Brazil’s Supreme Court is right in going after putschists

The January 8 storming and ransacking of government buildings in Brasília, physical symbols of Brazilian democracy, sparked a swift and decisive response from federal authorities. 

The Supreme Court suspended the governor of Brasília and arrested his former security chief for criminally neglecting the threat posed by massive anti-democratic protests in the heart of power. In the three weeks that have passed since, there has been an unparalleled effort to investigate and punish those responsible.

Nearly 1,700 rioters were arrested, and courts ruled that almost 1,000 will remain behind bars. Additionally, Justice Alexandre de Moraes — who is overseeing the January 8 investigations — has ordered social media platforms to ban several far-right agitators.

For many, the violence of the riots has vindicated Justice Moraes’s aggressive decisions against people spreading misinformation online. Others worry that the justice is amassing too much power — and point to questionable methods he has used over the years. Since 2020, The Brazilian Report has reflected on such concerns. 

In Brazil’s public debate, some segments of the left have treated Justice Moraes as a hero, despite having strongly opposed the heavy hand of Operation Car Wash, a years-long anti-corruption taskforce. Conservatives, who applauded as judges stretched the limits of the law when prosecuting current President Luiz Inácio Lula da Silva as part of Car Wash, are now the ones clamoring for due process.

The debate raises the question of whether Justice Moraes’s heavy hand is simply aping the mistakes of Operation Car Wash. The context, however, is different. 

German lawyer and political scientist Karl Loewenstein coined the term Streitbare Demokratie — usually translated as militant democracy — to describe the set of actions that a democracy must take when faced with a political force that seeks to use its own democratic franchises as a means of attacking the system. 

He saw firsthand what authoritarian leaders can do if not stopped in time, having been born and raised in Germany in the early 20th century and fleeing once Adolf Hitler and his party seized power in 1933. 

Mr. Loewenstein saw, albeit from afar, the transformation of the Weimar Republic into the Nazi totalitarian state, and realized that democratic guarantees must not be allowed to serve as protection for elements that seek, ultimately, to exterminate democracy itself. 

In this way, democratic institutions can, or rather, must, use elements that seek to remove from the public sphere ideas that, if put into practice, would lead to their own demise. And that includes the use of emergency and...