Perhaps a better constitution would be what Lash proposes, with less opportunity for mischief by judges, but that is not the Constitution we have.
Nathaniel Persily, a professor at Stanford Law School, wonders whether democracy can survive the internet. The immediate impulse for his question is the election of Donald Trump, who used social media to get around the established institutions, principally the mainstream media, that mediate between candidates and citizens. In particular, Persily fears that fake news circulating in social media empowers demagogues, of which a prime example in his mind no doubt is Donald Trump himself.
The essay is an exemplar of progressivism, because it puts its faith in institutions dominated by progressives to safeguard democracy rather than the Constitution. But to one who is not a progressive, Persily’s fears are unwarranted and his solutions are a source of concern. Begin with fake news. It is not a phenomenon of the internet. Political campaigns in the early republic were vicious because of outrageous and often false charges in the partisan press. Adams was said to be a monarchist focused on establishing a dynasty with his son; Jefferson was accused of being an atheist. He was also alleged to have sired children with one of his slaves. That last bit of dramatic information would have been labelled as fake news at the time by the self-designated great and good—the real fact checkers of any age–, but it appears to have been true. It is unclear how much effect fake news had on the election results back then, but Persily admits he cannot show fake news has large effects now either.
Persily’s definition of fake news that should concern us is also very convenient for the progressive cause. He is only worried about fake news whose only purpose is to make money rather than satirical news, like the Daily Show. But these satires might be thought to have even more effect on political opinions than fake news, given their television presence. And they convey falsehoods as well, making a consistent caricature of conservative arguments.
Persily does not even address the complaint that his favored institution to guide democracy– the established news media– was and is biased in favor of left-liberals. But there is enormous evidence of this. Reporters in the mainstream media are as uniformly left-liberal as law professors. And that means the way they frame issues is usually in the left-liberal direction. Indeed, even if one thinks that fake news is dangerous, the bias of the mainstream media helps fake news thrive, because many people have good reason not to trust the media. And hoping that Google and Facebook will take an active role in policing the news is likely to drive people to alternative sites, if as expected these institutions show political bias themselves.
Fortunately, it is the Constitution, even as weakened as it is by progressivism, that makes it hard for demagogues to destroy democracy. As I have argued before, the checks and balances have been constraining Donald Trump, as they have all Presidents. The Constitution would work a lot better, if progressives had not given the federal government almost limitless power. That power gives more incentives for demagogues to run and less resources for democracy to resist them, because even the conscientious citizen has so much more difficulty watching over the actions of his rulers.