America has a rigid constitution

The end of American democracy?

Almost all Americans living grew up knowing that our democracy is something we take for granted. Until recently, most of us believed that our constitutional order was indestructible, however ruthless our politicians might be.

But that's over. Americans are looking at the impending derailment of our political system with growing unease. They are registering costly government shutdowns, stolen Supreme Court seats, impeachments and growing concerns about the fairness of elections. In addition, of course, there is a presidential candidate who already tolerated violence at rallies in 2016 and threatened to have his rival imprisoned, and who, as president, undermined the rule of law by defying control by Congress and corrupting law enforcement agencies in order to inflict his political allies protect and investigate against his opponents. According to a survey from last year, 39 percent of Americans think our democracy is "in crisis", another 42 percent see them facing "serious challenges." Only 15 percent said that US democracy "is doing well." [ 1]

The erosion of democracy in the United States is no longer a theoretical question. It has already started. Respected global democracy indexes - such as those from Freedom House, Varieties of Democracy and the Economist Intelligence Unit - have all shown an erosion of American democracy since 2016. [2] According to Freedom House's rating, the US is now less democratic than Chile, the Czech Republic, Slovenia, Taiwan and Uruguay - and in the same category as newer democracies such as Croatia, Greece, Mongolia and Panama. [3]

But the problems began long before 2016 and go deeper than Donald Trump's presidency. Electing a demagogue is always dangerous, but it does not doom a country to the collapse of its democracy. Strong institutions can keep corrupt or autocratic leaders in check. That is exactly what the US Constitution is designed to do, and for most of our history it has succeeded in it. America's constitutional system has put a stop to many powerful and ambitious presidents, including demagogues like Andrew Jackson and criminals like Richard Nixon. That is why Americans have always placed great confidence in our constitution in their history. A 1999 poll found that 85 percent of Americans thought it was the main reason our democracy was so successful. [4]

But constitutions alone are not enough to protect democracy. Even the most brilliant constitution does not work automatically; it needs to be reinforced by strong, unwritten democratic norms. Two basic norms are essential for a democracy. The first is mutual tolerance, i.e. the norm of accepting the legitimacy of one's political competitors. That means: however much we quarrel with our opponents - and however unsympathetic we may find them - we recognize that they are loyal citizens who love their country as much as we do and who have the same and legitimate right to govern. In other words, we don't treat our competitors like enemies.

The second norm is institutional omission. Failure in this case means that you refrain from enforcing your legal claim. It is an act of willful self-restraint - we deliberately do not use our legal power to the full. This omission is fundamental to a democracy. Just think about what the US president did constitutional able to do: he can legally pardon anyone he wants, whenever he wants. Any president with a majority in Congress can remodel the Supreme Court by simply passing a law increasing the number of judges and then filling the new vacancies with allies. Or consider what constitutional authority Congress has: it can cripple the government by refusing to fund it. The Senate can use the confirmation clause to prevent the President from filling his cabinet or vacant positions at the Supreme Court. And since there is little consensus on what constitutes “serious crimes and misconduct”, the House of Representatives can initiate impeachment proceedings against the President for virtually any reason.

The point is, politicians can take advantage of the letter of the constitution in ways that robs them of their spirit: by changing the Supreme Court, through partisan impeachment, crippling the government, pardoning allies working on behalf of the Presidents commit crimes or declare a state of emergency to bypass Congress. All of these actions follow the letter of the law in order to undermine his spirit. The legal scholar Mark Tushnet calls such behavior "constitutional hardball" - a ruthless approach in accordance with the constitution. [5] In every failed or failed democracy there is an abundance of constitutional hardball: Examples range from Spain and Germany in the 1930s to Chile in the 1970s to Hungary, Venezuela and Turkey in the present. Failure - politicians' shared obligation to exercise their institutional prerogatives with restraint - is what keeps democracy from sliding into a destructive spiral of constitutional hardball.

The gentle guard rails of democracy and racist exclusion

The unwritten norms of mutual tolerance and omission serve as gentle guard rails for democracy. They ensure that healthy political competition does not turn into the life-and-death political struggle that destroyed democracies in Europe in the 1930s and in South America in the 1960s.

America did not always have strong democratic guard rails. They were missing in the 1790s when an institutional war between federalists and republicans nearly destroyed the republic before it could even take root. It lost these guard rails in the run-up to the Civil War, and they remained weak during the late 19th century. In the 20th century, however, these guard rails mostly proved to be in place. Although the country has experienced attacks on democratic norms at times - such as McCarthyism in the 1950s - both parties, by and large, practiced mutual tolerance and omission, which in turn makes our system of checks and balances worked. There were no impeachments or successful examples of court enlargement in the first three quarters of the 20th century. Senators were careful about the use of filibusters and the affirmation clause in presidential nominations - most Supreme Court candidates received no problem even when the presidential party did not have a Senate majority. And outside of wartime, presidents largely failed to bypass Congress or the courts with unilateral acts. America's system of checks and balances worked for more than a century. This, however, was because strong norms of mutual tolerance and non-compliance reinforced this system.

However, at the heart of this story lies an important tragedy. The soft guard rails that guided America's democracy in the 20th century were built on racial exclusion and operated in a political community that was predominantly white and Christian. Efforts to establish multi-ethnic democracy after the civil war led to violent resistance, particularly in the southern states. The branches of the Democratic Party there looked at the Reconstruction after the war as an existential threat and opposed it with both constitutional hardball and open violence. It wasn't until the Republicans die Reconstruction giving up - thereby allowing the Democrats to introduce the racist Jim Crow laws in the South - the Democrats no longer viewed their competitors as an existential threat. Only then did both parties begin to coexist peacefully and made it possible for norms of mutual tolerance and omission to develop. In other words, these norms were only able to take root after ethnic equality was removed from the agenda and America's political community was reduced to whites. The fact that our guard rails in an era of incomplete democracy has significant ramifications for the current polarization - we will come back to this later.

In our 2018 book, How Democracies Die, we show how America's democratic norms have been eroded for three decades. [6] The first signs of this emerged in the 1990s when Newt Gingrich encouraged his fellow Republican party members to speak of “fraud” and “traitors” when it came to the Democrats. In doing so, he encouraged the Republicans to give up mutual tolerance. The Gingrich Revolution also resulted in an increase in constitutional hardball, including the major shutdown in 1995 and three years later an impeachment case against President Bill Clinton - the first in 130 years.

The erosion of democratic norms accelerated during Barack Obama's presidency. Republican leaders like Gingrich, Sarah Palin, Rudy Giuliani, Mike Huckabee and Donald Trump told their supporters that the President and Democrats were not patriots and true Americans. Trump and others even questioned whether Obama is an American citizen. Hillary Clinton received similar treatment: Trump and other Republicans portrayed them as criminals and made "lock them up" into a chorus at their rallies. So this was not coming from the political fringes, but the Republican presidential candidate himself put forward these ideas and at his election convention they were cheered - live and on television - by the crowd.

This development was already a cause for great concern: when mutual tolerance wanes, politicians also give up failing. As soon as we view our political competitors as enemies, or as existential threats, the temptation grows all necessary means use to stop them. This is exactly what has happened over the past decade. Republicans in Congress treated the Obama administration as an existential threat that had to be defeated at almost any cost. Constitutional hardball became the norm. There were more filibusters in Obama's second term than in all the years between World War I and Ronald Reagan's second term together. Congress paralyzed the government twice and in the meantime brought the country to the brink of insolvency. Obama also responded with constitutional hardball. When Congress refused to pass immigration reform or climate protection laws, it evaded it and resorted to presidential decrees. This was technically legal, but it was clearly against the spirit of the constitution. Perhaps the most momentous act of constitutional hardball during the Obama years was the Senate's refusal to hear Merrick Garland, Obama's Supreme Court candidate. Any president since 1866 who was given the opportunity to fill a vacant seat on the Supreme Court before his successor was elected was allowed to do so (although not always at the first attempt). By refusing to even consider Obama's candidates, the Senate was violating a 150-year-old norm.

The problem is not just that the Americans chose Donald Trump as a demagogue - but that we did so at a time when the gentle guard rails that protect our democracy were loosening.

White America versus the Rainbow Coalition

The driving force behind the erosion of democratic norms is polarization. Over the past 25 years, Republicans and Democrats have learned to fear and hate one another. In 1960, four percent of Democrats and five percent of Republicans said they would be displeased if their child married someone from the other party. 50 years later, these values ​​were 33 and 49 percent. [7] In a 2016 Pew poll, 49 percent of Republicans and 55 percent of Democrats said they were "scared" by the other party. [8] And a recent study shows that around 60 percent of Democrats and Republicans alike believe the other party is a "serious threat" to the United States. [9] We have not seen such political hatred since the late 19th century.

Some degree of polarization is normal - and even healthy - for democracy. But extreme polarization can kill them. Current research by political scientist Milan W. Svolik shows that in highly polarized societies we are more willing to tolerate undemocratic behavior on our own side. [10] If politics is so polarized that we consider the victory of our political rivals to be catastrophic or completely out of the question, we will justify the use of extraordinary measures to prevent it, including electoral fraud and violence, up to and including a military coup. Nearly all of the better-known breakdowns of democracy in history took place in a climate of extreme polarization, from Spain and Germany in the 1930s to Chile in the 1970s to Thailand, Turkey and Venezuela in the early 2000s. Political competitors saw each other as such an existential threat that they would rather undermine democracy than accept a victory from the other side.

What we are seeing in the US today is not the traditional polarization between left-liberals and conservatives that is common in democracies. People do not fear or hate each other because of tax issues or health policy. Rather, today's political divisions go deeper: They are about ethnic and cultural identity. [11]

As I said earlier, the stability of modern American democracy relied to a large extent on racial exclusion. Our democratic norms were established by and for a political community that was predominantly white and Christian - and that forcibly excluded millions of African Americans in the south. In the past half century, however, American society has changed dramatically. With extensive immigration and steps towards greater ethnic equality, our society is more diverse and become more democratic. These changes have undermined both the size and the social status of America's former Christian majority. In the 1950s, white Christians made up well over 90 percent of the American electorate. In 1992, when Bill Clinton was elected president, 73 percent of the electorate were white Christians. When Obama's re-election in 2012, their share had fallen to 57 percent and by 2024 it should drop to below 50 percent. [12] So white Christians lose their majority in elections. They also lose their dominant social status. Not so long ago, white Christian men were at the top of all social, economic, political and cultural hierarchies in our country. They occupied the presidency, Congress, the Supreme Court and the residences of the governors. They provided the CEOs, the news anchors, and most of the celebrities and leading academic authorities. And they were the face of both major political parties.

Those days are history. But the loss of dominant social status can be deeply threatening. Many white Christian men believe that the land they grew up in will be wrested from them. For many, this feels like an existential threat. This demographic shift has become politically explosive as America's ethnic and cultural differences are now being mapped almost perfectly by the two major parties. This has not been the case in the past. As recently as the late 1970s, white Christians were evenly split between Democrats and Republicans. However, there have been three major changes over the past half century: First, the civil rights movement has led to a massive brain drain of southern whites from Democrats to Republicans, while African-Americans - newly elected in the South - mostly for Democrats agreed. Second, the United States was experiencing a great wave of immigration, and most of these immigrants turned towards the Democrats.And third, starting with Reagan's presidency in the early 1980s, Republicans began flocking to White Evangelical Christians. As a consequence, the two major parties now represent very different parts of American society. The Democrats represent a rainbow coalition that includes urban and educated white voters and people of color. Almost half of the democratic voters are non-whites. The Republicans, on the other hand, remain predominantly white and Christian. [13] So Americans have sorted themselves into two parties that represent radically different communities, social identities, and ideas of what America is and should be. Republicans increasingly represent white Christian America - and Democrats represent everyone else. This division underlies the deep polarization of our country.

What makes this polarization so dangerous is theirs asymmetry. While the Democratic base is diverse and expanding, the Republicans represent a once dominant majority in the numerical and status decline. So many Republicans fear the future. Slogans like “Take our country back!” And “Make America great again!” Reflect this feeling of danger. Moreover, these fears have fueled a worrying development that threatens our democracy - a growing aversion among Republicans to electoral defeat.

The Republicans and the fear of defeat

In a democracy, parties need to know how to lose. Politicians who lose an election must be willing to accept defeat, go home and try their luck again later. Without this norm of dignified loss, democracy cannot be preserved.

For parties to accept their defeat, however, two conditions must apply: First, they must be convinced that their defeat will not have ruinous consequences. Second, they have to believe that they have a realistic chance of winning again in the future. If party leaders fear that they will not be able to win future elections or that defeat poses an existential threat to them or their voters, then that increases the stakes. Your time horizon is shortened. They ignore tomorrow and try to win today at all costs. In other words, desperation causes politicians to resort to unfair means.

History offers many examples of how fear of defeat leads parties to undermine democracy. In pre-World War I Europe, many conservatives horrified the idea of ​​extending suffrage to the working class. German conservatives saw equal voting rights (for men) not only as a threat to their own electoral prospects, but also to the aristocratic order. A leading German conservative even called full and equal voting rights for men an “attack on the laws of civilization”. So the German Conservatives resorted to unfair means, from rampant election rigging to open repression during the First World War.

In a similar way, the Southern Democrats reacted to the granting of the right to vote to African Americans in the Reconstruction-Era dictated by the 15th Amendment to the Constitution. Since African-Americans made up the majority in most of the states of the former confederation, or at least came close to it, their voting rights endangered the political dominance of the democrats there - and potentially threatened the entire racist order. So the Southern Democrats resorted to unfair means: Between 1885 and 1908, all eleven former states of the Confederation introduced election taxes, reading and writing tests, property and residence regulations and other measures to deprive African Americans of their right to vote - and thus the dominance of the Democrats to be fixed. [14] These measures, along with a monstrous campaign of violence against blacks, did exactly what they were supposed to: The turnout of blacks in the South fell from 61 percent in 1880 to just 2 percent in 1912. Not wanting to lose, the Southern Democrats almost withdrew half of the population had the right to vote, ushering in almost a century of authoritarianism in the south.

Today, Republicans are showing very similar signs of panic. Their prospects for choice are dwindling. They remain a predominantly white Christian party in an increasingly diverse society. In addition, younger voters are turning their backs on them: in 2018, the 18 to 29 year olds voted with a margin of two to one for the Democrats and the 30 year olds voted almost 60 percent for the Democrats. Demography is not fate, but it can punish parties that stand in the way of social change. This is what the California Republicans found out when they took a tough anti-immigration course in the 1990s. [15] The growing diversity of the American electorate makes it harder for Republicans to obtain majorities at the national level. In fact, they have been at for the past 30 years only one Presidential election received the most votes.

Neither party likes to lose, but for Republicans the problem is compounded by a growing belief among their grassroots that defeat will have disastrous consequences. Many white Christian Republicans fear not only losing elections, but soon losing their country too. Like the Southern Democrats in the past, Republicans are increasingly resorting to unfair means. This has been most evident in recent moves to overturn the pitch in elections. Since 2010, a dozen Republican-led states have passed new laws that make voter registration difficult. [16] Republican governments in states and municipalities have closed polling stations in predominantly African-American neighborhoods, "cleaned" electoral rolls, and created new barriers to registration and voting. For example, since 2017 in Georgia, the so-called “exact match law” has allowed voter registrations to be rejected if the information provided there does not “match” the existing files “exactly”. In the 2018 gubernatorial campaign, then Secretary of State and now Governor Brian Kemp attempted to use this law to invalidate tens of thousands of registration forms, most of which were made by African Americans. [17] He also "cleaned up" the electoral roll to remove hundreds of thousands of people. [18]

The further erosion of democracy

The Trump administration threatens American democracy like no other in modern American history. We see three potential threats: continued undermining of democracy, descent into dysfunction, and minority rule. Firstly, Trump attacked the media, trampled on the controls of Congress and asked for foreign interference in our elections. Like the autocrats in Hungary, Russia and Turkey, he tried to use the government apparatus for personal, party-political and even undemocratic goals. Only the most recent example of this phenomenon highlights the fear that the Trump administration is trying in a shocking way in the Covid-19 pandemic to use the US Post to make it difficult to vote and manipulate the election result. Throughout the government apparatus, law enforcement, intelligence, defense, election security, census, and even weather forecasting are under pressure to work for the president's personal and political good - and against its critics and adversaries. Those who refuse to do so - including inspectors who are responsible for the independent oversight of government agencies - will be pushed out and replaced by Trump loyalists. This is how autocracies are established: leaders turn law enforcement, the secret services and other institutions into partisan weapons and use them to shield themselves from investigations and to investigate and punish critics. When the referees work for the incumbent, the pitch is inevitably tilted, which destroys democratic competition. In doing so, Trump's efforts to cleanse and corrupt government agencies very closely mirror the measures Hungary's Prime Minister Viktor Orbán is taking to undermine his country's democracy.

But while the danger of autocratic turnaround is real - especially if Trump is re-elected - important sources of democratic resilience remain. In this regard, the United States differs from Hungary, Russia, Turkey or Venezuela in a number of important respects: First of all, our institutions are stronger. The courts remain independent and powerful. Federalism remains robust. And in every agency that sought to clean up, gouge, and politicize the White House, dedicated officials have vigorously opposed it. They may eventually lose individual political battles, but their resistance slows the erosion of democracy. Another difference is that the autocrats in Russia, Hungary, Turkey and Venezuela crushed a weak opposition, whereas America has a well-organized, well-funded opposition that is competitive in elections. This opposition includes not only the Democratic Party, but also trade unions and a wide range of activist groups who have organized opposition to the policies of the current administration since the day of Trump's inauguration. The strength of the US opposition manifested itself in the mid-term elections in 2018, when the Democrats took control of the House of Representatives. This shows that Trump's defeat on November 3rd is entirely possible. If he loses, the imminent risk of slipping into autocracy will diminish.

Secondly, our democracy is threatened with a decline into dysfunctionality. America's system of checks and balances often ensures a divided government, so confronts the president with an opposition Congress majority. Hence, it only works with a certain degree of mutual tolerance and neglect. If polarization undermines these norms and leads to constitutional hardball, a divided government can degenerate into a kind of permanent institutional warfare - and render the federal government unable to carry out its basic tasks. In fact, the return to divided government after 2018 imposed welcome restrictions on the Trump administration, but did not result in a well-functioning system of checks and balances. This decline into dysfunction is keeping our governments from addressing the most pressing problems facing our societies - from immigration to climate change to health care. America's bumbling, slow response to the Covid-19 pandemic is just the latest and deadliest symptom of a stalled political system.

However, dysfunction not only hinders the work of government, it can also undermine public confidence in democracy. When governments fail to respond to citizens' most pressing problems, they lose confidence in the political system. There are strong signs of such a loss of confidence in America today: the number of Americans dissatisfied with democracy has more than doubled in the past two decades, from less than 25 percent in 2000 to 55 percent today. [ 19] But when societies lose confidence in their government's problem-solving abilities, they become receptive to demagogues or political outsiders who promise to “get things sorted out” by other - radically authoritarian - means.

The rule of the minority

The third threat to our democracy is less visible, but arguably the most damaging of them all. Let's look at the following facts: The last two Republican presidents came into office despite not getting a majority of the votes - and that could easily happen again this year. The Democrats easily won the 2016 presidential election and the 2018 Senate election - but the Republicans still control the Senate. In 2017, Neil Gorsuch was the first Supreme Court judge to be nominated by a president who did not have a majority in the election and then confirmed by senators who represented less than half of the country. A year later, Brett Kavanaugh rose to the Supreme Court in exactly the same way, creating a conservative majority there that is clearly rooted in a minority - and which Amy Coney Barrett is now likely to expand. And in February 2020, 52 senators spoke out against the impeachment of President Trump - however, due to the population structure of their states, they represented 18 million fewer Americans than the 48 senators who voted for impeachment.

These examples offer a taste of life under the rule of a political minority. Our constitution and electoral geography unwittingly conspired in favor of the Republicans. This could lead to what sociologist Paul Starr calls entrenchment in power by a minority of the electorate - who come mainly from rural, conservative, and mostly white areas. Certainly, minority rule has a long history in America. Our founding fathers created a constitutional system that favored smaller or sparsely populated states. But over time this preference grew into a massive overrepresentation of rural states, with repercussions on three majority-breaking institutions: the electoral body that determines the president is slightly shifted in favor of sparsely populated states; the Senate is strong; and since the Senate has to approve the nominations for the Supreme Court, this too has been shifted a bit in favor of low-population states. This problem is exacerbated by the creeping depopulation of rural areas: in 20 years, 70 percent of the US population will be living in 16 states, which means that 30 percent of the country will control 68 percent of the Senate. [20]

In most phases of US history, this preference for rural areas had little partisan impact, as the major parties had urban and rural wings. In other words, the system has always favored Vermont over New York, but it didn't favor any particular one Political party. Recently, however, the parties have split on the urban-rural issue. Today, Democratic voters are concentrated in the major urban centers, while Republicans are increasingly anchored in sparsely populated areas. This gives the Republican Party a systematic and growing advantage in the electoral council, Senate, and Supreme Court.

Rule by a political minority is bad enough, but it has an even more dangerous consequence: Republicans are driven by their fearful white Christian base into a "win-now-at-any-price" mentality and could therefore take advantage of them in the majority-breaking institutions to dig into power without gaining a majority - and actually even in the face permanent oppositional majorities. The electoral council allowed Donald Trump to vote (and could do so again), while the Senate allowed his outrageous abuse of power. Likewise, the Supreme Court has largely backed Republican attempts to tilt the playing field for elections through gerrymandering, the electoral roll cleanse, and new barriers to registration and voting. In short, Americans could be heading for a period of minority rule.

So this choice is crucial. Trump's victory would accelerate the destructive trends we have seen over the past four years: the erosion of democratic norms, the abandonment of established democratic practice, the continued attack on the rule of law, and the continued anchoring of rule by a political minority. If Trump rules until 2024, American democracy threatens to become unrecognizable. The stakes are high. We have a lot to lose.

This text is based on a contribution by the authors, which was published under the title "The Crisis of American Democracy" on September 18, 2020 on the website of the American Federation of Teachers. The translation is by Steffen Vogel.

[1] David Schleifer and Antonio Diep, Strengthening Democracy: What Do Americans Think? The 2019 Yankelovich Democracy Monitor Report.

[2] Noah Buyn et al., Freedom in the World 2020: A Leaderless Struggle for Democracy, Freedom House, Washington 2020; Anna Lührmann et al., Autocratization Surges - Resistance Grows: Democracy Report 2020; The Economist Intelligence Unit, Democracy Index 2020.

[4] Robert Dahl, How Democratic is the American Constitution ?, New Haven 22003, pp. 121-122.

[5] Mark Tushnet, Constitutional Hardball, Georgetown University Law Center 2004.

[7] Ezra Klein and Alvin Chang, "Political Identity Is Fair Game for Hatred": How Republicans and Democrats Discriminate, www.vox.com, December 7, 2015.

[8] Pew Research Center, Partisanship and Political Animosity in 2016, June 22, 2016.

[9] Nathan Kalmoe and Lilliana Mason, Lethal Mass Partisanship: Prevalence, Correlates, & Electoral Contingencies, Paper prepared for NCAPSA American Politics Meeting, Washington, January 2019.

[10] Milan Svolik, Polarization versus Democracy, in: "Journal of Democracy", 3/2019, pp. 20-32.

[11] Lilliana Mason, Uncivil Agreement: How Politics Became Our Identity, Chicago 2018; Alan Abramowitz, The Great Alignment: Race, Party Transformation, and the Rise of Donald Trump, New Haven and London 2018; Ezra Klein, Why We’re Polarized, New York 2020.

[12] Robert Jones, The End of White Christian America, New York 2016, p. 106.

[13] Pew Research Center, In Changing U.S. Electorate, Race and Education Remain Stark Dividing Lines, June 2020.

[14] J. Morgan Kousser, The Shaping of Southern Politics: Suffrage Restriction and the Establishment of the One-Party South, 1880-1910, New Haven and London 1974.

[15] Vanessa Williamson, Anti-Immigrant Ads like Trump’s Sank the California GOP in the 90s, www.brookings.edu, August 19, 2016.

[16] Benjamin Highton, Voter Identification Laws and Turnout in the United States, in: "Annual Review of Political Science", 1/2017, pp. 149-167.

[17] Ted Enamorado, Georgia’s "Exact Match" Law Could Potentially Harm Many Eligible Voters, in: "The Washington Post", October 20, 2018.

[18] Alan Judd, Georgia’s Strict Laws Lead to Large Purge of Voters, in: "Atlanta Journal-Constitution," October 28. 2018

[19] Yascha Mounk and Roberto Stephan Foa, This Is How Democracy Dies, in: “The Atlantic”, January 29, 2020.

[20] Philip Bump, In About 20 Years, Half the Population Will Live in Eight States, in: "The Washington Post", July 12, 2018.