Cautionary tales from other populist regimes – follow up

November 30, 2016

Here’s a follow up from Kim Scheppele:

Just saw this piece from the NYT today that reports on the new research of Yascha Mounk and Roberto Stefan Foa that analyzes the World Values Survey data and concludes that liberal democracies are in danger in the US and beyond:   www.nytimes.com/2016/11/29/world/americas/western-liberal-democracy.html.  The new work shows plunging support for democracy in the US, UK, Australia, New Zealand, the Netherlands and Sweden and it is forthcoming in the January issue of the Journal of Democracy.

Their earlier paper (from which I excerpted the first table in my earlier post) can be found here:  http://www.journalofdemocracy.org/sites/default/files/Foa%26Mounk-27-3.pdf.    It’s well worth the (depressing) read.  Both their work and mine point in the same direction – toward the conclusion that once-stable democracies are in danger of coming unglued first through erosion of public support (Mounk and Foa) and then through the election of anti-constitutional populists by fed-up voters who support these leaders as they break the constitutions they inherited (me).


Cautionary Tales From Other Populist Regimes

November 30, 2016

This is a post from Kim Lane Scheppele, at Princeton University, which is chillingly accurate, as Kim usually is, and which I am re-posting with her permission from the lawcourt and conlawprof listservs:

While we’re on the subject of learning a lot from regimes that have been in this difficult place before, I recommend this powerful piece by Turkuler Isiksel, assistant professor of political theory at Columbia (and former LAPA fellow at Princeton):   https://www.dissentmagazine.org/blog/trump-victory-regime-change-lessons-autocrats-erdogan-putin .  She watched Turkey fall under the control of a populist autocrat who won democratic elections and sees some of the same danger signals in the US.   A summary:

Confidence in the exceptional resilience of American democracy is particularly misplaced in the face of today’s illiberal populist movements, whose leaders are constantly learning from each other. Trump has a wide variety of tried and tested techniques on which to draw; already, he has vowed to take pages out of Putin’s playbook. Defenders of liberal democracy, too, must learn from each other’s victories and defeats. Below are some hard-earned lessons from countries that have been overrun by the contemporary wave of illiberal democracy. They could be essential for preserving the American republic in the dark years to come.

I just came back from Chile, where I gave some lectures on the creeping advance of illiberal constitutionalism around the world.   People there asked me how Trump could have been elected in the US, and I showed them this data:  Nearly one quarter of young Americans no longer believe in democracy and since 9/11, faith in the way America is governed has plunged to all-time lows (raised slightly in election years when Obama was elected, but then plunging back again):

[Her first chart, which I cannot copy here, from the World Values Survey, shows older Americans very supportive of our system of government but dissatisfaction rising among younger age groups at twice the rate here as in Europe. Her second chart, from Gallup, shows dissatisfaction rising and from 1972-2013.l

These are danger signals that should have alerted us earlier to the possibilities of Trump.    I might add that very similar danger signals appeared before the election of other populist autocrats of both left and right:  Putin, Erdogan, Orbán, Kaczynski, Correa, Chavez.

There’s a clear pattern here.  First people lose faith in the system.  Then they vote to break it.   And when the new leader decides to trash the constitutional system, he is cheered on by those who want change at any price.   When people wake up to the damage done, it is too late because their constitutional system has been captured.

What I’m worried about — and what Turku Isiksel also observes — is that these populist autocrats learn from each other.   Trump’s affinity for Putin has gotten the most attention, but we should also note that Trump has been exceptionally friendly with Erdogan while Michael Flynn, his new national security advisor, has been knee-deep in ties to the Turkish government (see https://www.bloomberg.com/view/articles/2016-11-17/why-turkey-s-erdogan-is-so-happy-about-trump-s-victory and http://www.nytimes.com/2016/11/20/world/europe/turkey-flynn-erdogan-gulen.html .  In addition, Trump has struck up a friendship with Hungarian “illiberal democrat” Viktor Orbán (see http://www.reuters.com/article/us-usa-trump-hungary-idUSKBN13K0ON  and http://www.theatlantic.com/international/archive/2016/11/trump-putin-nato-hungary-estonia-poland-orban/508910/ ).    All of these illiberal leaders have borrowed autocratic techniques from each other (as my new research project shows).   The techniques have to be adapted anew to each constitutional system that is “cracked” in illiberal ways, but the techniques are not at all dependent on ideology and therefore can be used by regimes of very different political flavors.     (And just to clarify here, I’m not objecting to conservative governments, but to illiberal ones that no longer believe in checked and balanced powers or in the rotation of power from one party to another.)

What is striking about the new autocrats is how legal they are and how they borrow the worst practices from the best countries to shut down the democratic opposition.  For example, Russia’s notorious NGO law that requires all NGOs to report foreign support and register as foreign agents is modeled on the 1938 Foreign Agents Registration Act (FARA) of the US.      ( See the Venice Commission expert report on the Russian NGO law including an analysis of the Russian government’s claim that it was copying FARA at p. 9-10:  http://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2014)025-e .)   After Hungary lowered the judicial retirement age to get rid of the top tier of judges in 2012 so they could replace them with appointees of their own political flavor, Mohamed Morsi did the same in Egypt.   How many of us have argued for fixed terms of judges or fixed judicial retirement ages in the US?   Imagine if those proposals were to gain ground as a political movement just now?     Several populist autocrats in Latin America have added a line-item veto to their powers, which effectively neutralizes parliamentary compromises, erases any hard-won traces of parliamentary opposition, and strengthens the dictatorial powers of the president.  But don’t some American reformers still want the line-item veto – even now?  Just see how that works in Latin America, and be very afraid.    In short, many proposals to reform the “broken” American system have already been used by populist autocrats to consolidate their power through constitutional capture, and we should be very wary of the particular proposals that will be made by a president-elect who has already proposed to govern outside the Constitution as we know it.

If you think constitutional capture can’t happen in the US, then you didn’t know how unlikely autocracy seemed in these other countries before it occurred.    But as Jack Goldsmith has recently argued:  libertarian panic may be the best weapon we have against awful things to come:   https://lawfareblog.com/libertarian-panic-unlawful-action-and-trump-presidency because it at least means we are paying close attention.


The Don in Giovanni

November 30, 2016

Hi folks,

I don’t usually tell stories, but sometimes an ancient story seems to have contemporary relevance.

We know the character I’m thinking about as DON Juan. In Italian it is DON Giovanni, the title character of a Mozart opera. Don is an honorific title. Like some people with whom we share this world, DON Giovanni is a braggart. Leporello, his servant sings “Mille et tres” – in English, “a thousand and three.” Leporello counts the women all over Europe that DON Giovanni has dishonored – six hundred and forty in Italy alone; two hundred thirty-one in Germany; a hundred in France; ninety-one more in Turkey. And in Spain, oh in Spain already one thousand and three. Leporello adds that these girls came from all ranks of society – girls from the city and the country, maidservants, and noble women, members of the aristocracy. DON Giovanni uses different lines for women of every hair color, shape and weight.

The first half of the opera is light-hearted. Peasants dance in preparation for the wedding of Zerlina and Masetto. But DON Giovanni sends Masetto off with a combination of claims that everything will be fine because he, the DON, is a nobleman, plus thinly veiled threats with his sword. Then the DON dangles enticements before Zerlina. Zerlina sings “I would, but I would not.” I remember seeing a young couple sing that duet on the lawn at Chautauqua – I can no longer remember their names but never forget how well that Zerlina sang, coquettish but embarrassed at her own desire, completely understanding Zerlina’s predicament. Zerlina knew that this nobleman might be insincere, merely to dishonor her, but finds herself unable to resist. That first Act ends with others, who know and resent the DON’s tricks, rescuing Zerlina. DON Giovanni comments that the Devil is playing with him.

The second half of the opera is quite different. DON Giovanni has escaped those angry with him and taken refuge in a graveyard near the statue of the character known in italian as il Commendatore, commemorating a man killed by DON Giovanni, and the father of one of the noblewomen who has rescued Zerlina. An inscription at the base of the statue demands vengeance. There in the graveyard, the statue speaks, warning DON Giovanni he is near the end. Cool and fearless, DON Giovanni invites him to dinner. Sure enough, il Commendatore appears at dinner as a white shrouded statue – we could call him a ghost – demanding repentence. DON Giovanni refuses to repent, claiming he fears nothing. They scream at each other, “Repent;” “Never;” “Repent;” “Never.” Like the Donald we have to live with, the DON that was Giovanni [quotes] “loved” women too much to regret dishonoring them.

Mozart, often thought of as writing music that ranges from merely pretty to soaringly beautiful, grabs musical lightning from the Lord and hurls it at DON Giovanni, pulling him down and taking him to Hell.

Mozart’s opera ends with the characters in chorus making clear that is exactly where the DON belongs.

— This commentary was broadcast on WAMC Northeast Report, Nov. 29, 2016.


Melting Pot – Good for Thanksgiving; Good for America

November 22, 2016

I walked by a lovely cathedral in Milwaukee and then another of the same faith one block  away. Then I noticed someone I knew and asked her what gives. She pointed out that the two cathedrals were built by people divided by their ethnic groups. How far have we traveled! These days we happily rub shoulders with people from all different backgrounds.

The melting pot started with the beginnings of our country. The Frenchman Hector St. John de Crevecouer wrote in 1782 that immigrants wanted to become Americanized and “melted” into Americans. In a 1909 novel, Israel Zangwill wrote “Into the Crucible with you all! God is making the American.” And indeed the melting pot is how we created America and Americans. We are all products of that pot. It was the melting pot that made this a great country, rising above the petty jealousies and foolish fights of the Old World.

We invented the public school as the common school where we all went, mixed, learned and made friends. We work together, laugh together and we’ve made America great together. We’ve made America great together because all our ancestors have contributed to the extent of their skills, character and sometimes their genius. We’ve benefitted from everyone.

And we’re safer because of it.

At the end of the nineteenth and beginning of the twentieth centuries, Americans focused on Americanizing the hordes of immigrants arriving on our shores. What did they do? They used the common public schools. And the corporations and the military played a part. They had soldiers and workers who didn’t speak the same language, share the same customs or celebrate the same holidays. Greeks celebrated Christmas but they did it weeks later which created problems for the factories. Business and the military created Americanization classes and some held a ceremony with a huge pot – the immigrants walked in on one side. On the other, out came the Americans!

The military tried separate units by language but by World War I they put people together in the same tents. Soldiers coming home from the two world wars fixed each other up with their sisters and cousins. Suddenly the melting pot went national.

Many of us fought for integrated schools because we know it makes America stronger, makes our kids stronger and safer. We still fight for integrated schools and communities. But we have just lived through a campaign about divisions, denigrating people for where they came from and how they pray. We have spent eight years watching the most vicious refusal to cooperate with one of the most decent men to occupy the White House on Pennsylvania Ave. because he had an African father.

With Thanksgiving in a couple of days it’s worth stopping to remember that the melting pot is well worth a celebration, well worth giving thanks for, for ourselves and for our country. And it’s worth stirring too.

 — This commentary was broadcast on WAMC Northeast Report, Nov. 22, 2016.


Against whom the rebellion?

November 8, 2016

This is my last chance to talk with you before the polls close.

Republicans have argued since the 19th century that the market solves all problems. Democrats by contrast solve economic problems by investing in the people and the infrastructure they need to get their work done – things business can’t partly because of competitive pressures and partly because they can’t reap the benefits of projects that help the general public.

Because getting things done requires both the president and Congress, split government favors the Republicans. Democrats need both branches and both houses of Congress to pass the laws  that make their economic programs possible. Looking back to 1994, there have been only four years in which Republicans did not control at least the Senate.

There is a well-justified need to rebel against the way the economy and the government have been treating you, and the Republicans should bear the brunt of that rebellion.

They insist that investors would use tax breaks to create new jobs in this country. In fact, tax- break beneficiaries can invest the money anywhere. So when Republicans give wealthy businessmen more money, we just get the risk. Their friends get tax breaks; workers get laid off. Their friends close factories; workers look for jobs. Their friends freeze wages; workers look for second and third jobs just to keep going. Their friends downsize for efficiency, leaving workers unemployed, unhappy, and looking for a way to earn a living.

The economy is organized for the guys on top. Dealing with it, making America truly great for all of us, takes more than the Republican nostrum of lowering taxes. Businesses invest where they find markets, workers, infrastructure, and where they’re attracted by the comfort or the cultural life for themselves and those they want to hire. Taxes have little to do with it.

That’s why Obama’s and Hillary’s investment in infrastructure and emerging industries is a better deal to create jobs and opportunities for everybody. There are many reasons to invest in America – unless we let it fall apart, let our infrastructure crumble, and don’t keep it up to date.

Whether Trump understands real estate, where he’s managed to lose lots of other people’s money, Trump clearly doesn’t understand the economy. The old trope about taxes won’t grow the economy. And his promises are cynical because people won’t invest in outdated, high cost, low return industries when there are better opportunities, no matter how much he yells about it.

Which gets back to something else Trump doesn’t understand. Government needs to work on shifting the risk, to make it easier for the vast majority of Americans to find new sources of income, if necessary to move where the jobs are, on more than a hope and prayer of avoiding homelessness. That’s not in the big generalities that so-and-so will fix things. That’s in the details. You work on those; you study those; the job isn’t all in the bluster.

We’ve had enough of Republicans blocking every effort to build the economy, protect its workers and take care of all the people. It’s time for a smart rebellion – not a wild swing with eyes closed.

So do vote if you haven’t already. It matters.

— This commentary was broadcast on WAMC Northeast Report, Nov. 8, 2016.


Cultural Revolution and Human Understanding

November 1, 2016

I encountered two images last night worth talking about.

Our daughter called us after leaving a Hillary rally and she commented that Democratic rallies are love fests where everyone feels welcome. Yes, that’s a large part of my own positive reaction to Hillary. People reflect the candidates – warmth at Hillary rallies, anger at Trump’s.

And in an article on an on-line forum, Neil Siegel wrote “The consequentialist concern that traditionalists will be branded as bigots is sufficiently serious for Justice Alito that it counts as a reason for the Court to reject” constitutional claims.

I identify with our daughter’s reaction. But Siegel’s comment makes clear one of the reasons my former student, now vice president of a major news organization, wrote me that he understands the feelings of many good people who have been drawn to Trump’s banner. Part of that is the economic struggle of America’s working class, a subject I’ve repeatedly tried to address. But part is the culture war which I’d like to address today.

It’s often hard to win without gloating. And conservatives have been no better at it than liberals. But it’s important. That’s not to say the victories we liberals are fighting for are for sale. We want to welcome, protect, show warmth and respect toward all kinds of people who were once despised. We’ve shared many victories with our African-American friends without managing to get them the fair shake in this life that they deserve. But that circle of friendship needs to reach all those who are struggling in this challenging world.

Living as a minority of one in a distinct community reveals the warmth, welcome and dignity of sharing each other’s lives. Born in a predominantly Jewish part of Brooklyn, if I can be permitted to address it from my personal experience, I spent summers in Christian Chautauqua and felt the love and welcome. Born a few years before the best universities in the country decided to drop their quotas, I took my high school college advisor’s suggestion to apply to Princeton and was surprised when I went for an interview by their encouragement to come. By the time I applied to law school, the welcome this Brooklyn kid got was less surprising. When I left Yale, I enjoyed another welcome by the legal staff of the NAACP and then in the Peace Corps by the people I came to know in Iran. I discovered a long time ago that the fears of others’ reactions were my fears. I went south to meet my future wife’s Baptist family and got one of the most important welcomes of my life. I hope they felt the same from me.

So opening up to others now comes easily to me. But I too understand the depth of the cultural revolution. I hope we can extend that welcome so that everyone can enjoy the camaraderie and mutual respect that comes from really opening up. When Hillary says she wants to be the president for all the people, she strikes the right note. But I hope that the people who will vote against her will prove able to see her care and concern better than people were able to appreciate those qualities in Barack Obama.

— This commentary was broadcast on WAMC Northeast Report, Nov. 1, 2016.


A Scary Election

October 25, 2016

Over a century ago, populism was sweeping the country, with white and African-American workers standing together, until a scared Southern aristocracy started race-baiting. Whites took the bait, breaking the back of Southern populism. The rest of the country surged forward because their governments cared about the people, the regular people, not just the fancy financiers. But not in the South, which languished.

That race-baiting aristocracy also killed political competition, leading to the one-party South. No democracy, no concern for the people, no progress. Because race-baiting broke the back of Populism.

Trump uses rhetoric to divide the people hoping he and his cronies can conquer while the rest of us fight each other. Trump attacks everyone – immigrants, African-, Hispanic-, and Muslim-Americans, women, hard-working, warm-hearted, caring Americans of every background.

Democracy is in danger when people can’t accept the legitimacy of disagreement, drown out and threaten opponents, and don’t respect the right to vote of other people because of where they live or where their parents came from. Losing respect for others threatens democracy. Most of us believe that everyone has a right to their opinion. Democracy is in trouble when some try to shut down that right.

Democracy is threatened by campaign crowds yelling “Lock her up” and “Hang her in the streets.” Promising to appoint a special prosecutor to go after Hillary, Donald feeds their hostility to democracy. Like Italy’s Berlusconi, Donald tries to cover revelations about his behavior by throwing hate to angry crowds. Hillary responds “That happens in dictatorships, not democracies.” She’s nailed it; Trump does not want to lead a democratic country; he’s trying to sabotage it.

Trump’s racism and nativism has broken the back of the movement for economic justice. His invitation to settling the election by beating people up and using their Second Amendment rights encourages force, intimidation and even guns, to take Hillary out. Telling his supporters to prevent the polls being rigged codes Trump’s message to control the election by threats and intimidation.

Democracy is in serious trouble when police and military institutions take sides. Individuals in the uniformed services have every right to their political views. But we’ve had a tradition of keeping the military out of politics. We should be able to rely on them to protect every voter’s rights regardless of politics. The military and police need to be above politics or democracy is at risk.

Trump is trying to forge a coalition to muscle democracy out of the way.

If the self-proclaimed rich guy wins, he knows how to enrich himself and his cronies. But he pulls his supporters along with constantly repeated half-truths, lies and fabrications until they seem true because he says them so often – stringing them together like a rant overwhelming any attempt to answer because there’s too much to deal with.

Economic desperation leaves many open to his lies. But they cannot put a populist program together on the back of a divided America. They cannot get government to work on behalf of all the people, not just the super rich, by dividing over skin color, national origin and gender.

The Constitution, the Declaration, the Founders’ legacy, are in trouble when despondent and demoralized people lose faith in self-government. When democracy is in trouble, everyone is in trouble because dictators don’t take care of their people – they take care of themselves.

These same patterns have brought democracy down in many parts of the globe. But for Mr. Trump, we’re all losers and our democracy is a loser too. For Trump, only Trump counts.

— This commentary was broadcast on WAMC Northeast Report, October 25, 2016.


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