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American Democracy Is Not Endangered by Trump

There have been many Democrats and liberals arguing that Trump is not just wrong and foolish, but a danger to democracy. Tom Ginsburg and Aziz Huq put forward a more sophisticated version, arguing that while Trump poses no danger of a coup, American democracy may face incremental erosion. But their arguments are unpersuasive as a matter of sociology and law. Moreover, they ignore, as is all too typical, the burgeoning administrative state’s danger to democracy.  And I say this as one who has substantial reservations about the President.

First, they analogize American democracy to that in Poland and Hungry, where they contend that populist authoritarian parties have degraded democracy. But United States citizens are far wealthier and that wealth provides greater stability. We are not just “fairly wealthy” but very wealthy. And these nations are still scarred by a recent totalitarian past, making their institutions less secure.

The authors also worry that the rule of law may be at risk here because of the deference that the judiciary shows the political branches. This is an odd claim, because there is an extensive literature, going under the rubric of “We the Court” that suggests that the modern courts show little deference. Recently, for instance,  lower courts have invalidated Trump’s executive order wholesale, although the legal arguments against its entire scope are frail. And the Supreme Court invalidated the Military Commissions Act passed by Congress and signed by the President within a half decade of 9/11.   The authors are concerned that Trump may nominate deferential judges to the judiciary, but the candidate he has nominated seems disinclined to deference to the executive and that is the general position of the conservative elite whom he has decided to follow on this subject.

The authors fear that since Congress is controlled by the same party as the President, they will not restrain anti-democratic actions by the executive. But the President has only a narrow majority in the Senate and many in that majority depend on independents to be reelected. We have already seen significant criticism from Republicans of the President’s actions and will see more unless he manages to boost his popularity by appealing to independents.  Gerrymandering cannot change the election districts of Senator and despite gerrymandering the House will change hands when independents substantially change their view of the President, as happened in 2006.

The authors fret that civil servants may be fired. But there are strong protections for federal bureaucrats in our laws and it is implausible to believe that the Republican Congress could substantially change them, let alone fire individuals, given both the filibuster in the Senate and the substantial number of civil servants in some Republican districts.

The civil service is, however, an excellent example of another kind of danger to democracy.  The average member of the federal bureaucracy is to the left of the median Democratic voter. As a result, the bureaucracy can frustrate to a not insubstantial degree democratically elected Republican administrations.

Ginsburg and Huq’s fail to recognize that democracy can be eroded not only by authoritarians but by entrenched elites (such as a powerful policy making judiciary rather than one that just enforces the Constitution’s text as well as as the large civil service needed to supervise the administrative state) that they seem to believe are necessary to protect democracy.  Donald Trump was elected precisely because many Americans feared that an unresponsive government controlled by elites made economic stagnation impervious to democratic change.

Reader Discussion

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on March 06, 2017 at 18:36:11 pm

John--

I don't know the particular argument with which you are concerned here. But it seems at least possible to me--and I would venture to say likely, that you have not engaged the broadest concerns of those who worry that Trump is a danger to our democracy, nor that you have engaged with the best and strongest arguments of those who express them. I find it disturbing, for example, that both Richard Evans and Tim Snyder, which is to say our foremost and most profound historians of 1930s Germany, have both in recent weeks commented at some depth regarding what they see as strong parallels between the era they study and contemporary America. Similarly, voices like Masha Gessen have drawn similar parallels with contemporary Russian autocracy. Gessen does not strike me as an uninformed or unprincipled observer, nor as someone who is naive, nor as someone who is an uncritical defender of modern liberalism. Voices as diverse as David Frum and Anis Shivaji--strange ideological bedfellows, you have to admit, those two--prefer to draw analogies with 1920s Italy.

I think it is entirely possible to agree with you that the modern administrative state represents a dire threat to liberal (in the original, classical sense) society, and at the same time perceive in Trump a real potential for the Machiavellian moment, the death of the Republic. I agree with most of what you write here, but nonetheless take no comfort from your analysis.

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Kevin Hardwick
on March 06, 2017 at 18:38:50 pm

John--

I don't know the particular argument with which you are concerned here. But it seems at least possible to me--and I would venture to say likely, that you have not engaged the broadest concerns of those who worry that Trump is a danger to our democracy, nor that you have engaged with the best and strongest arguments of those who express them. I find it disturbing, for example, that both Richard Evans and Tim Snyder, which is to say our foremost and most profound historians of 1930s Germany, have both in recent weeks commented at some depth regarding what they see as strong parallels between the era they study and contemporary America. Similarly, voices like Masha Gessen have drawn similar parallels with contemporary Russian autocracy. Gessen does not strike me as an uninformed or unprincipled observer, nor as someone who is naive, nor as someone who is an uncritical defender of modern liberalism. Voices as diverse as David Frum and Anis Shivaji--strange ideological bedfellows, you have to admit, those two--prefer to draw analogies with 1920s Italy.

I think it is entirely possible to agree with you that the modern administrative state represents a dire threat to liberal (in the original, classical sense) society, and at the same time perceive in Trump a real potential for the Machiavellian moment, the death of the Republic. I agree with most of what you write here, but nonetheless take no comfort from your analysis.

Best wishes,
Kevin

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Kevin Hardwick
on March 06, 2017 at 18:42:15 pm

"they analogize American democracy to that in Poland and Hungry, where they contend that populist authoritarian parties have degraded democracy. "

This statement alone is sufficient to identify these two as uninformed on both Poland / Hungary and thier own country.
Quite a difference between those two countries formerly subject to many decades of Communist rule where the citizenry came to believe (recognize, actually) that the Rule of Law was simply whatever the party in power decreed the rule to be and consequently employed similar tactics when these new *populists assumed power.

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gabe
on March 07, 2017 at 08:18:05 am

"Ginsburg and Huq’s fail to recognize that democracy can be eroded not only by authoritarians but by entrenched elites . . . ."

Why do "entrenched elites" not qualify as authoritarians? I think Prof. McGinnis concedes too much to the other side.

Trump is an unattractive figure, granted, but he seems too uninformed, too lazy, too ignorant, too lacking in support from the most powerful sectors of our society (notably, the media and corporate elites), and too lacking in commitment to any coherent governing program to be much of a threat to whatever we have left of democracy and liberalism (in the sense of "liberty," not as a synonym for leftism) in this country. For the most part, in spite of his bluster, Trump has stocked his administration with establishment figures who would have fit smoothly into any previous GOP administration and are high unlikely to be interested in turning the country into a banana republic.

Further, it is difficult to take seriously squawks that Trump is some kind of threat to democracy from people who apparently believe that the country should be run by the federal judiciary and permanent bureaucracy without interference by, or concern for the interests of, the electorate; who supported the previous president who believed he could change the law unilaterally when Congress was not sufficiently pliant; and who support a party that has proposed repealing the First Amendment. The professed concern for "democracy" by the Left and its fellow travelers sound to me like the fabrication of a pretext for drastic changes to our political system, once the Democrats regain control of the federal government, to avoid any further challenges to the Left's domination of our society.

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djf
on March 07, 2017 at 08:37:08 am

Incidentally, for those looking for parallels to the Europe in the 20s and 30s, the US has indeed been suffering from intermittent mob violence over the past few years, most recently the suppression of Charles Murray's speech at Middlebury College. However, these mobs have all been aligned with the Left and, since the 2016 campaign, anti-Trump.

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djf
on March 07, 2017 at 11:59:24 am

djf:

Yep, and it has always been so. It is the Left that condones, compels and initiates violence. Their cohorts in the media then proceed to attribute said violence to some amorphous sentiment of hate resident in and promulgated by supporters of The Trumpster (or previously George W, etc).

The Trumpster is an unusual fellow combining the cunning of the successful executive and the predilection to respond forcefully and vociferously to attach that is to be found in social stratas other than the middle class, which apparently has an aversion to anything other than a *supposed* civility. This often results in subservience to one's opponents who neither place a high value on, nor practice, civility. The Trumpster has apparently incorporated some of the traits of the working class of the Borough of Queens. (It is why, being one, I rather get a kick out of him).

Let us not mistake an animated disposition for animosity toward our Republic.

As you rightly point out, his appointments are trending toward Establishment types, perhaps, too much so in some instances.

And as I have argued previously, would one not find it exceedingly peculiar that a man, having spent his entire professional life contending with the *tender mercies* of autocratic entrenched bureaucracies, would support or encourage the further expansion of those very entities that have suppressed both business and liberty. If one is to listen to the message(s) emanating from this White House regarding the Administrative State, one can only be assured that The Trumpster is unliukely to support further expansion of the "anti-democratic" mode of governance that has prevailed these past 60 years.

Additionally, let it be remarked that the *undoing* of previous autocratic mandates by the Administrative State may require the deployment of similar tactics. But on is reminded of William F. Buckley's story of the Boy Scout and the Brute, both of whom push an old lady in front of a bus, the former to remove her from the path of the bus, the latter for sheer spite. Buckley asks: Is there an equivalency between the two?

What say you readers?

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gabe
on March 07, 2017 at 15:43:06 pm

If as you say: "The average member of the federal bureaucracy is to the left of the median Democratic voter. As a result, the bureaucracy can frustrate to a not insubstantial degree democratically elected Republican administrations." Why shouldn't Republicans do everything they can to abolish civil service laws?

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Devin Watkins
on March 07, 2017 at 17:56:19 pm

Here, here!!!

Down with the Pendleton Act (and it's progeny). Or at least end the practice of allowing "political' appointees to convert to *career* civil service employees during the late stages on an Administration. Once a political appointee, (almost) always a political appointee subject to immediate termination by the incoming administration.

Now here is one area where I agree with nobody. really.
There was a value in machine politics. You were able to appoint those that supported, were beholden to you, to positions within the Administration. Consequently, the opportunity for internecine warfare, such as we are presently observing, was greatly diminished. What do they say, "Personnel is Policy" - if you ain;t got the personnel to implement policy, it ain't getting implemented. Even worse, if the holdovers from a previous (and hostile) administration are empowered to craft / implement policy, you are doomed to failure / frustration.

Nope, I'll take machine politics as the particular corruption associated with the machine was known, generally transparent and did not work to the detriment of liberty. As it is, that form of financial corruption is still present with our *improved* system of civil service but is grace with an ideological corruption.

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gabe
on November 02, 2018 at 05:47:15 am

[…] friends of liberty who do not agree with the latter proposition, as I do not, this election is an important one for the enduring issue of politics: the size and reach of […]

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“Make America Great Again” v. “Make America Europe”

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.