The Washington PostDemocracy Dies in Darkness

Donald Trump is stress-testing how we think about American democracy

Laws, norms and Donald Trump

ANAHEIM, CA – MAY 25: Republican presidential candidate Donald Trump speaks at a rally on May 25, 2016 in Anaheim, California. (Photo by Spencer Platt/Getty Images)
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Over at Foreign Affairs, Timothy Frye talks about how political science is having a devil of a time predicting Russia’s future trajectory. One theory of political science says that because Russia is a personalist autocracy, it is less likely to experience a successful regime transition to democracy (there’s a lot of other problems with personalist autocracies — click here for more). Another theory of political science says that Russia’s comparatively high per capita income and educational attainment makes it ripe for more democratization.

Frye’s summary:

In short, Russia is either on a dangerous path, or not. It is either primed for change from below or through a coup. Or neither. The consensus of experts suggests that change is unlikely. Predicting Russia’s future is particularly challenging because both theories have merit. The danger is to blindly follow one. Instead, observers need to keep an open mind about Russia’s political future.

Or, to make it even shorter:  ¯\_(ツ)_/¯

It was impossible for me to read Frye’s analysis and not think about just how much political scientists don’t know about politics. For example, what is it exactly that makes American democracy tick? How has a 230-year old political compact managed to persist as well as it has?  What in the Constitution has put a stop to permanent despotism or division?

Many people and an awful lot of political scientists would answer with “rule of law” and “separation of powers” and “a republic, not a democracy.” Indeed, that’s pretty much the gist of James Madison’s answer in Federalist 10:

It is in vain to say that enlightened statesmen will be able to adjust these clashing interests, and render them all subservient to the public good. Enlightened statesmen will not always be at the helm. Nor, in many cases, can such an adjustment be made at all without taking into view indirect and remote considerations, which will rarely prevail over the immediate interest which one party may find in disregarding the rights of another or the good of the whole.
The inference to which we are brought is, that the causes of faction cannot be removed, and that relief is only to be sought in the means of controlling its effects.

Madison goes on to argue that the Constitution’s checks and balances prevent the existence of factions from crippling the United States. And this is what I’ve always been taught — that the genius of the American Republic is that even majorities face constitutional limits on their ability to implement their will.

As political polarization has increased in the United States, however, a lot of commentators have raised a significant objection: what if this system can only function with the presence of strong norms as well as laws? This is a point that Jonathan Chait has made repeatedly, most recently this past February:

It turns out that what has held together American government is less the elaborate rules hammered out by the guys in the wigs in 1789 than a series of social norms that have begun to disintegrate. Senate filibusters were supposed to be rare, until they became routine. They weren’t supposed to be applied to judicial nominations, then they were. The Senate majority would never dream of changing the rules to limit the filibuster; the minority party would never plan to withhold all support from the president even before he took office; it would never threaten to default on the debt to extort concessions from the president. And then all of this happened.

Indeed, a disturbing fraction of Americans are growing skeptical about democracy itself. Can a constitutional democracy persist if the norms and beliefs that traditionally uphold it are eroding and eroding fast?

Which brings me to the prospect of Donald Trump somehow becoming president. There’s been an emergent literature warning about the possibility of Trump inheriting the awesome powers of the executive branch that legislative gridlock has managed to engender. I’ve written on this problem as well.

But as Brookings’ Benjamin Wittes notes, much of this is premised on the notion that the executive branch has poached too much extraordinary power, and that this enhanced power would turn a president Trump into a tyrant. That may or may not be true, but as Wittes writes, that’s not the biggest problem of a President Trump:

Let me be blunt: The soft spot is not NSA and it’s not the drone program. The soft spot, the least tyrant-proof part of the government, is the U.S. Department of Justice and the larger law enforcement and regulatory apparatus of the United States government. The first reason you should fear a Donald Trump presidency is what he would do to the ordinary enforcement functions of the federal government, not the most extraordinary ones….
What would a president need to do to shift the Justice Department to the crimes or civil infractions committed—or suspected—by Trump critics and opponents? He would need to appoint and get confirmed by the Senate the right attorney general. That’s very doable. He’d want to keep his communications with that person limited. An unspoken understanding that the Justice Department’s new priorities include crimes by the right sort of people would be better than the sort of chortling communications Richard Nixon and John Mitchell used to have. Want to go after Jeff Bezos to retaliate for the Washington Post‘s coverage of the campaign? Develop a sudden trust-busting interest in retailers that are “too big”; half the country will be with you. Just make sure you state your non-neutral principles in neutral terms….
The presidency’s very virtues as an office—relative unity and vertical integration—make it impossible to render abuse-proof. It is vested with a truly awesome thing:“the executive power” of the entire federal government. There are simply too many ways to abuse that power to imagine we can denude the office of the ability to behave tyranically.
There is, in fact, only one way to tyrant-proof the American presidency: Don’t elect tyrants to it.

The political scientist in me wants to see a Donald Trump presidency, because it would be the greatest natural experiment in American politics about whether norms are as important as laws in constraining authoritarian impulses. The American in me is frightened about what the answer would be.