—Miguel Schor, Professor of Law, Associate Director of the Drake University Constitutional Law Center, and Class of 1977 Distinguished Scholar
[Editor’s Note: This is one of our ICONnect columns. For more on our 2024 columnists, see here.]
Leo Tolstoy begins Anna Karenina by observing that happy families are all alike whereas every unhappy family is unhappy in its own way. Although this idea now warrants a wiki entry as it has been employed to explain complex social phenomena, the Anna Karenina principle needs to be flipped on its head to analyze democratic erosion. It turns out that happy democratic families are happily unalike whereas unhappy democratic families are appallingly alike across space and time. Education, moreover, plays a critical role in fending off democratic erosion because it provides citizens with the tools to critically assess the propaganda that fuels extreme ideological partisanship.
Comparative constitutional theorists have long understood that happy democratic families exhibit institutional biodiversity. Comparative constitutional theory is an enterprise that rests on picking out and critically analyzing the commonalities between healthy constitutional democracies. Critical democracy sustaining institutions such as elections, speech, separation of powers, rights provisions, constitutional judicial review, and the power of the people to alter, abolish, or amend their constitutions all display national variations. Democracies, for example, may (or may not) separate the legislature from the executive, protect positive socio-economic rights, enable national high courts to intervene in a dramatic way in political matters, and entrench constitutions. Even elections and speech, the residuum shared by all democracies, cash out in remarkably different ways.
The variation exhibited by happy constitutional families is no accident. Healthy democracies enjoy institutions that are shaped by the activities and the input of the participants. Democracy, not unlike the common law, is, at bottom, a set of procedures by which “broad principles” are continuously adapted to “novel circumstances.” Democracies survive longer than dictatorships not because they invariably select better leaders or wiser policies but because they are better able to adapt and deal with periodic crises. No better example of the salient differences between healthy and unhealthy constitutional politics can be found than in the history of ancient Rome. The historian Mary Beard observes that while the Roman republic was born slowly over centuries and was constantly reinvented, there was “no fundamental change in the structure of Roman politics” throughout the long autocracy that followed. The emperor of Rome—and Beard treats all the emperors alike to illustrate how dictatorship operates—was the end of history.
Although healthy democratic families are happily unalike, unhealthy ones are unhappily alike. In degraded democracies, loyalty to a leader supplants loyalty to institutions; the rule of law is attacked as a deep state conspiracy inimical to the interests of the true people; emergencies are fabricated, normalized and weaponized to mobilize supporters while exhausting opponents; elections become combat zones in which the true leader can lose only by means of fraud, and democratic deliberation is replaced by information warfare and disinformation. Populist leaders seek to eviscerate mechanisms of accountability by employing remarkably similar rhetoric across space and time to divide citizens into followers and enemies. Degraded democracies may prove enduring and thereby avoid succumbing to totalitarianism but George Orwell was right to argue that the path to unhappy outcomes is paved by the impoverishment of political discourse.
Degraded democracies are inhabited not only by unhappy, but also by confused citizens. In a recent poll in Pennsylvania—and given the vagaries of the electoral college Pennsylvania may well decide the national election—seventy percent of the state’s citizens said that protecting American democracy was the most important issue they faced but vehemently disagreed “about which candidate is best equipped to protect democracy.” The confusion exhibited by ordinary citizens is amplified by deep cleavages in the constitutional culture. When the Supreme Court decided Trump v. United States (2024), the Court was bitterly divided over whether Donald Trump’s attempt to upset the certification of Joe Biden’s election as president was a threat to the republic and consequently enjoyed no immunity from criminal prosecution or whether his actions overlapped with the kind of work that energetic presidents might potentially be called to do and consequently should enjoy a high degree of immunity. The political violence that wracked republican government in nineteenth century Latin America as well as in the United States was fueled by deep disagreements over the meaning of constitutional texts. Indeed, the problem is a global one: contemporary dictators borrow the forms of liberal constitutionalism to buttress their soft power.
Although contemporary dictators and would-be autocrats abuse elections and speech to mobilize and confuse voters, they have a difficult time in persuading educated voters. Democratic theorists have long posited the importance of education in sustaining democracy. Education matters in resisting autocracy as well. The support and opposition to Donald Trump, for example, breaks sharply along levels of education. Over 700 current and former national security officials from both parties signed a public letter stating, “Vice President Harris defends America’s democratic ideals, while former President Trump endangers them.” The political scientists Sergei Guriev and Daniel Treisman conclude in Spin Dictators: The Changing Face of Tyranny in the Twenty First Century (2022) that it is the “robust resistance of informed citizens” that “secures the institutions of free government and makes them work.”
Alexander Hamilton in The Federalist 68 praised the electoral college as a bulwark against the advent of a demagogue as it would empower those with the most knowledge, that is political elites such as himself, to select the President of the United States. Hamilton managed to be completely wrong about the excellence of the electoral college while being right that education and knowledge matter in resisting the blandishments of a demagogue. Political parties arose soon after the founding of the Republic and party insiders, who cared about the long-term health of their parties, did a tolerable job of not picking corrupt demagogues. It was political parties that made our complex constitutional machinery of government work.
The two political parties, however, abandoned their gatekeeping role when they adopted reforms following the 1968 Democratic convention that reduced the power of party insiders while enhancing that of primary voters. By adopting a plebiscitary presidential candidate selection system, the United States lurched into uncharted constitutional waters. Once a demagogue crosses the low barrier of winning the support of party partisans who vote in primaries, the fate of the republic hinges on the electoral college. History has proven Hamilton wrong in touting the excellence of the electoral college as no provision of the Constitution has been the object of more failed reform efforts. It turns out that one of the consequences of that late eighteenth century decision is that elections in twenty-first century America are decided by a few states. In a closely divided electorate, the fate of the republic may hinge on a handful of low information voters happily situated in the so-called battleground states. In the twenty-first century, the electoral college is facilitating the election of a demagogue to the presidency of the United States.
Suggested citation: Miguel Schor, The Anna Karenina Principle and Democratic Erosion, Int’l J. Const. L. Blog, Oct. 2, 2024, at: http://www.iconnectblog.com/the-anna-karenina-principle-and-democratic-erosion
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