Rule of Law

OP-ED: Is Our Democracy in Peril?: The Importance of the Courts

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.

“How would you know your democracy is in peril?” is the chilling question Tom Ginsburg and Aziz Z. Huq ask at the beginning of their excellent new book How to Save a Constitutional Democracy.  For many Americans, this is likely the very question they have been asking themselves over the last couple of years.  From President Trump’s repeated attacks on an independent judiciary, to his efforts to undermine the credibility of the free press, to his willingness to thumb his nose at the Constitution in order to enrich himself, something feels amiss—very amiss.  And that’s true even putting to the side whatever policy disagreements one may have with him and his Administration.

Ginsburg and Huq put those concerns about the state of American democracy in perspective, providing countless examples of democratic decline from around the globe.  Indeed, those who haven’t been asking themselves how they would know if their “democracy is in peril” before reading this book will surely be doing so afterward.  After all, these comparative examples of the erosion of what Ginsburg and Huq call the three “‘floor’ requirements for a working democracy”—“free and fair elections,” “liberal rights of speech and association,” and “rule of law”—bring into sharp relief many of the reasons why so many are worrying about the state of American democracy two years into the Trump Administration.

Consider, for example, the politicization of the civil service.  As Ginsburg and Huq note in discussing possible pathways of democratic decline, a “hegemonic party might politicize the selection of judicial, bureaucratic, and prosecutorial offices that are supposed to be insulated from partisan conflict” in order to “entrench itself even further against political competition, as well as more simply to further favored policy ends.”  Elsewhere, they note that the “dismantling [of a bureaucratic machinery] is another site of potential movement away from democracy.”

Indeed, as I have written about on this blog more than once, there is reason to worry about how this President has been staffing the executive branch and the Administration’s relationship with the civil service.  From preferring non-confirmed employees over individuals subject to the Senate’s checking role, to using acting officials (in ways both lawful and unlawful) in order to circumvent the Senate’s advice-and-consent role, to attacks on civil servants at some agencies, the Administration’s actions have suggested that it holds the normal processes for ensuring an apolitical civil service in contempt.  And that is deeply troubling for the reasons Ginsburg and Huq suggest.  (Moreover, these actions also raise another flag that Ginsburg and Huq identify.  As they note, “indirect efforts to bypass the legislature are more common strategies than are outright attacks on legislators.”  Although President Trump has hardly shied away from attacks on individual legislators, he has also “circumvent[ed] the Senate’s advice-and-consent process in naming many of the leaders of executive branch agencies.”)

Or consider how this Administration may be trying to undermine institutions critical to the effective administration of the government.  Ginsburg and Huq note that “bureaucracies produce neutral information that is necessary to the operation of modern democracies,” and they identify the “population census” as one example of the “unbiased information” that should be produced by “technocratic experts” in order to enable policymakers to make decisions.

They are surely right, which is one of many reasons why the Trump Administration’s efforts—apparently made at the instigation of former advisor Stephen Bannon—to add a citizenship question to the 2020 Census is so troubling.  The Census is a “cornerstone of our democracy,” and its data is used for multiple important purposes: “to apportion representatives in Congress; determine how many votes each state will have in the Electoral College; draw state, local, and congressional districts; and allocate billions of dollars of federal funds to local communities.”  The addition of a citizenship question to the 2020 Census would “deter participation by immigrants across the country, who do not want an official record of their immigration status and fear that their responses will be used by the government to harm them and their families.”  Thus, the addition of this question would not only undermine the constitutional commitment to ensure a national count of all persons, but would also “undermine our democracy and shortchange undercounted communities, leaving them without the federal funds they need for infrastructure, schools, and other vital services.”

The question then is what is causing this erosion and what can be done about it.  Here, too, Ginsburg and Huq offer a thoughtful and illuminating dissection of the pathways by which democratic erosion can occur, as well as important suggestions about how such erosion can be combatted.  They suggest, for example, that the “legislative opposition” enjoy “legal powers,” that more mechanisms for holding presidents accountable be codified, and that the “extent of coordination between executive and legislative branches” be increased.

While I think all of Ginsburg and Huq’s suggestions merit further discussion, I would also emphasize the important role that the Constitution, properly interpreted, can and should play in preventing democratic decline.  Ginsburg and Huq give the Constitution little credit as a possible tool here, noting that “the US Constitution does not necessarily reflect the learning of subsequent years and decades.  It instead calcifies the mistaken assumptions and prejudices of a long-dead generation.”

But the problem is not with the Constitution.  Instead, it is with how it is too often improperly interpreted by the Supreme Court.  Ginsburg and Huq discuss, for example, the problem of “extreme partisan gerrymander[ing].”  But, as they rightly note, “[t]he Supreme Court could develop a more rigorous doctrine on redistricting.”  In fact, “[t]he Framers were deeply suspicious of partisan manipulation of the electoral process, and they wrote into the Constitution’s text and structure protections against partisan gerrymandering and other similar abuses in federal elections.”  As my colleague David Gans has written on this blog, “[w]hen a state draws districts to entrench a political party in power, it violates bedrock First Amendment principles that prohibit state-sponsored discrimination on the basis of political viewpoint and affiliation. . . . Under our Constitution, states cannot rig the electoral process to entrench the governing party in power.”  Moreover, “the Fourteenth Amendment established equality under the law and equality of rights for all persons as a constitutional mandate, forbidding state majorities from using the democratic process to subject disfavored persons—whether by reason of their race, their political views, or some other form of animus—to discriminatory treatment and the loss of their fundamental rights.”

Ginsburg and Huq also note that the Supreme Court uses the absence of a “federal statute that provides for a damages remedy when a federal official violates a person’s constitutional rights” to, incorrectly in their view, “dismiss requests for relief from plaintiffs who have suffered gross and substantial physical harms at the hands of federal officers.”  But, again, the problem is less with the Constitution and more with the way the Court has interpreted it.  Indeed, the Constitution created “a federal judiciary with broad power to enforce the Constitution’s limitations on the power of government in cases that came before the courts.”  In this system, the courts are supposed to play “an essential checking function on the political branches of government, ensuring fidelity with the Constitution’s structure and guarantee of individual rights.”  Indeed, the Framers adopted Article III “to ensure that where there is a legal right, there is also a legal remedy for violation of that right.”  So when the Court makes it difficult for individuals to hold federal officials accountable for violating the law, that’s on the Court—not the Constitution.

Indeed, these examples highlight the importance of the courts as a possible bulwark against—or facilitator of—democratic erosion.  Ginsburg and Huq make this point, noting the importance of courts, but also their limitations.  As they observe, “[c]ourts . . . might be more important in the early stages of democratic erosion than in its final stages, and then only if judges are already animated by a commitment to liberal values, constitutional rule, and democracy.  When a judicial appointment system selects for partisan loyalty, say, over these systematic values, judicial resistance to democratic erosion is unlikely to emerge.”

In short, courts can play an important role in resisting democratic erosion—but only if the justices and judges who sit on them choose to do so.  In the years ahead, it is critically important that the courts fulfill their role as an independent check on the executive branch.  It is critically important that they apply and enforce the law, rather than partisan interests.  If the courts fail to do this, however, then there will be real reason to worry that our democracy is, in Ginsburg and Huq’s words, “in peril.”