//  11/5/18  //  In-Depth Analysis

Take Care is pleased to host a symposium on How To Save A Constitutional Democracyan important new book by Aziz Huq and Tom Ginsburg.

We thank all of the scholars and lawyers who participated in this symposium on our book, How to Save a Constitutional Democracy.  Having such a terrific set of thinkers engage so deeply with our ideas is its own reward, and we urge you to read all the posts—each of which makes its own free-standing contribution.  Still, we cannot resist a response, tying together some of the major themes that emerge in the symposium.

One major theme is the question of how we can get from here to there, in the sense of adopting democracy-enhancing reforms that are incentive-compatible, at a moment that democracy seems to be in some peril.  Developing an agenda put forward by the Protect Democracy organization, lawyer Justin Florence offers a set of four buckets of reforms that should be in the interest of both parties. In the abstract, we agree with his assertion of nonpartisan interest. But, as Florence of course knows, one of the central political facts of our time is that one party seems to have little interest in protecting democracy from erosion. As political scientists have argued, polarization has been somewhat asymmetric.. A threshold question, therefore, must be how to recast attitudes within the RepublicanParty toward investing in democratic norms.

Professor Jon Michaels engages our claim that resistance to democratic erosion in the United States is somewhat contingent, and so cannot be presumed. While the Republican Party has been mostly willing to go along with President Trump, Michaels points out a vast network of structural constraints that may make our governance system more resilient than it seems at first glance.  Perhaps, then, there will be a moment for reforms. Although we agree with Michaels about the importance of institutions below and outside the three branches of government, we are less confident than he is about the extent to which this network will be able to resist democratic backsliding.

Several of the symposium authors concern unintended consequences of some of the tools that we advocate. Professor Ros Dixon, for example, points out that some of our solutions designed to protect democracy might themselves be turned against it, a phenomenon she has written on with David Landau.  For example, she notes that lower thresholds for presidential impeachment (which we explore) might lead to greater instability, as losers try to demonize electoral winners.  This is a valid criticism. But it is our view that it is the lesser evil; the greater risk, at the moment, is incumbent takeover, rather than the loss of faith itself.  Dixon’s deeper point resonates with our conclusion that institutions alone are never sufficient, but can provide for local and momentary brakes on processes of erosion, which might end up holding the line until forces of reason return. Constitutional design is always a matter of trade-offs. One always has to pick one’s poison. 

We are obviously working the same fields as Professor Corey Brettschneider, whose Oath of Office is essential reading in this space. Brettschneider’s vision of democracy is thicker than the one we offer in the book. He emphasizes the central role of equality in the American constitutional tradition. We are personally sympathetic with this emphasis, but we also committed to keeping our account of democracy minimal, so that it can be applied across different national and temporal contexts.  We thus see our more abstract account as being compatible with a wide array of interpretations of specific cases.

Like Brettschneider, Brianne Gorod also has a more optimistic take on the “true” Constitution than we do, and asks in essence whether the problem is with the Constitution or with the interpretation that courts have given to it. Either way, the current era of partisan federal judicial appointments suggests that the problem is likely to continue.  (The here-to-there problem, that is, impedes any quick recourse to the courts as solutions to democratic backsliding, at least without substantial personnel or jurisdictional change).  As one of us has suggested in other writing (long pre-dating the Trump presidency), there are ample reasons to be skeptical of the consequences of judicial review as practiced by American courts as a salve for the Republic’s woes.  In any case, some of the core, structural problems with the two-century old document can not be fixed by courts applying expansive, democracy-saving reinterpretations. In short, although we are sympathetic with many of Gorod’s readings of the constitution, we are skeptical that they are within reach as a practical matter. 

So where should we start if we want to get from ‘here to there’ in addressing the risk of democratic backsliding?  One place to start is with what can be plausibly called the single biggest source of democratic dysfunction in the U.S. Constitution—its assignment in Article I, Section 4 of electoral management to partisan state legislators. The most obvious domain in which this has produced distorted choices (with effects that ripple throughout the larger sphere of policy) is in the drawing of district lines.    Like many others, we think partisan districting is a core problem in the United States, as it has produced a set of representatives much more polarized than the general public (at least until recently). By moving the incentives of legislators and state officials back toward the median voter, we might encourage more intra-partisan resistance to a president seeking to take over the system.  Parties in presidential systems tend to be susceptible to the pull of a president’s electoral mandate, as David J. Samuels and Matthew S. Shugart have written, but they are also relatively broad and shallow coalitions, more of a shifting tray of sand than a block of granite.  If the electoral incentives were different, we might see a more robust intraparty constraint on the president.

An increase in the number of competitive districts and states would also give more weight to the median voter and produce the possibility of actual bipartisan legislation, something which seems to be a thing of the past. There are surely many areas of American public life—health care and immigration topping the list—which cry out for comprehensive reform.  But the inability of Congress to produce such reform damages its standing with the public, which in turn hampers its ability to conduct oversight.  Executive power expands to fill the vacuum.  A lynchpin set of electoral reforms, then, might have powerful systemic effects. 

To be sure, we are not sanguine about our ability to achieve this key goal in the short run, but we do think that this is the right place to start. Already, state level litigation and ballot initiatives can begin to attack the problem, and courts can develop justiciable standards, as the Pennsylvania Supreme Court’s redistricting decision showed.  Furthermore, it would be good to work for state level constitutional reform seeking to reduce the partisanship of the secretary-of-state office, a formerly technocratic institution that has now become a springboard for partisan seekers of higher office like Kris Kovach and Brian Kemp. At a very minimum, state legislators should demand that sitting secretaries of state recuse themselves from involvement in elections they are contesting.

Our book does not directly engage with one of the central questions of our times,  brought up in two other posts, which is how to deal with outright falsehoods propagated through the media by propagandists in positions of high elected office.  Andrew Boyle points out that the President’s style of partisan lying has spread throughout the administration, and perhaps more disturbingly to Supreme Court Justice Brett Kavanagh’s overtly partisan testimony in his confirmation hearings. Kate Shaw’s keen analysis shows us that, in the era of twitter, the president is more than just an agenda-setter in politics, but instead defines his own followers by who he chooses to engage with and listen to.  We agree that the very notion of a polity is at risk in such circumstances, and echo Hannah Arendt’s concern in her famous essay Lying in Politics about “how vulnerable is the whole texture of facts in which we spend our daily lives; it is always in danger of being perforated by single lies or torn to shreds.” In some sense, Shaw and Boyle remind us that the primary safeguard against that risk is the simple exercise of democratic commitment by citizens themselves.

As the Mexican historian Mauricio Tenorio-Trillo has put it, democracy is “an ugly thing, but the human species has yet to come up with a better option.”  We hope that the collective energy generated by our public debate and many others will help make our democracy a bit less ugly in the mid-term, whatever happens in the midterms.


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