By Katharina Pistor
WASHINGTON, DC – With Donald Trump and the Republican establishment refusing to accept defeat in the face of a clear election result, democracy in the United States is under unprecedented attack. If Americans had confidence in their democratic institutions, there would be little reason for concern. Trump’s behavior could be dismissed as a temper tantrum, and that of Republican leaders as a cynical exercise in humoring a narcissist adored by their party’s voters.
Yet Trump’s machinations, and GOP leaders’ complicity in them, cannot be dismissed so easily. Deep anxiety is justified, because the political threat stems not from the misbehavior of a single person or his cronies, but from the realization that even a well-established democracy is defenseless against nihilism.
Democracy rests on certain principles that are now under relentless attack in the US. Facts are routinely proclaimed “fake” and supplanted by “alternative facts.” Courts are being mobilized not to consider evidence of wrongdoing, but to obstruct, or to maintain a politically advantageous narrative. Institutional checks and balances have been used to turn Congress into a theater for high-pitched inaction. The judicial appointment process has been blatantly politicized. The most basic principles of constitutional democracy have been abandoned.
Under these conditions, striving for governance “of the people, by the people, for the people,” as President Abraham Lincoln famously put it, becomes demonstrably pointless. When the implicit norms underpinning democratic self-governance have all been destroyed, there is hardly anything left to defend.
Perhaps the US Constitution’s advanced age has brought us to this point, because any update through the formal amendment process has become impossible. Perhaps independent institutions like the Supreme Court and the Federal Reserve have become too powerful in the face of a Congress that has incapacitated itself.
Even so, history suggests that this may be only part of the story. Germany’s Weimar Republic (1919-1933) did not fail because of the age of its constitution, but because, like in the US, the constitution’s own tools (namely, its emergency powers) could so easily be used against it. While unrestricted proportional voting rules ensured broad representation in the Weimar parliament, they also produced party fragmentation and political ineffectiveness. With elected authorities incapable of addressing the country’s urgent needs, anti-democrats happily labeled the parliament a “twaddle shack” (Schwatzbude) and moved to seize power for themselves.
After the Weimar Republic’s collapse, the depravations of Hitler’s regime, the horrors of the Holocaust, and the devastation of another world war, West Germany sought to rebuild its constitutional order as a fortified democracy (streitbare Demokratie) capable of defending itself against enemies from within. The new Bundesrepublik enshrined human dignity as its core value, and declared sacrosanct the principles of democracy, federalism, the rule of law, and the division of power.
In theory, no amendment – not even a unanimous vote to amend the constitution – can touch these institutions. But, of course, matters are more complicated in practice, because drawing clear lines is never easy in the open-ended language of constitutional law. In fact, there simply is no institutional device that cannot be turned into a tool against the very norms and principles it is supposed to protect.
Equally problematic, historical lessons rarely endure. After all, the European Union is also currently being attacked from within. The governments of Poland and Hungary – countries that emerged from authoritarian rule not too long ago – are blocking the EU’s €750 billion ($890 billion) recovery fund that is meant to mitigate the long-term economic damage wrought by COVID-19. Their motive is not budgetary prudence, but rather retaliation for the EU’s efforts to make its funding conditional on compliance with the rule of law. Absent a compromise, the EU will have to accept inaction or find a solution outside the EU treaty framework.
Such maneuvers would not be illegal, but they would violate the spirit of a union governed by consensus, and thus would smack of hypocrisy. Hungarian Prime Minister Viktor Orbán and Poland’s de facto leader, Deputy Prime Minister Jarosław Kaczyński, would be quick to point this out. These two aspiring authoritarians are following the same script as congressional Republicans, who have refused to adopt another pandemic-relief package even though the previous one has largely run its course. In each case, anti-democratic forces representing a minority are holding hostage millions of households and businesses in dire need of support – and for no reason other than obstruction or personal gain.
In responding to strategic actors who are willing to use the constitution to subvert constitutionalism, principled arguments don’t help, because one cannot shame the shameless. This implies a fundamental dilemma. Acceding to their demands is a slippery slope that might well end with the collapse of the democratic order. Yet failing to compromise will harm the people whom government is supposed to serve, potentially driving them into the arms of the nihilists (who doubtless hope for, if not intend, that outcome).
Still, appeasement is the worst response of all. Too often, politicians who come to power in democracies have turned a blind eye to their predecessors’ transgressions, hoping that one can craft a better future only by letting bygones be bygones. Yet without a reckoning for past deeds committed against the system itself, democratic constitutionalism eventually will crumble.
That is why we cannot simply move on from the Republican Party’s attempt to undermine the credibility of the election – the ultimate mechanism of democratic accountability. Indeed, America’s failures to address past injustices – including the subjugation of indigenous peoples, slavery, racism, and the deprivations of the poor, immigrants, and the incarcerated – helps to explain why trust in democratic institutions has been so corroded in the first place. Having been made brittle, America’s institutions have long been vulnerable to attack.
Trump and his helpers may not succeed in destroying democracy this time around; but if they are not held accountable, they will have plenty of opportunities to try again.
Katharina Pistor, Professor of Comparative Law at Columbia Law School, is the author of The Code of Capital: How the Law Creates Wealth and Inequality.