“A government of laws is ultimately a government of men and women who honor and protect those laws.” I wrote those words in the final paragraph of my most recent Verdict column, where I was summarizing my argument that the U.S. political system—indeed, any system of self-government—becomes unsustainable when one party (or both, but in the current case this is most definitely a one-sided Republican affair) abuses and changes the system to maintain its power.
This conclusion is arguably paradoxical, in that we expect politicians to compete vigorously in elections and then to do their level best to pursue the policies that they believe are best for the country, yet we also expect them to be willing to lose gracefully and peacefully. If you think your opponent is wrong, how can you hand power over to her and allow all that you have accomplished possibly to be undone? Is that not irresponsible, and possibly even immoral?
That tension lies at the heart of our constitutional system, and it has rarely been tested as it is being tested today. As I wrote in that earlier column, it is not at all clear that the system will pass that test next year. Constitutional democracy might already be doomed, to be replaced by a system that Republicans are constructing to keep themselves in power in perpetuity.
How could this happen? What is missing today that saved us before now? Why are Republicans acting with such disdain for their opponents—not just for Democrats, but for all of the people who reject the Republicans’ extreme agenda? The answer, I think, is a surprising one. Republicans lack the trust that one needs to operate in good faith, and their lack of trust replicates itself in nearly every aspect of our current fraught politics.
That is, Republicans have (quite correctly) come to believe that their views are widely unpopular, so they can no longer trust that they will ever regain power if they lose it. And their actions to consolidate and hold onto power, in turn, give everyone else reason to believe that Republicans no longer deserve to be trusted themselves. The result is a death spiral for constitutional democracy.
Why Are the Structural Features of Constitutional Democracy Failing?
When I argue in public lectures, private conversations, and in essays like this one that the U.S. is in danger of losing its constitutional democracy, the most common reaction from even the most partisan Democrats is that “that cannot happen here.” When pressed, they argue that our “system” is simply too strong to allow even someone as brazen as Donald Trump to bring it down.
But what is that system, and how is it supposed to be self-preserving? One superficial answer is that we have a written Constitution, and the words of the founders constrain current actors in ways that will allow the system to perpetuate itself.
The reason that such a belief is superficial, of course, is that even the most brutal dictatorships can hide behind beautifully written official documents. The former Soviet Union, on paper, looked like an ideal form of government. I say this not about that country’s economic system, where economic collectivism could be described in ways that ignored its own internal contradictions, but about the political system, which looked to be truly enlightened—but most definitely was not.
On the opposite side of the coin, the United Kingdom famously operated for centuries without a written constitution yet has been a model of freedom and stability—at least until the current Brexit-related rolling catastrophe, which shows that both written and unwritten constitutions might be not worth the paper that they are (or are not) printed on.
The point is that the limitations on the abuse of political power that constitutions represent—that is, the rules that say to elected leaders, “You have these powers, but not those powers”—are meaningful only if the politicians with power either respect those limits and thus refuse to exceed them, or other people are able to stop the politicians who seek to ignore their constitutional limits.
We used to see both parties in the U.S. (and, for that matter, in the U.K.) refuse to walk up to various lines. It was never contemplated, for example, that the Senate would ever want to change its filibuster rule, because it was impossible to imagine a party abusing the filibuster as the Republicans did under Senator Mitch McConnell’s cynical leadership during the Obama presidency.
Similarly, it was never even imaginable that a party would simply refuse to consider a president’s nominee to the Supreme Court, so we did not have anything written down to guide us when McConnell and his party decided to pretend that the 2012 election did not give President Obama the legitimate right to nominate a replacement during an election year.
What a Politician Must Do to Respect the Constitution
Republican power plays are now depressingly commonplace, and Trump thus faced no pushback from Republicans when he announced that, for example, he would ignore the law and accept foreign assistance (again) to help him win an election. He even mocks the idea that anyone would show the kind of self-restraint needed to report a foreign agent who offered assistance.
But society—much less the political and legal systems—cannot work unless people are willing to pass up opportunities for illicit gain. I was recently at a conference in Cambridge, England, and it was notable that people at pubs and restaurants would leave their bags and coats at their tables when going to the “loo.” They acted on an unexamined trust that their society was safe in that regard.
Similarly, I recall discussions when I was in graduate school studying economics, where the academic fad was to imagine that human beings are “rational maximizers,” which assumes that everyone is in a perpetual struggle to get the most that they can from every situation, and anyone who does not do so is perversely “leaving money on the table.”
Note the imagery there. In Cambridge, things are not so idyllic that people literally leave money on the table, but they do have reason to believe that they do not have to guard their belongings at all times. In the U.S., even in big cities, we are confident that we will not be assaulted whenever a police officer is not there to protect us. (Side note: Some Americans sadly do not even feel safe when the police are nearby. Indeed, they often have good reason to feel less safe.)
In politics in the U.S. and the U.K., we have reached the point where the rational maximizers have so broken down the norms that everyone is forced to assume the worst about their opponents. Republicans do not trust that voters will approve of trickle-down tax policies and bigoted social policies, so the current radicalized version of the Republican Party has decided to take matters into its own hands and write those who would vote against them out of our political system. Voter suppression and Supreme Court-sanctioned partisan gerrymandering are the expression of Republicans’ belief that they cannot compete in an open and fair constitutional democracy.
Even so, many of the rest of us truly want to believe that this is not happening. As I noted, even the people who are appalled by Trump resist my argument that he is about to become a dictator (with the ready acquiescence of his adopted party). They want to trust that The System is bigger than one demagogue and his entire political party of enablers.
Sometimes that desire to trust in people’s goodness is touchingly naive. Former Vice President Joe Biden, for example, has been mocked (correctly, in my view) for asserting that he knows that Republicans really would be willing to work with him in a post-Trump promised land where people of good faith work across the aisle to achieve the common good.
That is not a bad thing to hope for, but it is currently ridiculous to believe it is possible. This naivete on Biden’s part did not merely cause him grief when he waxed nostalgic about working with viciously racist Southern Democrats—with whom, Biden assures us, he disagreed on substance—to “get things done.” It also causes him to underestimate just how little today’s Republicans believe in our system of restrained political competition.
Why does Biden not see that his opponents have become hyper-partisan? He claims that they have told him under their collective breath that they wish to go back to the good old days when politicians could metaphorically leave their belongings at the table while they went to the loo. As one satirist summarized Biden’s childlike faith: “People’s quietly expressed, off-the-record regrets are the best indication of how they will act, publicly, in the next setting that requires courage.”
The issue, of course, is much larger than Biden’s failure to face up to reality. (And to be fair, it is at least possible that Biden is running as a Pollyanna not because he believes what he says but rather because he thinks that voters want to support someone who talks about bipartisanship.) The issue is that the constitutional system cannot work when the people who must work within it lose sight of the limits that are absolutely required to prevent it all from breaking down.
For example, when a Democratic senator recently proposed a bill that would have required political campaigns to report illegal offers of help from foreign sources—note that such outside assistance is already illegal, and the new law would have simply required campaigns to report any illegal offers—Trump loyalist Senator Marsha Blackburn of Tennessee blocked the bill. What kind of world do we live in where it is a matter of party loyalty among Republicans to enable their leader to ignore the law and bury violations of it?
Where are the Courts?
In the midst of this bleak environment, one would hope that the judicial branch would act as a neutral arbiter, preserving the constitutional order by preventing extreme partisanship by Republicans from infecting and then killing the entire system.
The current Supreme Court (which is, of course, itself a product of Republicans’ hyper-partisanship) recently failed in its duty by allowing partisan gerrymandering, as noted above. It also fails when we have reason to worry that the Court might be turning itself into “a piñata that conservatives can whack whenever they need a win,” as some law professors recently wrote. Indeed, as they argued:
We need courts that transcend partisan warfare to uphold rather than destroy faith in government. The court can play that role. But not if it is seen as a forum in which the game is rigged and half the population is effectively voiceless. [Note: It is much more than half of the population that the Republicans are silencing.] That means adhering to principles even when they lead to unwanted or unexpected outcomes.
And that is where loss of trust takes us. Republicans do not trust voters anymore, so they do everything they can to silence the voters. And when Republicans stopped being willing to accept “unwanted or unexpected outcomes,” they stopped believing in limited government and open democracy.
Sadly, everything that Republicans have done simply validates the lack of trust that they have planted in the rest of us. It is difficult to see how Republicans will ever let go, because rather than making themselves more politically viable, they have decided that they simply no longer want to compete.
The perverse bottom line is that the distrust now runs on both sides, but both sides could stop if only Republicans would stop being afraid of democracy. Sadly, they are too committed to their unpopular agenda to walk away now, which means that they are right to fear the reckoning that they so richly deserve, leading them to eschew the people’s trust and thus to earn contemptuous distrust in return.
And that is when constitutional democracy dies, because only people operating under an umbrella of at least minimal mutual trust can allow themselves to risk losing power.