10 März 2019

How to Save a Constitutional Democracy: a Comment by SUJIT CHOUDHRY

Tom Ginsburg and Aziz Huq’s How to Save a Constitutional Democracy is a terrific book.  In this comment, I address three issues: the important moment the book marks on the value of the comparative method to the study of American constitutionalism; the insights offered by this method to the risk of democratic erosion in the United States and how those risks might be mitigated; and the need to give greater weight than Ginsburg and Huq do to the role of federalism to counter democratic erosion.

Let me begin with method.  We do not yet know how the Trump presidency will end, let alone what its longer term legacy for the practice of American constitutional democracy will be.  However, its intellectual legacy is already becoming clear: a full-scale rethinking of American exceptionalism.  American exceptionalism – the idea that the origin, development and practice of American constitutional democracy are unique and must be understood on their own terms, without reference to the experiences of other countries – is an assumption around which the study of constitutional law and politics in the United States is built; it is also a cornerstone of American political discourse.  

But as Ginsburg and Huq argue, the Trump presidency should end this kind of scholarly and political parochialism, because (2 to 3):

many of the institutional and political dynamics apparent in the Untied States today can also be traced in the recent history of other liberal democracies in Europe, South America, and Asia. … The forces at work in the United States are not … idiosyncratic local storms or tempests … They are the climatic conditions of our political future.

Less they be misunderstood, it bears emphasis that Ginsburg and Huq are not making an argument that comparative engagement is a platform toward constitutional convergence.  Rather, the value of looking to other national experiences is that “[t]he interaction of political strategy and legal frameworks may vary with local circumstances, but patterns can also be observed across countries and continents” (2).  In their methodological orientation, Ginsburg and Huq join Steven Levitsky and Daniel Ziblatt, who draw on historic examples of democratic breakdown in Weimar Germany and Argentina to offer a diagnosis of the rise of Trump and the character of the risk that he poses to the American constitutional order in How Democracies Die.  But while Levitsky and Ziblatt root the stability of constitutional democracy in the unwritten norms of mutual toleration and forbearance, and argue that constitutional design can do little, if anything, to ensure the resilience of constitutional democracy in the face of a democratically-elected autocrat, Ginsburg and Huq take constitutional design seriously (207):

Our emphasis throughout is on formal constitutional rules that might mitigate erosion risk, however, and not on interventions to strengthen norms and conventions of political life through some other means.

How do Ginsburg and Huq put constitutional comparativism to work? The core question posed by Ginsburg and Huq is whether constitutional design can mitigate the risk of the breakdown of constitutional democracy, or in fact has the perverse effect of facilitating constitutional democracy’s erosion or collapse – with a particular focus on the United States.  The heart of How to Save a Constitutional Democracy lies in the application of the comparative method to this question.  Through a global survey (focusing on the recent examples of Hungary, Poland, Turkey and Venezuela), Ginsburg and Huq develop a taxonomy of mechanisms whereby democratic erosion tends to occur (what I would term an “autocrats’ toolkit”): constitutional amendments altering basic governance arrangements, the elimination of checks and balances (asserted by the courts and the legislature), the centralization and politicization of executive power, the shrinking or distortion of the public sphere, and the elimination or impairment of political competition (ch. 4).  

Ginsburg and Huq persuasively argue that the American constitution comes up wanting, because it does little to offset these risks and may in fact increase them (ch. 5).  Some of these shortcomings are the product of design, while others have arisen because of judicial interpretation.  Many are familiar.  The relatively rigid requirements for constitutional amendments under Article V are a bulwark against what David Landau has helpfully called “abusive” amendments than erode democracy.  On the other side of the ledger, the power of state legislatures to gerrymander Congressional districts for nakedly partisan ends with few constitutional constraints, and the responsibility of elected politicians at the state level for election administration, both threaten political competition.  

But others have not hitherto been linked to the problem of democratic erosion, and it is illuminating to view them in a new light.  One example is the combination of judicial doctrines that allow for broad delegations by Congress to the executive, alongside other doctrines that sharply limit Congressional power to retain oversight over exercises of delegated authority.  Taken together, the result has been to increase the scope of Presidential control over the executive, and the politicization of the bureaucracy, and simultaneously, to fetter the ability of Congress to oversee the new powers it has delegated.  Ginsburg and Huq helpfully define constitutional democracy to include the “bureaucratic rule of law” – that is, the impartial administration of statutes and regulations by career civil servants to implement legislative policies, without fear or favour.  An autocratic president could undermine the rule of law by directing the bureaucracy to wield extensive delegated authority to favour supporters and punish political opponents, with little Congressional oversight – and for which it is very difficult to seek a judicial remedy.

Another example is the federal judiciary.  In Poland and Turkey, the governing parties have embarked upon the wholesale capture of the courts, in order to weaponize them against their political opponents.  As Ginsburg and Huq note, the American constitutional experience also furnishes examples of weaponized courts aligned with the ruling party —  the use by the Federalist Party of the 1798 Alien and Sedition Acts to persecute its ideological opponents, by deploying a federal judiciary packed with its supporters.  But they also argue that even if the federal courts were not captured by a political party, the may lack “the necessary motivation to be robust shields against democratic erosion” (146).  In the face of a “concerted program of democratic erosion”, the executive would persistently oppose the federal courts, which the evidence suggests would respond through quiescence in the interests of institutional self-preservation.  Thus, the greatest risk posed by courts may not be partisan capture, but indifference and self-interest.

Ginsburg and Huq propose a number of solutions for the American context, which presuppose its existing constitutional system (ch. 7) – again, some familiar, some not.  These measures are to create new institutions (independent boundary delimitation commissions, professional non-partisan election administration), renovate existing ones (Congressional “opposition rights” to enhance oversight, Congressional cabinet members to soften partisan cleavages, enhancing bureaucratic autonomy), and doctrinal (most notably, a judicially manageable standard for partisan gerrymanders).  Rather than engaging in an analysis of the instrumental rationality and political feasibility of these solutions, I instead examine the role of federalism, as a target of would-be autocrats because of its role as a potential check on democratic erosion, and how it how it has fared in that role in the United States.

Federalism — or devolution, a more capacious term that encompasses a broader variety of forms of decentralized government including municipalities — is largely missing from Ginsburg and Huq’s analysis.  In an “aside” (at 148 to 150), they dismiss the potential of federalism to check democratic erosion, because its effects are not necessarily uniformly positive.  While they concede that states and municipalities could potentially “provide platforms for alternative, anti-authoritarian politicians”, those political units may also become “authoritarian enclaves” that would not thwart and might increase the risk of democratic erosion through the diffusion of autocratic modes of governance and political movements. 

To be sure, authoritarian enclaves are a dark chapter in the history of postbellum American South, which only came to an end through federal government intervention, in Robert Mickey’s masterful account.  And Edward Gibson has insightly elucidated the political dynamics that maintain authoritarian enclaves in otherwise democratic federations, drawing on the examples of Argentina and Mexico, in addition to the United States.  Nevertheless, I think Ginsburg and Huq are too quick to dismiss the potential of federalism to check democratic erosion.  One of the striking features of contemporary American is the role played by state governments led by Democratic governors in leading the opposition to President Trump, with respect to a broad range of issues and in a variety of institutional fora.  Governor Andrew Cuomo of New York has been particularly vocal in his opposition to President Trump.  In California Governors Jerry Brown, and his successor, Gavin Newsom, have gone even further, and embraced the “resistance” label, and crafted their governing agendas in direct opposition to those of President Trump.

How should we understand federal-state relations during the Trump administration in light of how Governors Brown, Cuomo and Newsom have framed their agenda as opposing that of President Trump?  To a considerable extent, these clashes merely represent partisan disagreement between a Republican President and Democrat state governors, on issues such as climate change and immigration, where the parties have sharply different vierws.  The fact that these disagreements have led state governors to pursue legal challenges to decisions of the Trump administration – for example, the travel ban and climate change litigation – does not change their partisan character.  Indeed, legal challenges brought by state governments to federal policies when the other party controls the White House is nothing new; during the Obama administration, Republican state governments challenged both Deferred Admissions for Childhood Arrivals (DACA) and the Affordable Care Act.  

But on closer examination, states with Democratic governors are playing roles that Ginsburg and Huq assign to the other branches of the federal government in checking democratic erosion, and/or seem to make up for those branches’ present inability to do so in a manner functionally similar (albeit not equivalent) to what they prescribe.  Let us begin with litigation.  In addition to challenges to Trump administration policies, Democratic state governments have also brought suit in the federal courts alleging that President Trump is in breach of the Emolumen