Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.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
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler 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 yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.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
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
My Comments on How to Save A Constitutional Democracy by Huq and Ginsburg
Aziz Huq and Tom Ginsburg should be lauded for their important and excellent new book, How to Save a Constitutional Democracy. They effectively show that most failures of democracy in the last century didn’t appear suddenly and obviously, like a coup. Rather, contemporary authoritarians have used pre-existing legal and constitutional mechanisms to gradually remove the key features of liberal democracies. This is a book that needs to be read and studied closely by scholars.
A dramatic illustration of this danger, they argue, is the rise of Adolf Hitler, who gained power in Germany through democratic institutions. Hitler’s rise was enabled in part by an executive order-like action, the Reichstag Fire Decree, which suspended many civil liberties using the pretext of a national emergency. His rise was also solidified through legislation. The democratically-elected legislature granted Hitler near-absolute power through the Enabling Act, and Hitler seized on that democratic grant of power to implement an undemocratic, authoritarian regime. Huq and Ginsburg also note less dramatic “legal” declines from democracy to authoritarianism in countries around the world, notably including Hungry. And they share my worry that we might be watching a similar decline in the United States under Trump.
Their book is timely and thoughtful, addressing the vital question of how robustly legal rules and norms can protect democracy. I see Huq and Ginsburg as kindred spirits partly because I share their concerns about authoritarianism—and the dangers of unconstrained executive power—in the United States. They also defend some policy proposals similar to those I defend in my book, The Oath and The Office: A Guide to the Constitution for Future Presidents.
We agree, for instance, that legal and institutional checks on the chief executive are essential in a liberal democracy—not, as some theorists of the modern presidency would have it, outdated obstacles that hinder effective governance. We both emphasize the need for institutions and laws that restrain the power of the president: for example, legislation to protect an independent or special prosecutor from firing without cause and an understanding of impeachment as a political, not a legal, recourse for Congress to stop a president who puts democracy at risk. (This position is also defended by Joshua Matz and Larry Tribe in To End A Presidency: The Power of Impeachment.)
The difference between our books, however, is in areas of emphasis. I therefore offer what follows as a friendly addendum to their argument, rather than a critique. Huq and Ginsburg are right to say that the law and legal institutions might be used by unscrupulous leaders to undermine democracy. But on my view, some such uses that move towards authoritarianism are, at least in the American case, violations of the Constitution’s meaning. In other words, it is constitutionally impermissible to use the laws to undermine American democracy.
On my view our Constitution is best understood to contain explicit and implicit protections of both democratic procedures and substantive democratic rights and values, as I argued here. Regardless of whether our institutions in practice act contrary to those values and democratic rights, institutions used by political actors to undermine democratic ideals do not lay an accurate claim to the Constitution itself. Authoritarians might make use of the procedures of American democracy, but they do so in a manner that is at odds with the foundational values of our constitution. Huq and Ginsburg are right to focus on procedural fixes to American democracy, such as the creation of a moderate Supreme Court and a role for minority leadership in congressional committees, but their account sometimes underplays substantive aspects of liberal democracy and our constitution. I would add that the point of procedural fixes to our system of governance must be to aim at policy outcomes that preserve the substantive democratic values and rights which our constitution enshrines.
For example, the rights of free speech, free exercise of religion, and equal protection instantiate into the Constitution protections that are constitutive of democracy. They are more than rights that enable participation, although Huq and Ginsburg are correct to point out that they are that, too. These rights stand alongside amendments protecting voting rights and expanding the franchise, as well as the textual guarantee of republican government for all the states. Read in tandem, these provisions both enable democracy and support a recognition of equal standing among all citizens.
Our institutions might at times fail to protect these rights, but that failure does not mean that the rights are no longer a fundamental guarantee of the Constitution, rightly understood. Thus, when Alexander Meiklejohn critiqued the Supreme Court, the president, and Congress for failing to honor the constitutional requirement of free speech when it was not adequately protected in the early 20th century, he did so as a defender of the Constitution’s democratic values. Frederick Douglass, too, was a harsh critic of the racism propagated in the name of the Constitution, but he challenged that racism because it conflicted with a value he saw as inherent to the Constitution—the value of equality. It is to the Constitution itself—and the values enshrined in its principles and case law—that scholars, commentators, and citizens should appeal in pushing back against authoritarian impulses.
This distinction between the Constitution’s democratic values and the flawed ways it has been interpreted by existing institutions is clear in the Trump travel ban case. Huq and I each spent two years working with colleagues to develop amicus briefs in that litigation. (Among others, I worked with Joshua Matz, the publisher on this blog, as well as Micah Schwartzman and Nelson Tebbe.) In these briefs, we argued that executive orders based on animus were unconstitutional and that the ban was invalid under the First Amendment’s Establishment Clause and its guarantee against religious discrimination. The Court disagreed, though, and granted the president broad latitude in immigration and foreign affairs.
To me, that decision—which failed to constrain a president from acting based on animus—was an instance of bowing to a president’s authoritarian tendencies. It was also wrong on constitutional grounds. The Court makes errors of interpretation, and this was indeed a costly one. Fortunately, though, in our constitutional system, the Supreme Court is not the exclusive authority on the meaning of the Constitution; citizens (through voting and advocacy) and the other branches play an important role in ensuring that the document’s values are protected. Although the travel ban decision certainly made use of legal institutions, it’s wrong to conclude that the Constitution should be read to permit this kind of anti-democratic act.
Similarly, while a president might face no legal sanction after pardoning his friends or pressuring the Deputy Attorney General to fire the special prosecutor investigating him, doing either of these things still violates the Oath of Office. The point of the oath is that the president must respect the rule of law and the Constitution’s values even when no other institution steps in to check his or her power. Using the presidential office in a self-interested way is a clear example of a violation of that oath.
Part of the reason I want to distinguish between the use of legal mechanisms to move to authoritarianism and the use of the Constitution to do the same is to reserve the claim that the Constitution is predicated on respect for democratic politics. There are, as we know, no “constitution police” that will ensure the government respects the document. Huq and Ginsburg are right to point out that courts cannot always be relied on to protect us. But that doesn’t mean the Constitution has no effective way of defending democracy. The most important guarantors of the Constitution’s values are the American people. It is the responsibility of citizens not just to defend the abstract ideal of liberal democracy, but to elect public officials who demonstrate respect for it.
There is also a flipside to the optimism that might come from relying on citizens to ultimately guarantee constitutional values. There are no procedural guarantees that can absolutely ensure against a rising tide of authoritarianism. My worry is that a polity that has abandoned democratic values in favor of authoritarian ones can simply run roughshod over any procedural attempts to stem the tide of authoritarianism. To successfully resist the slide of democratic institutions toward authoritarianism, we must therefore care both about what citizens believe and the procedures that define our democracy. That is why I aim—in The Oath and The Office—to use the device of speaking to future presidents to attempt to convince those who will vote for a president to embrace constitutional and democratic values. It is also why I have previously made the case for the importance of government’s role in promoting these values. A focus on the substance, and not just the procedure, of both democracy and our Constitution rightly puts the focus on democratic culture and beliefs. It points to the need for a system that promotes these values through formal and informal education.
Huq and Ginsburg are right to worry that American democracy can collapse into authoritarianism. But in defending democracy, “We the People” can look to the Constitution itself as a beacon that defines that ideal and the rights we are owed.