//  10/29/18  //  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.

Tom Ginsburg and Aziz Huq’s How to Save a Constitutional Democracy is a stunning achievement.  It is rangy—covering law and politics around the globe; generative—offering new and powerful ways to see and think about constitutional and institutional design; and, quite simply, riveting—qualifying (as best a serious academic book can) as a true page-turner. 

For this symposium, I want to focus on a specific and, I think, powerful claim that Ginsburg and Huq make when describing the United States’s particular susceptibility to what they call “democratic erosion.”   They characterize America’s “resistance to erosion” as “contingent—more a function of political dynamics than legal institutional design.”  And they argue as much by pointing to the fact that Congress, the courts, and the states each may be disinclined to check and constrain an overreaching president (whom they call “the most formidable motor of erosion”).    

Ginsburg and Huq explain that each of those potential bulwarks is political, and inescapably partisan.  Opposition to the president may well be vigorous during times of divided government.  But when the president’s political party also dominates those other institutions or jurisdictions, we may well see the president’s presumed rivals sit on their hands, if not lend tacit support to the White House’s democracy-eroding efforts.

On this central question of checking presidential excesses, Ginsburg and Huq have similar doubts about the bureaucracy and what they call the public sphere.  There is, by their lights, reason to wonder whether the bureaucracy will step up to challenge a president intent on eroding democratic commitments and practices.  There are no constitutional protections for the bureaucracy per se—and, as they argue, important lines of constitutional jurisprudence and leading scholarly treatments tend to favor even greater presidential control over the administrative state (and thus over administrative personnel). 

The public sphere (or what I might call civil society to more fully demarcate it from the government) fares reasonably better.  But even here the authors fear that there are many ways in which anti-democratic government officials can shrink, marginalize, or distort the public sphere—and thus limit the public’s capacity to question and challenge an overreaching president.

All in all, Ginsburg and Huq paint a bleak picture.  To their great credit, they are hardly mere mourners, lamenting the weaknesses of our institutional counterweights.  Rather, they are diagnosticians, pinpointing the problems, and doing so with force and precision.  At the risk of oversimplifying their bottom-line, the anti-erosion safeguards are simply too uncertain—too “contingent”—to be relied upon. 

As things are playing out today, the authors are mostly right.  Republican majorities in Congress surely appear to privilege their shared partisan affinities with the president over their ill-defined and poorly inculcated institutional commitments to interbranch rivalry.  The courts push back here and there; but that pushback will, as they rightly predict, diminish over time, as President Trump (with Senators McConnell and Grassley’s help) reshapes the judiciary through flurries of new appointees who likewise share the president’s ideological and programmatic vision.  And while some states have adopted an oppositional posture, others seemingly serve as what Ginsburg and Huq call “laboratories of despotism” and “channels for retrogressive contagion”— canceling out (or at least isolating) the resistance efforts of some states while also quite possibly prodding Trump to adopt even more strident anti-democratic positions.

Turning to today’s bureaucracy, longstanding legal and policy arguments in favor of unitary executive power, at the expense of a vibrant and independent bureaucracy, have made Trumpist attacks on the civil service different in tone and urgency, but not character—as the (largely bipartisan) project of weakening the federal bureaucracy has been several decades in the making. 

Lastly, as for the civil society element of Ginsburg and Huq’s account, it is unclear (at least in this moment) that the American public lacks ready access to easily verifiable information attesting to the fact that Trump is, among other things, vulgar, bigoted, corrupt, reckless, and disdainful of law, science, history, and the political, cultural, and ethical norms that have guided and disciplined the overwhelming majority of American public servants for generations. 

Again, there is no question that these are dark and challenging times, and the risks of erosion are very real.  But I wonder, first, if the institutional checks are as unreliable as the authors suggest (and as, I readily concede, the current moment seemingly confirms); and, second, whether more legally grounded checks would do substantially more work, at least in the present moment. 

To my first point, I certainly agree that most, if not all, of the various institutional and jurisdictional rivals to the president are only contingently rivalrous.  But I suppose I’m less troubled by the contingencies than are Ginsburg and Huq if for no other reason than the various rivals’ respective decisions to actively constrain (or to yield) are not all keyed to the same stimuli—or entirely dependent on one another’s steadfastness.  That is to say, each rival is (more or less) independent from the others, and thus the republic can be seriously at risk of democratic erosion only when a whole lot of worst-case scenarios coincide—that is, when most, if not all, of the would-be rivals prove uninterested in pushing back on the president.    

In some of my writing, I’ve described the United States as having a complicated system of multidimensional separations of powers, specifically, the various, overlapping lines of separation (and potential rivalry) between and among the federal constitutional branches; the feds and the states; the State and the Market; church and state power; civilian and military authority; and, within agencies, political appointees and civil servants.  Thus our system is not just one of belts and suspenders—namely, tripartitism and federalism—but also Velcro, bungee cords, and safety pins, as additional dividing lines of constitutional and statutory significance exist and create new and different sets of rivalries and opportunities for resistance. 

Again, any of these rivals may, individually, not be especially troubled by presidential overreach.  But it is far from likely that a president, however popular, is going to find him or herself unchecked and unrivaled at each and every turn, especially when at least some of the additional dividing lines cannot be bridged by appeals to a common party affiliation.  Thus, most if not all of those rivals would have to simultaneously and independently stand down, as, say, a pushover judiciary may have little or no bearing on the institutional robustness and vigilance of the bureaucracy, of corporate America, or the civil service.  Each of those institutional rivals answers to different constituencies, and operates according to different time pressures.  While of course it is true that risks of erosion abound if and when only a couple of rivals prove unwilling or unable to check the president, it may well be the case that the other rivals go into overdrive, intensifying their resistance precisely to compensate for the shortcomings of other would-be rivals.  Thus, today, we do see the media, the (already demoralized and depleted) bureaucracy, and even (if not unproblematically) the military take various and even extraordinary measures to limit and challenge reckless, democracy-threatening presidential whims. 

In more placid times, many see our multidimensional separations of powers as tediously inefficient, enabling various groups to stymie popular (safe) presidents and their respective agendas.  Indeed, calls to consolidate powers across quite a few of these lines were, until quite recently, far louder and more persistent than those calls advocating for greater (and more meaningful) separation.  But the very fact that many see these lines of separation as possibly debilitating to quite popular (and again quite safe) modern presidents should make us less anxious about erosion.  This is because someone, somewhere in the web of checks and balances will step up and resist democratic erosion.   

To my second point, what if Ginsburg and Huq are right—and all the contingencies (or enough of the contingencies) break in favor of would-be rivals yielding to the president?  I suppose my concern here is that, under such circumstances, even the ostensibly less contingent reforms the authors proffer may be insufficient to check or constrain a president whose support is that capacious, intense, and durable.  In such a case, the problem may be best understood as cultural rather than legal or institutional, insofar as a charismatic and demagogic leader’s party manages to dominate or dismantle a critical mass of would-be rivals across multiple platforms by finding common ground with many, across many lines of division.  Were this to occur, I suspect that the less contingent reforms would do little to stem the democratic erosion.  Instead, the answer would presumably lie in changing American political culture and morality.  And, for better or worse, those changes require far more than legal fixes or even overhauls. 

To be sure, neither of my two points takes anything away from Ginsburg and Huq’s elegant and powerfully insightful book.  They are, at most, friendly amendments, invitations to think more expansively and perhaps confidently about why our very old, often shortsighted constitutional blueprint perdures to this day.  They are, perhaps, also reminders that all of those tedious checks and balances and lines of separation that frustrate one and all during times of normal, functional democratic governance have a very real role to play in our constitutional order.  Thus, if nothing else, we should be more willing to subsidize—that is, eat the costs of—that friction in good times so that at least some of those potential rivals are at the ready come rough times.

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