It’s not too early to start thinking about repairing the damage to our democracy done over the last four years. On October 27, Lawyers Defending American Democracy, an organization with more than 2,000 supporters nationwide, did just that. The group produced a primer on Trump-instigated problems needing correction. It offers a comprehensive vision of the work that needs to be done to fix our political and legal institutions.
Former Massachusetts Attorney General Scott Harshbarger, the group’s co-founder, called it a “visual roadmap to addressing the violations that Donald Trump has scorched in the earth.”
Fortunately, even the earth that Civil War General William Tecumseh Sherman’s Union army famously burned through the South came back to life. But that revival would not have happened without the efforts of many people and without great persistence.
Restoring and rebuilding our constitutional Republic in our time also will take many architects. As civic, professional, and political groups begin to contemplate the possibility of American life after Trump, many are now offering ideas for reform.
The American Academy of Arts & Science has issued a comprehensive report, “Our Common Purpose” on needed upgrades to our laws and institutions. On October 12, Citizens for Responsibility and Ethics (CREW) in Washington and the University of Pennsylvania’s Center for Ethics and the Rule of Law, issued a 180-page report that included 12 stellar recommendations for reforming the Department of Justice in the wake of Attorney General William Barr’s leadership.
Amy Klobuchar recently introduced in the Senate a version of the “Protecting Our Democracy” Act. Among other things, it addresses abuses of the pardon power, violations of the Constitution’s Emoluments Clause and the Hatch Act, completely transgressed in August’s misuse of the White House for the Republican national convention. The bill also extends protections for whistleblowers and inspectors general and limits the abuse of Executive Orders to infringe on congressional authority.
At the same time, Vice President Joe Biden announced that if he is elected President he will create a bipartisan commission to study reforms of the judiciary, saying that the system is “getting out of whack.”
And with the current controversy, for example, over a Supreme Court potentially out of step with the country, proposals for correcting course are manifold. They range from adding members, to term limits, to creating a special Court to consider constitutional issues, to transferring the Court’s power to select the cases it hears.
All of this suggests that the damage done by President Trump may have shaken us from our complacency about our political and legal institutions. Americans now know that they can no longer rest assured of the resiliency of the political and legal institutions
This nation’s crises often result when leaders indulge expediency—short-cutting, ignoring, or undermining essential norms and institutions. President Trump alerted Americans to his hostility to those norms and institutions in his 2016 campaign when he said, referring to this nation’s problems that “I alone can fix it.” And his failure in handling the COVID-19 pandemic illustrates the danger of personalizing power and Trump’s “magical thinking.”
American history suggests that crisis often births an era of reform. This pattern vindicates what Rahm Emanuel, then-President Obama’s Chief of Staff said in the wake of the 2008 financial collapse: “You never want a serious crisis to go to waste.”
For example, President Ford and his Attorney General, Edward Levi, did not waste the Watergate crisis that had turned the Justice Department into a tool of President Nixon. Entering office in 1975, Levi pronounced: “Our law is not an instrument of partisan purpose.” His successor, Griffin Bell, declared that the Justice Department be “recognized by all citizens as a neutral zone” outside of politics and pressure.
Two decades earlier, Franklin Roosevelt did not waste the crisis of unemployment, hunger, and indignity brought on by a world depression and exacerbated by the laissez-faire response of his predecessor, Herbert Hoover. Roosevelt spent a decade working with Congress to enact the New Deal, revolutionizing American government and society via safety net programs like Social Security.
And, in an action that resonates today, when the Supreme Court’s conservative majority undermined those changes, falling out of touch with the needs of America, Roosevelt threatened to “pack” it. The Court, recognizing that its authority derived from public trust, changed course to uphold New Deal legislation, the famous “switch in time that saved nine.”
These moments in our history illustrate that reform can come from any of government’s three branches. But reform and rebirth require not only vision and imagination but also mobilizing public sentiment and putting together broad coalitions.
Today it is essential that we think broadly and that we ready ourselves for the moment when paths for rebuilding democracy and the rule of law will re-open.
That is where roadmaps are of use. Both the Congress and good government groups like CREW, the University of Pennsylvania, and Lawyers Defending American Democracy have handed those guides to us. The question is whether we are now ready to choose leaders who not only promise reform, but who will persist and insist on it even when they are in power.
But, they will not and cannot do that work alone. History tells us that it takes an aroused public to implement change and protect democracy. What Benjamin Franklin said about America’s form of government in the aftermath of the Constitutional Convention—“A republic, if you can keep it”—is as true today as it was then.
