Reckoning with American democracy’s enemies within, By Katharina Pistor




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Though it has not come as a surprise, the attack on the credibility of the 2020 election by US President Donald Trump and Republican Party cannot simply by brushed under the rug of history. Once the norms that underpin constitutional democracy have been tossed aside, there is little left to fight for.

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 democratic institutions, there would be little reason for concern. Trump’s behaviour could be dismissed as a temper tantrum, and that of Republican leaders as a cynical exercise in humouring a narcissist adored by 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 misbehaviour of a single person or cronies, but from the realisation that even a well-established democracy is defenceless 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 mobilised 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 theatre for high-pitched inaction. The judicial appointment process has been blatantly politicised. The most basic principles of constitutional democracy have been abandoned.

Under these conditions, striving for “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- 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 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 , they also produced party fragmentation and political ineffectiveness. With elected authorities incapable of addressing the country’s urgent needs, anti-democrats happily labeled the a “twaddle shack” (Schwatzbude) and moved to seize 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 dignity as its core value, and declared sacrosanct the principles of democracy, federalism, the rule of , and the division of .

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 . 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 Union is also currently being attacked from within. The of Poland and Hungary – countries that emerged from authoritarian rule not too long ago – are blocking the EU’s €750 billion ($890 billion) fund that is meant to mitigate the long-term economic damage wrought by COVID-19. motive is not budgetary prudence, but rather retaliation for the EU’s efforts to make its funding conditional on compliance with the rule of . Absent a compromise, the EU will have to accept inaction or find a solution outside the EU treaty framework.

Such manoeuvers would not be , 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 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 of all. Too often, politicians who come to 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 , 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 helpers 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, of Comparative Law at Columbia Law , is the author of The Code of Capital: How the Law Creates Wealth and Inequality.