Constitution Day lecture 2022

Note: these are notes for a short talk I gave this month to students at my university on the topic of the importance of maintaining and defending our liberal constitutional democracy.

Democracy at risk?

Dan Little

University of Michigan-Dearborn Student Government session on the US Constitution

October 20, 2022

Thanks for this opportunity. It is a great pleasure to be invited to speak with you today, in this place in America, on this important subject.

There have been times when commemorations like “Constitution Day” were a bit perfunctory. Almost all of us as citizens of a constitutional democracy quietly appreciated the freedoms that we had, and we assumed that the arrangements and institutions specified by the Constitution were permanent and solid parts of our political world in the US. We were complacent about the institutions of our constitutional democracy – even when we criticized various parts of our society. Today – October 20, 2022 – the situation feels very different. Just recall a few books written in the past six years by accomplished political scientists, historians, and legal scholars – How Democracies Die (Levitsky and Ziblatt), Fascism: A Warning (Madeleine Albright), On Tyranny (Timothy Snyder), or The New Despotism (John Keane).

Many careful observers agree that our constitutional democracy is at risk, and this is a life-determining challenge for all of us.

1. Why liberal constitutional democracy?

Let’s start with a simple question: why should we care about living in a liberal constitutional democracy?

The answer is simple: liberal constitutional democracy is uniquely best for free, equal human beings living together. All of us a citizens value our freedoms. And we recognize our fundamental moral equality: men and women, black and white, native and immigrant, straight and gay, Christian, Muslim, Jewish, Buddhist, Hindu, Jain, atheist … We are all equal within a liberal constitutional democracy, and we come to value the fundamental moral fact that our identities are our own business – not in the scope of collective law-making.

We recognize our differences – differences of religious belief, political affiliation, gender and sexual identities, national origins. And through reflection we come to see the fundamental value of pluralistic equality: citizens accept the divergent beliefs and practices of their fellow citizens without using the processes of law to compel them to abandon their beliefs and identities.

These values are reflected in a long tradition of thought: for example, John Stuart Mill (On Liberty), JJ Rousseau, Mary Wollstonecraft, and John Rawls.

Here are some of the features of a liberal constitutional democracy that benefit all of us as free and equal human beings.

Rule of law: all individuals accept the legitimacy and authority of the system of law and the procedures that implement political life: election law, police powers, scope of authority of elected officials, … No person is above the law.

Independence of judiciary: Courts exist to neutrally interpret the application of law and constitutional requirements. Judges and justices on courts at every level are expected to leave their substantive religious, political, social, and economic commitments at the door. In the words of John Roberts during his confirmation hearings, “Our job is to call balls and strikes”.

Full and extensive establishment of voting rights: every person has the right to participate in voting, and every person’s vote should count the same. This has an implication: no barriers to registration and voting, no gerrymandering, no voter intimidation.

How “constitution” constrains “democracy”: The Bill of Rights establishes certain rights as prior to normal democratic voting and representation processes. Protection of rights of freedom of speech, thought, religion, association. (Notice that the Constitution is not literally beyond the electoral process; but the amendment process is deliberately a difficult one.)

Does a liberal democracy require that we all share the same values? Not at all. John Rawls argues that the stability of a just society depends on finding an “overlapping consensus” of values that converge to provide support for the existing system. Different groups have different “comprehensive conceptions of the good” which disagree with each other and give rise to different goals for legislation. But agreement about rights and democratic process may provide a basis for an overlapping consensus across these differences.

2. The erosion of US democracy

So let’s turn to our current situation in our American democracy. What are the signs of erosion already in front of us? Unhappily, we have witnessed profound attacks on the most important features of our democracy in the past decade or more.

Undermining of constitutional liberties

• weakening of freedom of the press through additional libel-law restrictions, bonds, and other "chilling" legal mechanisms
• weakening of freedom of thought and speech through legislation and bullying concerning critical / unpopular doctrines -- "Critical Race Theory", "Queer Studies", "socialist/anarchist thought", ...
• weakening of freedom of association through extension of surveillance, official violence, "anti-riot" legislation limiting demonstrations, and vilification by leaders, trolls, and social media of outspoken advocates of unpopular positions

Further restrictions on voting rights and voter access to elections

• extreme gerrymandering to ensure one-party dominance
• unreasonable voter ID requirements
• limitations on absentee voting
• voter intimidation at the polls

Intimidation of dissenters through violent threats, paramilitary demonstrations, and the occasional murder

• encouragement of political violence by followers of the authoritarian leader
• persecution through informal and sometimes formal channels of racial and social minorities -- immigrants, people of color, Asians, LGBTQ and transgender people, ...
• threats of violence and murder against public officials, librarians, public health officials, journalists, and dissidents

Weakening of the independence and neutrality of the judiciary, including the Supreme Court

The Supreme Court's politicization and ideological bias are now very clear. And other levels of the Federal court system have begun to show these biases as well.

Well-known political scientist and democratic theorist Yascha Mounk notes in The People vs. Democracy that populist leaders and parties seek to undermine the press: “In the early phases, the war on independent institutions frequently takes the form of inciting distrust, or even outright hatred, of the free press” (44). He sees this effort as an attack on liberal principles. But the war waged by radical populist leaders against the press is not merely anti-liberal; it is anti-democratic. Its aim is to disenfranchise the portion of the population that would oppose the populists’ policies and action by denying them access to information and fair interpretation by other intelligent, well-informed observers. It is to replace “freedom of thought and speech” with the power of propaganda, and the goal is not merely to deny information to potential opponents, but to shape “knowledge” and political discourse in ways that favor the political fortunes of the populist. Again — democracy without liberal institutions and values is only sham democracy.

The non-partisan democracy institute V-Dem at the University of Gothenberg in Sweden has attempted to monitor the level of commitment to democratic values expressed by parties in the world’s democracies. And the findings of this research are worrisome: a widespread retreat by conservative and populist parties across many nations from the values of democratic governance and constitutional liberties. Indicators of low democratic commitment include “low commitment to political pluralism, demonization of political opponents, disrespect for fundamental minority rights and encouragement of political violence” (“New Global Data on Political Parties" (link): 1). And V-Dem research finds ample evidence that each of these tendencies are worsening in the United States and elsewhere.

Here are the worrisome observations of Levitsky and Ziblatt in How Democracies Die:

Yet, we worry. American politicians now treat their rivals as enemies, intimidate the free press, and threaten to reject the results of elections. They try to weaken the institutional buffers of our democracy, including the courts, intelligence services, and ethics offices. American states, which were once praised by the great jurist Louis Brandeis as “laboratories of democracy,” are in danger of becoming laboratories of authoritarianism as those in power rewrite electoral rules, redraw constituencies, and even rescind voting rights to ensure that they do not lose. And in 2016, for the first time in U.S. history, a man with no experience in public office, little observable commitment to constitutional rights, and clear authoritarian tendencies was elected president. (1)

The signs are ominous. The indications of erosion mentioned here taken together suggest the possibility of the extinction of liberal democracy: the integrity of constitutionally-defined equal rights for all individuals, and the principle of majoritarian public decision-making are at risk.

3. The emergence of “illiberal democracy” and soft dictatorship

What might our liberal constitutional democracy become if these trends continue? One possibility is an “illiberal democracy”. This is a political regime in which elections occur, but in which an enormous amount of discretionary power is vested in the leader – president, prime minister, numero uno. The qualifier “illiberal” is important: it means that this form of government does not rest upon the premise of secure rights and liberties of individual citizens (the fundamental premise of liberalism), but instead, citizens (subjects) are governed according to the dictates of the leader. There are no constitutional protections of individual rights and liberties.

There is a new term (to me, anyway) that is being used to describe this kind of regime: anocracy (semi-democracy). Part democracy, part dictatorship. And there are a rising number of rulers who fit this model of “illiberal democracy”, including Viktor Orbán (Prime Minister, Hungary), Narendra Modi (Prime Minister, India), and Jair Bolsanaro (President, Brazil). Orbán explicitly defends his rulership of Hungary as an “illiberal democracy”. Marc Plattner describes Orbán's view in the Journal of Democracy:

Then, on 28 July 2018 (at the same venue where he gave his 2014 speech), Orbán emphatically and unequivocally expressed his support for illiberal democracy. He contended, first, that “there is an alternative to liberal democracy: it is called Christian democracy.” But he underlined that Christian democracy as he understands it “is not about defending religious articles of faith.” Instead, it seeks to protect “the ways of life springing from Christian culture.” And this, he added, means defending “human dignity, the family and the nation.”

Orbán then went on to warn his listeners to avoid an “intellectual trap”—namely, “the claim that Christian democracy can also, in fact, be liberal.” For to accept this argument, he told his partisans, is tantamount to surrendering in the battle of ideas. Therefore, he urged his listeners, “Let us confidently declare that Christian democracy is not liberal. Liberal democracy is liberal, while Christian democracy is, by definition, not liberal: it is, if you like, illiberal.”

This is Christian nationalism, religious authoritarianism. And it appeals to American conservatives, judging by Orbán's reception at the Conservative Political Action Conference (CPAC) in Texas in August 2022 (link).

Another expert, Andrew Marantz, writes in the New Yorker in June of this year:

Experts have described Orbán as a new-school despot, a soft autocrat, an anocrat, and a reactionary populist. Kim Lane Scheppele, a professor of international affairs at Princeton, has referred to him as “the ultimate twenty- first-century dictator.”

“You do not have to have emergency powers or a military coup for democracy to wither,” Aziz Huq, a constitutional-law professor at the University of Chicago, told me. “Most recent cases of backsliding, Hungary being a classic example, have occurred through legal means.” Orbán runs for reëlection every four years. In theory, there is a chance that he could lose. In practice, he has so thoroughly rigged the system that his grip on power is virtually assured. The political-science term for this is “competitive authoritarianism.”

4. The very real threat to democracy in the US

What is the evidence that the United States is sliding towards illiberal authoritarianism? Here are several important points of reference.

• The January 6 insurrection: meticulously documented by the House Select Committee.
• The persistent refusal of many candidates for office in 2022 to commit themselves to the outcome of the upcoming election. For example, Kari Lake, Republican candidate for governor in Arizona, says “I will accept the election … if I win.” For example,
• The extensive preparations in place for voter intimidation and allegations of fraud in 2022.
• The extensive efforts by right-wing legislatures to interfere with voting rights of populations that they believe will vote against them.

Tim Alberta writes in the November 2022 issue of the Atlantic, “Bad Losers” (link):

The GOP assault on the legitimacy of Biden’s victory has led to death threats against election workers and a lethal siege of the United States Capitol. But perhaps the gravest consequence is the erosion of confidence in our system. Late this summer, a Quinnipiac poll found that 69 percent of both Republicans and Democrats believe that American democracy “is in danger of collapse.” They hold this view for somewhat different reasons. Republicans believe that Democrats already rigged an election against them and will do so again if given the chance; Democrats believe that Republicans, convinced that 2020 was stolen despite all evidence to the contrary, are now readying to rig future elections. It’s hard to see how this ends well. By the presidential election of 2024, a constitutional crisis might be unavoidable.

5. Conclusion

So we are faced with a choice that Benjamin Franklin formulated in 1787. On the final day of the constitutional convention a woman asked Franklin, “Well, Doctor, what have we got, a republic or a monarchy?”. Franklin replied, “A republic, if you can keep it.” In our current terms, the question is, will we have a constitutional democracy or some form of authoritarian “strong man” rule? And our reply must be, “a constitutional democracy, if we can keep it.” If we can keep it ...

But keeping our constitutional democracy requires commitment, passion, and courage on our part. Ivan Ermakoff, a leading historical sociologist, wrote a major and instructive book in 2008, Ruling Oneself Out, about the behavior of political elites in late Weimar Republic during the rise of Hitler and the decision by the French National Assembly to transfer constitutional authority to Marshal Pétain in July 1940. In each case, dictatorship emerged out of constitutional democratic institutions, and individuals who could have resisted these abdications simply stood aside. Some believed that "we can handle this Hitler fellow." This was a tragic mistake, with world-historical consequences.

The best remedy against these terrible outcomes is to struggle for our democracy now. We must give full and deep support to politicians and candidates who demonstrate a commitment to democratic values, and we must reject the very large number of populist politicians who countenance the subversion of our democracy through their adherence to the lies of the “stop the steal” activists. This is not a struggle between "liberals" and "conservatives"; it is a struggle between those who value our liberal democracy and those who cynically undermine and disparage it. And perhaps we will need to take the example and the courage of men and women in Belarus, Myanmar, Thailand, and Hong Kong in their willingness to stand up against the usurpation of their democratic rights through massive peaceful demonstrations.

So my message to you on Constitution Day 2022 is a very simple one: our constitution and our constitutional democracy are vital, singular features of our lives as free men and women. We must rise to the occasion and defend our constitutional democracy to the full extent possible.