1 Introduction
At its core, constitutional theory is deeply concerned with ensuring the long-term survival of constitutional democracy. This issue becomes especially urgent when constitutional democracies face significant threats or challenges. Over the past two decades, discussions on this topic have focused on several areas. Besides the extraordinary security threats to the constitutional order (i.e., states of emergency) (Kaiser Reference Kaiser2020; Lazar Reference Lazar2009), constitutional theory centres on defending against direct adversaries of liberal constitutionalism (e.g., political and other forms of extremism and authoritarianism). This area is most commonly referred to as militant democracy (Sajó and Uitz Reference Sajó and Uitz2017, pp. 433ff), a term popularised by Karl Loewenstein, who is widely regarded as the originator of this concept (Malkopoulou Reference Malkopoulou, Malkopoulou and Alexander2019, p. 1).
In his articles from the late 1930s (Loewenstein Reference Loewenstein1937a, Reference Loewenstein1937b), Loewenstein analysed the constitutional factors contributing to the rise of authoritarian governments in Europe. He concluded that the intrinsic vulnerabilities of unrestricted democracy provide many opportunities for its adversaries to dismantle it from within. To counteract this threat, Loewenstein proposed a set of more or less repressive legal measures through which democracies could resist authoritarianism. These repressive, ‘intolerant’, control-based policies (Husbands Reference Husbands2002, pp. 57ff) in the fight against extremism include measures such as banning political parties and assemblies, criminalising hate speech and enacting lustration laws (Pedahzur Reference Pedahzur, Eatwell and Mudde2004, pp. 108–33; Capoccia Reference Capoccia2005, pp. 48, 50; Capoccia Reference Capoccia2013). The classic theory of militant democracy, emphasising regulatory (rights-restraining) measures, has been the subject of intense criticism (e.g., Invernizzi Accetti and Zuckerman Reference Invernizzi Accetti and Zuckerman2017) and various theoretical justifications and modifications (Kirshner Reference Kirshner2014; Müller Reference Müller, Rosenfeld and Sajó2012, Reference Müller2016, Reference Müller, Jacobsohn and Schor2018; Niesen Reference Niesen2002, Reference Niesen2012; Rijpkema Reference Rijpkema2018; Rummens and Abts Reference Rummens and Abts2010; Schupmann Reference Schupmann2024; Tyulkina Reference Tyulkina2015). In the European context at least, it has been integrated into constitutional and statutory frameworks, as well as into the case law of apex courts (Tyulkina Reference Tyulkina2015, p. 48).
Over time, alongside these repressive (intolerant, control-based) strategies, a theoretical approach has emerged that is based on different strategies for protecting democracy. These do not focus on militant measures, but aim to prevent the need for them. This emphasis on educational policies that highlight the benefits of liberal democracy (Capoccia Reference Capoccia2005, p. 48; Kirshner Reference Kirshner2014, p. 21; Norman and Malkopoulou Reference Norman, Malkopoulou, Malkopoulou and Alexander2019, p. 104; Olsen Reference Olsen, Malkopoulou and Alexander2019; Pedahzur Reference Pedahzur, Eatwell and Mudde2004, pp. 108–33; Scheppele Reference Scheppele2018, p. 583) (education-based policies) (Husbands Reference Husbands2002, pp. 57ff) and on social policies aimed at reducing societal inequalities, social insecurity and the frustration they generate (Malkopoulou and Norman Reference Malkopoulou and Norman2018, pp. 450ff; Näsström Reference Näsström2021) (social policy-based policies) (Husbands Reference Husbands2002, pp. 57ff) has led (at least some scholars) to distinguish militant democracy from non-militant democratic self-defence (Malkopoulou and Norman Reference Malkopoulou and Norman2018, pp. 442ff; Müller Reference Müller, Malkopoulou and Alexander2019, p. 13). This departure from the standard toolkit of militant democracy seeks to adapt liberal democratic regimes to new challenges, such as the gradual erosion or decline of democracy, primarily driven by illiberal or populist tendencies (Daly Reference Daly2019; Graber Reference Graber2018; Sajó Reference Sajó2021; Scheppele Reference Scheppele2018, Reference Scheppele2019), in addition to responding to criticism of militant democracy. Advocates of non-militant democratic self-defence argue that populism is not the same as extremism, and therefore, using the same (i.e., militant) tools against it is neither legitimate nor effective (Bourne Reference Bourne2022, p. 492; Malkopoulou and Moffitt Reference Malkopoulou and Moffitt2023, pp. 854ff; Näsström Reference Näsström2021, pp. 377ff; Rummens and Abts Reference Rummens and Abts2010, p. 651; Stahl and Popp-Madsen Reference Stahl and Popp-Madsen2022, p. 314).
However, current constitutional approaches to both militant democracy and non-militant democratic self-defence often neglect the core premise underlying Loewenstein’s recommendations, which casts new light on how to protect liberal democracy. For Loewenstein, ‘fascism’ (authoritarianism and extremism) was not simply a political ideology but rather a tactic for seizing power. This tactic is characterised by a deliberate use of emotions, skilfully manipulating and appealing to them: in essence, a form of emotional politics (Loewenstein Reference Loewenstein1937a, p. 428; Natanel Reference Natanel2023, pp. 543ff; Sajó Reference Sajó2012, pp. 562–63). Recent research on populism and its connection to heightened polarisation supports essentially identical insights about the role of emotions, whether it considers this specific emotional political rhetoric to be a defining feature of populism or merely a characteristic symptom of populist ideology (Abts and Rummens Reference Abts and Rummens2007, pp. 407–408; Alterio Reference Alterio2019, p. 275; Malkopoulou and Moffitt Reference Malkopoulou and Moffitt2023, p. 859; Mudde and Rovira Kaltwasser, Reference Mudde and Rovira Kaltwasser2017, pp. 4ff; Stahl and Popp-Madsen Reference Stahl and Popp-Madsen2022, p. 314). In contrast to authoritarianism’s (and populist) emotional appeal, Loewenstein views liberal democracy as grounded in an inert, legal-rational authority (Loewenstein Reference Loewenstein1937a, p. 428; Sajó Reference Sajó2012, pp. 562–63), which inherently struggles with authoritarianism (and populism) in the realm of emotions. For this reason, he argues, liberal democracy must rely on legal (i.e., repressive, militant) measures in its defence (Loewenstein Reference Loewenstein1937a, p. 428; Sajó Reference Sajó2012, p. 570).
In this article, I build on Loewenstein’s notion of emotions as a foundation for the concept of militant democracy, as interpreted by András Sajó, and on contemporary conceptualisations of non-militant democratic self-defence, but from a critical perspective. I argue that liberal democracies can and should evoke positive emotions and engage with emotions, asserting that the intentional cultivation of positive feelings and mitigation of negative emotions among the population toward the liberal-democratic constitutional order is a practical component of democratic self-defence. For this reason, I use and develop Rudolf Smend’s integration theory (Integrationslehre), which has not yet received much attention in English-language academia. I contend that the structure of constitutional design, the establishment and exercise of constitutional powers and procedures and the reflection of constitutional rituals and symbols can serve to protect the liberal-democratic constitutional order. These elements contribute to a positive emotional bond between citizens and the constitutional order, fostering a continuous effort to integrate society into a cohesive constitutional community. Therefore, I advocate for an approach that complements existing perspectives on democratic self-defence, one that emphasises the underlying operation of the constitutional system (i.e., an integration-based policy).
The article is structured as follows. The first section summarises the traditional perspectives within constitutional theory on the role of emotions. Drawing on insights from various social studies (e.g., modern behavioural economics, political psychology, the Law & Emotions movement, constitutional semiotics), an explanation is given of why emotions are essential to constitutional law and how they can contribute positively to constitutional governance. To illustrate this relationship, the article examines the role of emotions in establishing and sustaining constitutional communities, emphasising that this issue was central to the Weimar debate over the approach and direction of constitutional theory, particularly in Rudolf Smend’s integration theory. The article then briefly introduces Smend’s integration theory, its impact on German constitutional arrangements and the possible benefits that it can contribute to the theory of democratic self-defence. In subsequent sections, the article explores the relationship between constitutional design and integration, based on Smend’s three types of integration. The second section focuses on the integrative functions of constitutional bodies. The third section examines elections and parliamentary procedures. The fourth section discusses the significance of rituals and symbols in sustaining constitutional order.
2 Emotions, constitutional community and integration
The primary task of constitutionalism is generally regarded as ensuring limited government (Sajó and Uitz Reference Sajó and Uitz2017, pp. 6ff). In the liberal tradition, this is mainly achieved by subordinating state power to the rule of law (Sajó and Uitz Reference Sajó and Uitz2017, pp. 13ff), with the constitution serving as the supreme legal document (Grimm Reference Grimm2016, pp. 17, 22). Governance, therefore, becomes a practice bound by the existence of general legal rules that must be consistently upheld and applied. Traditional perspectives argue that this adherence to law ensures that state power is exercised objectively, without bias or arbitrariness, and guided solely by reason (Tamanaha Reference Tamanaha2004, pp. 122–23; Bellamy Reference Bellamy2007, pp. 58ff; Krygier Reference Krygier, Rosenfeld and Sajó2012, p. 242). ‘Law is reason, free from passion.’ Aristotle is said to have claimed. The notion of the rule of law as a core principle of modern constitutionalism, embodying a ‘government of laws, not of men’, aims to prevent human weaknesses associated with subjective traits from influencing governance. Historically, constitutionalism has viewed emotions in constitutional law and their potential impact on governance with scepticism, associating emotions with irrational, biased and ultimately dangerous outcomes (Gewirtzman Reference Gewirtzman2009, p. 623). However, this dismissive view of emotions in constitutional law is increasingly seen as overly one-sided. Such a view risks transforming legal rationality into a rigid ideology, overlooking the constructive role emotions can play in constitutional governance and community integration (Belov Reference Belov2022, pp. 59, 62).
Various social studies indicate that humans are not purely rational beings capable of entirely eliminating emotional influences on their actions. On the contrary, human rationality is shaped by multiple factors, including emotions (Gigerenzer Reference Gigerenzer and Vialle2020). Emotions, understood as ‘felt, situational evaluations that motivate action’ (Neblo Reference Neblo2020, p. 923), are essential even in governance, influencing the creation, interpretation and application of law (Abrams and Keren Reference Abrams and Keren2010), including constitutional law (Sajó Reference Sajó2016, p. 44).Footnote 1 However, this insight should not lead to dismissal of the rule of law by claiming that constitutionalism is an unattainable ideal, doomed by the dominance of ‘wild emotions’ that would inevitably derail constitutional goals and values. Instead, emotions can play a constructive role in achieving these constitutional objectives, and constitutional law can harness emotions to contain, manage, channel, moderate or even prescribe them (as in the case of prohibitions on hate speech) (Abrams and Keren Reference Abrams and Keren2010, pp. 2053–54). Through adjustments in institutional design, policy initiatives, rhetorical and deliberative strategies, or refined doctrinal approaches to constitutional interpretation (Abrams and Keren Reference Abrams and Keren2010, pp. 2062–67), it is possible to cultivate emotions in ways that ultimately reinforce constitutional governance (Abrams and Keren Reference Abrams and Keren2010, p. 2057; Bar-Tal et al. Reference Bar-Tal, Halperin and De Rivera2007, p. 456; Rummens Reference Rummens, Malkopoulou and Alexander2019, p. 128).
As András Sajó has demonstrated, intense emotional reactions to shared experiences within a political community have historically influenced constitutional content, spurred the creation of new institutions, and even re-shaped constitutional orders (Sajó Reference Sajó2011, pp. vii, 37, 52). For example, the collective experience of negative emotions fuelled the establishment of robust systems for judicial protection of human rights across Europe (after World War II) and the judicial enforcement of protections against racial discrimination in the United States. Similarly, negative collective memories of the perceived ineffectiveness of classic parliamentarism led to the adoption of semi-presidential and rationalised parliamentary systems in parts of Europe (Sajó Reference Sajó2011, pp. 145ff, 169ff). Yet these examples are only part of the broader role emotions play in constitutional evolution.
Ultimately, emotions are fundamental in creating, building and sustaining a constitutional community (Sajó Reference Sajó2010, p. 354). Emotions profoundly affect citizens’ trust in constitutional and political institutions, directly influencing the democratic integrity and resilience of the constitutional order (Lilleker and Ozgul Reference Lilleker and Aslan Ozgul2022, p. 9). Emotions foster commitment and imagination, which are critical elements for sustaining social order, by enabling citizens to empathise with the experiences of previous generations, including the founding generation, and to perceive their commitments as a shared legacy that can be revised and projected into the future (Balkin Reference Balkin2011, p. 31; Gewirtzman Reference Gewirtzman2009, pp. 625–26). Studies indicate that the general emotional climate within a community has a more significant impact on cohesion and a sense of security than other factors.Footnote 2 Emotions also guide individuals in evaluating their life plans in relation to their community, especially when they lack the information or cognitive clarity to assess benefits, costs, risks and opportunities fully (Greene Reference Greene2013, pp. 1448–50).
These observations regarding the role of emotions in fostering a constitutional community are not entirely new to constitutional theory. The goal of ensuring the existence of a cohesive constitutional community was central to constitutional scholarship in Weimar Germany during the 1920s and early 1930s. Among the scholars of this period, Rudolf Smend emphasised integrating society into a constitutional community through mechanisms that engaged, among other factors, emotional connections, placing this integration at the core of his theory.
A full account of Smend’s integration theory (Integrationslehre) is beyond the scope of this discussion,Footnote 3 but a few key points are essential. Smend’s doctrine is grounded in the relationship between individual and supra-individual existence; he examines the citizen as a link between personal identity and communal membership (Smend Reference Smend1994a, p. 475). In this view, the state and constitution are seen as cultural entities that blend spiritual and social dynamics to continuously unite citizens into a cohesive whole (i.e., integration).Footnote 4 The purpose of the constitution, then, is to legally frame and structure this ongoing integration process (Smend Reference Smend1994b, pp. 139, 189; Smend Reference Smend, Jacobson and Schlinck2002, p. 210).Footnote 5 Smend identifies three primary tools for achieving integration: personal (persönliche), functional (funktionelle) and substantive (sachliche) integration.
Personal integration employs constitutional bodies and public officials and figures (e.g., politicians, judges, high-ranking public servants) to unify the population. Through activism, spontaneity and strategic statesmanship in response to current political events (i.e., the strategic dimension of thinking), public leaders play a role in shaping a collective will, shared values, culture and identity (Smend Reference Smend1994b, pp. 142–44). This form of integration connects directly with functional integration, which achieves similar unity through social processes institutionalised within the legal and political framework, for example elections or parliamentary deliberation (Smend Reference Smend1994b, pp. 148ff). Functional integration, in turn, points toward substantive integration, which is grounded in shared values and common goals. This deeper unity, based on values and objectives, is cultivated, reinforced and projected into the future through substantive integration, using rituals and symbols to embody and strengthen these collective bonds (Smend Reference Smend1994b, pp. 161–63).
Although Smend’s ideas did not gain much traction in Weimar Germany, they became highly influential in the Federal Republic after 1949. In the early decades of the republic, his integration theory provided a foundational framework for the Federal Constitutional Court’s case law and gave rise to a distinct ‘Smend school’ within German constitutional scholarship (Wihl Reference Wihl, Goldoni and Michael2023, pp. 76ff). Despite occasional criticism (Kelsen Reference Kelsen1930; Van Ooyen Reference Van Ooyen2014; Wihl Reference Wihl, Goldoni and Michael2023), constitutional constructs and arguments inspired by integration theory remain influential today in German constitutional discourse.Footnote 6 Therefore, using Smend’s framework is valuable for the analysis presented here, as it offers a lens through which to examine the role of various elements of constitutional design in fostering constitutional integration. At the same time, it represents a long-term policy aimed at the underlying causes of threats from both extremism and populism, which is simultaneously called for by both advocates of militant democracy (Schupmann Reference Schupmann2025, p. 1024) and non-militant democratic self-defence (Rummens and Abts Reference Rummens and Abts2010, p. 651; Stahl and Popp-Madsen Reference Stahl and Popp-Madsen2022, p. 314). An integration-based perspective could also offer notable advantages over existing militant and non-militant defensive approaches. Unlike control-based (militant) policies, which (arguably) should be employed only as a last resort (ultima ratio) (Kirshner Reference Kirshner2014, p. 27), integration strategies can be applied continuously and proactively. They avoid the overly optimistic reliance on purely rational persuasion found in education-based policies (Somin Reference Somin2016, pp. 197–200) since they appreciate the influence of other factors on human behaviour, especially emotions. Integration-based tools can steer clear of ideological, partisan and economic conflicts often associated with social policy-based approaches. At the same time, Smend’s framework develops existing integration models, which were too focused on the narrow topic of social security (Malkopoulou and Moffitt Reference Malkopoulou and Moffitt2023, p. 861; Näsström Reference Näsström2021, pp. 381ff), as the integration of a constitutional community is a much broader issue. Finally, the integration-based strategies founded on Smend’s theory complement existing conceptualisations of particular tolerant initiatives opposing populists (Rovira Kaltwasser Reference Rovira Kaltwasser, Rovira Kaltwasser, Taggart, Espejo and Ostiguy2017; Bourne Reference Bourne2022, pp. 504ff;) with their specific integration practices.
The following sections analyse how different types of integration, particularly through the use of emotions, influence constitutional design in ways that strengthen and sustain the constitutional community.
3 Personal integration and constitutional self-defence
3.1 Heads of state and constitutional narratives
Various constitutional bodies, institutions and office-holdersFootnote 7 can play an integrating role, yet this role is most frequently associated with the head of state.Footnote 8 This association is supported by psychological, historical and institutional points of view.
Psychologically, the head of state function is typically vested in a single individual, giving this constitutional office a relatable human face. This personal embodiment enables a clearer emotional connection with the public than more impersonal, collective bodies such as parliament or the legislature (Lilleker and Ozgul Reference Lilleker and Aslan Ozgul2022, p. 50). This direct emotional relationship can be harnessed to reinforce essential elements of constitutional stability (i.e., commitment and imagination) that are central to sustaining the constitutional order.
Historically, sovereigns in parliamentary monarchies have served as models for the role of the head of state as a constitutional integrator, a mission embedded in both constitutional law and practice across Europe (Schmitt Reference Schmitt and Seitzer2008, pp. 312–16), and perhaps worldwide. Since the early nineteenth century, various attempts have been made to constitutionally enshrineFootnote 9 or theoretically justify the monarch’s role in parliamentary systems by highlighting its integrative function. Concepts such as Benjamin Constant’s pouvoir neutre (Craiutu Reference Craiutu2012, p. 198) and Walter Bagehot’s notion of the ‘dignified part’ of the constitution (Bagehot Reference Bagehot1925, pp. 4ff) present the monarch as the binding force of the constitutional community. Bagehot’s observations are particularly relevant here. In describing the theatrical elements of the British constitution, he demonstrated how (at least in his own time) the constitutional framework was intentionally structured to harness human emotion in sustaining constitutional order (Bagehot Reference Bagehot1925, p. 8). Although Bagehot was sceptical about transferring this integrative role to other constitutional arrangements, it should be noted that efforts to assign this neutral-integrative function to the head of state have been adopted in various constitutional systems, including republican forms of government (Schmitt Reference Schmitt and Seitzer2008, pp. 312–15; Weber Reference Weber2019, pp. 130ff).
Institutional factors also support this integrative role. The constitutional structure of parliamentary monarchies typically separates the head of state’s powers from ordinary policy-making, thereby allowing the head of state to act as a neutral, non-partisan figure and a moral authority, roles that have substantial integrative effects. By moderating political disputes, the head of state helps prevent unavoidable political and social conflicts from escalating into entrenched, antagonistic stances, thereby minimising the transfer of differences into the emotional sphere. As a non-partisan constitutional figure, the head of state reinforces adherence to the constitution and political customs among political actors. This impartial presence creates an implicit understanding that unconstitutional behaviour may result in public shaming, either by fellow political actors or in the eyes of the broader constitutional community.Footnote 10
When considering the impact of emotions, integration through the articulation of a shared narrative or myth of the constitutional community (Müller Reference Müller2007a, p. 86) is particularly significant. Even within heterogeneous societies, a collective story helps cultivate a foundational understanding that prevents members from viewing differing attitudes, opinions, interests and preferences as existential threats.Footnote 11 The shared narrative, defining a common origin (what constitutes our constitutional community?) and envisioning a unified path forward (where is our constitutional community headed?), provides a stabilising framework for expectations of others within the community (Gewirtzman Reference Gewirtzman2009, pp. 654–56). This narrative’s ability to mitigate conflict and foster co-operation also plays a crucial role in sustaining the political legitimacy of constitutional democracies (Balkin Reference Balkin2011, pp. 33–34).
This personnel aspect of integration can be illustrated by examples from both well-established and developing democracies. Classic and paradoxical examples of this impact are evident in the United States (Grimm Reference Grimm2005, p. 202). American constitutional identity is rooted in a shared narrative of rebellion against monarchical tyranny in pursuit of freedom and equality, ideals that are continuously upheld and expanded over time (Balkin Reference Balkin2011, pp. 3, 21–23, 33; Sajó Reference Sajó2011, p. 124). Key figures in American constitutional history have been pivotal in creating, sustaining and communicating this narrative.Footnote 12 American presidents and other influential political and constitutional figures have played, and continue to play, a critical role in fostering a positive emotional response within American society to its constitutional project, reinforcing a collective commitment to the American community’s social and constitutional story.
The personnel aspect of integration also plays a significant role in transitional regimes and relatively young democracies. For emerging constitutional communities, a core challenge is establishing a shared constitutional narrative that aligns with liberal-democratic principles while retaining local specificity.Footnote 13 In new constitutional regimes, such a narrative is often either absent, too weak or in competition with alternative perspectives. An illustrative example from Central Europe is the Czech Republic. Research by Radek Chlup reveals that two enduring national myths have competed within Czech society since the nineteenth century:Footnote 14 a particularist myth that emphasises national identity and sovereignty achieved through centuries of struggle with neighbouring nations, and a universalist myth that views the Czech cause as inherently aligned with Western liberal democratic ideals (Chlup Reference Chlup2020). Ideological references to the First Czechoslovak Republic (1918–38) have been instrumental in establishing a foundational level of liberal-democratic constitutionalism following the end of communist rule in 1989. The Republic’s founder and long-time president, Tomáš Garrigue Masaryk, was able to reconcile these two national myths through his public activities, creating the image of a ‘golden age’ in Czechoslovak democratic constitutionalism. This historical reference point became an ideological and rhetorical foundation in the Czech transition, particularly after the traumatic periods of Nazi occupation and communist rule. In contemporary Czech constitutional scholarship, fostering a balance between these national myths to reinforce the cohesion of the Czech constitutional community is finally understood as one of the primary missions of the head of state (Hořeňovský and Otevřel Reference Hořeňovský and Otevřel2024; Kosař and Vyhnánek Reference Kosař and Vyhnánek2021, pp. 105, 113).
Nevertheless, recent constitutional and political practice provides a wide range of contradictory examples of heads of state using their position to deepen polarisation rather than promote integration. Since populism is predominantly associated with personalist leadership directly appealing to the masses (Mudde and Rovira Kaltwasser, Reference Mudde and Rovira Kaltwasser2017, pp. 4, 43ff, 62ff; Weyland Reference Weyland, Rovira Kaltwasser, Taggart, Espejo and Ostiguy2017), this development is hardly surprising. Even in the United States, where the president has historically achieved moments of national unity, effective personnel integration has generally occurred posthumously or during periods before modern polarisation. Because of the inherently partisan nature of the American presidency, the role is increasingly seen as misaligned with the goals of national integration. However, there is no need to immediately dismiss personal integration. From a constitutional law perspective, two primary factors influence the effectiveness of personnel integration by the head of state and reduce the risk that this position will be exploited by populists to polarise the constitutional community: the method by which the head of state is constitutedFootnote 15 and the balance of powers assigned in relation to the intended constitutional role of the office. I will now discuss both factors, always starting with normative claims about their proper setting and then illustrating them with descriptive examples from real constitutional arrangements.
3.2 Appointment and integration
In terms of the method of appointment, monarchist heads of state hold a significant advantage. Their independence from politicised selection, detachment from everyday political affairs, lifelong preparation for office, and the mythical or transcendental aura that has surrounded monarchs since the earliest organised societies create nearly ideal conditions for integrative influence through emotional resonance. However, the high expectations and integrative potential associated with monarchy also carry substantial risks. Public scandals or any failure to fulfil the integrative role can lead to serious setbacks in achieving cohesion within the constitutional community.Footnote 16
Republican heads of state have a much more complicated situation regarding the integrative role, particularly those appointed by direct election. The logic of electoral competition requires candidates to offer voters a specific political programme, as integration alone is unlikely to attract significant electoral support. Campaign rhetoric further necessitates differentiating oneself from opponents, thereby potentially alienating sections of the electorate. The heightened personalisation of the presidential office in direct elections also intensifies the feelings of victory and defeat associated with electoral outcomes, unlike in parliamentary elections, where minority party positions may still be partially integrated through deliberative mechanisms. In general, direct elections tend to hinder the head of state’s integrative function because of their polarising effect.Footnote 17 However, this effect can be significantly reduced by appropriately adjusting the constitutional and electoral design.Footnote 18 Leaving aside the fact that, according to empirical research, parliamentary regimes could be more suitable for countering the threat of democratic backsliding than presidential regimes (Gutmann and Voigt Reference Gutmann and Voigt2023, pp. 382–83), the method of election can be set up in such a way as to promote integration. First and foremost, there is the option of moving away from direct elections by introducing indirect elections through a special body consisting of not only regular members of parliament but also other stakeholders (representatives of municipalities and regions, etc.). The inclusion of a wider range of interests and values should help insulate the presidency from the influence of mainstream politics, enhancing its legitimacy in fulfilling an integrative role. However, in states where direct elections are in place, such a constitutional amendment would be rather unlikely. For these states, the choice of an electoral system that both promotes ‘more consensual behavior, because candidates must be acceptable to as many people as possible’ and eliminates the emotionally heated period between the first and second rounds of voting (i.e., there is only one round) is available, such as various types of alternative voting systems (Halamka and Géryk Reference Halamka and Géryk2023, pp. 24–25).
In constitutional practice, the conclusions mentioned above can be illustrated by examples of at least two constitutional arrangements. The recognition of the adverse impact of the direct election (moreover, exacerbated by an electoral system that emphasises polarisation) on the unifying potential of the presidential office led Germany to establish an indirect election for its Federal President in 1949 (Fromme Reference Fromme1999, pp. 57–58; Nettesheim Reference Nettesheim, Isensee and Kirchhof2005, pp. 1036–37). The same logic basically applies to Italy. The German and Italian examples of indirect election are inspiring in that the selection of the head of state involves not only the parliament but also a broader assembly. Although Germany’s federal structure underpins this approach,Footnote 19 the inclusion of a wider range of interests and values helps insulate the presidency from the influence of mainstream politics, enhancing its legitimacy in fulfilling an integrative role.Footnote 20 This method, emphasised by the Italian constitutional doctrine (Cartabia and Lupo Reference Cartabia and Lupo2022, p. 122), allows the head of state to pursue integration with a broad-based mandate, yet avoids the polarising drawbacks associated with direct elections.
3.3 Constitutional powers and integration
The integrative role of the head of state is shaped not only by the method of appointment but also by the range and nature of constitutional powers and functions assigned to the office. A potential issue arises when a head of state is both directly elected and constitutionally empowered as a prominent political actor with the mandate to advance a political agenda and participate in daily political conflicts. In such cases, fulfilling an integrative role by articulating a supra-partisan constitutional narrative becomes significantly more challenging. This dilemma is particularly pronounced in parliamentary regimes where the head of state is formally vested with substantial powers by the constitution. To enhance the head of state’s integrative role, constitutional design should prioritise two key objectives. First, the head of state should not be granted powers that enable them to set their agenda directly (actively) or influence other constitutional bodies through inaction (passively).Footnote 21 Such powers include issuing legislative acts or decrees, calling referendums or appointing a cabinet largely at their discretion.Footnote 22
Second, it is essential to grant the head of state powers that enable them to articulate the constitutional community’s shared narrative and to mediate disputes within the community. This involves empowering the head of state to represent the nation internally, engage with citizens and deliver messages to the public and other governmental bodies. Notably, the institution of countersignature, typically beneficial in parliamentary regimes, may need adjustment in this context. A party-led government might resist the integrative efforts of a head of state who, for example, calls for moderation in radical policy plans or encourages greater governmental responsiveness.Footnote 23 By withholding countersignature, the government could obstruct these integration efforts by blocking the head of state’s ability to communicate such messages.Footnote 24 Adequate budgetary resources are also essential for the head of state to perform this integrative role, for example, by facilitating travel to meet citizens across the country. To safeguard the head of state’s integrative mission, legislation should protect the funding for their support staff from partisan influence. Finally, the power to confer state honours and decorations plays a notable integrative role. Here, the types of awardsFootnote 25 and the frequency and circumstances of their confermentFootnote 26 are essential.
The second area of powers enables the head of state to serve as a moderator or mediator in political disputes, thereby helping to prevent agonistic conflicts from escalating into antagonistic divisions within the constitutional community (Abts and Rummens Reference Abts and Rummens2007, p. 419; Rummens Reference Rummens, Malkopoulou and Alexander2019, p. 115). This includes, specifically, powers related to accepting resignations and dismissing members of the government and other public officials.
In constitutional practice, we can point out some examples of successful exercise of both types of constitutional powers by a head of state. The actions of Giorgio Napolitano during the so-called Italian crisis from 2010 to 2014 are especially worth mentioning. President Napolitano, in addition to his active involvement in the formation of new governments amid the political collapse of parliamentary parties, also took an active role through emotional speeches, which not only reassured market actors but also the Italian public, thereby contributing to the preservation of the fundamental values of the Italian constitutional order (Tebaldi Reference Tebaldi2014).
4 Functional integration and constitutional self-defence
Various constitutional processes and procedures hold considerable potential for integration. Two of the most significant in this regard are elections and parliamentary deliberation. As with the integrative role of the head of state, these processes can foster a positive sense of belonging among citizens, providing a tangible sense that they are valued members of the constitutional community, actively involved in the exercise of communal power, and that their participation matters.
Free and fair elections are regarded as a conditio sine qua non for democratic constitutional regimes. Beyond providing popular legitimacy and enabling the peaceful transition of power and policy correction (auto-correction) (Rijpkema Reference Rijpkema2018, pp. 37, 154), elections play a crucial role in the integration of the constitutional community. As Steven Lukes has observed, the electoral process, including the act of voting, is one of the most important rituals of modern democracies, reaffirming acceptance of the constitutional and political regime (Lukes Reference Lukes1975, p. 304). Experiences such as waiting in line alongside neighbours, casting a vote in the presence of other community membersFootnote 27 and collectively following election results contribute to the formation of both the citizen’s identity and a shared sense of belonging within the constitutional community. To strengthen this integrative function, legislation and state institutions should endeavour to make the electoral experience positive and ceremonial, fostering an emotional connection to the act of voting. This can be achieved, for example, through thoughtful choices about polling station locations, interior design, security and even organising celebratory events to enhance the communal aspect of voting. However, new voting methods, such as postal voting or e-voting, present a challenge to this integrative aspect of elections. Submitting a ballot by mail weeks before the election or clicking on a candidate in an app significantly diminishes the collective emotional experience that traditional voting provides. Modern technology risks reducing democratic participation to a routine administrative task, such as renewing a driver’s licence. While efforts to improve accessibility, increase voter turnout and lower costs are commendable, they may inadvertently contribute to the atomisation of the constitutional community.
Another institutionalised constitutional procedure with significant integrative potential is the conduct of parliamentary deliberation, particularly in the passing of statutes. Although the primary mission of regulating parliamentary debate through legal rules, autonomous norms and political conventions is to enable rational, transparent, participatory and adversarial deliberation on governance, these practices also significantly influence societal integration. When the electoral system and parliamentary rules prevent excessive fragmentation and single-party dominance, parliamentary debate allows for the inclusive consideration of diverse perspectives and interests in policy-making, thus again helping to prevent social and political differences from escalating into antagonisms. The structure and tone of parliamentary deliberation itself also play a crucial integrative role. If parliamentary culture is undermined by poorly defined legal rules and political conventions, resulting in improvisedFootnote 28 or chaotic proceedings that appear as little more than a ‘chat room’ to the public, the integrative function is lost. Observing parliamentary debate should ideally provide a constructive, emotionally positive experience that reinforces trust in governance. Poorly organised or ineffective debates, however, risk eliciting public frustration or even disgust at perceived inefficiency. Furthermore, effective parliamentary debates, supported by appropriate legal rules, are essential in countering common anti-democratic strategies, such as obstructionist tactics (Kirshner Reference Kirshner2014, p. 119). At the same time, an overly scripted parliamentary process, where substantive issues are largely pre-settled in the privacy of committees or other closed settings, can similarly undermine integration.
5 Substantive integration and constitutional self-defence
The idea of integrating the constitutional community to protect and sustain a democratic order rooted in shared values and goals is a widely embraced concept. According to a systematic literature review by Josh Holloway and Rob Manwaring, the commitment to democratic values and positive attitudes toward democracy are the most commonly cited sources of democratic resilience (Holloway and Manwaring Reference Holloway and Manwaring2023, p. 81). Interventions concerning thoughts, beliefs and attitudes aimed at highlighting commonalities are then considered an appropriate tool for reducing polarisation and partisan animosity (Hartman et al. Reference Hartman, Blakey, Womick, Bail, Finkel, Han, Sarrouf, Schroeder, Sheeran, Van Bavel, Willer and Gray2022). Such an initial intervention is represented by the very expansion of awareness of the values and goals of the constitutional community, which is part of the constitutional literacy project (De Visser Reference De Visser2022; De Visser and Jones Reference De Visser and Jones2024; Dreisbach Reference Dreisbach2016; Fombad Reference Fombad2018, Reference Fombad2025; Jones and De Visser Reference Jones and De Visser2024). Recent scholarship on this topic notably shares several key points with Smend’s integration theory. It does not focus on the mere formal text of the Constitution, but on a much broader awareness of constitutional history, unwritten norms, values and modes of behaviour (De Visser and Jones Reference De Visser and Jones2024, pp. 31–32; Fombad Reference Fombad2025, p. 85). At the same time, it does not understand awareness of constitutionality in this broad sense as an end in itself, but as a necessary prerequisite for the existence and cultivation of a constitutional community (De Visser and Jones Reference De Visser and Jones2024, pp. 32–35; Fombad Reference Fombad2018, pp. 4, 12). Last but not least, it understands constitutional literacy as a constantly ongoing process that changes over time and space (De Visser and Jones Reference De Visser and Jones2024, p. 47). On the other hand, it is questionable whether focusing on constitutional literacy education can be expected to bring about significant changes in favour of integration, although it certainly is a good thing to do (Somin Reference Somin2016, pp. 198–200, 204).
In constitutional and political theory, it is also highly debatable whether this integration should focus on rather abstract liberal democratic principles or primarily on a liberal understanding of a particular national culture (Hayward Reference Hayward2007; Müller Reference Müller2007b; Sekerák and Min Reference Sekerák and Min2025). Nonetheless, getting involved in resolving this dispute is beyond the scope of this article.Footnote 29 Instead, I would like to draw attention to the often-overlooked aspect of Smend’s substantive integration. This aspect lies in the constitutional dimension of rituals and symbols.
The foundational role of emotionally charged rituals in shaping a constitutional community can be traced to the early stages of modern constitutionalism.Footnote 30 From an anthropological and psychological standpoint, rituals have always played a key role in promoting adherence to social norms (Rossano Reference Rossano2012, pp. 529–30). Ritualised actions, embodying ideal ways of living, use emotions to connect individuals with the community’s core norms and values (Rossano Reference Rossano2012, p. 540). By actively participating in these rituals, community members visibly signal their commitment to shared norms, while passive observers are reminded of these values through the ritual’s symbolic display (Rossano Reference Rossano2012, p. 530). This process, reinforced by a strong emotional component, embeds these norms deeply within the collective memory of community members (Rossano Reference Rossano2012, p. 541). In the long term, rituals foster a sense of trust, co-operation and cohesion within the community (Miller Reference Miller2005, p. 1181; Rossano Reference Rossano2012, p. 529).
Rituals can be categorised into three types: rituals of reformation, rituals of renewal and rituals of restoration (Miller Reference Miller2005, p. 1203). For the purposes of constitutional integration, rituals of reformation and renewal are especially significant. Rituals of reformation focus on redefining an individual’s role within the community, most notably through entry ceremonies (installations) (Miller Reference Miller2005, pp. 1203, 1212–13). From a constitutional perspective, two such entry rituals are particularly impactful: the acquisition of citizenship and the inauguration into public office (Levinson Reference Levinson2011, pp. 54, 156). Both rituals serve to remind participants and instil within them the understanding that they are not assuming an ordinary social role but an institutional one (Miller Reference Miller2005, p. 1212). State citizenship represents a formal entry into the constitutional community, marking a qualitative shift in the individual’s status. The individual ceases to be a passive recipient of rights and obligations and instead becomes an active participant in public life with a special duty of loyalty to the state and fellow citizens – a role rooted in the active participation that defines citizenship (Barber Reference Barber2010, pp. 49–52; Loughlin Reference Loughlin2022, pp. 187–89). To fulfil this integrative function, the legal framework governing the acquisition of citizenship should emphasise at least two factors. First, it is the prior fulfilment of obligations and knowledge of the state’s cultural, social and legal frameworks. The form and content of citizenship tests can play an important role in achieving substantive integration through the transmission of values and inclusion in the constitutional community (De Visser and Jones Reference De Visser and Jones2024, p. 44). Second, it is also meaningful to care about components of the citizenship oath, preparation for taking it and the design and setting of the ceremony. This focus is particularly relevant for immigrants, whose need for integration into the constitutional community is most pronounced (White Reference White2009, p. 455). A similar ritual may also be appropriate for citizens who acquire citizenship without active effort, typically by birth. In this context, an approach fostering constitutional literacy, such as that of the Weimar Constitution, which required that each citizen receive a copy of the constitution upon completing compulsory education (at an age when they could appreciate the responsibilities of citizenship), is an inspiring example.Footnote 31
The considerations outlined above regarding the structure of entry rituals also apply to the inauguration of individuals into public office. These rituals are intrinsically linked to the constitution’s authority, serving as psychological reinforcement to ensure that public officials remain loyal to the constitution and legal order, and fulfil their institutional responsibilities in upholding constitutional principles (MacCormick Reference MacCormick2008, p. 52). This emphasis is particularly notable in the American constitutional tradition, where oath-taking rituals are valued highly,Footnote 32 and individuals who breach their oaths are regarded as among the most serious public offenders.Footnote 33 Oath-taking ceremonies for public officials primarily function as a preventive measure to enhance accountability in their exercise of public authority, especially in cases where traditional accountability mechanisms may be less effective due to institutional limitations.Footnote 34
Rituals of renewal are essential for cultivating a positive emotional connection to the constitutional order. These rituals often include public celebrations of national holidaysFootnote 35 or ceremonies marking the opening of government bodies (e.g., parliaments, legislative sessions, court hearings) (Belov Reference Belov2022, pp. 145–46). Their effective implementation and sufficient allocation of funds are critical to their success. However, symbolism plays a particularly significant role in these rituals. During such events, symbolic elements such as flags, national emblems, mottos,Footnote 36 national anthems and other musical compositions,Footnote 37 monuments,Footnote 38 public buildingsFootnote 39 (Belov Reference Belov2022, pp. 145ff, 204ff) and names of specific locations (Levinson Reference Levinson2024, pp. 20ff) are prominently displayed. Importantly, the use of symbols extends beyond the celebration of specific occasions; as powerful emotional tools of integration, they can and should operate continuously in the background of everyday societal activities.Footnote 40 Therefore, thoughtful consideration must be given to the design of state symbolsFootnote 41 and to the legal regulation of their public use, including appropriate legal protection.Footnote 42
However, using symbolism and rituals for constitutional integration carries inherent risks. One key risk is that they may be taken too seriously. Ritualised and symbolic actions can lose their integrative power if participants are not mindful of the values and norms these actions represent, potentially reducing them to mere formalities (Miller Reference Miller2005, pp. 1195–96). Without this awareness, constitutional rituals and symbols, including the constitution itself as the ‘symbol of symbols’,Footnote 43 risk becoming, in Freudian terms, a totem (West Reference West2016, pp. 347–48). Such fetishisation can paradoxically obstruct integration by preventing citizens from projecting constitutional values and commitments into the future.Footnote 44 Conversely, rituals and symbols can lose their effectiveness if they are treated with too little seriousness. This dynamic was evident in the societies of the former Socialist Bloc, where grandiose national rituals and mass displays of ‘conformity’ often bred cynicism and derision rather than genuine integration.Footnote 45 Therefore, excessively elaborate or exaggerated symbolism may lead to alienation rather than unity. Ultimately, the design and application of rituals and symbols must be sensitive to context.Footnote 46
6 Conclusion
The ongoing endeavour to preserve constitutional democracy remains relevant nearly a century after Loewenstein introduced his ideas on militant democracy. In recent decades, interest in militant democracy has been motivated primarily by the rise of new challenges to democracy, particularly populism (Müller Reference Müller, Jacobsohn and Schor2018, pp. 426ff). However, in constitutional and political theory, it remains contested whether the repressive tools of militant democracy are the right way to protect constitutional democracies, or whether it is necessary to turn to non-militant tools of democratic self-defence, such as civic education or the promotion of social policy programmes. Both recent approaches to militant democracy and non-militant democratic self-defence, though, overlook a key insight from Loewenstein, which aligns with observations about populism. That is, the role of emotions in undermining democratic regimes.
In this article, I built on this insight, but in a different sense. I believe that emotions can also be used positively, to protect constitutional democracy and strengthen its resilience. At the same time, I believe that constitutional law plays a fundamental role in dealing with emotions. For this reason, I propose a new approach to democratic self-defence based on Rudolf Smend’s integration theory. His conceptualisation of integration techniques in the activities of public offices, their holders and other public figures (personal integration), in the setting up and functioning of public procedures such as elections and parliamentary deliberations (functional integration), and in promoting common values and goals through rituals and symbols (substantive integration) represents a valuable analytical framework. It allows us to see how legal arrangements, such as the method of electing the head of state, the effectiveness of parliamentary proceedings, the taking of citizenship oaths and the form and protection of state symbols, can strengthen (or, conversely, undermine) the emotional relationship of citizens to the constitutional order and, thus, the cohesion of the constitutional community.
Hence, this article contributes to existing scholarship in democratic self-defence by advancing three main points. First, it adds an integration-based dimension to the established triad of militant democracy and non-militant democratic self-defence tools. Integration-based policies recognise the influence of emotions in society and seek to counter authoritarianism and populism by deliberately cultivating positive emotions (and mitigating negative ones) toward the liberal democratic constitutional order. In doing so, this approach challenges the traditionally sceptical perspectives on the role of emotions within constitutional theory and the theory of militant democracy.
Second, this article highlights that integrating the populace into the constitutional community, often regarded as a matter of political custom or process, also has a constitutional-legal dimension. Efforts to use integration as a defence of the constitutional order influence the structure and form of constitutional design, the enshrinement and execution of constitutional powers and procedures, and the reflection of constitutionally significant rituals and symbols. Consequently, integration emerges as a matter of both constitutional theory and constitutional law (Jakab Reference Jakab2016, pp. 3ff; Belov Reference Belov2022, pp. 4ff, 24ff).
Finally, the integration-based perspective offers notable advantages over existing militant democracy and non-militant democratic self-defence policies. It is not limited to use in cases of imminent danger, addresses the underlying causes of extremism and populism, acts preventively and over the long term, views people realistically rather than as purely rational beings and avoids economic disputes over social policy matters.
This article offers a conceptual-theoretical exploration of constitutional integration as a tool for democratic self-defence. The examples from various constitutional jurisdictions serve only as illustrative cases, without aiming to provide a comprehensive comparative analysis. Another limitation lies in the inherently conceptual scope of this analysis; future research should incorporate empirical investigations to assess the real-world impact of various integration-based tools and strategies.
Ultimately, defending the liberal-democratic constitutional order remains a formidable and essential endeavour, one that continues to provoke significant interest and passionate debate within constitutional theory and practice. The stakes involved are high, arguably more so now than in previous decades.
Acknowledgements
The author would like to thank Filip Horák, Filip Jelínek and the anonymous reviewers for their helpful comments and feedback, as well as Barbora Hrotková for helping with the citation format. The author used DeepL (https://www.deepl.com/cs/translator) for translation purposes only.
Funding statement
This work has been supported by Charles University Research Centre programme No. UNCE24/SSH/39.
Competing interests
The author also works as an analyst in the Office of the President of the Czech Republic.
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