Why are liberal democracies so scared to save themselves?

Describing the dilemma faced by democracies when threatened by those using their own rules to undermine them, the late United States Supreme Court justice Robert Jackson wrote in 1947: “The choice is not between order and liberty. It is between liberty with order and anarchy without either ... There is danger that, if the court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.”

Justice Jackson was objecting to a decision by the court not to punish a far-right priest whose racist rants had inspired a riot in Chicago. The judge, who during the Nuremberg Trials prosecuted Nazi war criminals who came to power democratically, meant that liberal democracy must put structures in place to protect itself when under threat, even if that meant sacrificing freedom of speech or resorting to illiberal means.

The concept of “militant democracy” became a norm throughout much of post-Second World War Europe, especially in countries emerging from dictatorship such as Germany, Spain, Portugal, Poland, Czechia and Slovakia. New tools were put into place, and old ones revived. But bafflingly, liberal democracies nowadays are proving incapable or unwilling to use the various array of tools at their disposal to fend off threats by the far right. Meanwhile, the far and hard right is constantly trying to manipulate the rules of liberal democracy to undermine it.

Last week Politico disclosed a leaked recording of the head of a right-wing American university pushing for the institution to get more candidates into office, despite laws that forbid tax-exempt educational institutions from engaging in such blunt electioneering. “I’ve known how to handle that and not get into trouble,” Liberty University president Jerry Prevo is heard saying. “The homosexual community has tried to take me down for at least 30 years, and they have not been successful because I know how to work the [tax code].”

While liberal democracies constantly resort to illiberal means when combatting Islamist militants, they shy away from using such tools against those taking direct aim at democracy. Many countries, for example, have laws forbidding political parties and politicians that expressly seek to undermine democracy from gaining any kind of foothold. Only Germany, which witnessed the suicide of its own nascent democracy during the 1930s, has invoked such laws.

France, for example, could easily bar far-right upstart Eric Zemmour from running for president simply by enforcing rules that bar those convicted of incitement from running for national office.

Donald Trump remains a clear and present danger to American democracy. His words on 6 January and before could be used to charge him with sedition or incitement. Members of the Republican Party under his de facto command regularly threaten political violence in his name and are actively rewriting election rules to give themselves an edge in any upcoming elections, alarming civil society activists across the country.

“Liberal democracy depends on free and fair elections, respect for the rights of others, the rule of law, a commitment to truth and tolerance in our public discourse,” a group of American intellectuals from across the political spectrum wrote last week in an extraordinary open letter. “All of these are now in serious danger. The primary source of this danger is one of our two major national parties, the Republican Party, which remains under the sway of Donald Trump and Trumpist authoritarianism.”

Yet American authorities are ever so squeamish about making the Republican Party and Trump face the full extent of the law for their actions. Judges blithely toss young black men into jail for years for peddling small amounts of narcotics. Meanwhile, last week, a judge refused to give 6 January insurrectionist and military veteran Leonard Gruppo even the single month in prison that meek prosecutors were requesting. “Mr Gruppo disobeyed law enforcement three times,” the prosecutor argued, according to a reporter covering the hearing. “His prior military service militates for jail time. He swore an oath to defend the constitution, but damaged our global reputation as a democracy.”

The judge was unmoved, noting that his own father served in the armed forces. He gave Gruppo – who apologised for his actions – 90 days home confinement, a couple of years probation and a $500 fine.

“One reason [for their hesitancy] is because of an absence of consensus among relevant actors,” says Zaid Al-Ali, a constitutional scholar attached to the Institute for Democracy and Electoral Assistance (Idea), the United Nations’s democracy promotion arm. “Another is simply miscalculating and underestimating the risk, the everlasting focus on short-term priorities which obscures long-term risks.”

The frustration was palpable in Brussels where the European parliament has sued the European Commission over its failure to abide by its own rules and withhold funds from the right-wing leaders of Hungary and Poland for drifting into authoritarianism.

“The EU has some instruments to confront illiberal regimes but recent history shows that they’re really reluctant to use them,” says Thomas Hochmann, a French constitutional scholar at Paris Nanterre University.

Outside actors such as Russia may play a role, creating and inflaming domestic dissent to raise the stakes on taking any action against nefarious operatives. The worry is that taking action against someone like Trump or Zemmour, or alienating the regimes in Hungary and Poland, could inflame their supporters and make them even more dangerous.

Yet, the one time Europe acted, booting Greece from the Council of Europe in 1974 after a right-wing military coup, it served to pressure Athens back toward democracy. Germany’s orders over the years to dissolve several far-right political parties had virtually no political blowback. Between 1945 and 2005, France outlawed more than 70 political associations considered a threat to democracy or security, without any major consequences.

That raises another possibility as to why those whose job descriptions include protecting democracy are so tepid about enforcing their own rules when it comes to the current crop of far-right upstarts: they are intimidated by the aura of those commanding political power. Politicians, courts and prosecutors as well as media and scholars believe them untouchable, all but assuring their further rise.

“These instruments may be anti-democratic,” says Hochmann. “But if you wait for them to be so close to power before you use them, you might find it’s too late.”