Take Care is pleased to host a symposium on How To Save A Constitutional Democracy, an important new book by Aziz Huq and Tom Ginsburg.
At the outset, I want to thank the Take Care blog for including me in this symposium, not to mention giving me an opportunity to read Thomas Ginsburg and Aziz Huq’s new book and learn a great deal in the process. I very much look forward to reading the other contributions to this symposium.
Reading a book with the title How to Save a Constitutional Democracy prompts a certain depressing clarity when you realize you are reading it not as an abstract thought experiment but with the interest that you would read something that has immediate application to what you are faced with. It forces you to take stock, and even if you have lived through all of the events that led to this condition, ask yourself, how did we get here? How, in less than two years, did we go from a democracy with, yes, plenty of warts—including extreme levels of partisanship—but a largely assured democracy nonetheless, to a state of … if not existential insecurity, then a profound lack of confidence that all will end well?
The simple answer is: Trump. But to focus on Trump—as I intend to do again momentarily—is to give short shrift to the broader sweep of the book’s significant contributions. The book grapples with questions of constitutional structure and law that have global application—and indeed the authors draw from global experience both past and present as they expertly interrogate how “laws, regulations, and especially constitutional rules in place now can either facilitate democracy’s derogation or, instead, prevent it, under different socioeconomic and electoral conditions.”
Nor can domestic and international democracy be entirely stovepiped empirically. For instance, the authors discuss the “spillover” effect of “regional flag bearers for democracy” (e.g. “Turkey (for the Middle East), India (for South Asia)”), and how diminutions in democracy in those countries have the tendency to cause similar diminutions in countries within their orbit that look to them as exemplars, and have varying degrees of dependence on them. The United States, because of its global power and influence, has spillover effects on a global scale. Actions such as Trump’s: fist-bumping Turkey’s president Recep Erdogan while proclaiming that he “does things the right way” after his administration carried out widespread arrests of perceived opponents; calling North Korea’s Kim Jong-Un, who commits widespread crimes against humanity against his people, “terrific” and proclaiming “We fell in love”; siding with Russia’s Putin over American intelligence agencies; and attacking journalists and the media, all embolden autocrats abroad. So pronounced is this effect that one observer, after noting that Hungary’s prime minister Viktor Orban stated, referring to Trump, that “[w]e have received permission from, if you like, the highest position in the world so we can now also put ourselves in first place,” labeled this phenomenon “the autocratic relief syndrome.”
Consider also, on the topic of domestic and international democracy intersectionality, that an October 2018 Congressional Research Service Report on Global Trends in Democracy notedthat “[m]any believe that democracy’s appeal around the world has historically been enhanced by the capacity of the United States to serve as an attractive example,” before mentioning diplomatically that observers “have argued that challenges in the U.S. political system are hampering the United States’ ability to effectively project democratic values abroad.” Trump’s 2017 National Security Strategy fails to even explicitly mention democracy promotion as one of its goals, unlike those issued by other, recent administrations. (For different reasons, American democracy can also be impacted by autocratic regimes abroad. See, e.g., Russia circa 2016 et seq.)
But the book’s primary salience for me—and, I suspect, for many readers of the Take Care blog—is its applicability to the current state of our union. We have our own charismatic populist at the helm, and we can see reflected in the book’s descriptions that he fits the type. We can easily recognize, in the xenophobia of Trump’s Muslim travel ban, his childish desire to build a “big, beautiful wall,” his short-sighted intention to deny citizenship to legal immigrants who use public benefits, his cruel family separation policy, and his shameful issuance of an historically low asylum cap, an ongoing, fear-based political campaign built around an archetypal “emotional question of belonging and exclusion … of insiders and outsiders” that drives elections “away from a focus on meaningful, practical metrics of success toward the inchoate and emotionally volatile terrain of belonging,” as the book tells us a populist will. In a recent Pew research poll, when those who approved of Trump were asked what they liked most about how he is handling his job, only 20% cited specific policies, while 60% responded that they like aspects of his approach or personality.
But what, exactly is it that we are trying to save when we consider saving a constitutional democracy? George Orwell wrote, “In the case of a word like democracy, not only is there no agreed definition, but the attempt to make one is resisted from all sides.” Ginsburg and Huq, however, present forthrightly the institution they are in the process of defending, one consisting of free and fair periodic elections, free speech and association, and the rule of law. In regards to democracy’s disintegration, they see two main paths: collapse and erosion, the former fast (think coup d’etat), the latter slow. They conclude that the greatest threat in the United States is that democracy will end not with a bang, but with a whimper, and that conclusion is echoed by others. Observing the Kavanaugh confirmation hearings, one commentator wrote, “[s]ometimes, when democracies die, they do so in grand gestures. But often there is no single event that heralds the end of the rule of law, but a slow, imperceptible erosion of the safeguards against political abuse of state power.”
Ginsburg and Huq do not sugarcoat their bleak assessment of America’s constitutional and legal ability to withstand the forces of erosion, arguing that “[t]o a greater extent than commonly realized, the Constitution’s text and the Supreme Court’s jurisprudence makes democratic erosion more, not less, likely.” On encountering the book’s trenchant analysis of the levers leading to democratic erosion a concerned reader has to stifle the urge to try and keep it out of the hands of the wrong people. Indeed, the authors at one point describe “a rough playbook for would-be illiberal democrats”:
First, run a populist platform, in which the majority is portrayed as victimized and the old order elitist. … Emphasize threats to national security or the purity of the homeland. Next, find way to undermine opponents in state institutions …. . Critically, do not forget to manipulate the electoral institutions so as to ensure that future competition is limited. Then, attack civil society as foreign-funded elite carriers of globalist ideas that do not comport with national values. Ensure that the free media are intimidated, or diluted, so as not to provide an independent check … . Finally, undermine academic authority through underfunding or outright politicization.
Ultimately, however, you welcome the thoughtful work that has gone into the diagnosis so that you can seek a remedy, and not a moment too soon. The non-profit Freedom House records that global political rights and civil liberties have declined every year since a high in 2006, and, closer to home, for the first time in the ten years of its existence The Economist magazine’s Economist Intelligence Unit rated the United States a “flawed democracy.”
We can recognize in the American polity of today aspects of a few of the erosional mechanisms identified by the authors. To take just one example, “the contraction or distortion of a shared public sphere in which liberal rights of speech and association can be exercised.” In one sense, the authors identify this as a bright spot in the book’s analysis of America’s ability to withstand erosion, given the strong protection for free speech and association in the Constitution and jurisprudence. But before we’re allowed to rest easy the other shoe drops: “Where the United States does worse, however, is in respect to assuring the quality of material within the public sphere, whether in terms of selecting for true over fake information or resisting selective governmental disclosure.” The authors identify “the disappearance of a shared universe of facts about which policy debate can occur” as “one of the most serious threats to constitutional democracy in the United States.” Along these lines, the historian Christopher Browning recently wrote, “Total control of the press and other media is likewise unnecessary, since a flood of managed and fake news so pollutes the flow of information that facts and truth become irrelevant as shapers of public opinion.” Or—more crassly––take it straight from Steve Bannon, speaking earlier this year: “The real opposition is the media. And the way to deal with them is to flood the zone with shit.” Such tactics, if successful, would ultimately leave us “unable to assess arguments by a common standard,” and then, “without truth it is impossible to speak truth to power, so there is only power.” The concern, it should be noted, is sometimes bipartisan, with members of the President’s own party asking: “If there’s no truth, how do we discuss and make decisions that are rooted in fact?”
On a near daily basis we are peppered with mendacity, leading New York Times White House correspondent Maggie Haberman to sum up just a few days ago: “Over the course of 21 months, President Trump has loudly and repeatedly refused to accept a number of seemingly agreed-upon facts, while insisting on the veracity of a variety of demonstrably false claims that happen to suit his political needs.” No topic appears too sacrosanct, as shown by Trump’s falsely claiming that almost 3,000 people in Puerto Rico “did not die” in the aftermath of Hurricane Maria.
Wild theories––in contravention of all available evidence––are presented as plausible, such as Trump floating the claim that “rogue killers” tortured, executed, and dismembered Washington Post journalist Jamal Khashoggi, even though he was killed inside the Saudi embassy. Or take the Kavanaugh confirmation hearings, where this process went into overdrive once his confirmation became less assured: conservative operator Ed Whelan—aided by the Fox News microphone––alleged an elaborate theory that it was a Brett Kavanaugh doppelgänger that assaulted Christine Blasey Ford; HUD Secretary Ben Carson claimed that the allegations against Brett Kavanaugh were a plot by a group called the Fabian Society, and Kavanaugh himself famously called the allegations “revenge on behalf of the Clintons” in his prepared remarks. This, in the past, was the stuff of checkout aisle tabloids, but is now being peddled broadly. At the same time, in a classic reversal move, opposition to Trump or his interests is sought to be portrayed as fake or manufactured: a Fox news host states that outrage over the murder of Khashoggi is “false posturing” that is “hyped and manufactured for domestic policy goals”; Trump alleges through his twitter feed that protestors against a Supreme Court nominee are being paid by George Soros.
The attacks extend—by design––to targeting and intimidating the purveyors of truth: independent journalists and news organizations. Trump, as a candidate, admitted to correspondent Lesley Stahl that his attacks on journalists are done to “discredit” and “demean” the press “so when you write negative stories about me, no one will believe you.” In addition to constant invocations of “fake news”, Trump: has called the press the “enemy of the people”; threatened to use governmental power to attack parent companies of media outlets critical of him; and, mere days after Jamal Khashoggi was violently tortured and murdered, celebrated a Congressman who assaulted a reporter by body-slamming him as “my kind of guy.” To be clear, however, the authors’ concern for the demise of shared empirical premises is broader than just the Trump effect. It extends, for example, to the increasing bubbles of information we all live in because of media targeting and self-selection, where our biases are reflected back to us.
The varied solutions the authors explore are thought provoking, even if they acknowledge that enacting most of them would be unlikely at present, and that the solutions are targeted exclusively at democratic erosion so could create costs in other areas. Congress won’t allow for “opposition chairs” in the style of the German Bundestag any time soon, but the possibility for a new legal standard for gerrymandering, or legally requiring transparency of candidates’ tax returns, seem within somewhat plausible reach. Many of their other suggested remedies, such as allowing for defamation claims against governmental figures, increasing the power of ombudspersons, and enacting measures to further insulate prosecutions from politics, are all worthy of serious consideration. And it is important to recall that even if the environment may not seem ripe for reform at the moment, crises have a tendency to engender movements for change; the Watergate scandal was followed by a raft of reforms.
In the end, however, the authors observe that “formal institutional design will not be sufficient on its own. The success or failure of a democratic enterprise ultimately depends on the extent to which people … are willing to reject the allure of charismatic populism or partisan degradation through political action in the public sphere.” It is fitting in this regard that this symposium is taking place on the cusp of the mid-term elections, providing just such an opportunity for political action. Some are predicting that mid-term voting could hit a 50-year high. And this, too, is a lesson of this important book, as the authors remind us that “[i]n the end, constitutions cannot save democracy; Only (small d) democrats can.” Whether we proceed down the path of erosion, or whether we do the work to avert that path, is dependent on us. Professors Ginsburg’s and Huq’s timely and incisive analysis is a forceful contribution in favor of action.