepares to assume power.
After reviewing the actual process by which a fascist government subverts a democratic
state, Loewenstein begins his specific examination of the prospects of each remaining democratic
nation for becoming fascist in “Autocracy Versus Democracy in Central Europe, II,” again
published in in the American Political Science Review in 1935. For the purposes of this thesis,
the importance of these predictions lies in what they reveal about Loewenstein’s understanding
of fascism and his worldview in 1935, and not in their eventual accuracy, as eerily prescient as
they may be. Much of Loewenstein’s analysis here rests on his contention that, beyond economic
prosperity, the single most important factor in determining a nation’s ability to
For many of these dismissed university professors, leaving Germany was the best option, and
aided by newly formed international rescue committees, over 50% of those who lost their jobs in
1933 – 650 total – immigrated from Germany. By the end of the 1930s this number had risen to
over 1,700, and, including doctors, lawyers, artists and writers, to over 12,000. While initially
most of these émigrés chose to remain in Europe to stay closer to Germany, faced with Hitler’s
march across Europe, as well as the difficulty of “shedding one’s status as an alien in Europe,”
ever growing numbers of intellectuals chose to leave Europe for America, until by the start of
World War II by far the largest proportion of German émigrés had found residence in the United
States. In America, these intellectuals saw President Franklin D. Roosevelt, and especially his
New Deal, as the heir to their progressive work during the failed Weimar Republic, and
appreciated the ease with which they, as immigrants in a country full of immigrants, could blend
into society at large, making “the process of reintegration exceedingly simple.”
Despite this openness, the path of the German Jewish immigrant was fraught with
difficulties. These scholars were forced to compete for scarce permanent teaching positions at
xenophobic and anti-Semitic American universities that regarded them with suspicion. It was
only after American universities realized the positive benefit German faculty members had on the
academic quality of departments that a larger number of teaching positions became available, and
American institutions became more willing to hire Germans. Even after securing teaching
positions, these intellectuals still had to cope with the psychological consequences of their
sudden dismissals and forced immigrations, and watch as Hitler and Nazi Germany successfully
conquered much of Europe, spreading fascism across the European continent throughout the
1930s and 1940s.
Such experiences profoundly altered the worldview of some of these émigrés, causing
them to both reassess their academic work, as well as look at the world through new, pessimistic
eyes. This thesis tells the story of two of Jewish German émigré intellectuals, Karl Loewenstein
(1891–1973) and John H. Herz (1908-2005), and how they responded, through their work, to
their immigrant experience and the dilemma to democracy presented by fascism’s widespread
success. While both are ancillary figures in the greater history of the émigrés, their work – and
especially Loewenstein’s – showcase how scholars attempted to understand the new world they
found themselves a part of, as well as to protect the nation that had become their home and
represented the last bastion of democracy and free thought.
After his immigration to the United States in 1933, Loewenstein began to research the
ways in which democracies could defend themselves from fascism. Faced with the apparent
prospect of an endless, creeping tide of fascism, spreading across the globe and consuming
democratic nations from within, he argued for the adoption of militant democracy, or the idea
that democracies must proactively defend themselves against internal fascist threats. According
to Loewenstein, fascists were able to abuse the fundamental rights granted to them by democratic
constitutions – namely freedom of speech, press and assembly, and equal participation in the
electoral process – to destroy democracy from within. The key to defending democracy and
defeating fascists was to deny them these fundamental rights through temporary restrictive
legislation. Loewenstein presented this idea in four academic articles published in 1935 and
1937.
Confronted with the success of Hitler and Germany throughout the 1930s, Loewenstein
continued to develop his theory of militant democracy, and by 1938 had come to believe that
beyond temporary legislation, it was necessary for democracies to transform their legislative and
executive branches into smaller, more responsive bodies better able to cope with emergent
situations and the speed of the modern state. Key to understanding this evolution is
Loewenstein’s growing pessimism towards the future prospects of democracy, rooted in his
forced immigration from Germany, as well as his mounting anxiety about fascism. In 1935 and
1937 he still approached the conflict between democracy and fascism as an objective academic,
but by 1938 he became increasingly personally involved with the defense of democracy, arguing
urgently for the quick adoption of militant democracy in the United States in order to protect
America from the dire fascist threat.
This personal involvement manifested itself in an extensive campaign of public advocacy
for the passage of restrictive legislation in the United States. While he never revealed his entire
theory (especially his belief in the necessity to transform the American system), from 1938 until
1947 Loewenstein attempted, through book reviews, speeches and a pamphlet, to convince the
public of the necessity of restricting the right of fascists, as well as of the threat posed to
America by a hidden Fifth Column of fascist and fascist sympathizers poised to aid Hitler in
destroying the United States. This campaign took on a particular urgency in the aftermath of the
surprising and rapid defeat of France in 1940. Following this defeat, Loewenstein attempted to
do whatever he could to convince the general public of the urgent need to use militant democracy
in America, including presenting himself as a defender of traditional Anglo-Saxon Christian
American society, despite his nationality and ethnic heritage.
Following the attack on Pearl Harbor and the American entrance into the war,
Loewenstein, like many other German émigrés, joined the American government, eventually
assisting in denazification by interviewing Nazis as part of the Nuremburg prosecution. Even
after the final defeat of Hitler, Loewenstein’s advocacy for militant democracy continued, and he
remained pessimistic and anxious about fascism. He was publicly critical of denazification,
believing that the German citizenry were unrepentant, and that the American failure to effectively
root out and punish Nazis had set the stage for the reemergence of fascist Germany and the
continuation of the threat to the United States and democracy. During this period, Loewenstein’s
understanding of militant democracy continued to evolve as well, until, by 1944, he had come to
believe that it was impossible for democracies and fascist states to coexist.
Unfortunately, Loewenstein’s pessimism, his particular views on fascism, his public
campaign of advocacy for militant democracy and even the evolutions of this theory throughout
the 1930s and early 1940s are entirely missing from the historiography. Over the past two
decades, as scholars have confronted issues of domestic terrorism, human rights reforms and
sovereignty in the wake of the Cold War, they have returned to the idea of militant democracy as
a starting point for their research. As part of this research, Loewenstein has a newfound relevance
among political scientists, especially when examining democratic responses to national threats.
Little research has been done into Loewenstein for Loewenstein’s own sake. Virtually
every scholar writing about him does so in the context of another event, and their work gives the
impression that Loewenstein’s theory of militant democracy simply appeared in 1937, fully
formed, and remained static over the next decade. The best examination of Loewenstein’s life
and work to date is Markus Lang’s biography of Loewenstein, Karl Loewenstein:
Transatlantischer Denker der Politik, published in 2007 and based on Lang’s earlier dissertation.
However, even Lang’s biography is deficient, devoting only fifteen pages to Loewenstein’s work
on militant democracy, with no mention, beyond a single footnote, of Loewenstein’s campaign of
public advocacy for adoption of militant democracy in the United States. Instead, Lang opts to
focus on Loewenstein’s role in the development of political science as a field, and seeks to
integrate Loewenstein into the growing category of émigré transatlantic intellectuals who, by
leaving Germany, offered an implicit critique of the Nazi regime. Lang reiterated this approach
in a chapter on Loewenstein, “Karl Loewenstein: From Public Law to Political Science,” as part
of German Scholars in Exile: New Studies in Intellectual History, published in 2011.
The majority of works on Loewenstein and militant democracy, on the other hand, use
Loewenstein’s theories as part of a commentary on a present day dilemma – for example
terrorism – and devote little more than a footnote to Loewenstein or his work. There is no hint of
Loewenstein’s public advocacy for militant democracy, or of any evolution within his theory
throughout the 1930s and early 1940s. Typical of this category of works is a recent dissertation
on Loewenstein, “Militant Democracy,” by Svetlana Tyulkina, finished in 2011. While Tyulkina
does an excellent job of tracing the influence of Loewenstein’s work in the modern world, as
well as highlighting examples of legislation and constitutional amendments today that are
examples of militant democracy, she spends no time exploring the development of the theory, or
the greater intellectual context within which Loewenstein worked. Martin Klamt follows a
similar approach in his chapter, “Militant Democracy and the Democratic Dilemma: Different
Ways of Protecting Democratic Constitutions,” in Explorations in Legal Culture, published in
2007.
The only mention of Loewenstein’s public campaign for militant democracy is found not
in a work within the Loewenstein historiography, but rather in an article about the German Jurist
Carl Schmitt’s interrogations as part of the Nuremburg Trials. Loewenstein, in his capacity as an
officer with the U.S. Military Government in Berlin (1945-1947), pressed American officials to
arrest Schmitt. While describing Loewenstein and Schmitt, Joseph W. Bendersky references a
letter to the editors of The New York Times written by Loewenstein that was highly critical of
denazification.18 This letter, along with others composed by him on the same subject, were part
of Loewenstein’s post-war campaign for the application of militant democracy in defeated
Germany. Beyond this reference, as well as the one found in Lang’s biography, no other
references to Loewenstein’s public statements exist.
**
Like Karl Loewenstein, John H. Herz’s immigration from Germany left him sharply
pessimistic. After arriving in America in 1938, while studying at Princeton, he began to
investigate the way in which international relations functioned, and how and why states came
into conflict with one another. Like Loewenstein, Herz joined the American government during
the war to help combat Nazism, and after the war was highly critical of denazification. During
this period, Herz concluded that man was inherently concerned with his personal security, and
that the knowledge that other men held the potential to kill him led to a state of constant,
potential violence, regardless of actual intent. Relations between nations were this
anthropological state, termed the security dilemma, writ large. Despite his pessimistic
anthropological view, Herz believed that, through a combination of measured realism and
idealism known as Liberal Realism, a peaceful world system could be achieved. Thus man,
cognizant of his nature, could overcome his native state and work towards a peaceful future.
While Herz acknowledged this future was unlikely to come to pass, his theory still held
the possibility for a world in which nations, independent of their political ideology, by pursuing
Liberal Realism, could peacefully coexist. Written in the years before World War II and the
beginning of the Cold War in the late 1940s, Herz’s theory was fundamentally concerned with
describing a world in which nations of competing ideological orientations, in particular
18 Joseph W. Bendersky, “Carl Schmitt’s Path to Nuremburg: A Sixty-Year Assesment,” TELOS 139 (2007):
21.
democracy and communism, could avoid destructive war. This potential for peace represents a
working out of Herz’s pessimism, despite his biography and worldview, and, in contrast with
Loewenstein, shows how unusual Loewenstein’s particular solution to the conflict between
fascism and democracy was.
Compared to Loewenstein, the Herz historiography is considerably smaller, arising only
in the past ten years, and focuses on Herz’s role in the development of international relations as a
field, and his participation in the wider community of such scholars in the post-War world. As
yet, no scholar has compared Herz to other émigré intellectuals, or explored the relationship
between his theories and Loewenstein’s militant democracy. Today, the leading academics
working on Herz are Peter Stirk, Jana Puglierin, Christian Hacke and Ken Booth. Puglierin has
written the only contemporary monograph on Herz, John H. Herz: Leben und Denken zwischen
Idealismus und Realismus, Deutschland und Amerika, published in German in 2011 and
developed from an earlier dissertation. Puglierin also helped edit a 2007 issue of International
Relations (a publication that Herz contributed to throughout his life) devoted to Herz’s work. In
this issue she, along with Hacke, contributed two articles on Herz’s life and work, “John H.
Herz: Balancing Utopia and Reality,” and “Toward Being a ‘Traveller Between All Worlds’.”
Along with Hacke and Puglierin, Ken Booth has written on Herz’s Political Realism and
Political Idealism in “Navigating the ‘Absolute Novum’: John H. Herz’s Political Realism and
Political Idealism.”
Peter Stirk also contributed to the Herz issue of International Relations. In “John H. Herz
and the International Law of the Third Reich,” he explores Herz’s conception of Nazi
international law and his work on this subject. Stirk also mentions Herz in a work on Carl
Schmitt, Carl Schmitt, Crown Jurist of the Third Reich: On Preemptive War, Military
Occupation, and World Empire, presenting Herz’s understanding of international relations as an
alternative to Schmitt’s.19 Looking forward, with the recent release of Herz’s papers, catalogued
at the University at Albany as part of their Jewish immigrants collection, it is likely that more
works devoted to his life and theories will be forthcoming.20
**
The story of Loewenstein and Herz is, fundamentally, a story of their pessimism, and
how this pessimism manifested itself in both their academic work and public discourse. Chapter
one provides a detailed analysis of Loewenstein’s academic work on militant democracy,
beginning in 1935 and ending in 1938. In this work, the evolution of militant democracy can be
first observed, as well as Loewenstein’s growing concern with fascism and the threat posed by
fascists to the United States. The second chapter explores Loewenstein’s public advocacy for the
adoption of antifascist legislation in the United States, beginning in 1938 and concluding with
his critique of denazification following his departure from government service in 1947.
Throughout this period, despite the defeat of Hitler by the Allies in 1945, Loewenstein remained
acutely anxious about fascism, and had little hope for the future of democracy. Chapter
27 Peter M. R. Stirk, Carl Schmitt, Crown Jurist of the Third Reich: On Preemptive War, Military Occupation,
and World Empire (London: Edwin Mellon Press, 2005).
28 Herz and Loewenstein were by no means the only scholars of international conflict working during this
period. Among many others, Carl Schmitt and Hans J. Morgenthau deserve particular mention. Schmitt, who stayed
behind in Germany and briefly joined the Nazi regime until he fell afoul of the SS in 1936, described the ‘equal
chance,’ an important theory to be aware of when reading Loewenstein, in his 1932 work Legality and Legitimacy.
See Carl Schmitt, Legality and Legitimacy, trans. Jeffrey Seitzer (Durham: Duke University Press, 2004): 28-33. For
secondary literature on Schmitt, see William E. Scheuerman, Carl Schmitt: The End of Law (London: Rowman &
Littlefield, 1999); Joseph W. Bendersky, Carl Schmitt, Theorist for the Reich (Princeton: Princeton University Press,
1983); Michael G. Satler, Carl Schmitt: Law as Politics, Ideology and Strategic Myth (New York, Routledge, 2012);
Benno Gerhard Teschke, “Fatal Attraction: A Critique of Carl Schmitt’s International Political and Legal Theory,”
International Theory 3 (2011): 179-227. Morgenthau, another German Jewish émigré, had a similar understanding
of anthropology and international relations to Herz, but believed that, based on man’s inherently violent nature, a
peaceful world order free of war was impossible, and that international relations would be inevitably plagued by
conflict and confrontation. See Hans J. Morgenthau, Scientific Man Versus Power Politics (Chicago: University of
Chicago Press, 1946); Hans J. Morgenthau, Politics Among Nations: The Struggle for Power and Peace (New York:
Alfred A. Knopf, 1948); Hans J. Morgenthau, In Defense of the National Interest (New York: Alfred Knopf, 1951).
For secondary literature on Morgenthau, see see William E. Scheuermann, Morgenthau (New York: Polity, 2008);
Michaela Neacsu, Hans J. Morgenthau’s Theory of International Relations: Disenchantment and Re-Enchantment
(New York: Palgrave Macmillian, 2010); Michael C. Williams, Realism Reconsidered: The Legacy of Hans
Morgenthau in International Relations (Oxford: Oxford University Press, 2007).
three moves beyond Loewenstein, focusing instead on Herz, and examines the relationship
between the two scholars, and how Herz, despite his similar biography and worldview,
developed a markedly different solution to the dilemma facing democracy. Finally, the
conclusion reflects on the position of militant democracy today, and how Loewenstein and
Herz’s worldviews evolved in the decades following World War II. While Herz remained
optimistic, Loewenstein, despite the emergence of a democratic Germany, remained pessimistic
until the end of his days.
Chapter One
The Academic: Karl Loewenstein and the Development
of Militant Democracy
“If democracy is convinced that it has not yet fulfilled its
destination, it must fight on its own plane a technique
which serves only the purpose of power. Democracy must become
militant.”
Karl Loewenstein was born in Munich, Germany in 1891 to a family of wealthy Jewish
Bavarian industrialists, and traveled extensively during his childhood, including time spent living
in England and South America. After several years at universities in Munich, Heidelberg – where
he studied under Max Weber – Paris and Berlin, he received a law degree in 1914. During World
War I he spent 1915 serving with the German infantry, and was admitted into the
German bar in 1918. A year later Loewenstein received his doctorate in civil and ecclesiastical
law at Munich. After practicing law throughout the 1920s in and around Munich, Loewenstein
entered academia and became a lecturer at the University of Munich School of Law in 1931. He
was forced to resign this position in 1933 as a consequence of the Nazi’s efforts to purge
nonAryans from public service, and shortly thereafter left Germany for the United States. While
in
America, with the help of the Emergency Committee in Aid of Displaced German Scholars,
Loewenstein secured a two-year teaching position at Yale University in 1935, and in 1936
accepted a permanent position teaching political science at Amherst College.
**
During this period, shortly after immigrating to the United States, Karl Loewenstein
began writing academic articles about the spread of fascism, and, in particular, what steps the
remaining western democracies should undertake to protect themselves from internal fascists
threats. These articles provide much of the basis for the future importance of Loewenstein’s
work, and show a clear progression of thought that mirrors European political developments
throughout the 1930s. In the first of these articles, “Autocracy Versus Democracy in
Contemporary Europe I and II,” published in The American Political Science Review in 1935,
Loewenstein examines the political makeup of Europe, as well as the prospect of the remaining
democratic nations of succumbing to internal fascist movements. Within this analysis, he first
describes what he later terms militant democracy, the idea that democratic nations must
proactively defend themselves against fascism, as fascists are all too capable of utilizing
democratic principles to enable their ascent to power. No longer are these principles alone
sufficient to protect the state – rather, these principles, and in particular the democratic belief in
fundamental rights, in many ways enable the fascists to succeed.
Loewenstein continued his inquiry into the conflict between democracy and fascism in a
pair of 1937 articles, “Militant Democracy and Fundamental Rights I and II,” again published in
The American Political Science Review. These two articles continue his examination of fascism,
while investigating the similarities between European fascists movements, and the steps these
movements undertook to transition from the political fringe to the sole governmental authority
within a state. Loewenstein also continues to outline possible steps that democratic nations must
take to resist the spread of fascism, including what antifascist legislation has already been
enacted by democratic states, and how these laws, which are examples of militant democracy in
action, work to protect the democratic state.
Although much of the content of this article is similar to the earlier “Autocracy Versus
Democracy I and II,” Loewenstein’s tone throughout is noticeably more alarmist. As he has
witnessed the progressive spread and success of fascism throughout Europe, his hope for the
continued existence of democratic states has waned. Further, the steps outlined by Loewenstein
in “Militant Democracy” are a temporary abandonment of many of the principles and rights held
most dear to democratic nations – an abandonment, that, in Loewenstein’s eyes, is necessary for
the defense of democracy in the long term. This abandonment, forced upon democratic nations
by the unique nature of the fascist threat, is one of the most fascinating elements of
Loewenstein’s work during this period, and reflects both his pessimism – rooted in his recent in
his recent immigration – as well as his growing anxiety about fascism.
Loewenstein continues this argument in his next pair of articles, “Legislative Control of
Extremism in European Democracies I and II,” published in Columbia Law Review in 1938.
Similar to “Militant Democracy,” in these articles Loewenstein surveys existing anti-fascist
legislation, and, in technical legal language appropriate for a law journal, analyzes the way in
which these laws effectively deprive fascist groups of the tools necessary to seize power from the
existing democratic system. Even when writing in such a legalistic context, Loewenstein cannot
help but reaffirm the pessimistic way in which he views the prospects of the democratic states, as
well as reveal his continued anxiety about the threat posed by fascism to the west. Even here he
presents the conflict between fascism and democracy as a war, arguing that everything possible
must be done to protect democratic institutions, no matter the cost.
Loewenstein published another article in 1938 on militant democracy, “The Balance of
Legislative and Executive Power: A Study in Comparative Constitutional Law,” in The
University of Chicago Law Review. Importantly, in this article, Loewenstein expands on his
original theory of militant democracy, and argues for the necessity of implementing fundamental
changes to the political process of the United States in order create a smaller and more
responsive legislature better able to cope with the demands of a modern state, along with a more
powerful, active executive. Unlike the temporary antifascist legislation, these proposed changes
would be permanent, and represent a radicalization of Loewenstein’s thought, as well as the
evolution of a second level to his theory of militant democracy, encompassing both temporary
and permanent measures.
Examining Loewenstein’s articles during this period reveals the growing alarm with
which Loewenstein describes the spread of fascism, transforming the dry, academic examination
of fascism as a new political movement in 1935 into the panic of the late 1930s. Loewenstein
believed that if radical steps were not taken, then the remaining democratic nations, including the
United States, would fall to internal subversive fascist elements. This mounting anxiety reveals a
fundamental change in Loewenstein’s outlook. He became, like so many other Jewish
intellectuals who were forced to flee Germany after the Nazi Party seized power in 1933, a
pessimist. He was no longer content to simply hope that democratic principles, human nature and
inevitable progress were safeguards against the darker forces of humanity embodied by fascism.
Instead, democratic nations must participate in an active fight against fascism, taking whatever
steps are necessary in order to prevent their internal destruction at the hands of fascist agitators.
**
Loewenstein’s first examination of fascism and the prospects of its further spread
throughout Europe can be found in “Autocracy Versus Democracy in Cotemporary Europe I and
II,” published in 1935. These articles are the beginning of a new era in Loewenstein’s research
and writing. The tone that Loewenstein takes throughout these article – that of an objective
academic investigating a new political development – and the way he describes fascism are
significant, and stand in contrast to his later works, where his personal involvement in the
protection of democracy and his anxiety are much clearer. Beyond showing the development of
his theory of militant democracy, “Autocracy Versus Democracy I and II” show the beginning of
Loewenstein’s transformation from academic to advocate.
Loewenstein’s work here is a reflection of the political climate of Europe in the early to
mid 1930s. Between 1933, when Loewenstein fled from Germany, and 1935, when he published
“Autocracy Versus Democracy I and II,” Germany had reemerged as one of the Great Powers on
the European continent, while the European democracies, suffering through the Great
Depression, became increasingly unstable. Hitler, by pursuing an aggressive foreign policy that
took advantage of the worsening relationship between England and France, was able to press
Germany’s diplomatic position, forcing concessions from England and France on provisions
from the Treaty of Versailles. Simultaneously, while fascist Germany prospered, the political
power of France waned. Beset by serious internal strife and economic turmoil, French politics
throughout the 1930s was increasingly dominated by the radicalized elements of the far left and
far right, with the possibility of outright revolution by either group festering just below the
surface.
The position of the smaller democratic powers in Europe was particularly treacherous.
Faced with the decline of France and the reemergence of Germany, these small powers –
including Czechoslovakia, Belgium, Poland and the Baltic States – were forced to contend with
an evolving international political landscape as well as internal unrest at the hands of the
unemployed and dissatisfied who looked to Germany and Russia for an example of the proper
response to the Depression. Read within the context of the unstable political landscape,
Loewenstein’s analysis becomes more meaningful, as well as a clear response to the new reality
of European politics in 1935.
Loewenstein begins by summarizing the “political scene of contemporary Europe,”
pointing out that the European states, “are aligned in two fundamentally antagonistic camps,”
democracy and liberalism, and autocracy. Loewenstein believes that Great Britain, the Irish Free
State, France, Belgium, the Netherlands, Sweden, Norway, Denmark, Finland, Switzerland and
Czechoslovakia fall into the former category, while Russia, Turkey, Germany, Italy, Portugal,
Austria, Poland, Yugoslavia, Bulgaria, Rumania, Hungary, Estonia and Latvia compromise the
latter. According to Loewenstein, in 1935 “by far the greater part of European territory and of
European population is under dictatorial rule of one type or another,” and, facing this reality, it is
necessary to examine the prospects of the remaining democratic nations for becoming autocratic
dictatorships.
Before undertaking this examination, Loewenstein briefly reviews the political history of
democratic and autocratic forms of government, taking pains to point out that “the rationalization
of government by the devices of free self-expression called democracy is a comparatively new
phenomenon,” and that for the large part of human history man has lived under autocratic
systems. Beyond the accuracy of this assertion, which functions to dispel much of the surprise
surrounding the spread of dictatorships, as in many ways this spread can be seen as simply
reverting to the mean, Loewenstein’s comments here do much to reveal the tone he takes
throughout the article. At this stage Loewenstein is still attempting to approach his subject with
an element of academic objectivity and distance. It is unclear at this point how he personally
feels about autocracy, and in particular fascism, and what greater meaning he attaches to the
prospect of the further spread of autocracy throughout the remaining democratic European
nations. This attempt at objectivity is further evident in Loewenstein’s acknowledgement of the
unique nature of this spread of autocratic governments. While “to the observer of history,” the
reemergence of “Caesarism” is not surprising, the speed by which “the new dictatorial wave” has
spread is unique, and prompts “deep concern to everybody who values democracy as a higher
step of mankind toward progress and civilization.” By writing as such, Loewenstein is couching
his analysis. For those who believe that democracy is the next step in mankind’s march of
progress, fascism is a threat; but this belief is neither universally held nor necessarily correct.
Importantly, in this first section, and in line with the title of the article, Loewenstein
contrasts democracy and autocracy in general, and places both Russia and Germany, despite their
opposing worldviews, within the autocratic category. Lowenstein acknowledges this relationship
early on, pointing out that his use of autocracy as a descriptive term “embraces not only the
fascist variety as presented by Italy and Germany, but also the communistic form of dictatorship
in Russia.” This distinction is significant, as for the majority of his following articles, and, in
fact, most of “Autocracy Versus Democracy,” he almost exclusively discusses the prospect of the
continued spread of fascism, ignoring the obvious parallels between Russia and Germany, and
the crimes of Stalin and Hitler.
**
After briefly outlining the historical background of fascism, Loewenstein begins his
analysis of the odds of the remaining democratic European nations for becoming fascist.
Loewenstein first attempts to “distinguish between the general tendencies of the replacement of
democratic by autocratic rule and the specific conditions arising from the economic and political
situation of a given country.” Loewenstein here is presenting the adoption of fascism as the
consequence of two diverse factors: those that are general and exist regardless of particular
circumstance, and those that are the direct result of the Great Depression and economic unrest.
In general, much of fascism’s appeal comes from fulfilling what Loewenstein terms “the
missionary spirit,” or the “individual’s obsession by belief in the absolute and indisputable value
of his own devotion to a new basic principle of life,” which causes him to preach this ideology at
every turn. The proponents of this new ideology act as missionaries, spreading the doctrine of
fascism like a religion. This spread is further facilitated by local concepts of nationalism and
regionalism, as within these beliefs fascism can be seen as a unifying ideology to help reunite
populations that have been previously separated.
As to the particular, the appeal of fascism reflects the generally held belief that economic
change requires a change in government. For populaces suffering under the spreading worldwide
Great Depression, “national economic autarchy has become the catchword of the day,” which
can only be achieved by an active government that interferes with the economy. This, in turn,
necessitates an organized, centralized authority unfetered by private interests, and logically, the
concentration of “political power in the hands of a government strong enough to cope with the
obstacles during the transition period [from unplanned to planned economy].” Facing this crisis,
“dictation from above becomes necessary, even where the spirit of the nation abhors compulsory
methods of suppression of free institutions.” Thus, fascism is seen as the solution to economic
depression, and the poorer the economic situation in a particular nation, the greater the prospects
for this nation adopting fascism.
Beyond the two different motivations leading to the support of fascism, democracy in
Europe is further threatened by the “facilities afforded by the fascist technique,” namely the
encouragement of apathy and silence, which causes citizens who recognize the threat to do
nothing. This encouragement in many way stems from what Lowenstein describes as the
“science” of introducing fascism into a democratic state, which is a “typical procedure applicable
to almost any state under the rule of democracy.” To Loewenstein, this science is a
“rationalized and pre-calculated routine progressing, step by step, on the basis of experience and
precedent,” and is aided by democracy itself. Although not fully explained, what Loewenstein is
claiming is that the institutions of democracy provide fascism with the tools needed for the
destruction of the existing government.
This passage is, for several reasons, one of the most important of the article.
Loewenstein’s description of the way in which fascism actually utilizes the democratic process to
destroy democracy itself is important. While he is by no means the first scholar to highlight the
problems of relying on democratic ideals alone to protect the democratic state, he is one of the
first to propose the solution that is first alluded to in “Autocracy Versus Democracy.” This
passage is the beginning of what eventually will evolve in later articles into his theory of militant
democracy. As he succinctly summarizes, in many fascist states, “the democratic constitution
became the main obstacle against [the state’s] maintenance and the best tool for its destruction.”
According to Loewenstein, this phenomenon can be readily observed in the
circumstances surrounding Hitler’s rise to power in Germany. While much of Hitler’s appeal
came from his ability to tap into the public’s anger with the Treaty of Versailles and the other
Western powers, he would have never been able to assume power (or even rise beyond a petty
demagogue) without being enabled by the “generous and lenient Weimar republic,” which
fashioned the mechanisms for its own doom by allowing “the existence of a resolute competition
to the legal authority of the state.” For Loewenstein, the Weimar government was destined to
failure “from the beginning... because it was pacifist instead of militant.” Here, again, the seeds
(and even language) of his later writings can be observed, and by providing concrete evidence of
the validity of his analysis, Loewenstein makes the threat posed by fascism to democracies seem
all the more acute. If democratic governments wait until the fascists have begun to implement
their scientific process, it is too late. The defensive measures must be undertaken proactively, and
long before the fascist party prepares to assume power.
After reviewing the actual process by which a fascist government subverts a democratic
state, Loewenstein begins his specific examination of the prospects of each remaining democratic
nation for becoming fascist in “Autocracy Versus Democracy in Central Europe, II,” again
published in in the American Political Science Review in 1935. For the purposes of this thesis,
the importance of these predictions lies in what they reveal about Loewenstein’s understanding
of fascism and his worldview in 1935, and not in their eventual accuracy, as eerily prescient as
they may be. Much of Loewenstein’s analysis here rests on his contention that, beyond economic
prosperity, the single most important factor in determining a nation’s ability to
For many of these dismissed university professors, leaving Germany was the best option, and
aided by newly formed international rescue committees, over 50% of those who lost their jobs in
1933 – 650 total – immigrated from Germany. By the end of the 1930s this number had risen to
over 1,700, and, including doctors, lawyers, artists and writers, to over 12,000. While initially
most of these émigrés chose to remain in Europe to stay closer to Germany, faced with Hitler’s
march across Europe, as well as the difficulty of “shedding one’s status as an alien in Europe,”
ever growing numbers of intellectuals chose to leave Europe for America, until by the start of
World War II by far the largest proportion of German émigrés had found residence in the United
States. In America, these intellectuals saw President Franklin D. Roosevelt, and especially his
New Deal, as the heir to their progressive work during the failed Weimar Republic, and
appreciated the ease with which they, as immigrants in a country full of immigrants, could blend
into society at large, making “the process of reintegration exceedingly simple.”
Despite this openness, the path of the German Jewish immigrant was fraught with
difficulties. These scholars were forced to compete for scarce permanent teaching positions at
xenophobic and anti-Semitic American universities that regarded them with suspicion. It was
only after American universities realized the positive benefit German faculty members had on the
academic quality of departments that a larger number of teaching positions became available, and
American institutions became more willing to hire Germans. Even after securing teaching
positions, these intellectuals still had to cope with the psychological consequences of their
sudden dismissals and forced immigrations, and watch as Hitler and Nazi Germany successfully
conquered much of Europe, spreading fascism across the European continent throughout the
1930s and 1940s.
Such experiences profoundly altered the worldview of some of these émigrés, causing
them to both reassess their academic work, as well as look at the world through new, pessimistic
eyes. This thesis tells the story of two of Jewish German émigré intellectuals, Karl Loewenstein
(1891–1973) and John H. Herz (1908-2005), and how they responded, through their work, to
their immigrant experience and the dilemma to democracy presented by fascism’s widespread
success. While both are ancillary figures in the greater history of the émigrés, their work – and
especially Loewenstein’s – showcase how scholars attempted to understand the new world they
found themselves a part of, as well as to protect the nation that had become their home and
represented the last bastion of democracy and free thought.
After his immigration to the United States in 1933, Loewenstein began to research the
ways in which democracies could defend themselves from fascism. Faced with the apparent
prospect of an endless, creeping tide of fascism, spreading across the globe and consuming
democratic nations from within, he argued for the adoption of militant democracy, or the idea
that democracies must proactively defend themselves against internal fascist threats. According
to Loewenstein, fascists were able to abuse the fundamental rights granted to them by democratic
constitutions – namely freedom of speech, press and assembly, and equal participation in the
electoral process – to destroy democracy from within. The key to defending democracy and
defeating fascists was to deny them these fundamental rights through temporary restrictive
legislation. Loewenstein presented this idea in four academic articles published in 1935 and
1937.
Confronted with the success of Hitler and Germany throughout the 1930s, Loewenstein
continued to develop his theory of militant democracy, and by 1938 had come to believe that
beyond temporary legislation, it was necessary for democracies to transform their legislative and
executive branches into smaller, more responsive bodies better able to cope with emergent
situations and the speed of the modern state. Key to understanding this evolution is
Loewenstein’s growing pessimism towards the future prospects of democracy, rooted in his
forced immigration from Germany, as well as his mounting anxiety about fascism. In 1935 and
1937 he still approached the conflict between democracy and fascism as an objective academic,
but by 1938 he became increasingly personally involved with the defense of democracy, arguing
urgently for the quick adoption of militant democracy in the United States in order to protect
America from the dire fascist threat.
This personal involvement manifested itself in an extensive campaign of public advocacy
for the passage of restrictive legislation in the United States. While he never revealed his entire
theory (especially his belief in the necessity to transform the American system), from 1938 until
1947 Loewenstein attempted, through book reviews, speeches and a pamphlet, to convince the
public of the necessity of restricting the right of fascists, as well as of the threat posed to
America by a hidden Fifth Column of fascist and fascist sympathizers poised to aid Hitler in
destroying the United States. This campaign took on a particular urgency in the aftermath of the
surprising and rapid defeat of France in 1940. Following this defeat, Loewenstein attempted to
do whatever he could to convince the general public of the urgent need to use militant democracy
in America, including presenting himself as a defender of traditional Anglo-Saxon Christian
American society, despite his nationality and ethnic heritage.
Following the attack on Pearl Harbor and the American entrance into the war,
Loewenstein, like many other German émigrés, joined the American government, eventually
assisting in denazification by interviewing Nazis as part of the Nuremburg prosecution. Even
after the final defeat of Hitler, Loewenstein’s advocacy for militant democracy continued, and he
remained pessimistic and anxious about fascism. He was publicly critical of denazification,
believing that the German citizenry were unrepentant, and that the American failure to effectively
root out and punish Nazis had set the stage for the reemergence of fascist Germany and the
continuation of the threat to the United States and democracy. During this period, Loewenstein’s
understanding of militant democracy continued to evolve as well, until, by 1944, he had come to
believe that it was impossible for democracies and fascist states to coexist.
Unfortunately, Loewenstein’s pessimism, his particular views on fascism, his public
campaign of advocacy for militant democracy and even the evolutions of this theory throughout
the 1930s and early 1940s are entirely missing from the historiography. Over the past two
decades, as scholars have confronted issues of domestic terrorism, human rights reforms and
sovereignty in the wake of the Cold War, they have returned to the idea of militant democracy as
a starting point for their research. As part of this research, Loewenstein has a newfound relevance
among political scientists, especially when examining democratic responses to national threats.
Little research has been done into Loewenstein for Loewenstein’s own sake. Virtually
every scholar writing about him does so in the context of another event, and their work gives the
impression that Loewenstein’s theory of militant democracy simply appeared in 1937, fully
formed, and remained static over the next decade. The best examination of Loewenstein’s life
and work to date is Markus Lang’s biography of Loewenstein, Karl Loewenstein:
Transatlantischer Denker der Politik, published in 2007 and based on Lang’s earlier dissertation.
However, even Lang’s biography is deficient, devoting only fifteen pages to Loewenstein’s work
on militant democracy, with no mention, beyond a single footnote, of Loewenstein’s campaign of
public advocacy for adoption of militant democracy in the United States. Instead, Lang opts to
focus on Loewenstein’s role in the development of political science as a field, and seeks to
integrate Loewenstein into the growing category of émigré transatlantic intellectuals who, by
leaving Germany, offered an implicit critique of the Nazi regime. Lang reiterated this approach
in a chapter on Loewenstein, “Karl Loewenstein: From Public Law to Political Science,” as part
of German Scholars in Exile: New Studies in Intellectual History, published in 2011.
The majority of works on Loewenstein and militant democracy, on the other hand, use
Loewenstein’s theories as part of a commentary on a present day dilemma – for example
terrorism – and devote little more than a footnote to Loewenstein or his work. There is no hint of
Loewenstein’s public advocacy for militant democracy, or of any evolution within his theory
throughout the 1930s and early 1940s. Typical of this category of works is a recent dissertation
on Loewenstein, “Militant Democracy,” by Svetlana Tyulkina, finished in 2011. While Tyulkina
does an excellent job of tracing the influence of Loewenstein’s work in the modern world, as
well as highlighting examples of legislation and constitutional amendments today that are
examples of militant democracy, she spends no time exploring the development of the theory, or
the greater intellectual context within which Loewenstein worked. Martin Klamt follows a
similar approach in his chapter, “Militant Democracy and the Democratic Dilemma: Different
Ways of Protecting Democratic Constitutions,” in Explorations in Legal Culture, published in
2007.
The only mention of Loewenstein’s public campaign for militant democracy is found not
in a work within the Loewenstein historiography, but rather in an article about the German Jurist
Carl Schmitt’s interrogations as part of the Nuremburg Trials. Loewenstein, in his capacity as an
officer with the U.S. Military Government in Berlin (1945-1947), pressed American officials to
arrest Schmitt. While describing Loewenstein and Schmitt, Joseph W. Bendersky references a
letter to the editors of The New York Times written by Loewenstein that was highly critical of
denazification.18 This letter, along with others composed by him on the same subject, were part
of Loewenstein’s post-war campaign for the application of militant democracy in defeated
Germany. Beyond this reference, as well as the one found in Lang’s biography, no other
references to Loewenstein’s public statements exist.
**
Like Karl Loewenstein, John H. Herz’s immigration from Germany left him sharply
pessimistic. After arriving in America in 1938, while studying at Princeton, he began to
investigate the way in which international relations functioned, and how and why states came
into conflict with one another. Like Loewenstein, Herz joined the American government during
the war to help combat Nazism, and after the war was highly critical of denazification. During
this period, Herz concluded that man was inherently concerned with his personal security, and
that the knowledge that other men held the potential to kill him led to a state of constant,
potential violence, regardless of actual intent. Relations between nations were this
anthropological state, termed the security dilemma, writ large. Despite his pessimistic
anthropological view, Herz believed that, through a combination of measured realism and
idealism known as Liberal Realism, a peaceful world system could be achieved. Thus man,
cognizant of his nature, could overcome his native state and work towards a peaceful future.
While Herz acknowledged this future was unlikely to come to pass, his theory still held
the possibility for a world in which nations, independent of their political ideology, by pursuing
Liberal Realism, could peacefully coexist. Written in the years before World War II and the
beginning of the Cold War in the late 1940s, Herz’s theory was fundamentally concerned with
describing a world in which nations of competing ideological orientations, in particular
18 Joseph W. Bendersky, “Carl Schmitt’s Path to Nuremburg: A Sixty-Year Assesment,” TELOS 139 (2007):
21.
democracy and communism, could avoid destructive war. This potential for peace represents a
working out of Herz’s pessimism, despite his biography and worldview, and, in contrast with
Loewenstein, shows how unusual Loewenstein’s particular solution to the conflict between
fascism and democracy was.
Compared to Loewenstein, the Herz historiography is considerably smaller, arising only
in the past ten years, and focuses on Herz’s role in the development of international relations as a
field, and his participation in the wider community of such scholars in the post-War world. As
yet, no scholar has compared Herz to other émigré intellectuals, or explored the relationship
between his theories and Loewenstein’s militant democracy. Today, the leading academics
working on Herz are Peter Stirk, Jana Puglierin, Christian Hacke and Ken Booth. Puglierin has
written the only contemporary monograph on Herz, John H. Herz: Leben und Denken zwischen
Idealismus und Realismus, Deutschland und Amerika, published in German in 2011 and
developed from an earlier dissertation. Puglierin also helped edit a 2007 issue of International
Relations (a publication that Herz contributed to throughout his life) devoted to Herz’s work. In
this issue she, along with Hacke, contributed two articles on Herz’s life and work, “John H.
Herz: Balancing Utopia and Reality,” and “Toward Being a ‘Traveller Between All Worlds’.”
Along with Hacke and Puglierin, Ken Booth has written on Herz’s Political Realism and
Political Idealism in “Navigating the ‘Absolute Novum’: John H. Herz’s Political Realism and
Political Idealism.”
Peter Stirk also contributed to the Herz issue of International Relations. In “John H. Herz
and the International Law of the Third Reich,” he explores Herz’s conception of Nazi
international law and his work on this subject. Stirk also mentions Herz in a work on Carl
Schmitt, Carl Schmitt, Crown Jurist of the Third Reich: On Preemptive War, Military
Occupation, and World Empire, presenting Herz’s understanding of international relations as an
alternative to Schmitt’s.19 Looking forward, with the recent release of Herz’s papers, catalogued
at the University at Albany as part of their Jewish immigrants collection, it is likely that more
works devoted to his life and theories will be forthcoming.20
**
The story of Loewenstein and Herz is, fundamentally, a story of their pessimism, and
how this pessimism manifested itself in both their academic work and public discourse. Chapter
one provides a detailed analysis of Loewenstein’s academic work on militant democracy,
beginning in 1935 and ending in 1938. In this work, the evolution of militant democracy can be
first observed, as well as Loewenstein’s growing concern with fascism and the threat posed by
fascists to the United States. The second chapter explores Loewenstein’s public advocacy for the
adoption of antifascist legislation in the United States, beginning in 1938 and concluding with
his critique of denazification following his departure from government service in 1947.
Throughout this period, despite the defeat of Hitler by the Allies in 1945, Loewenstein remained
acutely anxious about fascism, and had little hope for the future of democracy. Chapter
29 Peter M. R. Stirk, Carl Schmitt, Crown Jurist of the Third Reich: On Preemptive War, Military Occupation,
and World Empire (London: Edwin Mellon Press, 2005).
30 Herz and Loewenstein were by no means the only scholars of international conflict working during this
period. Among many others, Carl Schmitt and Hans J. Morgenthau deserve particular mention. Schmitt, who stayed
behind in Germany and briefly joined the Nazi regime until he fell afoul of the SS in 1936, described the ‘equal
chance,’ an important theory to be aware of when reading Loewenstein, in his 1932 work Legality and Legitimacy.
See Carl Schmitt, Legality and Legitimacy, trans. Jeffrey Seitzer (Durham: Duke University Press, 2004): 28-33. For
secondary literature on Schmitt, see William E. Scheuerman, Carl Schmitt: The End of Law (London: Rowman &
Littlefield, 1999); Joseph W. Bendersky, Carl Schmitt, Theorist for the Reich (Princeton: Princeton University Press,
1983); Michael G. Satler, Carl Schmitt: Law as Politics, Ideology and Strategic Myth (New York, Routledge, 2012);
Benno Gerhard Teschke, “Fatal Attraction: A Critique of Carl Schmitt’s International Political and Legal Theory,”
International Theory 3 (2011): 179-227. Morgenthau, another German Jewish émigré, had a similar understanding
of anthropology and international relations to Herz, but believed that, based on man’s inherently violent nature, a
peaceful world order free of war was impossible, and that international relations would be inevitably plagued by
conflict and confrontation. See Hans J. Morgenthau, Scientific Man Versus Power Politics (Chicago: University of
Chicago Press, 1946); Hans J. Morgenthau, Politics Among Nations: The Struggle for Power and Peace (New York:
Alfred A. Knopf, 1948); Hans J. Morgenthau, In Defense of the National Interest (New York: Alfred Knopf, 1951).
For secondary literature on Morgenthau, see see William E. Scheuermann, Morgenthau (New York: Polity, 2008);
Michaela Neacsu, Hans J. Morgenthau’s Theory of International Relations: Disenchantment and Re-Enchantment
(New York: Palgrave Macmillian, 2010); Michael C. Williams, Realism Reconsidered: The Legacy of Hans
Morgenthau in International Relations (Oxford: Oxford University Press, 2007).
three moves beyond Loewenstein, focusing instead on Herz, and examines the relationship
between the two scholars, and how Herz, despite his similar biography and worldview,
developed a markedly different solution to the dilemma facing democracy. Finally, the
conclusion reflects on the position of militant democracy today, and how Loewenstein and
Herz’s worldviews evolved in the decades following World War II. While Herz remained
optimistic, Loewenstein, despite the emergence of a democratic Germany, remained pessimistic
until the end of his days.
Chapter One
The Academic: Karl Loewenstein and the Development
of Militant Democracy
“If democracy is convinced that it has not yet fulfilled its
destination, it must fight on its own plane a technique
which serves only the purpose of power. Democracy must become
militant.”
Karl Loewenstein was born in Munich, Germany in 1891 to a family of wealthy Jewish
Bavarian industrialists, and traveled extensively during his childhood, including time spent living
in England and South America. After several years at universities in Munich, Heidelberg – where
he studied under Max Weber – Paris and Berlin, he received a law degree in 1914. During World
War I he spent 1915 serving with the German infantry, and was admitted into the
German bar in 1918. A year later Loewenstein received his doctorate in civil and ecclesiastical
law at Munich. After practicing law throughout the 1920s in and around Munich, Loewenstein
entered academia and became a lecturer at the University of Munich School of Law in 1931. He
was forced to resign this position in 1933 as a consequence of the Nazi’s efforts to purge
nonAryans from public service, and shortly thereafter left Germany for the United States. While
in
America, with the help of the Emergency Committee in Aid of Displaced German Scholars,
Loewenstein secured a two-year teaching position at Yale University in 1935, and in 1936
accepted a permanent position teaching political science at Amherst College.
**
During this period, shortly after immigrating to the United States, Karl Loewenstein
began writing academic articles about the spread of fascism, and, in particular, what steps the
remaining western democracies should undertake to protect themselves from internal fascists
threats. These articles provide much of the basis for the future importance of Loewenstein’s
work, and show a clear progression of thought that mirrors European political developments
throughout the 1930s. In the first of these articles, “Autocracy Versus Democracy in
Contemporary Europe I and II,” published in The American Political Science Review in 1935,
Loewenstein examines the political makeup of Europe, as well as the prospect of the remaining
democratic nations of succumbing to internal fascist movements. Within this analysis, he first
describes what he later terms militant democracy, the idea that democratic nations must
proactively defend themselves against fascism, as fascists are all too capable of utilizing
democratic principles to enable their ascent to power. No longer are these principles alone
sufficient to protect the state – rather, these principles, and in particular the democratic belief in
fundamental rights, in many ways enable the fascists to succeed.
Loewenstein continued his inquiry into the conflict between democracy and fascism in a
pair of 1937 articles, “Militant Democracy and Fundamental Rights I and II,” again published in
The American Political Science Review. These two articles continue his examination of fascism,
while investigating the similarities between European fascists movements, and the steps these
movements undertook to transition from the political fringe to the sole governmental authority
within a state. Loewenstein also continues to outline possible steps that democratic nations must
take to resist the spread of fascism, including what antifascist legislation has already been
enacted by democratic states, and how these laws, which are examples of militant democracy in
action, work to protect the democratic state.
Although much of the content of this article is similar to the earlier “Autocracy Versus
Democracy I and II,” Loewenstein’s tone throughout is noticeably more alarmist. As he has
witnessed the progressive spread and success of fascism throughout Europe, his hope for the
continued existence of democratic states has waned. Further, the steps outlined by Loewenstein
in “Militant Democracy” are a temporary abandonment of many of the principles and rights held
most dear to democratic nations – an abandonment, that, in Loewenstein’s eyes, is necessary for
the defense of democracy in the long term. This abandonment, forced upon democratic nations
by the unique nature of the fascist threat, is one of the most fascinating elements of
Loewenstein’s work during this period, and reflects both his pessimism – rooted in his recent in
his recent immigration – as well as his growing anxiety about fascism.
Loewenstein continues this argument in his next pair of articles, “Legislative Control of
Extremism in European Democracies I and II,” published in Columbia Law Review in 1938.
Similar to “Militant Democracy,” in these articles Loewenstein surveys existing anti-fascist
legislation, and, in technical legal language appropriate for a law journal, analyzes the way in
which these laws effectively deprive fascist groups of the tools necessary to seize power from the
existing democratic system. Even when writing in such a legalistic context, Loewenstein cannot
help but reaffirm the pessimistic way in which he views the prospects of the democratic states, as
well as reveal his continued anxiety about the threat posed by fascism to the west. Even here he
presents the conflict between fascism and democracy as a war, arguing that everything possible
must be done to protect democratic institutions, no matter the cost.
Loewenstein published another article in 1938 on militant democracy, “The Balance of
Legislative and Executive Power: A Study in Comparative Constitutional Law,” in The
University of Chicago Law Review. Importantly, in this article, Loewenstein expands on his
original theory of militant democracy, and argues for the necessity of implementing fundamental
changes to the political process of the United States in order create a smaller and more
responsive legislature better able to cope with the demands of a modern state, along with a more
powerful, active executive. Unlike the temporary antifascist legislation, these proposed changes
would be permanent, and represent a radicalization of Loewenstein’s thought, as well as the
evolution of a second level to his theory of militant democracy, encompassing both temporary
and permanent measures.
Examining Loewenstein’s articles during this period reveals the growing alarm with
which Loewenstein describes the spread of fascism, transforming the dry, academic examination
of fascism as a new political movement in 1935 into the panic of the late 1930s. Loewenstein
believed that if radical steps were not taken, then the remaining democratic nations, including the
United States, would fall to internal subversive fascist elements. This mounting anxiety reveals a
fundamental change in Loewenstein’s outlook. He became, like so many other Jewish
intellectuals who were forced to flee Germany after the Nazi Party seized power in 1933, a
pessimist. He was no longer content to simply hope that democratic principles, human nature and
inevitable progress were safeguards against the darker forces of humanity embodied by fascism.
Instead, democratic nations must participate in an active fight against fascism, taking whatever
steps are necessary in order to prevent their internal destruction at the hands of fascist agitators.
**
Loewenstein’s first examination of fascism and the prospects of its further spread
throughout Europe can be found in “Autocracy Versus Democracy in Cotemporary Europe I and
II,” published in 1935. These articles are the beginning of a new era in Loewenstein’s research
and writing. The tone that Loewenstein takes throughout these article – that of an objective
academic investigating a new political development – and the way he describes fascism are
significant, and stand in contrast to his later works, where his personal involvement in the
protection of democracy and his anxiety are much clearer. Beyond showing the development of
his theory of militant democracy, “Autocracy Versus Democracy I and II” show the beginning of
Loewenstein’s transformation from academic to advocate.
Loewenstein’s work here is a reflection of the political climate of Europe in the early to
mid 1930s. Between 1933, when Loewenstein fled from Germany, and 1935, when he published
“Autocracy Versus Democracy I and II,” Germany had reemerged as one of the Great Powers on
the European continent, while the European democracies, suffering through the Great
Depression, became increasingly unstable. Hitler, by pursuing an aggressive foreign policy that
took advantage of the worsening relationship between England and France, was able to press
Germany’s diplomatic position, forcing concessions from England and France on provisions
from the Treaty of Versailles. Simultaneously, while fascist Germany prospered, the political
power of France waned. Beset by serious internal strife and economic turmoil, French politics
throughout the 1930s was increasingly dominated by the radicalized elements of the far left and
far right, with the possibility of outright revolution by either group festering just below the
surface.
The position of the smaller democratic powers in Europe was particularly treacherous.
Faced with the decline of France and the reemergence of Germany, these small powers –
including Czechoslovakia, Belgium, Poland and the Baltic States – were forced to contend with
an evolving international political landscape as well as internal unrest at the hands of the
unemployed and dissatisfied who looked to Germany and Russia for an example of the proper
response to the Depression. Read within the context of the unstable political landscape,
Loewenstein’s analysis becomes more meaningful, as well as a clear response to the new reality
of European politics in 1935.
Loewenstein begins by summarizing the “political scene of contemporary Europe,”
pointing out that the European states, “are aligned in two fundamentally antagonistic camps,”
democracy and liberalism, and autocracy. Loewenstein believes that Great Britain, the Irish Free
State, France, Belgium, the Netherlands, Sweden, Norway, Denmark, Finland, Switzerland and
Czechoslovakia fall into the former category, while Russia, Turkey, Germany, Italy, Portugal,
Austria, Poland, Yugoslavia, Bulgaria, Rumania, Hungary, Estonia and Latvia compromise the
latter. According to Loewenstein, in 1935 “by far the greater part of European territory and of
European population is under dictatorial rule of one type or another,” and, facing this reality, it is
necessary to examine the prospects of the remaining democratic nations for becoming autocratic
dictatorships.
Before undertaking this examination, Loewenstein briefly reviews the political history of
democratic and autocratic forms of government, taking pains to point out that “the rationalization
of government by the devices of free self-expression called democracy is a comparatively new
phenomenon,” and that for the large part of human history man has lived under autocratic
systems. Beyond the accuracy of this assertion, which functions to dispel much of the surprise
surrounding the spread of dictatorships, as in many ways this spread can be seen as simply
reverting to the mean, Loewenstein’s comments here do much to reveal the tone he takes
throughout the article. At this stage Loewenstein is still attempting to approach his subject with
an element of academic objectivity and distance. It is unclear at this point how he personally
feels about autocracy, and in particular fascism, and what greater meaning he attaches to the
prospect of the further spread of autocracy throughout the remaining democratic European
nations. This attempt at objectivity is further evident in Loewenstein’s acknowledgement of the
unique nature of this spread of autocratic governments. While “to the observer of history,” the
reemergence of “Caesarism” is not surprising, the speed by which “the new dictatorial wave” has
spread is unique, and prompts “deep concern to everybody who values democracy as a higher
step of mankind toward progress and civilization.” By writing as such, Loewenstein is couching
his analysis. For those who believe that democracy is the next step in mankind’s march of
progress, fascism is a threat; but this belief is neither universally held nor necessarily correct.
Importantly, in this first section, and in line with the title of the article, Loewenstein
contrasts democracy and autocracy in general, and places both Russia and Germany, despite their
opposing worldviews, within the autocratic category. Lowenstein acknowledges this relationship
early on, pointing out that his use of autocracy as a descriptive term “embraces not only the
fascist variety as presented by Italy and Germany, but also the communistic form of dictatorship
in Russia.” This distinction is significant, as for the majority of his following articles, and, in
fact, most of “Autocracy Versus Democracy,” he almost exclusively discusses the prospect of the
continued spread of fascism, ignoring the obvious parallels between Russia and Germany, and
the crimes of Stalin and Hitler.
**
After briefly outlining the historical background of fascism, Loewenstein begins his
analysis of the odds of the remaining democratic European nations for becoming fascist.
Loewenstein first attempts to “distinguish between the general tendencies of the replacement of
democratic by autocratic rule and the specific conditions arising from the economic and political
situation of a given country.” Loewenstein here is presenting the adoption of fascism as the
consequence of two diverse factors: those that are general and exist regardless of particular
circumstance, and those that are the direct result of the Great Depression and economic unrest.
In general, much of fascism’s appeal comes from fulfilling what Loewenstein terms “the
missionary spirit,” or the “individual’s obsession by belief in the absolute and indisputable value
of his own devotion to a new basic principle of life,” which causes him to preach this ideology at
every turn. The proponents of this new ideology act as missionaries, spreading the doctrine of
fascism like a religion. This spread is further facilitated by local concepts of nationalism and
regionalism, as within these beliefs fascism can be seen as a unifying ideology to help reunite
populations that have been previously separated.
As to the particular, the appeal of fascism reflects the generally held belief that economic
change requires a change in government. For populaces suffering under the spreading worldwide
Great Depression, “national economic autarchy has become the catchword of the day,” which
can only be achieved by an active government that interferes with the economy. This, in turn,
necessitates an organized, centralized authority unfetered by private interests, and logically, the
concentration of “political power in the hands of a government strong enough to cope with the
obstacles during the transition period [from unplanned to planned economy].” Facing this crisis,
“dictation from above becomes necessary, even where the spirit of the nation abhors compulsory
methods of suppression of free institutions.” Thus, fascism is seen as the solution to economic
depression, and the poorer the economic situation in a particular nation, the greater the prospects
for this nation adopting fascism.
Beyond the two different motivations leading to the support of fascism, democracy in
Europe is further threatened by the “facilities afforded by the fascist technique,” namely the
encouragement of apathy and silence, which causes citizens who recognize the threat to do
nothing. This encouragement in many way stems from what Lowenstein describes as the
“science” of introducing fascism into a democratic state, which is a “typical procedure applicable
to almost any state under the rule of democracy.” To Loewenstein, this science is a
“rationalized and pre-calculated routine progressing, step by step, on the basis of experience and
precedent,” and is aided by democracy itself. Although not fully explained, what Loewenstein is
claiming is that the institutions of democracy provide fascism with the tools needed for the
destruction of the existing government.
This passage is, for several reasons, one of the most important of the article.
Loewenstein’s description of the way in which fascism actually utilizes the democratic process to
destroy democracy itself is important. While he is by no means the first scholar to highlight the
problems of relying on democratic ideals alone to protect the democratic state, he is one of the
first to propose the solution that is first alluded to in “Autocracy Versus Democracy.” This
passage is the beginning of what eventually will evolve in later articles into his theory of militant
democracy. As he succinctly summarizes, in many fascist states, “the democratic constitution
became the main obstacle against [the state’s] maintenance and the best tool for its destruction.”
According to Loewenstein, this phenomenon can be readily observed in the
circumstances surrounding Hitler’s rise to power in Germany. While much of Hitler’s appeal
came from his ability to tap into the public’s anger with the Treaty of Versailles and the other
Western powers, he would have never been able to assume power (or even rise beyond a petty
demagogue) without being enabled by the “generous and lenient Weimar republic,” which
fashioned the mechanisms for its own doom by allowing “the existence of a resolute competition
to the legal authority of the state.” For Loewenstein, the Weimar government was destined to
failure “from the beginning... because it was pacifist instead of militant.” Here, again, the seeds
(and even language) of his later writings can be observed, and by providing concrete evidence of
the validity of his analysis, Loewenstein makes the threat posed by fascism to democracies seem
all the more acute. If democratic governments wait until the fascists have begun to implement
their scientific process, it is too late. The defensive measures must be undertaken proactively, and
long before the fascist party prepares to assume power.
After reviewing the actual process by which a fascist government subverts a democratic
state, Loewenstein begins his specific examination of the prospects of each remaining democratic
nation for becoming fascist in “Autocracy Versus Democracy in Central Europe, II,” again
published in in the American Political Science Review in 1935. For the purposes of this thesis,
the importance of these predictions lies in what they reveal about Loewenstein’s understanding
of fascism and his worldview in 1935, and not in their eventual accuracy, as eerily prescient as
they may be. Much of Loewenstein’s analysis here rests on his contention that, beyond economic
prosperity, the single most important factor in determining a nation’s ability to
For many of these dismissed university professors, leaving Germany was the best option, and
aided by newly formed international rescue committees, over 50% of those who lost their jobs in
1933 – 650 total – immigrated from Germany. By the end of the 1930s this number had risen to
over 1,700, and, including doctors, lawyers, artists and writers, to over 12,000. While initially
most of these émigrés chose to remain in Europe to stay closer to Germany, faced with Hitler’s
march across Europe, as well as the difficulty of “shedding one’s status as an alien in Europe,”
ever growing numbers of intellectuals chose to leave Europe for America, until by the start of
World War II by far the largest proportion of German émigrés had found residence in the United
States. In America, these intellectuals saw President Franklin D. Roosevelt, and especially his
New Deal, as the heir to their progressive work during the failed Weimar Republic, and
appreciated the ease with which they, as immigrants in a country full of immigrants, could blend
into society at large, making “the process of reintegration exceedingly simple.”
Despite this openness, the path of the German Jewish immigrant was fraught with
difficulties. These scholars were forced to compete for scarce permanent teaching positions at
xenophobic and anti-Semitic American universities that regarded them with suspicion. It was
only after American universities realized the positive benefit German faculty members had on the
academic quality of departments that a larger number of teaching positions became available, and
American institutions became more willing to hire Germans. Even after securing teaching
positions, these intellectuals still had to cope with the psychological consequences of their
sudden dismissals and forced immigrations, and watch as Hitler and Nazi Germany successfully
conquered much of Europe, spreading fascism across the European continent throughout the
1930s and 1940s.
Such experiences profoundly altered the worldview of some of these émigrés, causing
them to both reassess their academic work, as well as look at the world through new, pessimistic
eyes. This thesis tells the story of two of Jewish German émigré intellectuals, Karl Loewenstein
(1891–1973) and John H. Herz (1908-2005), and how they responded, through their work, to
their immigrant experience and the dilemma to democracy presented by fascism’s widespread
success. While both are ancillary figures in the greater history of the émigrés, their work – and
especially Loewenstein’s – showcase how scholars attempted to understand the new world they
found themselves a part of, as well as to protect the nation that had become their home and
represented the last bastion of democracy and free thought.
After his immigration to the United States in 1933, Loewenstein began to research the
ways in which democracies could defend themselves from fascism. Faced with the apparent
prospect of an endless, creeping tide of fascism, spreading across the globe and consuming
democratic nations from within, he argued for the adoption of militant democracy, or the idea
that democracies must proactively defend themselves against internal fascist threats. According
to Loewenstein, fascists were able to abuse the fundamental rights granted to them by democratic
constitutions – namely freedom of speech, press and assembly, and equal participation in the
electoral process – to destroy democracy from within. The key to defending democracy and
defeating fascists was to deny them these fundamental rights through temporary restrictive
legislation. Loewenstein presented this idea in four academic articles published in 1935 and
1937.
Confronted with the success of Hitler and Germany throughout the 1930s, Loewenstein
continued to develop his theory of militant democracy, and by 1938 had come to believe that
beyond temporary legislation, it was necessary for democracies to transform their legislative and
executive branches into smaller, more responsive bodies better able to cope with emergent
situations and the speed of the modern state. Key to understanding this evolution is
Loewenstein’s growing pessimism towards the future prospects of democracy, rooted in his
forced immigration from Germany, as well as his mounting anxiety about fascism. In 1935 and
1937 he still approached the conflict between democracy and fascism as an objective academic,
but by 1938 he became increasingly personally involved with the defense of democracy, arguing
urgently for the quick adoption of militant democracy in the United States in order to protect
America from the dire fascist threat.
This personal involvement manifested itself in an extensive campaign of public advocacy
for the passage of restrictive legislation in the United States. While he never revealed his entire
theory (especially his belief in the necessity to transform the American system), from 1938 until
1947 Loewenstein attempted, through book reviews, speeches and a pamphlet, to convince the
public of the necessity of restricting the right of fascists, as well as of the threat posed to
America by a hidden Fifth Column of fascist and fascist sympathizers poised to aid Hitler in
destroying the United States. This campaign took on a particular urgency in the aftermath of the
surprising and rapid defeat of France in 1940. Following this defeat, Loewenstein attempted to
do whatever he could to convince the general public of the urgent need to use militant democracy
in America, including presenting himself as a defender of traditional Anglo-Saxon Christian
American society, despite his nationality and ethnic heritage.
Following the attack on Pearl Harbor and the American entrance into the war,
Loewenstein, like many other German émigrés, joined the American government, eventually
assisting in denazification by interviewing Nazis as part of the Nuremburg prosecution. Even
after the final defeat of Hitler, Loewenstein’s advocacy for militant democracy continued, and he
remained pessimistic and anxious about fascism. He was publicly critical of denazification,
believing that the German citizenry were unrepentant, and that the American failure to effectively
root out and punish Nazis had set the stage for the reemergence of fascist Germany and the
continuation of the threat to the United States and democracy. During this period, Loewenstein’s
understanding of militant democracy continued to evolve as well, until, by 1944, he had come to
believe that it was impossible for democracies and fascist states to coexist.
Unfortunately, Loewenstein’s pessimism, his particular views on fascism, his public
campaign of advocacy for militant democracy and even the evolutions of this theory throughout
the 1930s and early 1940s are entirely missing from the historiography. Over the past two
decades, as scholars have confronted issues of domestic terrorism, human rights reforms and
sovereignty in the wake of the Cold War, they have returned to the idea of militant democracy as
a starting point for their research. As part of this research, Loewenstein has a newfound relevance
among political scientists, especially when examining democratic responses to national threats.
Little research has been done into Loewenstein for Loewenstein’s own sake. Virtually
every scholar writing about him does so in the context of another event, and their work gives the
impression that Loewenstein’s theory of militant democracy simply appeared in 1937, fully
formed, and remained static over the next decade. The best examination of Loewenstein’s life
and work to date is Markus Lang’s biography of Loewenstein, Karl Loewenstein:
Transatlantischer Denker der Politik, published in 2007 and based on Lang’s earlier dissertation.
However, even Lang’s biography is deficient, devoting only fifteen pages to Loewenstein’s work
on militant democracy, with no mention, beyond a single footnote, of Loewenstein’s campaign of
public advocacy for adoption of militant democracy in the United States. Instead, Lang opts to
focus on Loewenstein’s role in the development of political science as a field, and seeks to
integrate Loewenstein into the growing category of émigré transatlantic intellectuals who, by
leaving Germany, offered an implicit critique of the Nazi regime. Lang reiterated this approach
in a chapter on Loewenstein, “Karl Loewenstein: From Public Law to Political Science,” as part
of German Scholars in Exile: New Studies in Intellectual History, published in 2011.
The majority of works on Loewenstein and militant democracy, on the other hand, use
Loewenstein’s theories as part of a commentary on a present day dilemma – for example
terrorism – and devote little more than a footnote to Loewenstein or his work. There is no hint of
Loewenstein’s public advocacy for militant democracy, or of any evolution within his theory
throughout the 1930s and early 1940s. Typical of this category of works is a recent dissertation
on Loewenstein, “Militant Democracy,” by Svetlana Tyulkina, finished in 2011. While Tyulkina
does an excellent job of tracing the influence of Loewenstein’s work in the modern world, as
well as highlighting examples of legislation and constitutional amendments today that are
examples of militant democracy, she spends no time exploring the development of the theory, or
the greater intellectual context within which Loewenstein worked. Martin Klamt follows a
similar approach in his chapter, “Militant Democracy and the Democratic Dilemma: Different
Ways of Protecting Democratic Constitutions,” in Explorations in Legal Culture, published in
2007.
The only mention of Loewenstein’s public campaign for militant democracy is found not
in a work within the Loewenstein historiography, but rather in an article about the German Jurist
Carl Schmitt’s interrogations as part of the Nuremburg Trials. Loewenstein, in his capacity as an
officer with the U.S. Military Government in Berlin (1945-1947), pressed American officials to
arrest Schmitt. While describing Loewenstein and Schmitt, Joseph W. Bendersky references a
letter to the editors of The New York Times written by Loewenstein that was highly critical of
denazification.18 This letter, along with others composed by him on the same subject, were part
of Loewenstein’s post-war campaign for the application of militant democracy in defeated
Germany. Beyond this reference, as well as the one found in Lang’s biography, no other
references to Loewenstein’s public statements exist.
**
Like Karl Loewenstein, John H. Herz’s immigration from Germany left him sharply
pessimistic. After arriving in America in 1938, while studying at Princeton, he began to
investigate the way in which international relations functioned, and how and why states came
into conflict with one another. Like Loewenstein, Herz joined the American government during
the war to help combat Nazism, and after the war was highly critical of denazification. During
this period, Herz concluded that man was inherently concerned with his personal security, and
that the knowledge that other men held the potential to kill him led to a state of constant,
potential violence, regardless of actual intent. Relations between nations were this
anthropological state, termed the security dilemma, writ large. Despite his pessimistic
anthropological view, Herz believed that, through a combination of measured realism and
idealism known as Liberal Realism, a peaceful world system could be achieved. Thus man,
cognizant of his nature, could overcome his native state and work towards a peaceful future.
While Herz acknowledged this future was unlikely to come to pass, his theory still held
the possibility for a world in which nations, independent of their political ideology, by pursuing
Liberal Realism, could peacefully coexist. Written in the years before World War II and the
beginning of the Cold War in the late 1940s, Herz’s theory was fundamentally concerned with
describing a world in which nations of competing ideological orientations, in particular
18 Joseph W. Bendersky, “Carl Schmitt’s Path to Nuremburg: A Sixty-Year Assesment,” TELOS 139 (2007):
21.
democracy and communism, could avoid destructive war. This potential for peace represents a
working out of Herz’s pessimism, despite his biography and worldview, and, in contrast with
Loewenstein, shows how unusual Loewenstein’s particular solution to the conflict between
fascism and democracy was.
Compared to Loewenstein, the Herz historiography is considerably smaller, arising only
in the past ten years, and focuses on Herz’s role in the development of international relations as a
field, and his participation in the wider community of such scholars in the post-War world. As
yet, no scholar has compared Herz to other émigré intellectuals, or explored the relationship
between his theories and Loewenstein’s militant democracy. Today, the leading academics
working on Herz are Peter Stirk, Jana Puglierin, Christian Hacke and Ken Booth. Puglierin has
written the only contemporary monograph on Herz, John H. Herz: Leben und Denken zwischen
Idealismus und Realismus, Deutschland und Amerika, published in German in 2011 and
developed from an earlier dissertation. Puglierin also helped edit a 2007 issue of International
Relations (a publication that Herz contributed to throughout his life) devoted to Herz’s work. In
this issue she, along with Hacke, contributed two articles on Herz’s life and work, “John H.
Herz: Balancing Utopia and Reality,” and “Toward Being a ‘Traveller Between All Worlds’.”
Along with Hacke and Puglierin, Ken Booth has written on Herz’s Political Realism and
Political Idealism in “Navigating the ‘Absolute Novum’: John H. Herz’s Political Realism and
Political Idealism.”
Peter Stirk also contributed to the Herz issue of International Relations. In “John H. Herz
and the International Law of the Third Reich,” he explores Herz’s conception of Nazi
international law and his work on this subject. Stirk also mentions Herz in a work on Carl
Schmitt, Carl Schmitt, Crown Jurist of the Third Reich: On Preemptive War, Military
Occupation, and World Empire, presenting Herz’s understanding of international relations as an
alternative to Schmitt’s.19 Looking forward, with the recent release of Herz’s papers, catalogued
at the University at Albany as part of their Jewish immigrants collection, it is likely that more
works devoted to his life and theories will be forthcoming.20
**
The story of Loewenstein and Herz is, fundamentally, a story of their pessimism, and
how this pessimism manifested itself in both their academic work and public discourse. Chapter
one provides a detailed analysis of Loewenstein’s academic work on militant democracy,
beginning in 1935 and ending in 1938. In this work, the evolution of militant democracy can be
first observed, as well as Loewenstein’s growing concern with fascism and the threat posed by
fascists to the United States. The second chapter explores Loewenstein’s public advocacy for the
adoption of antifascist legislation in the United States, beginning in 1938 and concluding with
his critique of denazification following his departure from government service in 1947.
Throughout this period, despite the defeat of Hitler by the Allies in 1945, Loewenstein remained
acutely anxious about fascism, and had little hope for the future of democracy. Chapter
31 Peter M. R. Stirk, Carl Schmitt, Crown Jurist of the Third Reich: On Preemptive War, Military Occupation,
and World Empire (London: Edwin Mellon Press, 2005).
32 Herz and Loewenstein were by no means the only scholars of international conflict working during this
period. Among many others, Carl Schmitt and Hans J. Morgenthau deserve particular mention. Schmitt, who stayed
behind in Germany and briefly joined the Nazi regime until he fell afoul of the SS in 1936, described the ‘equal
chance,’ an important theory to be aware of when reading Loewenstein, in his 1932 work Legality and Legitimacy.
See Carl Schmitt, Legality and Legitimacy, trans. Jeffrey Seitzer (Durham: Duke University Press, 2004): 28-33. For
secondary literature on Schmitt, see William E. Scheuerman, Carl Schmitt: The End of Law (London: Rowman &
Littlefield, 1999); Joseph W. Bendersky, Carl Schmitt, Theorist for the Reich (Princeton: Princeton University Press,
1983); Michael G. Satler, Carl Schmitt: Law as Politics, Ideology and Strategic Myth (New York, Routledge, 2012);
Benno Gerhard Teschke, “Fatal Attraction: A Critique of Carl Schmitt’s International Political and Legal Theory,”
International Theory 3 (2011): 179-227. Morgenthau, another German Jewish émigré, had a similar understanding
of anthropology and international relations to Herz, but believed that, based on man’s inherently violent nature, a
peaceful world order free of war was impossible, and that international relations would be inevitably plagued by
conflict and confrontation. See Hans J. Morgenthau, Scientific Man Versus Power Politics (Chicago: University of
Chicago Press, 1946); Hans J. Morgenthau, Politics Among Nations: The Struggle for Power and Peace (New York:
Alfred A. Knopf, 1948); Hans J. Morgenthau, In Defense of the National Interest (New York: Alfred Knopf, 1951).
For secondary literature on Morgenthau, see see William E. Scheuermann, Morgenthau (New York: Polity, 2008);
Michaela Neacsu, Hans J. Morgenthau’s Theory of International Relations: Disenchantment and Re-Enchantment
(New York: Palgrave Macmillian, 2010); Michael C. Williams, Realism Reconsidered: The Legacy of Hans
Morgenthau in International Relations (Oxford: Oxford University Press, 2007).
three moves beyond Loewenstein, focusing instead on Herz, and examines the relationship
between the two scholars, and how Herz, despite his similar biography and worldview,
developed a markedly different solution to the dilemma facing democracy. Finally, the
conclusion reflects on the position of militant democracy today, and how Loewenstein and
Herz’s worldviews evolved in the decades following World War II. While Herz remained
optimistic, Loewenstein, despite the emergence of a democratic Germany, remained pessimistic
until the end of his days.
Chapter One
The Academic: Karl Loewenstein and the Development
of Militant Democracy
“If democracy is convinced that it has not yet fulfilled its
destination, it must fight on its own plane a technique
which serves only the purpose of power. Democracy must become
militant.”
Karl Loewenstein was born in Munich, Germany in 1891 to a family of wealthy Jewish
Bavarian industrialists, and traveled extensively during his childhood, including time spent living
in England and South America. After several years at universities in Munich, Heidelberg – where
he studied under Max Weber – Paris and Berlin, he received a law degree in 1914. During World
War I he spent 1915 serving with the German infantry, and was admitted into the
German bar in 1918. A year later Loewenstein received his doctorate in civil and ecclesiastical
law at Munich. After practicing law throughout the 1920s in and around Munich, Loewenstein
entered academia and became a lecturer at the University of Munich School of Law in 1931. He
was forced to resign this position in 1933 as a consequence of the Nazi’s efforts to purge
nonAryans from public service, and shortly thereafter left Germany for the United States. While
in
America, with the help of the Emergency Committee in Aid of Displaced German Scholars,
Loewenstein secured a two-year teaching position at Yale University in 1935, and in 1936
accepted a permanent position teaching political science at Amherst College.
**
During this period, shortly after immigrating to the United States, Karl Loewenstein
began writing academic articles about the spread of fascism, and, in particular, what steps the
remaining western democracies should undertake to protect themselves from internal fascists
threats. These articles provide much of the basis for the future importance of Loewenstein’s
work, and show a clear progression of thought that mirrors European political developments
throughout the 1930s. In the first of these articles, “Autocracy Versus Democracy in
Contemporary Europe I and II,” published in The American Political Science Review in 1935,
Loewenstein examines the political makeup of Europe, as well as the prospect of the remaining
democratic nations of succumbing to internal fascist movements. Within this analysis, he first
describes what he later terms militant democracy, the idea that democratic nations must
proactively defend themselves against fascism, as fascists are all too capable of utilizing
democratic principles to enable their ascent to power. No longer are these principles alone
sufficient to protect the state – rather, these principles, and in particular the democratic belief in
fundamental rights, in many ways enable the fascists to succeed.
Loewenstein continued his inquiry into the conflict between democracy and fascism in a
pair of 1937 articles, “Militant Democracy and Fundamental Rights I and II,” again published in
The American Political Science Review. These two articles continue his examination of fascism,
while investigating the similarities between European fascists movements, and the steps these
movements undertook to transition from the political fringe to the sole governmental authority
within a state. Loewenstein also continues to outline possible steps that democratic nations must
take to resist the spread of fascism, including what antifascist legislation has already been
enacted by democratic states, and how these laws, which are examples of militant democracy in
action, work to protect the democratic state.
Although much of the content of this article is similar to the earlier “Autocracy Versus
Democracy I and II,” Loewenstein’s tone throughout is noticeably more alarmist. As he has
witnessed the progressive spread and success of fascism throughout Europe, his hope for the
continued existence of democratic states has waned. Further, the steps outlined by Loewenstein
in “Militant Democracy” are a temporary abandonment of many of the principles and rights held
most dear to democratic nations – an abandonment, that, in Loewenstein’s eyes, is necessary for
the defense of democracy in the long term. This abandonment, forced upon democratic nations
by the unique nature of the fascist threat, is one of the most fascinating elements of
Loewenstein’s work during this period, and reflects both his pessimism – rooted in his recent in
his recent immigration – as well as his growing anxiety about fascism.
Loewenstein continues this argument in his next pair of articles, “Legislative Control of
Extremism in European Democracies I and II,” published in Columbia Law Review in 1938.
Similar to “Militant Democracy,” in these articles Loewenstein surveys existing anti-fascist
legislation, and, in technical legal language appropriate for a law journal, analyzes the way in
which these laws effectively deprive fascist groups of the tools necessary to seize power from the
existing democratic system. Even when writing in such a legalistic context, Loewenstein cannot
help but reaffirm the pessimistic way in which he views the prospects of the democratic states, as
well as reveal his continued anxiety about the threat posed by fascism to the west. Even here he
presents the conflict between fascism and democracy as a war, arguing that everything possible
must be done to protect democratic institutions, no matter the cost.
Loewenstein published another article in 1938 on militant democracy, “The Balance of
Legislative and Executive Power: A Study in Comparative Constitutional Law,” in The
University of Chicago Law Review. Importantly, in this article, Loewenstein expands on his
original theory of militant democracy, and argues for the necessity of implementing fundamental
changes to the political process of the United States in order create a smaller and more
responsive legislature better able to cope with the demands of a modern state, along with a more
powerful, active executive. Unlike the temporary antifascist legislation, these proposed changes
would be permanent, and represent a radicalization of Loewenstein’s thought, as well as the
evolution of a second level to his theory of militant democracy, encompassing both temporary
and permanent measures.
Examining Loewenstein’s articles during this period reveals the growing alarm with
which Loewenstein describes the spread of fascism, transforming the dry, academic examination
of fascism as a new political movement in 1935 into the panic of the late 1930s. Loewenstein
believed that if radical steps were not taken, then the remaining democratic nations, including the
United States, would fall to internal subversive fascist elements. This mounting anxiety reveals a
fundamental change in Loewenstein’s outlook. He became, like so many other Jewish
intellectuals who were forced to flee Germany after the Nazi Party seized power in 1933, a
pessimist. He was no longer content to simply hope that democratic principles, human nature and
inevitable progress were safeguards against the darker forces of humanity embodied by fascism.
Instead, democratic nations must participate in an active fight against fascism, taking whatever
steps are necessary in order to prevent their internal destruction at the hands of fascist agitators.
**
Loewenstein’s first examination of fascism and the prospects of its further spread
throughout Europe can be found in “Autocracy Versus Democracy in Cotemporary Europe I and
II,” published in 1935. These articles are the beginning of a new era in Loewenstein’s research
and writing. The tone that Loewenstein takes throughout these article – that of an objective
academic investigating a new political development – and the way he describes fascism are
significant, and stand in contrast to his later works, where his personal involvement in the
protection of democracy and his anxiety are much clearer. Beyond showing the development of
his theory of militant democracy, “Autocracy Versus Democracy I and II” show the beginning of
Loewenstein’s transformation from academic to advocate.
Loewenstein’s work here is a reflection of the political climate of Europe in the early to
mid 1930s. Between 1933, when Loewenstein fled from Germany, and 1935, when he published
“Autocracy Versus Democracy I and II,” Germany had reemerged as one of the Great Powers on
the European continent, while the European democracies, suffering through the Great
Depression, became increasingly unstable. Hitler, by pursuing an aggressive foreign policy that
took advantage of the worsening relationship between England and France, was able to press
Germany’s diplomatic position, forcing concessions from England and France on provisions
from the Treaty of Versailles. Simultaneously, while fascist Germany prospered, the political
power of France waned. Beset by serious internal strife and economic turmoil, French politics
throughout the 1930s was increasingly dominated by the radicalized elements of the far left and
far right, with the possibility of outright revolution by either group festering just below the
surface.
The position of the smaller democratic powers in Europe was particularly treacherous.
Faced with the decline of France and the reemergence of Germany, these small powers –
including Czechoslovakia, Belgium, Poland and the Baltic States – were forced to contend with
an evolving international political landscape as well as internal unrest at the hands of the
unemployed and dissatisfied who looked to Germany and Russia for an example of the proper
response to the Depression. Read within the context of the unstable political landscape,
Loewenstein’s analysis becomes more meaningful, as well as a clear response to the new reality
of European politics in 1935.
Loewenstein begins by summarizing the “political scene of contemporary Europe,”
pointing out that the European states, “are aligned in two fundamentally antagonistic camps,”
democracy and liberalism, and autocracy. Loewenstein believes that Great Britain, the Irish Free
State, France, Belgium, the Netherlands, Sweden, Norway, Denmark, Finland, Switzerland and
Czechoslovakia fall into the former category, while Russia, Turkey, Germany, Italy, Portugal,
Austria, Poland, Yugoslavia, Bulgaria, Rumania, Hungary, Estonia and Latvia compromise the
latter. According to Loewenstein, in 1935 “by far the greater part of European territory and of
European population is under dictatorial rule of one type or another,” and, facing this reality, it is
necessary to examine the prospects of the remaining democratic nations for becoming autocratic
dictatorships.
Before undertaking this examination, Loewenstein briefly reviews the political history of
democratic and autocratic forms of government, taking pains to point out that “the rationalization
of government by the devices of free self-expression called democracy is a comparatively new
phenomenon,” and that for the large part of human history man has lived under autocratic
systems. Beyond the accuracy of this assertion, which functions to dispel much of the surprise
surrounding the spread of dictatorships, as in many ways this spread can be seen as simply
reverting to the mean, Loewenstein’s comments here do much to reveal the tone he takes
throughout the article. At this stage Loewenstein is still attempting to approach his subject with
an element of academic objectivity and distance. It is unclear at this point how he personally
feels about autocracy, and in particular fascism, and what greater meaning he attaches to the
prospect of the further spread of autocracy throughout the remaining democratic European
nations. This attempt at objectivity is further evident in Loewenstein’s acknowledgement of the
unique nature of this spread of autocratic governments. While “to the observer of history,” the
reemergence of “Caesarism” is not surprising, the speed by which “the new dictatorial wave” has
spread is unique, and prompts “deep concern to everybody who values democracy as a higher
step of mankind toward progress and civilization.” By writing as such, Loewenstein is couching
his analysis. For those who believe that democracy is the next step in mankind’s march of
progress, fascism is a threat; but this belief is neither universally held nor necessarily correct.
Importantly, in this first section, and in line with the title of the article, Loewenstein
contrasts democracy and autocracy in general, and places both Russia and Germany, despite their
opposing worldviews, within the autocratic category. Lowenstein acknowledges this relationship
early on, pointing out that his use of autocracy as a descriptive term “embraces not only the
fascist variety as presented by Italy and Germany, but also the communistic form of dictatorship
in Russia.” This distinction is significant, as for the majority of his following articles, and, in
fact, most of “Autocracy Versus Democracy,” he almost exclusively discusses the prospect of the
continued spread of fascism, ignoring the obvious parallels between Russia and Germany, and
the crimes of Stalin and Hitler.
**
After briefly outlining the historical background of fascism, Loewenstein begins his
analysis of the odds of the remaining democratic European nations for becoming fascist.
Loewenstein first attempts to “distinguish between the general tendencies of the replacement of
democratic by autocratic rule and the specific conditions arising from the economic and political
situation of a given country.” Loewenstein here is presenting the adoption of fascism as the
consequence of two diverse factors: those that are general and exist regardless of particular
circumstance, and those that are the direct result of the Great Depression and economic unrest.
In general, much of fascism’s appeal comes from fulfilling what Loewenstein terms “the
missionary spirit,” or the “individual’s obsession by belief in the absolute and indisputable value
of his own devotion to a new basic principle of life,” which causes him to preach this ideology at
every turn. The proponents of this new ideology act as missionaries, spreading the doctrine of
fascism like a religion. This spread is further facilitated by local concepts of nationalism and
regionalism, as within these beliefs fascism can be seen as a unifying ideology to help reunite
populations that have been previously separated.
As to the particular, the appeal of fascism reflects the generally held belief that economic
change requires a change in government. For populaces suffering under the spreading worldwide
Great Depression, “national economic autarchy has become the catchword of the day,” which
can only be achieved by an active government that interferes with the economy. This, in turn,
necessitates an organized, centralized authority unfetered by private interests, and logically, the
concentration of “political power in the hands of a government strong enough to cope with the
obstacles during the transition period [from unplanned to planned economy].” Facing this crisis,
“dictation from above becomes necessary, even where the spirit of the nation abhors compulsory
methods of suppression of free institutions.” Thus, fascism is seen as the solution to economic
depression, and the poorer the economic situation in a particular nation, the greater the prospects
for this nation adopting fascism.
Beyond the two different motivations leading to the support of fascism, democracy in
Europe is further threatened by the “facilities afforded by the fascist technique,” namely the
encouragement of apathy and silence, which causes citizens who recognize the threat to do
nothing. This encouragement in many way stems from what Lowenstein describes as the
“science” of introducing fascism into a democratic state, which is a “typical procedure applicable
to almost any state under the rule of democracy.” To Loewenstein, this science is a
“rationalized and pre-calculated routine progressing, step by step, on the basis of experience and
precedent,” and is aided by democracy itself. Although not fully explained, what Loewenstein is
claiming is that the institutions of democracy provide fascism with the tools needed for the
destruction of the existing government.
This passage is, for several reasons, one of the most important of the article.
Loewenstein’s description of the way in which fascism actually utilizes the democratic process to
destroy democracy itself is important. While he is by no means the first scholar to highlight the
problems of relying on democratic ideals alone to protect the democratic state, he is one of the
first to propose the solution that is first alluded to in “Autocracy Versus Democracy.” This
passage is the beginning of what eventually will evolve in later articles into his theory of militant
democracy. As he succinctly summarizes, in many fascist states, “the democratic constitution
became the main obstacle against [the state’s] maintenance and the best tool for its destruction.”
According to Loewenstein, this phenomenon can be readily observed in the
circumstances surrounding Hitler’s rise to power in Germany. While much of Hitler’s appeal
came from his ability to tap into the public’s anger with the Treaty of Versailles and the other
Western powers, he would have never been able to assume power (or even rise beyond a petty
demagogue) without being enabled by the “generous and lenient Weimar republic,” which
fashioned the mechanisms for its own doom by allowing “the existence of a resolute competition
to the legal authority of the state.” For Loewenstein, the Weimar government was destined to
failure “from the beginning... because it was pacifist instead of militant.” Here, again, the seeds
(and even language) of his later writings can be observed, and by providing concrete evidence of
the validity of his analysis, Loewenstein makes the threat posed by fascism to democracies seem
all the more acute. If democratic governments wait until the fascists have begun to implement
their scientific process, it is too late. The defensive measures must be undertaken proactively, and
long before the fascist party prepares to assume power.
After reviewing the actual process by which a fascist government subverts a democratic
state, Loewenstein begins his specific examination of the prospects of each remaining democratic
nation for becoming fascist in “Autocracy Versus Democracy in Central Europe, II,” again
published in in the American Political Science Review in 1935. For the purposes of this thesis,
the importance of these predictions lies in what they reveal about Loewenstein’s understanding
of fascism and his worldview in 1935, and not in their eventual accuracy, as eerily prescient as
they may be. Much of Loewenstein’s analysis here rests on his contention that, beyond economic
prosperity, the single most important factor in determining a nation’s ability to
For many of these dismissed university professors, leaving Germany was the best option, and
aided by newly formed international rescue committees, over 50% of those who lost their jobs in
1933 – 650 total – immigrated from Germany. By the end of the 1930s this number had risen to
over 1,700, and, including doctors, lawyers, artists and writers, to over 12,000. While initially
most of these émigrés chose to remain in Europe to stay closer to Germany, faced with Hitler’s
march across Europe, as well as the difficulty of “shedding one’s status as an alien in Europe,”
ever growing numbers of intellectuals chose to leave Europe for America, until by the start of
World War II by far the largest proportion of German émigrés had found residence in the United
States. In America, these intellectuals saw President Franklin D. Roosevelt, and especially his
New Deal, as the heir to their progressive work during the failed Weimar Republic, and
appreciated the ease with which they, as immigrants in a country full of immigrants, could blend
into society at large, making “the process of reintegration exceedingly simple.”
Despite this openness, the path of the German Jewish immigrant was fraught with
difficulties. These scholars were forced to compete for scarce permanent teaching positions at
xenophobic and anti-Semitic American universities that regarded them with suspicion. It was
only after American universities realized the positive benefit German faculty members had on the
academic quality of departments that a larger number of teaching positions became available, and
American institutions became more willing to hire Germans. Even after securing teaching
positions, these intellectuals still had to cope with the psychological consequences of their
sudden dismissals and forced immigrations, and watch as Hitler and Nazi Germany successfully
conquered much of Europe, spreading fascism across the European continent throughout the
1930s and 1940s.
Such experiences profoundly altered the worldview of some of these émigrés, causing
them to both reassess their academic work, as well as look at the world through new, pessimistic
eyes. This thesis tells the story of two of Jewish German émigré intellectuals, Karl Loewenstein
(1891–1973) and John H. Herz (1908-2005), and how they responded, through their work, to
their immigrant experience and the dilemma to democracy presented by fascism’s widespread
success. While both are ancillary figures in the greater history of the émigrés, their work – and
especially Loewenstein’s – showcase how scholars attempted to understand the new world they
found themselves a part of, as well as to protect the nation that had become their home and
represented the last bastion of democracy and free thought.
After his immigration to the United States in 1933, Loewenstein began to research the
ways in which democracies could defend themselves from fascism. Faced with the apparent
prospect of an endless, creeping tide of fascism, spreading across the globe and consuming
democratic nations from within, he argued for the adoption of militant democracy, or the idea
that democracies must proactively defend themselves against internal fascist threats. According
to Loewenstein, fascists were able to abuse the fundamental rights granted to them by democratic
constitutions – namely freedom of speech, press and assembly, and equal participation in the
electoral process – to destroy democracy from within. The key to defending democracy and
defeating fascists was to deny them these fundamental rights through temporary restrictive
legislation. Loewenstein presented this idea in four academic articles published in 1935 and
1937.
Confronted with the success of Hitler and Germany throughout the 1930s, Loewenstein
continued to develop his theory of militant democracy, and by 1938 had come to believe that
beyond temporary legislation, it was necessary for democracies to transform their legislative and
executive branches into smaller, more responsive bodies better able to cope with emergent
situations and the speed of the modern state. Key to understanding this evolution is
Loewenstein’s growing pessimism towards the future prospects of democracy, rooted in his
forced immigration from Germany, as well as his mounting anxiety about fascism. In 1935 and
1937 he still approached the conflict between democracy and fascism as an objective academic,
but by 1938 he became increasingly personally involved with the defense of democracy, arguing
urgently for the quick adoption of militant democracy in the United States in order to protect
America from the dire fascist threat.
This personal involvement manifested itself in an extensive campaign of public advocacy
for the passage of restrictive legislation in the United States. While he never revealed his entire
theory (especially his belief in the necessity to transform the American system), from 1938 until
1947 Loewenstein attempted, through book reviews, speeches and a pamphlet, to convince the
public of the necessity of restricting the right of fascists, as well as of the threat posed to
America by a hidden Fifth Column of fascist and fascist sympathizers poised to aid Hitler in
destroying the United States. This campaign took on a particular urgency in the aftermath of the
surprising and rapid defeat of France in 1940. Following this defeat, Loewenstein attempted to
do whatever he could to convince the general public of the urgent need to use militant democracy
in America, including presenting himself as a defender of traditional Anglo-Saxon Christian
American society, despite his nationality and ethnic heritage.
Following the attack on Pearl Harbor and the American entrance into the war,
Loewenstein, like many other German émigrés, joined the American government, eventually
assisting in denazification by interviewing Nazis as part of the Nuremburg prosecution. Even
after the final defeat of Hitler, Loewenstein’s advocacy for militant democracy continued, and he
remained pessimistic and anxious about fascism. He was publicly critical of denazification,
believing that the German citizenry were unrepentant, and that the American failure to effectively
root out and punish Nazis had set the stage for the reemergence of fascist Germany and the
continuation of the threat to the United States and democracy. During this period, Loewenstein’s
understanding of militant democracy continued to evolve as well, until, by 1944, he had come to
believe that it was impossible for democracies and fascist states to coexist.
Unfortunately, Loewenstein’s pessimism, his particular views on fascism, his public
campaign of advocacy for militant democracy and even the evolutions of this theory throughout
the 1930s and early 1940s are entirely missing from the historiography. Over the past two
decades, as scholars have confronted issues of domestic terrorism, human rights reforms and
sovereignty in the wake of the Cold War, they have returned to the idea of militant democracy as
a starting point for their research. As part of this research, Loewenstein has a newfound relevance
among political scientists, especially when examining democratic responses to national threats.
Little research has been done into Loewenstein for Loewenstein’s own sake. Virtually
every scholar writing about him does so in the context of another event, and their work gives the
impression that Loewenstein’s theory of militant democracy simply appeared in 1937, fully
formed, and remained static over the next decade. The best examination of Loewenstein’s life
and work to date is Markus Lang’s biography of Loewenstein, Karl Loewenstein:
Transatlantischer Denker der Politik, published in 2007 and based on Lang’s earlier dissertation.
However, even Lang’s biography is deficient, devoting only fifteen pages to Loewenstein’s work
on militant democracy, with no mention, beyond a single footnote, of Loewenstein’s campaign of
public advocacy for adoption of militant democracy in the United States. Instead, Lang opts to
focus on Loewenstein’s role in the development of political science as a field, and seeks to
integrate Loewenstein into the growing category of émigré transatlantic intellectuals who, by
leaving Germany, offered an implicit critique of the Nazi regime. Lang reiterated this approach
in a chapter on Loewenstein, “Karl Loewenstein: From Public Law to Political Science,” as part
of German Scholars in Exile: New Studies in Intellectual History, published in 2011.
The majority of works on Loewenstein and militant democracy, on the other hand, use
Loewenstein’s theories as part of a commentary on a present day dilemma – for example
terrorism – and devote little more than a footnote to Loewenstein or his work. There is no hint of
Loewenstein’s public advocacy for militant democracy, or of any evolution within his theory
throughout the 1930s and early 1940s. Typical of this category of works is a recent dissertation
on Loewenstein, “Militant Democracy,” by Svetlana Tyulkina, finished in 2011. While Tyulkina
does an excellent job of tracing the influence of Loewenstein’s work in the modern world, as
well as highlighting examples of legislation and constitutional amendments today that are
examples of militant democracy, she spends no time exploring the development of the theory, or
the greater intellectual context within which Loewenstein worked. Martin Klamt follows a
similar approach in his chapter, “Militant Democracy and the Democratic Dilemma: Different
Ways of Protecting Democratic Constitutions,” in Explorations in Legal Culture, published in
2007.
The only mention of Loewenstein’s public campaign for militant democracy is found not
in a work within the Loewenstein historiography, but rather in an article about the German Jurist
Carl Schmitt’s interrogations as part of the Nuremburg Trials. Loewenstein, in his capacity as an
officer with the U.S. Military Government in Berlin (1945-1947), pressed American officials to
arrest Schmitt. While describing Loewenstein and Schmitt, Joseph W. Bendersky references a
letter to the editors of The New York Times written by Loewenstein that was highly critical of
denazification.18 This letter, along with others composed by him on the same subject, were part
of Loewenstein’s post-war campaign for the application of militant democracy in defeated
Germany. Beyond this reference, as well as the one found in Lang’s biography, no other
references to Loewenstein’s public statements exist.
**
Like Karl Loewenstein, John H. Herz’s immigration from Germany left him sharply
pessimistic. After arriving in America in 1938, while studying at Princeton, he began to
investigate the way in which international relations functioned, and how and why states came
into conflict with one another. Like Loewenstein, Herz joined the American government during
the war to help combat Nazism, and after the war was highly critical of denazification. During
this period, Herz concluded that man was inherently concerned with his personal security, and
that the knowledge that other men held the potential to kill him led to a state of constant,
potential violence, regardless of actual intent. Relations between nations were this
anthropological state, termed the security dilemma, writ large. Despite his pessimistic
anthropological view, Herz believed that, through a combination of measured realism and
idealism known as Liberal Realism, a peaceful world system could be achieved. Thus man,
cognizant of his nature, could overcome his native state and work towards a peaceful future.
While Herz acknowledged this future was unlikely to come to pass, his theory still held
the possibility for a world in which nations, independent of their political ideology, by pursuing
Liberal Realism, could peacefully coexist. Written in the years before World War II and the
beginning of the Cold War in the late 1940s, Herz’s theory was fundamentally concerned with
describing a world in which nations of competing ideological orientations, in particular
18 Joseph W. Bendersky, “Carl Schmitt’s Path to Nuremburg: A Sixty-Year Assesment,” TELOS 139 (2007):
21.
democracy and communism, could avoid destructive war. This potential for peace represents a
working out of Herz’s pessimism, despite his biography and worldview, and, in contrast with
Loewenstein, shows how unusual Loewenstein’s particular solution to the conflict between
fascism and democracy was.
Compared to Loewenstein, the Herz historiography is considerably smaller, arising only
in the past ten years, and focuses on Herz’s role in the development of international relations as a
field, and his participation in the wider community of such scholars in the post-War world. As
yet, no scholar has compared Herz to other émigré intellectuals, or explored the relationship
between his theories and Loewenstein’s militant democracy. Today, the leading academics
working on Herz are Peter Stirk, Jana Puglierin, Christian Hacke and Ken Booth. Puglierin has
written the only contemporary monograph on Herz, John H. Herz: Leben und Denken zwischen
Idealismus und Realismus, Deutschland und Amerika, published in German in 2011 and
developed from an earlier dissertation. Puglierin also helped edit a 2007 issue of International
Relations (a publication that Herz contributed to throughout his life) devoted to Herz’s work. In
this issue she, along with Hacke, contributed two articles on Herz’s life and work, “John H.
Herz: Balancing Utopia and Reality,” and “Toward Being a ‘Traveller Between All Worlds’.”
Along with Hacke and Puglierin, Ken Booth has written on Herz’s Political Realism and
Political Idealism in “Navigating the ‘Absolute Novum’: John H. Herz’s Political Realism and
Political Idealism.”
Peter Stirk also contributed to the Herz issue of International Relations. In “John H. Herz
and the International Law of the Third Reich,” he explores Herz’s conception of Nazi
international law and his work on this subject. Stirk also mentions Herz in a work on Carl
Schmitt, Carl Schmitt, Crown Jurist of the Third Reich: On Preemptive War, Military
Occupation, and World Empire, presenting Herz’s understanding of international relations as an
alternative to Schmitt’s.19 Looking forward, with the recent release of Herz’s papers, catalogued
at the University at Albany as part of their Jewish immigrants collection, it is likely that more
works devoted to his life and theories will be forthcoming.20
**
The story of Loewenstein and Herz is, fundamentally, a story of their pessimism, and
how this pessimism manifested itself in both their academic work and public discourse. Chapter
one provides a detailed analysis of Loewenstein’s academic work on militant democracy,
beginning in 1935 and ending in 1938. In this work, the evolution of militant democracy can be
first observed, as well as Loewenstein’s growing concern with fascism and the threat posed by
fascists to the United States. The second chapter explores Loewenstein’s public advocacy for the
adoption of antifascist legislation in the United States, beginning in 1938 and concluding with
his critique of denazification following his departure from government service in 1947.
Throughout this period, despite the defeat of Hitler by the Allies in 1945, Loewenstein remained
acutely anxious about fascism, and had little hope for the future of democracy. Chapter
33 Peter M. R. Stirk, Carl Schmitt, Crown Jurist of the Third Reich: On Preemptive War, Military Occupation,
and World Empire (London: Edwin Mellon Press, 2005).
34 Herz and Loewenstein were by no means the only scholars of international conflict working during this
period. Among many others, Carl Schmitt and Hans J. Morgenthau deserve particular mention. Schmitt, who stayed
behind in Germany and briefly joined the Nazi regime until he fell afoul of the SS in 1936, described the ‘equal
chance,’ an important theory to be aware of when reading Loewenstein, in his 1932 work Legality and Legitimacy.
See Carl Schmitt, Legality and Legitimacy, trans. Jeffrey Seitzer (Durham: Duke University Press, 2004): 28-33. For
secondary literature on Schmitt, see William E. Scheuerman, Carl Schmitt: The End of Law (London: Rowman &
Littlefield, 1999); Joseph W. Bendersky, Carl Schmitt, Theorist for the Reich (Princeton: Princeton University Press,
1983); Michael G. Satler, Carl Schmitt: Law as Politics, Ideology and Strategic Myth (New York, Routledge, 2012);
Benno Gerhard Teschke, “Fatal Attraction: A Critique of Carl Schmitt’s International Political and Legal Theory,”
International Theory 3 (2011): 179-227. Morgenthau, another German Jewish émigré, had a similar understanding
of anthropology and international relations to Herz, but believed that, based on man’s inherently violent nature, a
peaceful world order free of war was impossible, and that international relations would be inevitably plagued by
conflict and confrontation. See Hans J. Morgenthau, Scientific Man Versus Power Politics (Chicago: University of
Chicago Press, 1946); Hans J. Morgenthau, Politics Among Nations: The Struggle for Power and Peace (New York:
Alfred A. Knopf, 1948); Hans J. Morgenthau, In Defense of the National Interest (New York: Alfred Knopf, 1951).
For secondary literature on Morgenthau, see see William E. Scheuermann, Morgenthau (New York: Polity, 2008);
Michaela Neacsu, Hans J. Morgenthau’s Theory of International Relations: Disenchantment and Re-Enchantment
(New York: Palgrave Macmillian, 2010); Michael C. Williams, Realism Reconsidered: The Legacy of Hans
Morgenthau in International Relations (Oxford: Oxford University Press, 2007).
three moves beyond Loewenstein, focusing instead on Herz, and examines the relationship
between the two scholars, and how Herz, despite his similar biography and worldview,
developed a markedly different solution to the dilemma facing democracy. Finally, the
conclusion reflects on the position of militant democracy today, and how Loewenstein and
Herz’s worldviews evolved in the decades following World War II. While Herz remained
optimistic, Loewenstein, despite the emergence of a democratic Germany, remained pessimistic
until the end of his days.
Chapter One
The Academic: Karl Loewenstein and the Development
of Militant Democracy
“If democracy is convinced that it has not yet fulfilled its
destination, it must fight on its own plane a technique
which serves only the purpose of power. Democracy must become
militant.”
Karl Loewenstein was born in Munich, Germany in 1891 to a family of wealthy Jewish
Bavarian industrialists, and traveled extensively during his childhood, including time spent living
in England and South America. After several years at universities in Munich, Heidelberg – where
he studied under Max Weber – Paris and Berlin, he received a law degree in 1914. During World
War I he spent 1915 serving with the German infantry, and was admitted into the
German bar in 1918. A year later Loewenstein received his doctorate in civil and ecclesiastical
law at Munich. After practicing law throughout the 1920s in and around Munich, Loewenstein
entered academia and became a lecturer at the University of Munich School of Law in 1931. He
was forced to resign this position in 1933 as a consequence of the Nazi’s efforts to purge
nonAryans from public service, and shortly thereafter left Germany for the United States. While
in
America, with the help of the Emergency Committee in Aid of Displaced German Scholars,
Loewenstein secured a two-year teaching position at Yale University in 1935, and in 1936
accepted a permanent position teaching political science at Amherst College.
**
During this period, shortly after immigrating to the United States, Karl Loewenstein
began writing academic articles about the spread of fascism, and, in particular, what steps the
remaining western democracies should undertake to protect themselves from internal fascists
threats. These articles provide much of the basis for the future importance of Loewenstein’s
work, and show a clear progression of thought that mirrors European political developments
throughout the 1930s. In the first of these articles, “Autocracy Versus Democracy in
Contemporary Europe I and II,” published in The American Political Science Review in 1935,
Loewenstein examines the political makeup of Europe, as well as the prospect of the remaining
democratic nations of succumbing to internal fascist movements. Within this analysis, he first
describes what he later terms militant democracy, the idea that democratic nations must
proactively defend themselves against fascism, as fascists are all too capable of utilizing
democratic principles to enable their ascent to power. No longer are these principles alone
sufficient to protect the state – rather, these principles, and in particular the democratic belief in
fundamental rights, in many ways enable the fascists to succeed.
Loewenstein continued his inquiry into the conflict between democracy and fascism in a
pair of 1937 articles, “Militant Democracy and Fundamental Rights I and II,” again published in
The American Political Science Review. These two articles continue his examination of fascism,
while investigating the similarities between European fascists movements, and the steps these
movements undertook to transition from the political fringe to the sole governmental authority
within a state. Loewenstein also continues to outline possible steps that democratic nations must
take to resist the spread of fascism, including what antifascist legislation has already been
enacted by democratic states, and how these laws, which are examples of militant democracy in
action, work to protect the democratic state.
Although much of the content of this article is similar to the earlier “Autocracy Versus
Democracy I and II,” Loewenstein’s tone throughout is noticeably more alarmist. As he has
witnessed the progressive spread and success of fascism throughout Europe, his hope for the
continued existence of democratic states has waned. Further, the steps outlined by Loewenstein
in “Militant Democracy” are a temporary abandonment of many of the principles and rights held
most dear to democratic nations – an abandonment, that, in Loewenstein’s eyes, is necessary for
the defense of democracy in the long term. This abandonment, forced upon democratic nations
by the unique nature of the fascist threat, is one of the most fascinating elements of
Loewenstein’s work during this period, and reflects both his pessimism – rooted in his recent in
his recent immigration – as well as his growing anxiety about fascism.
Loewenstein continues this argument in his next pair of articles, “Legislative Control of
Extremism in European Democracies I and II,” published in Columbia Law Review in 1938.
Similar to “Militant Democracy,” in these articles Loewenstein surveys existing anti-fascist
legislation, and, in technical legal language appropriate for a law journal, analyzes the way in
which these laws effectively deprive fascist groups of the tools necessary to seize power from the
existing democratic system. Even when writing in such a legalistic context, Loewenstein cannot
help but reaffirm the pessimistic way in which he views the prospects of the democratic states, as
well as reveal his continued anxiety about the threat posed by fascism to the west. Even here he
presents the conflict between fascism and democracy as a war, arguing that everything possible
must be done to protect democratic institutions, no matter the cost.
Loewenstein published another article in 1938 on militant democracy, “The Balance of
Legislative and Executive Power: A Study in Comparative Constitutional Law,” in The
University of Chicago Law Review. Importantly, in this article, Loewenstein expands on his
original theory of militant democracy, and argues for the necessity of implementing fundamental
changes to the political process of the United States in order create a smaller and more
responsive legislature better able to cope with the demands of a modern state, along with a more
powerful, active executive. Unlike the temporary antifascist legislation, these proposed changes
would be permanent, and represent a radicalization of Loewenstein’s thought, as well as the
evolution of a second level to his theory of militant democracy, encompassing both temporary
and permanent measures.
Examining Loewenstein’s articles during this period reveals the growing alarm with
which Loewenstein describes the spread of fascism, transforming the dry, academic examination
of fascism as a new political movement in 1935 into the panic of the late 1930s. Loewenstein
believed that if radical steps were not taken, then the remaining democratic nations, including the
United States, would fall to internal subversive fascist elements. This mounting anxiety reveals a
fundamental change in Loewenstein’s outlook. He became, like so many other Jewish
intellectuals who were forced to flee Germany after the Nazi Party seized power in 1933, a
pessimist. He was no longer content to simply hope that democratic principles, human nature and
inevitable progress were safeguards against the darker forces of humanity embodied by fascism.
Instead, democratic nations must participate in an active fight against fascism, taking whatever
steps are necessary in order to prevent their internal destruction at the hands of fascist agitators.
**
Loewenstein’s first examination of fascism and the prospects of its further spread
throughout Europe can be found in “Autocracy Versus Democracy in Cotemporary Europe I and
II,” published in 1935. These articles are the beginning of a new era in Loewenstein’s research
and writing. The tone that Loewenstein takes throughout these article – that of an objective
academic investigating a new political development – and the way he describes fascism are
significant, and stand in contrast to his later works, where his personal involvement in the
protection of democracy and his anxiety are much clearer. Beyond showing the development of
his theory of militant democracy, “Autocracy Versus Democracy I and II” show the beginning of
Loewenstein’s transformation from academic to advocate.
Loewenstein’s work here is a reflection of the political climate of Europe in the early to
mid 1930s. Between 1933, when Loewenstein fled from Germany, and 1935, when he published
“Autocracy Versus Democracy I and II,” Germany had reemerged as one of the Great Powers on
the European continent, while the European democracies, suffering through the Great
Depression, became increasingly unstable. Hitler, by pursuing an aggressive foreign policy that
took advantage of the worsening relationship between England and France, was able to press
Germany’s diplomatic position, forcing concessions from England and France on provisions
from the Treaty of Versailles. Simultaneously, while fascist Germany prospered, the political
power of France waned. Beset by serious internal strife and economic turmoil, French politics
throughout the 1930s was increasingly dominated by the radicalized elements of the far left and
far right, with the possibility of outright revolution by either group festering just below the
surface.
The position of the smaller democratic powers in Europe was particularly treacherous.
Faced with the decline of France and the reemergence of Germany, these small powers –
including Czechoslovakia, Belgium, Poland and the Baltic States – were forced to contend with
an evolving international political landscape as well as internal unrest at the hands of the
unemployed and dissatisfied who looked to Germany and Russia for an example of the proper
response to the Depression. Read within the context of the unstable political landscape,
Loewenstein’s analysis becomes more meaningful, as well as a clear response to the new reality
of European politics in 1935.
Loewenstein begins by summarizing the “political scene of contemporary Europe,”
pointing out that the European states, “are aligned in two fundamentally antagonistic camps,”
democracy and liberalism, and autocracy. Loewenstein believes that Great Britain, the Irish Free
State, France, Belgium, the Netherlands, Sweden, Norway, Denmark, Finland, Switzerland and
Czechoslovakia fall into the former category, while Russia, Turkey, Germany, Italy, Portugal,
Austria, Poland, Yugoslavia, Bulgaria, Rumania, Hungary, Estonia and Latvia compromise the
latter. According to Loewenstein, in 1935 “by far the greater part of European territory and of
European population is under dictatorial rule of one type or another,” and, facing this reality, it is
necessary to examine the prospects of the remaining democratic nations for becoming autocratic
dictatorships.
Before undertaking this examination, Loewenstein briefly reviews the political history of
democratic and autocratic forms of government, taking pains to point out that “the rationalization
of government by the devices of free self-expression called democracy is a comparatively new
phenomenon,” and that for the large part of human history man has lived under autocratic
systems. Beyond the accuracy of this assertion, which functions to dispel much of the surprise
surrounding the spread of dictatorships, as in many ways this spread can be seen as simply
reverting to the mean, Loewenstein’s comments here do much to reveal the tone he takes
throughout the article. At this stage Loewenstein is still attempting to approach his subject with
an element of academic objectivity and distance. It is unclear at this point how he personally
feels about autocracy, and in particular fascism, and what greater meaning he attaches to the
prospect of the further spread of autocracy throughout the remaining democratic European
nations. This attempt at objectivity is further evident in Loewenstein’s acknowledgement of the
unique nature of this spread of autocratic governments. While “to the observer of history,” the
reemergence of “Caesarism” is not surprising, the speed by which “the new dictatorial wave” has
spread is unique, and prompts “deep concern to everybody who values democracy as a higher
step of mankind toward progress and civilization.” By writing as such, Loewenstein is couching
his analysis. For those who believe that democracy is the next step in mankind’s march of
progress, fascism is a threat; but this belief is neither universally held nor necessarily correct.
Importantly, in this first section, and in line with the title of the article, Loewenstein
contrasts democracy and autocracy in general, and places both Russia and Germany, despite their
opposing worldviews, within the autocratic category. Lowenstein acknowledges this relationship
early on, pointing out that his use of autocracy as a descriptive term “embraces not only the
fascist variety as presented by Italy and Germany, but also the communistic form of dictatorship
in Russia.” This distinction is significant, as for the majority of his following articles, and, in
fact, most of “Autocracy Versus Democracy,” he almost exclusively discusses the prospect of the
continued spread of fascism, ignoring the obvious parallels between Russia and Germany, and
the crimes of Stalin and Hitler.
**
After briefly outlining the historical background of fascism, Loewenstein begins his
analysis of the odds of the remaining democratic European nations for becoming fascist.
Loewenstein first attempts to “distinguish between the general tendencies of the replacement of
democratic by autocratic rule and the specific conditions arising from the economic and political
situation of a given country.” Loewenstein here is presenting the adoption of fascism as the
consequence of two diverse factors: those that are general and exist regardless of particular
circumstance, and those that are the direct result of the Great Depression and economic unrest.
In general, much of fascism’s appeal comes from fulfilling what Loewenstein terms “the
missionary spirit,” or the “individual’s obsession by belief in the absolute and indisputable value
of his own devotion to a new basic principle of life,” which causes him to preach this ideology at
every turn. The proponents of this new ideology act as missionaries, spreading the doctrine of
fascism like a religion. This spread is further facilitated by local concepts of nationalism and
regionalism, as within these beliefs fascism can be seen as a unifying ideology to help reunite
populations that have been previously separated.
As to the particular, the appeal of fascism reflects the generally held belief that economic
change requires a change in government. For populaces suffering under the spreading worldwide
Great Depression, “national economic autarchy has become the catchword of the day,” which
can only be achieved by an active government that interferes with the economy. This, in turn,
necessitates an organized, centralized authority unfetered by private interests, and logically, the
concentration of “political power in the hands of a government strong enough to cope with the
obstacles during the transition period [from unplanned to planned economy].” Facing this crisis,
“dictation from above becomes necessary, even where the spirit of the nation abhors compulsory
methods of suppression of free institutions.” Thus, fascism is seen as the solution to economic
depression, and the poorer the economic situation in a particular nation, the greater the prospects
for this nation adopting fascism.
Beyond the two different motivations leading to the support of fascism, democracy in
Europe is further threatened by the “facilities afforded by the fascist technique,” namely the
encouragement of apathy and silence, which causes citizens who recognize the threat to do
nothing. This encouragement in many way stems from what Lowenstein describes as the
“science” of introducing fascism into a democratic state, which is a “typical procedure applicable
to almost any state under the rule of democracy.” To Loewenstein, this science is a
“rationalized and pre-calculated routine progressing, step by step, on the basis of experience and
precedent,” and is aided by democracy itself. Although not fully explained, what Loewenstein is
claiming is that the institutions of democracy provide fascism with the tools needed for the
destruction of the existing government.
This passage is, for several reasons, one of the most important of the article.
Loewenstein’s description of the way in which fascism actually utilizes the democratic process to
destroy democracy itself is important. While he is by no means the first scholar to highlight the
problems of relying on democratic ideals alone to protect the democratic state, he is one of the
first to propose the solution that is first alluded to in “Autocracy Versus Democracy.” This
passage is the beginning of what eventually will evolve in later articles into his theory of militant
democracy. As he succinctly summarizes, in many fascist states, “the democratic constitution
became the main obstacle against [the state’s] maintenance and the best tool for its destruction.”
According to Loewenstein, this phenomenon can be readily observed in the
circumstances surrounding Hitler’s rise to power in Germany. While much of Hitler’s appeal
came from his ability to tap into the public’s anger with the Treaty of Versailles and the other
Western powers, he would have never been able to assume power (or even rise beyond a petty
demagogue) without being enabled by the “generous and lenient Weimar republic,” which
fashioned the mechanisms for its own doom by allowing “the existence of a resolute competition
to the legal authority of the state.” For Loewenstein, the Weimar government was destined to
failure “from the beginning... because it was pacifist instead of militant.” Here, again, the seeds
(and even language) of his later writings can be observed, and by providing concrete evidence of
the validity of his analysis, Loewenstein makes the threat posed by fascism to democracies seem
all the more acute. If democratic governments wait until the fascists have begun to implement
their scientific process, it is too late. The defensive measures must be undertaken proactively, and
long before the fascist party prepares to assume power.
After reviewing the actual process by which a fascist government subverts a democratic
state, Loewenstein begins his specific examination of the prospects of each remaining democratic
nation for becoming fascist in “Autocracy Versus Democracy in Central Europe, II,” again
published in in the American Political Science Review in 1935. For the purposes of this thesis,
the importance of these predictions lies in what they reveal about Loewenstein’s understanding
of fascism and his worldview in 1935, and not in their eventual accuracy, as eerily prescient as
they may be. Much of Loewenstein’s analysis here rests on his contention that, beyond economic
prosperity, the single most important factor in determining a nation’s ability to
