How Fragile Is Our Democracy?

America survived the Trump era including its farcical last gasp. But, as two legal scholars explain, preserving freedom is complex.

Four days before Donald Trump won the presidency in 2016, the syndicated columnist Kathleen Parker reassured readers of the Washington Post’s “Opinion” section under the headline, “Calm down. We’ll be fine no matter who wins”:

Thanks to the brilliance of our tripartite government, nobody gets to be dictator. And despite what nearly everyone seems to believe, our “broken government” works pretty well most of the time. If Trump wins, he’ll be held more or less in check by the House and Senate because that’s the way our system of government is set up. Not even Republicans are eager to follow Trump’s lead. There won’t be a wall. He won’t impose any religion-based immigration restrictions, because even Trump isn’t that lame-brained.

After the election, others for a time continued to express—in slightly less risible form—the same confidence: America’s independent courts, its separation of powers, its checks and balances, its democratic culture, would keep Trump within shouting distance of its historical norms. Our blessed republic will muddle through, TV historians promised; the “better angels of our nature,” after all, always prevail.

In 2020, as Trump sinks slowly in the west, any sober observer would call these estimates too optimistic. American institutions have not tamed Trump; the reverse almost occurred, in fact. Far from checking and balancing, Republican members of both Houses treated Trump with all the skepticism of the North Korean Supreme People’s Assembly greeting Kim Jong Un’s newest five-year plan. After the voters repudiated him in 2018, Trump refused even the slightest cooperation with the Democratic House, stonewalled the special counsel, and laughed at impeachment. Until late November, he seemed to think he could do the same thing with the election itself.

Meanwhile, the judicial branch has been subject to the most systematic partisan packing since John Adams installed the “midnight judges.” The U.S. Department of Justice has functioned as Trump’s private law firm. The inspector general system has been crippled, and the President has openly defied the federal Vacancy Reform Act to neuter the “advise and consent” power of even his own Senate majority. The Department of Homeland Security auditioned on the streets of Portland, Oregon, for a potential second-term role as the president’s secret police. Preatorian Guard? More public than Stasi or Cheka.

Tom Ginsburg and Aziz Huq, professors at the University of Chicago law school, want to convince readers that the last four years are not the result of Trump’s personality, or even of peculiarly American political woes. How to Save a Constitutional Democracy by Tom Ginsburg and Aziz Huq. The University of Chicago Press. 295 pp.

“American exceptionalism” is now a dogma of the right (recall their ceaseless attack on Obama for his supposed apostasy), but, as Ginsburg and Huq explain, the phrase was actually coined by the American Communist Party to explain Marxism’s failure here. Whatever “exceptionalism” means today; no one can argue that the United States is immune to worldwide political and social trends; and, since 2000, those trends have been flowing against democracy and in favor of authoritarianism. The spillover of authoritarian ideas and techniques is a malign effect of globalization: “Innovations in fashion, music, and business spread across borders, and law is no exception,” the authors note.

Ginsburg and Huq’s seek to break down the “exceptional” idea and show us that it not only can happen but is happening here. They warn that “[t]his is a book provoked by the election of Donald Trump, but it is not a book about Trump in any direct way.”  Trump and his administration, in this account, represent less a near-death experience for American democracy than an acute episode of what is likely to be a recurrent worldwide pandemic. They relate Trumpism to the recent rise of autocracy in Hungary, Poland, Venezuela, Turkey, Thailand, and other once-democratic nations. Those case studies provide an eerie description of the road our politics set out on well before January 2017 and offer a solemn warning of what may lie ahead in the post-Trump era.

No book about the dangers to democracy can proceed without agreement on the meaning of that elusive term. Ginsburg and Huq’s definition is minimalist; they offer three “‘floor’ requirements for a working democracy”:

These start with free and fair elections to be sure but extend to the liberal rights of speech and association that are necessary for the democratic process; and the stability, predictability, and publicity of a legal regime usually captured in the term rule of law—a quality of special importance when it comes to the machinery of elections.

The authors then provide a taxonomy of the ways democratic systems fall apart. Violent revolution they dismiss as unlikely in 21st century republics; “democratic collapse”—a Reichstag-fire event or lightning military coup—seems to them almost equally improbable, at least in the U.S. The danger to established, wealthy democratic nations, they argue, is “democratic erosion.” That phenomenon is widespread, and it leads to what political scientists call “competitive authoritarianism,” which Ginsburg and Huq describe as a system “in which elections of a sort occur, where liberal rights to speech and association are not wholly stifled, and where there is some semblance of the rule of law.”  Erosion, they write, flows through five specific mechanisms. These are 1) changes in the national constitution to reduce constitutional guarantees; 2) elimination of the interbranch checks among the three branches of government; 3) an embrace of politicized, uncheckable executive power; 4) gradual contraction of the “shared public sphere” open for democratic protest; and 5) elimination of genuine competition among parties and opportunities for peaceful change in government.

How well equipped to resist these pressures is the American system? On the evidence of the last four years, the answer is: nowhere near as much as we have been taught. “The problem in the United States, in short, is not the risk that interbranch checks will be dismantled. The problem is that they were never as effective as was hoped in the first place.”  Congress is “strong on paper but weak in practice, whereas presidents are weak on paper but powerful in practice.” Because the presidents appoint (and promote) judges, “US federal courts today have more in common with the inert Weimar courts than the activist constitutional court of South Africa.”  The Supreme Court has abetted erosion by shaping extra-constitutional doctrines, such as “standing to sue” or “political questions,” that allow it to “shirk any response to serial constitutional violations if doing so would be divisive or damaging to the Court’s reputation or workload.”

Despite claims that our federal system enhances “liberty,” our gradual division into red and blue states risks the creation of “authoritarian enclaves” (think Alabama, Mississippi, or Scott Walker’s gerrymandered Wisconsin) that serve as “laboratories for despotism.”  Executive power had already metastasized by the time Trump came into office; he has carried the malaise further. And his partisan annexation of the U.S. Department of Justice has taken the country a step closer to autocracy.

The authors offer an interesting set of recommendations on how our system could be made hardier. One of the most intriguing, paradoxically, is the end of pure majoritarianism in Congress: “the creation of constitutional platforms for opposition parties within the legislature to challenge executive action.” If legislative majorities share control of oversight—for example, by providing the minority party with key committee chairmanships, they reason, the executive could not use its control of Congress to shut down investigations that might prove embarrassing or worse

But minority rights is but one of a rich selection of suggestions for strengthening our institutions against the next would-be dictator. These are made within the existing constitutional framework, and each one should set off lively discussions as the nation gropes its way back toward government by law. Among others, Ginsburg and Huq suggest statutes requiring executive transparency and strengthened protections for career officials in crucial federal bureaucracies. They would like to revive the Independent Counsel, with some protections against Ken Starr-type hijacking, and bar by statute political interference with the Justice Department’s investigative and prosecutorial functions.

They propose one intriguing constitutional change–to reform the President’s cabinet by making it more, not less, partisan. They would lift the bar (Article I § 6 cl. 2) against serving members of Congress also being appointed to “any office under the United States … during [their] continuance in office.” This would be coupled with an explicit requirement that each appointment of a Cabinet officer from the president’s party “had to be matched with an appointment from the other party.” This, they argue, would facilitate communication and information-sharing between contending sides and perhaps make legislating easier. I can imagine objections to that suggestion—as well as to the idea that “[t]he filibuster should be restored for all federal judges, but with the understanding from both parties that each can make appointments when it is in power.” But both are worth discussing.

The minimal definition of democracy, however, raises questions about whether these remedies can tackle the real sources of democratic erosion. Ginsburg and Huq pay too little attention to racial division—the gaping wound in our national life that sometimes bleeds and sometimes hemorrhages but has never come close to healing. Ethnic strife—for example, between Tamils and Sinhalese in Sri Lanka, Turks and Kurds in Turkey, and indigenous peoples and those of European or African descent in Brazil—is one of the most, if not the most, powerful tool of would-be autocrats. American politics reveals a long roster of politicians who rose by attacking people of color; the power of this stratagem was confirmed this year when Trump’s racist rhetoric did not doom his campaign and arguably boosted his vote.

In the larger sense, the role of internal conflict—a ginned-up struggle against real or invented enemies within—is a key element in the rise and maintenance of authoritarian states. It is often thought that war provides the richest opportunity to destroy democracy; but in fact, I think, domestic battles are more poisonous. Certainly, Trump and his enablers have been assiduous in stoking conflict between “red” and “blue” Americans, as well as suspicions of immigrants and Muslims—again, with at least some political benefit.

Legislative reform offers little hope if it simply papers over this sort of division.  For that reason, I would quarrel as well with the authors’ minimal definition of democracy. Free elections, free speech, and the rule of law are indeed essentials of any free democratic polity; but without a fairly stern commitment to equality—between classes, races, and sexes—they may not be sufficient to preserve that freedom.

Ginsburg and Huq are aware that our society is suffering from a democratic deficit that transcends institutional arrangements: Democracy cannot survive, they acknowledge, “without a decent measure of popular commitment to democracy.”  Structural reforms take a polity only so far; they must take place within a context of democratic values “ transmitted within families, schools, churches, mosques, synagogues, work-places, and social media networks.” If ordinary people lose interest in democracy, “the best institutional and constitutional design in the world will likely be for naught.”

How severe is the deficit? We now have some information unavailable to the authors—the uneven but ultimately effective functioning of American democracy in the fraught fall of 2020. As it approached, Election Day seemed like an apocalypse foretold, with fears of violence at the polls, sabotage of the mail system, vote suppression or computer hacking at the counting stage, street violence as results were announced, and lawless intervention by partisan judges to reverse Republican setbacks.

What actually happened offers a complex and ambiguous comment on the nation’s democratic values. In one sense, the aftermath of the election is in fact a textbook case of “democratic erosion,” as Trump launched a project to overturn an election that was not particularly close. National leaders of the Republican party—who understand perfectly well that Trump lost—nonetheless maintained their North Korean-style conformity to the party line. As a result, millions of Americans are now convinced the election was “rigged.”

On the other hand, this slow-motion coup failed laughably. Though America’s conservative elite betrayed it, the system survived precisely because of the fidelity of relatively low-level government figures who, in many cases, were ignoring their own partisan preferences to administer an election according to law. Federal judges, even those appointed by Trump himself, uniformly rejected the idea of the courts as an extension of Republican rule. Conservative lawyers, too, defected, leaving Trump in the hands of a team that seemed more like a spinoff of “The Walking Dead” than an “elite strike force.”

That clerks, election board members, legislators, and executive officials in Georgia, Michigan, Arizona, and Pennsylvania ignored blandishments and threats from Trump provides some grounds for optimism as we strive, with the help of authors like Ginsburg and Huq, to repair and save our constitutional democracy.

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Garrett Epps

Garret Epps is the Legal Affairs Editor of the Washington Monthly and a professor of law emeritus at the University of Baltimore. He is the author of American Epic: Reading the U.S. Constitution and four other books about the Constitution.