an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Is democracy in the United States at risk? This question has been posed by many sober and careful commentators, including Steven Levitsky, Dani Rodrik, and Masha Gessen. In a new article called entitled “How to Lose a Constitutional Democracy,” we draw on recent comparative law and politics to develop a taxonomy of different threats of democratic backsliding, the mechanisms whereby they unfold, and the comparative risk of different sorts of threat given the substance of our constitutional rules. Our aim is to provide a general framework for evaluating various risks to democratic stability, and for identifying how constitutional rules can either hinder or facilitate those risks materializing.
With Jack’s gracious permission, we use this blog post to set out some basic findings. We should warn readers, though, not to expect a specific analysis of President Trump, as our ambition is not to evaluate him, but to provide a framework for thinking about problems of democratic backsliding in the United States. Rather, we hope in the article (and to a lesser extent in this blog post) to sketch out one core claim in the paper about the precise nature of the threat to democracies today.
Questions about backsliding focus on the possibility of movement away from a status quo. But what counts as “democracy”? This is an important question that must be addressed by any theory of backsliding at its very inception.
Political scientists tend to favor equating democracy with elections, pure and simple. But elections depend on other things, such as freedoms to campaign and form parties, neutral civil servants to count ballots, and courts to adjudicate disputes.We thus favor a slightly more robust definition of democracy as requiring, roughly, (1) free and fair elections; (2) liberal rights to speech and association; and (3) the stability, predictability, and integrity of legal institutions—i.e., the rule of law—necessary to allow democratic engagement without fear or coercion.
This definition, while looking for more than just elections (however rigged), is still quite thin. It can accommodate federalism or centralized government, presidential or parliamentary rule, and liberal or illiberal policy outcomes across many domains. It also does not look to the economic and social capabilities of citizens before signing off on the democratic credentials of a regime.
At the same time, it doesn’t require perfection. Some degree of institutional calcification, partisan entrenchment and manipulation, and exclusionary management of the public-sphere are likely discernable in most democracies. But it is a mistake to reason that just because some slippage from an (unrealizable) ideal of democratic governance under the rule of law is inevitable, that any amount of slippage is normatively untroubling.
So defined, “democracy” describes many extant regimes, including the U.S. with all its democratic imperfections. But not all. The number of democracies is diminishing each year. Scholars of democracy have of late expressed concern about an “absence of democratic progress”, “recession” or “minor decline” in democracy’s march since the third wave of democratizations of the 1990s. To some, democracy seems in full-blown “retreat.”
We think that comparative experience demonstrates that there are two distinct forms of backsliding, each with its own mechanisms and modal end-states. We call these authoritarian reversion and constitutional retrogression. The basic difference between reversion and retrogression as we use the terms is how fast and how far backsliding goes. Authoritarian reversion is a wholesale, rapid collapse into authoritarianism. Such a wholesale movement away from democracy most often occurs through the mechanism of a military coup d’état or via the use of emergency powers
Retrogression, on the other hand, is a more subtle and insidious process.It involves a more incremental, but still ultimately substantial, decay in the three basic predicates of democracy, namely competitive elections, liberal rights to speech and association, and the rule of law necessary for democratic choice to thrive.
One of our core claims is that scholars have largely focused on the possibility of swift autocratic reversions such as a coup d’etat (as in Thailand, Mali, and Mauritania) or via the use of emergency powers (most famously, in Weimar Germany). But we think that threat of constitutional retrogression—a more insidious form of institutional erosion—is more substantial.
Examples of retrogression abound.In both Hungary and Poland, for example, elected governments have recently hastened to enact a suite of legal and institutional changes that simultaneously squeeze out electoral competition, undermine liberal rights of democratic participation, and emasculate legal stability and predictability. In Venezuela between 1999 and 2013, the regime established by Hugo Chávez has aggregated executive power, limited political opposition, attacked academia, and stifled independent media. Crucially, across these examples and others, democratic decay is catalyzed incrementally and under the “mask of law”: It is a death by a thousand cuts, rather than the clean slice of the coup maker.
There’s no reason to think the United States will prove exceptional. Indeed, for three reasons, we think the risk of incremental retrogression here is greater than the risk of reversion. Full on reversion to authoritarianism tends to occur in recently established and relatively impoverished democracies. The United States, despite its large economic inequalities, is neither of these, and also lacks a history of governmental instability. Most importantly, there is a strategic difference between reversion and retrogression from the would-be autocrat’s perspective. Reversion is a sudden, dramatic, and very visible break with democratic norms. Retrogression, as we have defined it, is incremental. There will be no necessary focal point around which popular and oppositional resistance to the antidemocratic consolidation of political power can organize. To the extent that a political actor wishes to derogate from democracy, and there are two pathways open to her, the fact that one has lower attendant transaction costs will make the other trajectory comparatively less attractive. This explains why retrogression seems to dominate reversion as the autocrat’s tool of choice today. We see no reason the U.S. should be different.
To be clear, we don’t claim that an avulsive reversion away from democracy to full-blown autocracy is inconceivable in the U.S. context. As Bruce Ackerman has eloquently written, the current structure of the military leadership does create a risk to civilian control. But the risk of a collusive putsch by a would-be autocrat in the White House with the help of the military is perversely diluted by the existence of another, less onerous path to substantially the same state of affairs. It would be a miscalculation (rather than a sound and sensible strategy) for a would-be autocrat to do anything so crass as to trigger a military coup now. We leave it to readers, however, to evaluate the likelihood that the new president would make a serious strategic blunder of this sort.
This has implications, we note, for those concerned with democracy’s preservation, whether in the U.S. or elsewhere.We think democracy’s supporters in the United States should not only pay attention to the obvious and abrupt risks of military coups and emergency powers. Rather, it is also necessary to pay attention to far less startling kinds of news. What matters to democracy as a going concern is the details—it is the incremental process of subverting democratic competition by threatening journalists,undermining norms of honest and transparent government, and coopting the checking functions of Congress and courts.
Each of the individual changes may be innocuous (or even) defensible in isolation. But a sufficient quantity of even incremental derogations from the democratic baseline, in our view, can precipitate a qualitative change that merits a shift in regime classification. Understanding where, how, and whether that happens in the United States, we think, is furthered by a close study of experience of other countries.
Our article goes on to apply those experiences to better understand the risk of retrogression in the U.S. context, and we welcome comments and criticisms of our domestic analysis, and indeed of any aspect of the project.