Is Democracy in America Coming Apart?

December 6, 2016

I wrote Unfit for Democracy to warn that American democracy could collapse in coming decades. But the problems are coming home to roost sooner than I expected.

How the economy treats people matters. That was the starting point for my work and, since World War II, for political scientists studying the survival or breakdown of democracy. But the American economy has been leaving lots of people behind. In my book I argued that the Supreme Court was diluting the value of ordinary Americans’ economic rights in favor of the wealthiest people and corporations. I feared the danger to democracy as people became more and more desperate.

I also worried the Court wasn’t enforcing the Bill of Rights for ordinary people and feared would-be dictators could take advantage of it. And I worried because the Court permitted politicians to fix the voting mechanisms to make fair elections almost impossible.  Changes made after the 2010 census allowed Republican-dominated legislatures to lock Democrats out of Congress and the majority of state legislatures for the foreseeable future. That Court-sanctioned gerrymandering now blocks fair representation in Congress and in many states. Trump kept claiming that the system was fixed, implying that it was fixed against him, but the Court allowed the Republican Party to block access to the polls in many states.[1] The election was partly fixed, in favor of the Republicans and Mr. Trump.

I also worried that legal changes underlying changes in the media and the primary systems were contributing to the polarization of America. As Jim Hightower once titled a book,  There’s Nothing in the Middle of the Road but Yellow Stripes and Dead Armadillos. I thought that was dangerous.[2]

Now we are finding out that only a quarter of Americans still believe that it is important to live in a democracy. And we’ve elected a president who befriends autocrats – autocrats who destroyed democratic governments, censored the press, put opponents in prison, and took over.

Once that happens, the people who wanted to break the system down have no voice in what the new system does. Autocrats around the globe become kleptocrats – they steal from everyone for themselves and their friends. In commentary earlier this year I described that as the Sheriff of Nottingham syndrome – the sheriff from the Robin Hood legend who took from the poor to fill the pockets of King John. Corruption in democracies doesn’t hold a candle to what autocrats do to their people financially, how opportunities suddenly depend on the dictators’ favor, how freedom disappears, real freedom, the freedom to walk around out of prison and take care of one’s family. Those folks who were so ready to break the system are likely to be among the first broken by it.

The Court won’t protect us. Those with power have no motive to protect us, but only to keep their own advantages. The rich will have more, not less control. Just look around at how Trump is deepening the threats:

  • His worldwide set of conflicts of interest become opportunities for Trump enterprises in the pattern of third-world kleptocracies;
  • He proposes to cut benefits for ordinary Americans, leaving more for himself and friends;
  • He selects America’s wealthiest to run our economy;
  • He rants about asserting “Second Amendment rights” at the polls as if menacing people at polling places advances democracy;
  • He rants about throwing people in jail – starting with his political opponent – though that threatens democratic competition;
  • He seems to think that winning means he can do whatever he wants.
  • And he and the Republicans seem to believe recounts are legitimate only for themselves – not to protect and enforce the voters’ choices.

If American democracy collapses, it will be the biggest victory for the world’s worst people. As Trump pounds on the pillars of democracy, we will have to do all we can to preserve the American democratic way of life.

[1] Unfit for Democracy, at 195-204.

[2] Id.  at 153-67; Law and the Polarization of American Politics, 25 GEORGIA STATE L. REV. 339 (2008).

— This commentary was broadcast on WAMC Northeast Report, December 5, 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.


Democratic Decay

October 10, 2016

I wish it weren’t so, but the anti-democratic elements in this US election, and the Trump campaign, are making the dangers identified in my book seem like a near-term prediction – the well-justified revolt of the economically forgotten leading them to trust a bankrupt businessman and TV star who recycles empty promises, stereotypes and prejudices to gain their votes, the courting of the gun-toters coupled with thinly veiled threats and violence, the racist and male-chauvinist language, religious bigotry and xenophobia proposals, a candidate clearly out of control by the party he nominally represents, a demagogue repeating empty slogans until they start to seem believable, are all dangerous. Worse it seems to be a world-wide trend, Tom Gerald Daly, Time to View Democratic Decay as a Unified Research Field?, Int’l J. Const. L. Blog, Sept. 30, 2016, at: http://www.iconnectblog.com/2016/09/time-to-view-democratic-decay-as-a-unified-research-field. This clearly needs to stop.


Trump’s Audience

August 23, 2016

Behind Trump’s remarks and his imperviousness to criticism is the audience he’s after.

Trump charges that this election is rigged because his audience doesn’t like who can vote. One can respond that elections have been rigged by the Court since it stopped the count in Florida to make Bush president, but that misses Trump’s and his audience’s objection. The Court has unleashed the full contents of corporate treasuries, tightened the screws on union finances, encouraged states to exclude African-Americans from the voting booths and supported gerrymandering so that Republican controlled legislatures could rig elections against Democrats. Those decisions rigged the election in Trump’s favor. But for his audience, rigging the election means including what some still call Fourteenth Amendment citizens. They object that the first sentence of the Fourteenth Amendment makes everyone born here citizens, especially Blacks and browns.

Trump’s inconsistency on foreign policy is also because of the audience he wants. While claiming Democrats are weak on foreign threats, Trump also wants to withdraw from NATO which has held the Russians at bay for over half a century. And he has told us that he would consider not coming to the aid of an attacked NATO member. Never mind speculating whether he’s a wimp, a loudmouth, or a Russian agent. The important question is who’s his audience and why? Actually extremists have imagined international conspiracies that only they can believe in. Trump clearly wants their support. That leaves the rest of us wondering whether they would be center stage if he won. Making international conspiracies the number one villain helps explain Trump’s admiration for Vladimir Putin, and his invitation to Russia to hack into the computers used by a Secretary of State. One points out in vain that’s an invitation to foreign espionage. Trump got his message across; he’s with the fringe, the conspiracy theorists, and the people with lots of hate.

Then there’s Trump’s comment that Second Amendment people might have a way of dealing with Hilary and her judicial nominees if she is elected. When questioned about those remarks Trump responded that he was just kidding. Besides, he said maybe. No advocacy there. He wasn’t trying to get anyone killed. But why did he do that?

Politicians have reasons for what they say. He was seeking support from precisely those people who could imagine using guns that way. Surely some would just like to have violent dreams. But some are more likely to act on dreams like that when encouraged by people like Trump, and will understand his words as a call to violent action, action that undermines democratic self government.

Beyond whether Trump should be expected to talk like a responsible adult, is the question whether we have the responsibility, whatever our politics, not to enjoy such language, responsibility not to reward it, but to stand tall for the real America, the America that claims to believe in law and order and in self government that celebrates our ability to disagree without threats, assaults and murder.

Trump makes statements like that because he has an audience for it. If most of that audience has the maturity and the loyalty it claims, it must be prepared to turn against candidates who misuse it. Supporters of gun rights must believe that gun owners have an obligation to act and speak responsibly and to keep political and racial hatreds away from trigger fingers.

— This commentary was broadcast on WAMC Northeast Report, August 21, 2016.

 


Supreme Court Vacancies and the Sheriff of Nottingham

February 23, 2016

Justice Scalia’s death creates a vacancy on the Supreme Court. The next president may have more to fill. Deciding cases as if it were the Sheriff of Nottingham, The Roberts Court is having a major impact on the economy. How those vacancies are filled will make a big difference to all of us.

Robin Hood and the Sheriff of Nottingham come down to us from a medieval fairy tale and retellings in print and on film. Bruce Bueno de Mesquita and his colleagues explain the role of Sheriff of Nottingham type figures in our contemporary world. As fewer people have real power, those who run the government must shovel favors to them. Given how wealthy they already are, they won’t appreciate any but very large rewards. But what government does for the public leaves less for these powerful patrons. So rulers employ modern Sheriffs of Nottingham. It’s what Bueno de Mesquita’s group calls the dictator’s game: by starving the public, dictators have more for powerful supporters – and the more they demand.

Kevin Phillips detailed the enormous benefits that corporations seek and government directs toward corporations and their leaders. Spending on politics has huge returns, driving the fruits of government to the favored few, and dismantling government wherever business prefers to operate in the dark.

Many of us have been fighting against special favors for corporations that exploit workers, the environment and the general public. But it gets worse. As the story of Robin Hood implies, holders of great wealth and power fear the people will take their ill-gotten gains from them. To prevent it  they block opponents from voting, minimize their votes by gerrymandering, and pour large funds into preserving their power while starving the population of public services.

The Supreme Court has been helping. Despite enormous gains by the wealthiest in America, and the declining share of the general public, this Court consistently moves economic benefits from the public to business, from the victims to the predators. The Court reversed the meaning of a 1925 arbitration statute to derail a plethora of state consumer protections and made it almost impossible to sue. Instead, the Court allows corporate defendants to choose who will decide the dispute, and at what cost. The Court undercut both state and federal standards of liability for injury to consumers, securities fraud and the damages available if plaintiffs win. And the Court is waging a battle to strip the unions of power to protect workers.

At the same time, the Court unleashed the full power of corporate treasuries on politics. Those corporate treasuries had barred from politics since early in the twentieth century. And the Court allowed states to make it harder to register to vote by increasing the cost and time to register – making it harder for working class, poor or physically challenged Americans to vote. The Court allows gerrymandering to reshape American politics, and has supported other efforts to entrench political incumbents. The Court topped all that by removing the requirement that covered states pre-clear voting changes, the one weapon of the Voting Rights Act that had worked.

Historians and political scientists tell us that pattern of disparities often leads to the breakdown of democracy, the loss of self-government. Sometimes it leads to violence, like the Black Shirts, Brown Shirts, Death Squads, and the security services of people like Putin. Sometmes the plutocrats simply invite a dictator to take control. Great disparities are dangerous. Instead of moderating these outrages in the name of American tradition, the Court has been making the problems worse, increasing disparities and letting them take over American politics. This Court is a danger to American self-government.

That’s where the 2016 elections matter. Whatever policies candidates claim to support, their judicial picks will have a big impact on what really happens to ordinary Americans and the future of self-government in America.

— This commentary was broadcast on WAMC Northeast Report, February 23, 2016. An expanded essay can be found here.

 

 


Terrorism, the NRA “Solution,” and Safety at Home

December 8, 2015

For some people, the best solution to every problem is to shoot at it, and presidents aren’t leaders unless they’re yelling “charge” into battle. I want to bite off a domestic piece of that nonsense. In the wake of every terrorist tragedy, senators, sheriffs, NRA officers and supporters propose more guns, carry your guns, be ready to defend yourself, ourselves, wherever and whenever occasion arises.[1]

We have some 15,000 murders a year in the U.S., 40,000 suicides, mostly by firearms, and under 30 deaths a year from terrorism. CNN checked Obama’s comparison of deaths by firearms and by terrorism in the U.S. From 2001 to 2013, they found that people killed by terrorists in the U.S. were less than 1/1000th the number killed by firearms.[2] Firearms deaths dwarfed terrorism deaths even in 2001. Whether it’s a good tradeoff depends on what gets worse.

Note though, if we’re all armed, we’ll need to do things differently. Once we assume everyone is armed, when someone demands something, whatever it is – turn off the radio, get out of my way – are we toast if we don’t comply? Do guns become the tool of bullies? Isn’t that some of what police shootings of unarmed people reveal? Police say they were scared because someone with his back turned may have had something in his hands. Do we all get to be that scared, pulling the trigger at anyone whose safety we can’t determine? We’ll have to be suspicious. Who’s hot tempered? Who’s too scared to trust? Who’s a criminal, terrorist, gang member or bully?

America was built on trust and teamwork. Break that down and sap our strength. We might stop some terrorists but America’s strength will dissipate in squabbles and fear – like those that poison and stultify much of the Third World.

Arming ourselves will partially thwart some similarly-armed terrorists but guns can  be replaced by explosives which do their damage before anyone knows what’s happening.

A couple of decades ago a disappointed former student attacked our library – but thank heavens he attacked a glass door with an axe rather than attacking people with a gun. No school can avoid flunking some students out and no employer can avoid firing some employees. One such employee got a gun and murdered one of my clients some years ago. But the police are taught that it’s too late to react once someone starts to pull a gun. My client, armed or not, never had a chance. So now what?

There are alternatives. I’m a civil libertarian but I have no problem with cameras. Security staffs at many places have monitors showing them many parts of the building. I’m a lot happier with observe-and-respond than having a bunch of trigger-happy gun toters wandering around wondering if I or anyone else should be shot. Similarly, with the repeated police shootings of unarmed men, I’d be a lot more comfortable if they left their guns at the station for access only as needed. I’d also be much more comfortable with police departments and the FBI if they stopped bribing unreliable informants to trap people in stings, send innocent people to prison, and corrupt the Bureau in the process. Have a tool, use a tool. These are dangerous tools for routine use.

America would be much safer if we found ways to build on our principles, instead of abandoning them in the chimerical belief that we could protect ourselves better with guns.

— This commentary was broadcast on WAMC Northeast Report, December 8, 2015.

[1] See http://newyork.cbslocal.com/2015/12/03/ulster-county-sheriff-carry-guns/; http://www.nydailynews.com/news/politics/marco-rubio-slams-bill-guns-terrorists-felons-article-1.2455280; http://www.darkcanyon.net/Terrorism%20A%20Good%20Defense%20Is%20A%20Good%20Carry.htm.

[2] See https://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2011/crime-in-the-u.s.-2011/violent-crime/murder; http://www.save.org/index.cfm?fuseaction=home.viewPage&page_id=705D5DF4-055B-F1EC-3F66462866FCB4E6; http://www.cnn.com/2015/10/02/us/oregon-shooting-terrorism-gun-violence/ .


In the Wake of Atrocities is Moderation Possible

November 28, 2015

In the wake of murders like those in Paris, is it possible to talk about moderation? The impulse to kill is very strong. I know I’d feel it if it came close. And yet we know that many innocent men are put to death. And if an innocent person is executed, the killer, or killers, are still alive. And kangaroo courts or lynch law threaten everyone. The circle of murder can widen, as it did with the infamous Hatfields and McCoys. I’ve taught a descendent of the McCoys, actually a lovely young woman in West Virginia. But a murder turned into a war and decimated the families. Was that worth it – all the innocent lives. We are taught that two wrongs don’t make a right, but in the aftermath, do we have the strength to see that?

It was very difficult to oppose the war in Iraq. We know now it was a mistake, and one that did a great deal of damage, in the lives of innocent men and women, in destabilizing the region, in creating the opportunity for Daesh to thrive.

I’m terrified of the political pressure behind the hawks now. So-called collateral damage can cause a reaction that engulfs the world in flames. Our own reactions to the Paris bombing demonstrate the fact. Yet Daesh clearly hopes that we in turn will cause so much collateral damage that it will pull all the Muslims that oppose Daesh now into the fray to defend an Islam that seems under attack.

We should have learned by now that what matters in war is not what we think is justified, but what our actions produce. Lincoln understood that, calculating carefully how and when he used the slavery issue in the Civil War. Vietnam should have brought home to us that what people think matters. But the atrocities of some both in the Administration and carrying the flag in Iraq showed that the lessons of Vietnam didn’t reach everyone. Iraq continues to be a problem for us not only because it destabilized the region but also because the crude things that some people did in the name of America continue to inflame many people about us. It’s not about appeasement; it’s about pacification. It’s about keeping conflicts as small as possible. Every conflict isn’t about Hitler in 1938; sometimes the right analogy is to Versailles at the end of World War I when the victorious allies imposed punishments that radicalized the German people. Notice how differently the end of World War II came out, when the allies reaffirmed the rule of law and found constructive ways forward, not only for us but for the German people, not only the Marshall Plan but also the European Union which gave Germany both an important role and an important stake in the future of a united Europe.

That’s hard. That takes real statesmanship. Vice-president Biden’s comments Saturday impressed me. He started by identifying Daesh’s goals and then pointed out that we should not play into their hands by widening the war against Islam. Think of Daesh as holding a match and trying to start a fire or a detonator and trying to set off an explosion. Daesh by itself is infuriating. One commentator compared them to pirates. But without sparking that wider war, they cannot defeat us or any significant country. In this conflict, we have to respond with our heads, not our hearts. Like forest fighters, we have to contain the blaze before we can put it out. President Obama’s talk about containment was absolutely right. Thank heaven that we have a president who uses his head. The question is whether the American people can rise to the challenge of supporting a policy that’s based on intelligent calculations instead of emotional displays of power.

— This commentary was broadcast on WAMC Northeast Report, November 24, 2015.


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