Symposium | Introduction | The Legacies of Trumpism and Constitutional Democracy in the United States

[Editor’s Note: In light of this week’s inauguration, I-CONnect is pleased to feature a symposium on the state of US constitutionalism after Trump. This introduction will be followed by five posts exploring different aspects of the U.S.’s constitutional democracy in comparative perspective.]

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—David Landau, Florida State University College of Law, and Miguel Schor, Drake University Law School

The election of Donald Trump, the Brexit referendum in 2016, and the rise of populist authoritarianism around the globe spawned a raft of academic work exploring democratic erosion. Americans woke up after the 2016 elections and realized something that citizens in the so-called “developing world” have long known, which is that democracy can be fragile and entails hard work. American comparativists, particularly those working on dysfunctional democratic orders, found their work suddenly enormously relevant to domestic debates.

Scholars sometime divide the world’s democracies into two broad categories. One category is reserved for democracies located primarily in the “developing” world. These are referred to as “flawed” democracies or democracies with adjectives. They have periodic elections but institutions are a poor check on power. They operate along authoritarian pathways as institutions offer few constraints and elites engage in little bargaining. The second category is employed for democracies located primarily in the “developed” world. These are called consolidated democracies. These have elections, a thick civil society, a free press, and robust institutions. Citizens respect elections and elites compromise.

The Trump presidency complicates this picture considerably. Populist authoritarianism made inroads in Trump’s America as loyalty to the leader displaced loyalty to institutions and emergencies were normalized to mobilize supporters and exhaust opponents. Trump, of course, was never able to fully consolidate his power given the multiplicity of sources of authority in the United States. The 2020 election proved enormously divisive as was the case with elections in a great many polities that underwent a small d democratic transition from authoritarian regimes.

This week, the Trump presidency will end. Indeed, Trump’s post-election behavior has perhaps posed his most severe threat to democracy yet. Starting well before election day, he reportedly hatched a plot to claim and secure victory regardless of the actual election results. And he followed up on the plan, repeatedly (and with the open backing of his Republican allies) lying about the results, making false claims of fraud, filing numerous unsuccessful claims in the courts, and pressuring state and local officials to alter or overturn results. This antidemocratic plot came to a head on January 6, 2021, when President Trump riled up a violent mob outside the White House, which then attacked and invaded the Capitol while Congress was in the process of certifying election results.

These events led to the House rapidly impeaching Trump for the second time in a little over a year, and only the fourth time in U.S. history. A Senate trial on the extraordinary charge of inciting insurrection will follow, sometime after he has left office. Donald Trump’s first impeachment was a classic example of impeachment employed as a constitutional tool aimed at removing a bad actor from the democratic scene. Donald Trump’s second impeachment, on the other hand, is obviously not aimed at removing him from office, but will instead look to disqualify him from seeking the presidency again in the future. More ambitiously, it may seek to change the background assumptions, or constitutional culture, that informs democratic competition in the United States, making the election of a future demagogue less likely. Whether the impeachment trial can succeed in any of these goals, however, remains to be seen.

In light of these events, and with Joe Biden taking office tomorrow, the time seems ripe for an appraisal of the state of U.S. constitutional democracy after Trump. The blog posts in this symposium are selective, but they explore a number of important comparative issues.

One theme of this symposium is how to evaluate or weigh the current state of US constitutional democracy. It is hard to be too optimistic, given recent events. But one might also suggest a slightly different perspective on these recent crises: the constitutional system proved fairly resilient against Trump’s attempts to bend institutions to his will.

Exactly why is a fairly hard question to answer. Perhaps the decentralization of the messy U.S. election system actually proved to be a strange kind of strength, making it harder for Trump to steal the election. Despite the pandemic and overwhelming political pressure, state and county election officials ran a free and fair election, with the highest turnout of voting eligible population since 1900. In the aftermath of the election, judges were almost completely unreceptive to President Trump’s increasingly bizarre legal arguments that results should be overturned. This does not mean that the US judiciary, which is increasingly polarized, is functioning well or is serving as an effective long-term guardian of constitutional democracy. But unlike in some other nations, there was no judicial appetite (even for judges appointed by Trump himself) for a direct attack on democratic outcomes. The Trump era may be seen as a “near miss” for U.S. democracy. The question is whether it survived by a combination of Trump’s incompetence and sheer luck, or whether the transition to a Biden presidency reveals hidden reservoirs of strength in the US constitutional system?

A second key theme is a variant on the structure vs agency problem – to what extent are the U.S.’s problems isolated to one extremely dangerous political leader, and to what extent do they reflect deeper structural factors? There is little doubt that Trump posed unusually sharp dangers to American democracy. His rhetoric and behavior were eerily similar to that of authoritarian leaders abroad. In his waning days, Trump led what some have described as an attempted coup against U.S. democracy, and it is for good reason – flagrant disregard of constitutional norms – that he now owns half of all presidential impeachments in U.S. history. Furthermore, his administration’s policy responses across a range of issues, such as the COVID-19 pandemic, were widely derided as disorganized, incompetent, or as a form of “underreach.”

But the posts in this symposium also warn against any facile thinking that the removal of Trump from office will equate to a quick or easy fix. They highlight deeper structural problems – the rigidity of the US constitution, a dysfunctional party system and authoritarian influence over the Republican party, and the sclerotic constitutional architecture of federalism – which are likely to cause problems for years to come. With Biden holding narrow majorities in the House and Senate, but facing a judiciary loaded with new Trump appointees, a Supreme Court with a durable conservative majority, and many hostile state governments, how effectively will he be able to govern? For example, can the U.S., with its complex and fragmented federal system, find a more effective healthcare and economic response to the COVID-19 pandemic? In the longer term, can it grapple with economic inequality, ongoing struggles for racial equality and justice, and other questions of social justice? To ask these questions is to highlight that after Trump, many of the deeper structural issues seem to boil down to whether even an experienced political actor like Biden can still wield the U.S. constitutional machinery to actually govern. To the extent the U.S. constitution is no longer up to the task in its current form, its rigid amendment rule makes formal change quite unlikely, at least without (the unthinkable?) wholesale replacement of the constitutional text.

What follows are brief rundowns of the five posts in the symposium:

(1) First, Andrea Katz asks how close the January 6 storming of the capitol was to a coup, or more precisely to authoritarian overthrow. She argues that the events of January 6 were clearly a dangerous attack on democracy; more deeply, she argues that they highlighted the alarming long-term trend towards erosion of democratic values in US constitutional culture. Thus, the events suggest the continuing vulnerability of American constitutional democracy, and the need to defend it.

(2) Second, Aziz Huq, David Landau, and Tom Ginsburg spotlight the problem of impeachment in US democracy, and the issue of disqualification that is at the core of the new Trump impeachment process. Drawing off of recent work, they show that impeachment processes can help to resolve crises and often have pro-democratic rather than anti-democratic effects, although there may be risks in some countries (Brazil, for example) of overreliance on impeachment mechanisms. Moreover, they highlight that the disqualification or exit from democratic politics, which can take a number of different forms, is a question that would benefit more from comparative study, and which involves a complex mix of costs and benefits.

(3) Third, Jim Gardner considers the relationship between federalism and constitutional democracy in the United States. He expresses skepticism of arguments that U.S. federalism would necessarily safeguard democracy. For example, he notes that illiberal or authoritarian impulses have already spread to some subnational governments, such as North Carolina and Wisconsin. And he argues that a stronger authoritarian actor than Trump might also have eroded democracy in opposition-held states like California and New York.

(4) Fourth, Kim Lane Scheppele looks at the problematic health of parties in U.S. politics. Drawing on comparative analysis, she warns that most cases of democratic collapse around the world have been preceded by the collapse or erosion of party systems. She points out that autocratic outcomes often occur the second time an authoritarian leader or movement takes power, rather than the first. She argues that anti-democratic and anti-constitutional forces within a substantial faction of the Republican party thus bodes ill for the health of American democracy going forward, absent a significant overhaul of the party.

(5) Finally, Sandy Levinson concludes the symposium by arguing that the U.S. constitution has in many ways become the core problem, rather than the solution or a document to which we should aspire to return. The institutional design of bodies such as the Senate, he argues, no longer produces coherent or effective policy change. And most importantly, the rigidity of Article V’s amendment procedures makes even serious discussions of formal constitutional changes quite rare. He calls on the revival of a spirit of engaged discussion about the basic constitutional structure of US institutions, although he is pessimistic this will occur.

As readers can see, the blog posts in this symposium cover a lot of ground. There are, of course, many other compelling questions that could be asked from a comparative angle. For example, the role of what Vicki Jackson calls “knowledge institutions,” and particularly media fragmentation and polarization, in driving current dynamics. Scholars are having a lively debate whether new information technologies are undermining the marketplace of ideas. There is considerable concern that increased economic inequality, globalization, and climate change are fueling populism and political instability.

In addition to the global factors undermining democracies, there are also questions about whether America’s exceptional constitutional order is facilitating democratic erosion. America’s free speech exceptionalism makes it difficult for the government to respond to the different ways that speech may harm democracy. America’s presidential system was long considered a successful outlier. But separation of powers has become increasingly dysfunctional and this, in turn, has created a demand side for a demagogue’s claims that “I alone can fix it.” Presidentialism, moreover, is somewhat more open to capture by outsiders long on media exposure but short on governing experience than is parliamentarism.

Perhaps most fundamentally, we aim to continue and deepen conversations – thrust upon Americanists with the election of Donald Trump four years ago – about the many ways in which U.S. constitutional dynamics are not sui generis, but are subject to the same kinds of forces driving democratic and constitutional instability in many other countries found in the world. The least productive and most dangerous response would be an academic return to the parochialism that has traditionally marked too many studies of U.S. constitutional law.

Suggested citation: David Landau and Miguel Schor, Symposium — Introduction: The Legacies of Trumpism and Constitutional Democracy in the United States, Int’l J. Const. L. Blog, Jan. 19, 2020, at: http://www.iconnectblog.com/2020/01/symposium-introduction-the-legacies-of-trumpism-and-the-state-of-constitutional-democracy-in-the-united-states/