Show sidebar

The U.S. Constitution and the Risk of Democratic Backsliding

Is there a real possibility of the erosion of democratic institutions toward authoritarianism in the United States? What can the experience of other countries tell us about how such democratic backsliding might happen, and is the U.S. Constitution well equipped to prevent such authoritarian methods from working? As comparative constitutional scholars with an ongoing interest in how constitutional systems thrive and why they fail, we have a professional interest in the relationship between democratic backsliding and the U.S. Constitution. As citizens, we have abiding commitments to our democracy that makes the question important to ask and effectively answer.

At Ryan Goodman’s kind invitation, we present in this blog post some preliminary findings from a working paper entitled “How to Lose a Constitutional Democracy.” We focus here on the relationship between what we call in the paper “constitutional retrogression” and specific elements of the U.S. constitution. Using the constitutional experience of other countries as a guide to understanding democratic backsliding will, in our view, engender a better appreciation of the standing risk of such decay in the U.S. context.

As a starting point for comparative analysis of this question, consider the following chart, which shows the changing number of democracies, autocracies, and “hybrid” regimes (a term we explain below) over the last three decades. As the uptick in the latter two categories suggests, there is some reason to think that the famous notion of a modern  wave of democratic countries may well have peaked.

What is also striking is that there are two distinct alternatives to democracy that have emerged in meaningful numbers. There are both authoritarian regimes on the one hand, and a meaningful number of “hybrid” regimes on the other. The latter are neither pure democracy nor unfettered autocracy, but instead are complex amalgams of the two. Venezuela, Poland, and Hungary provide examples of hybrid regimes; Turkey and Russia are best thought of hybrid regimes that have tipped or are tipping into wholesale authoritarianism.

One of the conceptual contributions of the paper is a distinction between two kinds of democratic backsliding, one of which leads to authoritarianism and the other that usually (though not always) to a hybrid regime. We call these reversion and retrogression respectively. Major American constitutional scholars from Clinton Rossiter through Bruce Ackerman have focused on the former. But we think the experience of other countries suggests retrogression toward a hybrid regime that mixes democratic and authoritarian elements is more likely. What is more, the constitutional checks against retrogression turn out to be surprisingly weak. 

Authoritarian reversion is a wholesale, rapid collapse into authoritarianism. Such a wholesale movement away from democracy most often occurs through the mechanism of a military coup d’état (as in Thailand, Mali, and Mauritania) or via the use of emergency powers (most famously, in Weimar Germany). As of 2005, by our count, roughly 75 democracies had experienced such events.

But not all backsliding is either sudden or complete. The existence of more subtle forms of institutional erosion requires a discrete concept. We coin the term “constitutional retrogression” to capture a more incremental (but ultimately substantial) decay in three basic predicates of democracy—namely competitive elections, liberal rights to speech and association, and the rule of law necessary for democratic choice to thrive.

Retrogression is the most common form of modern democratic decay. A recent study of democratic trends between 1974 and 2008, for example, identified 53 instances in which a democracy shifted either to a “hybrid” or a fully “authoritarian” regime. In 48 cases, the shift away from democracy was not absolute, but incremental: In contrast, instances of sudden reversion are rare, and the number of coups has declined around the world in recent years.  We develop a metric that identifies 37 instances of constitutional retrogressions in 25 different countries in the postwar period. This suggests that roughly one out of eight countries will, in its lifespan, experience constitutional retrogression.

These comparisons with other countries illuminates not just the size of the retrogression risk, but also illuminates its mechanisms.  Specifically, it teaches that leaders who want to engineer a retrogression typically use some combination of five mechanisms:

  1. Constitutional amendment, in particular to remove limits to executive terms;
  2. The elimination of institutional checks in the legislative or judicial branches, or in other independent institutions that promote accountability;
  3. The centralization and politicization of executive power, including purging or intimidating the meritocratic state bureaucracy;
  4. The degradation of a shared public sphere through intimidating the media and civil society; and
  5. The elimination of political competition, either through direct attacks on competitors, or through rigging the electoral machinery to permanently entrench one side.

Understanding the risk of retrogression, we think, requires attention to each of these mechanisms, and thought about how the Constitution impedes them here in the United States.  With the exception of the first of these mechanisms (constitutional amendment), we are skeptical that the U.S. Constitution does much to constrain any of these pathways away from democracy. In some ways, it might even facilitate such a shift.  Even assuming official compliance with the law, therefore, we think that the road of constitutional retrogression is a relatively open one.

To begin with, a president with authoritarian impulses, acting with an acquiescent Congress, could easily disable other branches’ institutional checks. A new president with an aligned Congress is unlikely to face inquiries or demands for information. Federal courts, to the extent they are not indifferent to that president’s agenda, may well lack incentives or confidence to intervene in any but incremental ways.

Others have suggested the possibility of bureaucratic resistance posing a sustained drag on backsliding.  But we are less sanguine. In the U.S., unlike many other democratic contests, civil service protections are merely statutory or customary in nature and not constitutional. It is not inconceivable that an administration with authoritarian tendencies might go substantially further than earlier ones, for example, in aggressively politicizing the prosecutorial arm of the Department of Justice and the Internal Revenue Service in ways that compromise effective democratic competition.

What of the public sphere? The First Amendment does contain robust protections against aggressive use of libel law or banning associations. But it also precludes the creation of autonomous state institutions to check against “fake news” (as the German government has proposed). There is scant constitutional protection against verbal threats and intimidation against journalists seeking to follow basic canons of journalistic ethics, and no protection against official misinformation. Freedom of information is not constitutionalized, and courts have been deferential and denied disclosure when national security is invoked. The resurgence of hate speech targeting dissenting voices and minorities (or proposals to single out such people) also contract the public sphere.

Finally, we are already in a situation in which the rules of partisan competition are being rewritten and norms of reciprocity undermined. Recent developments in North Carolina may well be a bellwether (as well as a useful example of federalism’s potential to act as an accelerant to backsliding). Should the machinery of the federal government be turned against a White House’s political competitors—for example through aggressive politicization of U.S. Attorneys of the kind perhaps last seen in 2006, or via capture of the IRS’s capabilities—we think that the threat of retrogression would be substantially greater.

In sum, we think the Constitution supplies little protection against retrogression. If a president is agnostic about constitutional rules, and backed by a partisan coalition bent on entrenchment, we think that they will have many instruments at their disposal. Whether American constitutional democracy survives such an attempt depends less on the robustness of our formal, institutional defenses—which, we emphasize, are not particularly strong—but on the decisions of discrete political elites, and the contingent and elusive dynamics of popular and elite mobilization around the norms that render democratic life possible.

Image:  Ian Dyball/Getty 

Tags: , , , ,


About the Authors

Leo Spitz Professor of International Law and Professor of Political Science at the University of Chicago Follow him on Twitter (@tomginsburg).

Frank and Bernice J. Greenberg Professor of Law at the University of Chicago Law School