//  3/31/17  //  Commentary

American democracy is in trouble.  We are deeply divided along lines of race, class, and party. Our political discourse has coarsened as the level of vituperative political rhetoric has intensified. Racism, sexism, and nativism have reappeared at a level that we have not seen in decades. There is not even consensus on basic facts. Our President repeatedly makes statements that are demonstrably false, including claims of widespread vote-rigging that have no evidentiary support, while railing against the press for exposing his mendacity. 

Bad as things are, the challenges that our democracy now confronts are bigger than Donald Trump. He did not create the divisions that the 2016 election revealed, though he has surfaced, exploited, and deepened them. The consequence is not only to embitter Americans toward one another during election campaigns, but also to make governance much more difficult after the election is over. 

The failure of the Republican health care bill is just the latest illustration of how hard it is to govern, even when one party controls both the legislative and executive branches.  Although progressives have good reasons for celebrating the failure of this particular bill, we should not celebrate the political fragmentation that it reveals.  Had Hillary Clinton won last year’s election, it would have been even more difficult for her to govern effectively with a Congress determined to undermine her at every step. 

Things look bleaker still when we consider how Americans feel about their system of government. People across the ideological spectrum believe that they lack a meaningful voice in our political system.  More and more citizens have even become skeptical of democracy itself.  As Roberto Stefan Foa and Yascha Mounk note, 72% of those born before World War II think it essential to live in a democracy but only 30% of millennials feel the same way. This phenomenon isn’t confined to the United States, but the diminishing public faith in democracy among Americans is especially jarring in light of our history of constitutional democracy – and especially worrisome in light of our traditional leading role among democratic countries.   

These developments call into question the long-term viability of American democracy.  To be clear, I am not making the apocalyptic claim that Trump’s electoral victory signals its imminent demise. The greater threat is a more gradual degradation, what Aziz Huq and Tom Ginsburg call “constitutional retrogression.”  Professors Huq and Ginsburg define constitutional retrogression to entail the simultaneous decline of three essential attributes of genuine democracy:  (1) free and fair elections, (2) expressive and associational rights, and (3) the rule of law.  

Just over two months into the Trump Presidency, we see worrying signs on all three fronts. 

During the general election campaign, candidate Trump repeatedly made irresponsible and unfounded allegations of vote rigging, while being cagey about whether he would concede if he lost.  President Trump has continued to chase the phantom of electoral fraud since his election, saying he’ll ask the Vice President to lead an investigation. He has sought to undermine honest political discourse, branding the mainstream media “the enemy of the American people.” He has even begun chipping away at the rule of law, castigating federal judges in personal terms for stopping his executive orders restricting travel from certain countries.

President Trump’s reckless tweets don’t mean that our constitutional system is about to collapse but – in the face of the public’s already diminished faith in democracy – these attacks on its cornerstones trigger concern about structural stability.  

So how did we get here? And what can be done to reverse the deterioration of American democracy?  These are complicated questions that can’t be answered in a single blog post.  I’ll address them in future posts and suspect that other contributors to this blog will do so too.  My present goal is to identify two contributing factors and to consider where we might look in seeking improvements.

One of the obvious contributors to our present plight is the alarming increase in partisan polarization.  There is considerable disagreement on why polarization has increased, but no doubt that it has increased dramatically in recent decades, especially among elected officials but also among voters.  It’s also clear that partisan polarization makes governance more difficult, especially at the federal level when bipartisan consensus is often required. 

Another contributing factor is the substantial increase in economic inequality during roughly the same period.  Since the 1970s, incomes at the top have skyrocketed while those further down have stagnated or even declined.  Wealth disparities are even more exaggerated. There two trends – rising political polarization and economic inequality – have risen in near lockstep for decades, as Nolan McCarty, Keith Poole, and Howard Rosenthal have documented. There is reason to believe that they are causally linked and perhaps mutually reinforcing. Both are major contributors to the deterioration of American democracy.  

Turning things around will require a multi-faceted approach. There are no magic bullets, but the solution must entail a rethinking and reinvigoration of two of our most fundamental constitutional rights. 

The first is the right to freedom of expression.  The noblest aspiration of our First Amendment is to facilitate the robust public debate upon which self-government depends. A healthy democracy is one in which in which we not only speak but hear a diversity of perspectives, some of which might actually change our minds.  Existing free speech doctrine fails to match this aspiration. The avenues for political expression have multiplied, especially since the advent of social media, yet it has become far too easy for us to avoid meaningful dialogue with those who harbor different views. We inhabit our own echo chambers populated by those who share our perspectives, trolling rather than engaging with those with whom we disagree. Even worse, our political process – including not just election campaigns but the lawmaking that follows – is increasingly dominated by the voices of the wealthy.  

The other constitutional right in need of rejuvenation is the right to vote. As often as we praise the right to vote, we seldom appreciate its complexity. Properly speaking, the right to vote should be understood as more than just casting a ballot that is counted.  It also entails our equal citizenship as manifest in political representation and governance.  The right to vote is thus implicated by the manner in which legislative districts are drawn, the regulation of political parties, and how money flows into the political system.  We must understand the right to vote in all of its dimensions, recognizing its systemic and not just individualistic character. Courts aren’t the only place to which we should turn to revitalize the right to vote, but it’s essential that they play a cooperative role – in contrast to the obstructive role that has typified the Roberts Court’s interventions in the democratic process. Breaking the link between economic inequality and political influence is especially vital.

It isn’t too late to arrest the decline of American constitutional democracy.  But realization of its promise, perhaps its very survival, will require the creation and implementation of a democracy agenda.  I’m honored to be part of this blog and hope that to participate in the development of that agenda.  

Versus Trump: Legal Update + The GSA Travesty

11/17/20  //  Commentary

On this week's Versus Trump, Charlie and Jason discuss the status of Trump's legal challenges to the election (going nowhere) and the Trump Administration's dangerous and illegal refusal to designate Biden as the President-elect and therefore give his team resources for a smooth transition. Listen now!

Charlie Gerstein

Gerstein Harrow LLP

Jason Harrow

Gerstein Harrow LLP

Trump's Lawyers Should Be Sanctioned

11/11/20  //  Commentary

Lawyers who bring cases without evidence solely to harass or delay should be sanctioned. It's what Justice Scalia would have wanted.

Jason Harrow

Gerstein Harrow LLP

Versus Trump: Legal Challenges, Plus The Post Office Case

11/8/20  //  Commentary

On this week's Versus Trump, Charlie and Jason discuss the (frivolous) legal challenges to come. They are then joined by Public Citizen's Matthew Seligman to learn what happened with all those last-minute ballots, and what might happen in ongoing litigation in the Supreme Court.

Jason Harrow

Gerstein Harrow LLP

Charlie Gerstein

Gerstein Harrow LLP