Our constitutional structures to block would-be autocrats are surprisingly frail. (More)

This week I’m reviewing the new book How Democracies Die by Steven Levitsky and Daniel Ziblatt. Yesterday we saw how gatekeepers in healthy democracies keep would-be autocrats away from power, and why they failed in 2016. Today we look at the authors’ “guardrails” of healthy democracies – unwritten but vital norms of mutual tolerance and forbearance – and how those eroded in the U.S. over the past 20 years. Friday we’ll conclude with whether the U.S. is on a path toward autocracy, and how we can stop it.

Steven Levitsky and David Ziblatt are Professors of Government at Harvard University. Both research the structure and durability of democracies, with Dr. Levitsky focusing on Latin America and Dr. Ziblatt on Europe.

“Even well-designed constitutions cannot, by themselves, guarantee democracy”

Democracy is never easy, the authors write:

Democracy is grinding work. Whereas family businesses and army squadrons may be ruled by fiat, democracies require negotiation, compromise, and concessions. Setbacks are inevitable, victories always partial. Presidential initiatives may die in congress or be blocked by the courts. All politicians are frustrated by these constraints, but democratic ones know they must accept them. They are able to weather the constant barrage of criticism. But for outsiders, particularly those of a demagogic bent, democratic politics is often intolerably frustrating. For them, checks and balances feel like a straitjacket.

Back in November the God-King expressed that very frustration:

“But you know the saddest thing, because I’m the President of the United States I am not supposed to be involved with the Justice Department,” Trump said. “I am not supposed to be involved with the FBI. I’m not supposed to be doing the kinds of things that I would love to be doing. And I’m very frustrated by it.”

Trump continued:

“Why aren’t they going after Hillary Clinton with her emails and with the dossier, and the kind of money?” Trump said. “I don’t know, is it possible that they paid $12.4 million for the dossier? And how was it – which is total phony, fake – and how was it used?”

That could be a case-study in the rhetoric and intentions of would-be autocrats, as the authors explain:

To better understand how elected autocrats subtly undermine institutions, it’s helpful to imagine a soccer game. To consolidate power, would-be authoritarians must capture the referees, sideline at least some of the other side’s star players, and rewrite the rules of the game to lock in their advantage, in effect tilting the playing field against their opponents.

The God-King’s relentless attacks on opposition in Congress, on judges who rule against him, on the FBI, and on the media – including his much-ballyhooed ‘fake news’ awards for routine mistakes that had reporters and editors promptly corrected – are attempts to “capture the referees.”

Indeed he has complained of “fake news” an average of once a day since he took office. And it’s working, at least in terms of what his base believes. A recent Gallup/Knight Foundation poll found that 40% of Republicans believe “accurate news stories that cast a politician or political group in a negative light should ‘always’ be considered fake news.” For the God-King’s base, it doesn’t matter if a news story is true. If it criticizes the God-King, the GOP, or a conservative group … then it’s “fake news.” Period.

Skeptics say we shouldn’t worry because our constitutional checks and balances will protect our democracy. The authors, both of whom have studied the decline of democracies around the world, disagree:

But are constitutional safeguards, by themselves, enough to secure a democracy? We believe the answer is no. Even well-designed constitutions sometimes fail.

They cite historical examples including the 1919 Weimar constitution (“designed by some of the country’s greatest legal minds”), Argentina’s 1853 constitution (“two-thirds of its text was taken directly from the U.S. Constitution”), and the Philippines’ 1935 constitution (a “faithful copy of the U.S. Constitution”). These all created institutions and structures that should have blocked Adolf Hitler, Juan Perón, or Ferdinand Marcos. And they all failed, for three reasons:

Even well-designed constitutions cannot, by themselves, guarantee democracy. For one, constitutions are always incomplete. Like any set of rules, they have countless gaps and ambiguities.[…]

Constitutional rules are also always subject to competing interpretations. What, exactly, does “advise and consent” entail when it comes to the U.S. Senate’s role in appointing Supreme Court justices?[…]

Finally, the written words of a constitution may be followed to the letter in ways that undermine the spirit of the law.

Ours has the same weaknesses. For example, the authors note that there are few constitutional safeguards – only the “thin tissue of convention” – against packing the FBI with loyalists and deploying them against political opponents. Our Constitution says nothing about executive orders, and a president’s pardon power has only one explicit limit (it applies only to federal crimes). At least in theory, a president can issue a blanket pardon to himself and anyone who follows his orders … and thereby replace statutory law with lex rex (“the king is the law”).

With so few explicit limits, an opposition Senate majority can simply refuse to consider a president’s judicial nominees, as Republicans did when President Obama nominated Merrick Garland, and threatened to continue if Hillary Clinton had won in 2016. A House Speaker can adopt – and Republicans have adopted – a “majority of the majority” rule that allows a small minority of House members to block legislation that a majority of the House would pass. Committee leaders can refuse to schedule hearings or votes on laws or oversight issues. Basically, there are endless opportunities to create gridlock … even to the point of threatening to default on the national debt.

And then there’s tilting the field of elections themselves, with district boundaries that guarantee one party a majority even when most voters choose the other party’s candidates, and ‘election integrity’ rules designed to prevent the other party’s supporters from voting at all. And if a court overturns those power-seizing rules or boundaries, lawmakers can threaten to impeach the judges.

“Guardrails of democracy”

All of that can happen under our Constitution, and much of it has or is now being attempted. Our Constitution alone cannot stop an authoritarian party from seizing absolute power. What can, and has for much of our history, are norms:

Norms are more than personal dispositions. They do not simply rely on political leaders’ good character, but rather are shared codes of conduct that become common knowledge within a particular community or society — accepted, respected, and enforced by its members. Because they are unwritten, they are often hard to see, especially when they’re functioning well. They can fool us into thinking they are unnecessary. But nothing could be further from the truth. Like oxygen or clean water, a norm’s importance is quickly revealed by its absence.[…]

Unwritten rules are everywhere in American politics, ranging from the operations of the Senate and the Electoral College to the format of presidential press conferences. But two norms stand out as fundamental to a functioning democracy: mutual toleration and institutional forbearance.

Mutual toleration means recognizing that – so long as they play by the rules – our political rivals “have an equal right to exist, compete for power, and govern.” It means “recognizing that our political rivals are decent, patriotic, law-abiding citizens.” We may disagree with our rivals’ proposed policies, but we do not see our rivals themselves as “an existential threat.” We may lose this election, but we’ll try to win the next one. And, crucially, we accept the legitimacy of the government in the meantime … even if we are not in power.

Institutional forbearance means “the action of restraining from exercising a legal right.” It means thinking of democracy as “a game that we want to keep playing indefinitely,” and recognizing that means not “incapacitating the other team or antagonizing them to such a degree that they refuse to play.” It means “eschewing dirty tricks or hardball tactics in the name of civility and fair play.” In short, it means we are more committed to democracy itself than to winning a given election or policy debate.

Those norms, “guardrails of democracy,” held for most of our nation’s history. But the authors note a crucial caveat: Those norms only held when American democracy took white, Christian, male supremacy for granted.

When an increasing majority found slavery intolerable, the norms of mutual toleration and institutional forbearance collapsed and we fought the Civil War. And those norms remained collapsed after the war – consider the Wilmington Insurrection of 1898, where a mob of 2000 white men deposed the city government by force – until Jim Crow laws restored white supremacy.

The “guardrails of democracy” then held – at the expense of women, people of color, and non-Christians – until the last half of the 20th century … when civil rights movements once again white, Christian, male supremacy.

In short, those crucial norms were respected only when, and only insofar as, “American democracy” meant white, Christian men … debating white, Christian men … about issues that mattered to white, Christian men.

The authors argue that those “guardrails of democracy” have been eroding since the 1970s, and especially since the early 1990s when Newt Gingrich began urging Republicans to treat politics as war. Overlaying that, throughout, was a demographic sorting of the parties. In the 50s and 60s, the authors note, most Democrats and most Republicans were white, Christian men. That had begun to change by the late 70s and, increasingly, the GOP became the party of white, Christian men while Democrats became the party of women, people of color, LGBTs, and religious minorities.

That ‘culture war’ helped harden partisan polarization and weakened the norms of mutual toleration and institutional forbearance, as illustrated in this Ann Coulter quote:

Race loyalty trumps the melting pot. … The American electorate isn’t moving left — it’s shrinking. Democrats figured out they’d never win with Americans, so they implemented an evil, genius plan to change this country by restocking it with voters more favorably disposed to left-wing policies than Americans ever would be.

By her definition, those Democratic voters are not Americans at all. And it’s not just Coulter. TownHall’s Kurt Schlichter repeatedly refers to white, conservative Christians as “normals” – unlike “liberals” or “progressives” – and wrote a wingnut wet dream about a civil war to unseat President Hillary Clinton. And the most recent American Values Survey found that Republicans have become increasingly tribal, accepting and even wanting leaders who “break some rules if that’s what it takes to set things right.”

And as the authors note, many Senate and House Republicans have “moved from watchdogs to lapdogs,” falling meekly in line and even openly assisting the God-King’s war to politicize the FBI. The God-King famously said he could “stand in the middle of Fifth Avenue and shoot somebody, okay, and I wouldn’t lose any voters, okay?” Many GOP leaders now seem to agree.

With the crucial norms of mutual tolerance and institutional forbearance all but gone, our democracy is deeply imperiled. Tomorrow we’ll see the authors’ recommendations for how – and how not – to save ourselves.


Image Credits — Democracy: Bryce Durbin (TechCrunch.com); Cracks: MothvalleySage (DeviantArt); Smoke and Painting effects: Crissie Brown (BPICampus.com)


Good day and good nuts