DEMOCRACY IN AMERICA – IN NEED OF A HEALTH CHECK

America has had many odd presidents and democracy has survived them all. Normally it should not matter; presidents come and go and the Constitution prevails. But these are not normal times. The constitutional system and the political culture are weakened. In at most seven years, President Trump will be gone. The question is how much lasting damage will have been done by then.

Read the full article here.

DEMOCRACY IN AMERICA – TOWARDS COLLAPSE?

The question is not frivolous: could democracy come to an end in America? Before our eyes, we are seeing functioning democracies disintegrating in, for example, Turkey and Venezuela, and democracy failing to take hold in, for example, Russia, Ukraine, Egypt, South Sudan and possible Tunisia where it for a while looked to be succeeding. “On more than seventy occasions [in the 20th Century] democracy collapsed and gave way to an authoritarian regime” (Robert A. Dahl: On Democracy, p. 145). Could it happen in America?

The question is being taken seriously. The most recent outgoing President, Barack Obama, in his final State of the Union Address, warned of “democracy grinding to a halt.”

It is being taken seriously by scholars. In a new book, How Democracies Fail, two Harvard political scientists, Steven Levitsky and Daniel Ziblatt, find that democratic failure usually happens by gradual slide, rather than any sudden crash, under more or less cynical leaders who have come to power through elections. If elected leaders govern in disrespect of democratic principles, democracy is in danger. Danger comes from the top.

Leaders, they argue, are a danger to democracy if they have weak commitment to democratic rules, if they deny opponents legitimacy, if they tolerate violence, and if they show willingness to curb civil liberties or press freedom. These are the warning signs.

In the American case, they argue, no President except Richard Nixon has governed so as to ring even one of these warning bells. Donald Trump, on the other hand, is exercising presidential power in a way that meets all four warnings.

Other books coming out at about the same time add to the concern. David Frum, a Republican who worked for President George W. Bush, warns, in Trupocracy: The Corruption of the American Republic, that Trump has brought “thuggery, crookedness and dictatorship into the very core of the American state, .. in a regime of deceit and brutishness.” In Fire and Fury, the journalist Michael Wolff draws an intimate portrait of a White House in the grip of ignorance, hatred and downright stupidity.

These books argue that the Trump presidency puts American democracy in danger. It might seem far fetched that a single president might put democracy in peril. The American Constitution, after all, is one of robust institutions that check each other and that has weathered many a previous storm.

But their warning is perhaps not as outlandish as one might first think, for two reasons. First, for all the checks and balances, the Presidency holds enormous powers. When an incumbent puts these powers into a relentless campaign of verbal and symbolic violence against anyone he sees to cross him, there is danger. Any semblance of speaking truth to power is now so costly that freedom of speech, and of the press, is curtailed.

Secondly, American democracy was on a path of decline before Mr. Trump became president. For my part, I warned of that decline in an op ed in the Washington Post already in 2014. President Obama issued his warning of democracy “grinding to a halt” a year before Trump was President and when no one through he wold be. My warning, and I think also that of Mr. Obama, was of a gradual weakening of the fabric of democracy. Mr. Obama spoke of a weaker democratic culture, of polarisation, mutual disrespect and an absence of trust and tolerance. My attention was on a weakening of the authority of Congress and of Congress’s ability to see itself and work as an institution, rather than just an arena of partisan battle.

The reason the warnings against the Trump presidency are valid is not simply that Mr. Trump is an unpalatable human being. They are valid for a particular combination of reasons that are coming together at this time:

  1. Trump is a man with undemocratic instincts and inclinations.
  2. He holds the enormous powers of the presidency and is showing ruthlessness in their use.
  3. This is against the backdrop of a political culture of divisiveness and distrust in which confidence in democracy and democratic values has been in decline.
  4. And against the backdrop of a Congress without authority. In the system of checks and balances, it is Congress that must check the President. So far, however, Congress has mainly given a brutish president free reins.

WHY DEMOCRACY X: PEACE

Democratic countries do not fight wars against each other. This is true today, was true in all of the twentieth century, and was true in the nineteenth century in that countries with then democratic institutions and with a substantial part of the male population enfranchised, did not fight wars with each other. Hence, a more democratic world would promise to be also a more peaceful world.

The observation that countries in which governments are under some form of popular check are less likely to be warring, was first made by the German philosopher Immanuel Kant in a publication of 1795 entitled Perpetual Peace (Zum ewigen Frieden). Here he not only proposed the equivalent of a UN Charter in which countries commit themselves to peaceful coexistence. He also recommended that countries should adopt republican constitutions since that would make them less prone to war.

The peaceful inclination in democratic governments is due partly to the distribution of power in the population. Since the glories of war accrue mainly to élites and the costs of war fall disproportionately on the populace, élites may incline to war where they are not answerable to the populace and be more constrained from war where they are under popular control. Other reasons may be a high level of trade between democratic countries, that democratic leaders and citizens learn the art of compromise, that they see people in other democratic countries as similar to themselves, and that their communality encourages a habit of peaceful negotiations and treaties.

Regrettably, democratic countries have not in the same way been able or willing to avoid war with non-democratic countries. They have fought wars of more or less defence against non-democratic aggressors, as in the Second World War, and then with uninhibited brutality. And they have fought wars of aggression in self-interest, as for example the many and violent colonial wars that for example Britain and France engaged in during the nineteenth and twentieth centuries.

Democracy, then, is good for peace in the world – but does not guarantee peace.

WHY DEMOCRACY IV: RULE OF LAW

In democracies, the law prevails. Governments cannot do what is not authorised in law. Retribution cannot be brought down upon citizens that is not sanctioned in law and managed through due process. Basic rights have statutory protection. Private property has legal protection and cannot be expropriated except by due process and with compensation. Contract is regulated by law. Public policy, policing, surveillance, land and property management, punishment – none of these are at the discretion of governments. Citizens have protection and predictability in life and business.

Furthermore, rights and regulations are effective. There are institutional arrangements that secure that the law prevails and that not even governments and ministers are above the law. Primary among these arrangements is an independent judiciary.

In short, there is rule of law.

Autocratic governance can be regulated by law. In China, the most sophisticated autocracy ever invented, both public policy and civil life have in recent years been increasingly regulated by law. That is an improvement for citizens in that there is less unpredictability. But in this and other autocratic systems, what results is at best rule by law, not rule of law. None of the criteria I have listed above apply. Under autocracy, the rulers are above the law, not the law above the rulers. The reason a regime needs to be autocratic is that it cannot prevail with rule of law.

Rule of law is not impossible in political systems that are not democratic, or very imperfectly democratic. Hong Kong is in one meaning a city state which is not governed democratically but which has still (recently) benefitted from a rule of law regime, including with an independent judiciary. This regime has come under stress after Hong Kong was reintegrated into the People’s Republic of China, but continues to prevail reasonably well.

However, while rule of law without democracy is not impossible, it is very unlikely. Democracy without rule of law, on the other hand, is not possible.

WHY BREXIT WILL NOT HAPPEN (revised)

In spite of the referendum, Brexit or not is still the responsibility of Parliament. Parliament does not abdicate. Its charge is to look after the wellbeing of the population and country, and it is not possible for Parliament to walk away from that responsibility, nor in its nature to do so.

That is clear enough constitutionally. The referendum was advisory. Parliament could have decided to make the referendum binding but deliberately did not. It retained in law the authority to make the final decision and is not constitutionally bound by the referendum.

It is also clear politically. As we have moved on from the referendum, circumstances have changed and we have learned more about the meaning and consequences of Brexit. Brexit on the terms suggested in the referendum campaign is not deliverable. It is Parliament’s job to decide on the impact of how things are working out and what we are learning.

Imagine you are an MP today. You look into the future. You see, from one side, coming towards you an avalanche of necessary public investments: in infrastructure, in defence, in housing, in education, in social care, in the NHS. And you see, on the other side, low growth, low investment, lagging productivity, skill shortage. That adds up to an economy that cannot generate enough public revenue for necessary maintenance of society. You cannot avoid the question of whether it is compatible with your responsibility to let the country cut itself off from its most important community of trade and economic partnership.

You look to the British national landscape. In Scotland, Brexit will give the nationalists the arguments they need to push through independence. The Union will break up. In Ireland, a new border, more or less hard, will cut through the island and disrupt the peaceful coexistence that has been achieved. The worst scenarios may or may not materialise, but you cannot avoid the responsibility for exposing the Union to high risk. You turned you back on that responsibility in sanctioning the referendum. You cannot do it again.

You look to your own institution, to Parliament. You there see no settlement and no coming together around any shared strategy for implementing the referendum. Parliament has asserted its authority and to some degree taken charge, and pulled towards Brexit moderation. It has refused the government a free hand. The government’s original hard Brexit strategy has been killed. The principles of payment and a transition period have been conceded. You have learned that Brexit is not a simple matter of cancelling a club membership and you are trying to sort out in your mind what it really means.

Parliament’s confusion mirrors the population’s confusion. There is no “will of the people” out there. There is division, as reflected in the snap election. The division in the population carries through into Parliament and the Cabinet, and into the relationship between Parliament and government. Parliament is refusing the government a mandate of clarity and the government can do no more in the negotiations than muddle through without initiative, determination or direction. The risk is high that there will be no deal. Most MPs sit on the fence. They believe it is in Britain’s interest to be inside the European Union and they believe they cannot go against the majority in the referendum. That dilemma remains unresolved.

Politics in Parliament are even more tenuous than they look. Not only is the government without platform or support, both major parties have leaderships that in the European question are at odds with the majorities in their respective parliamentary parties. Leavers do not trust Remainers, Remainers do not trust Leavers. Backbenchers do not trust the front benches, and vice versa. The government does not trust Parliament, Parliament does not trust the government. The parliamentary truce is phony and not durable.

The talk of the town in Parliament that reaches the public is “how Brexit?” The talk of the town in Parliament that, for now, does not reach the public, is how Parliament can extricate itself from the mistake it itself made in calling the referendum.

MPs fear the uproar it would create if they exercised their constitutional authority to override the referendum. However, they also recognise themselves to be caught up in a dilemma from which there is no happy outcome. The choice they see in front of them is between uproar now or long term damage to the country. What may look like a mess, is Parliament’s lumbering, convoluted, step-by-step manner of resolving its terrible dilemma.

A DEMOCRATIC CASE FOR CATALONIAN SECESSION?

There is without doubt a strong movement within Catalonia for secession from Spain. Regional leaders, now Carles Puigdemont and before him Artur Mas, have claimed that they have a democratic mandate from recent elections and now the disrupted referendum.

But do they? What is the democratic argument in the matter?

Whether or not there is an electoral majority in Catalonia for secession is not clear. If there is, it is at best a small majority, with a large minority remaining in favour of Catalonia staying within Spain. Is a small majority, if there is one, enough for a democratic mandate for so large a move?

Two main rules of democracy are:

  • in the end, the majority decides,
  • in so doing, the majority has a duty to respect the interests of relevant minorities.

Democratically, the question of whether Catalonia remains a part of Spain or leaves the union is to be settled by a majority. But which majority?

People who live in Catalonia have an interest in the matter. But so do the people who live in the rest of Spain. If Catalonia were to secede, the remaining Spain would be a different country. The relevant constituency in the matter, then, is all Spanish people. Even a majority in Catalonia is a minority in Spain and can have no democratic right to change all of Spain. This principle was recognised, for example, in the 2014 Scottish referendum on independence. The right to hold that referendum was constitutionally given to Scotland by the British Parliament (in what is known as an ‘order in council’) after negotiations between the British government and the regional Scottish one.

Catalonian pro-secession leaders may be right that they have a democratic mandate of sorts. But if so, the mandate is only to seek secession. There is no democratic mandate for people in Catalonia on their own to decide on an important matter that effects all of Spain. For a Catalonian referendum, for example, to be democratically valid, the rest of Spain, as in the British case, must, at the least, have conceded to Catalonia the right to hold a referendum and agreed to abide by its majority.

How strong, then, is the mandate? Since there is (at least) a large minority within Catalonia against secession, the mandate for secession must be said to be a weak one. The minority has a right to have its interests respected. The question of independence is one of great principle. A small majority in a population hardly has a right to simply impose its will on a large minority in an important matter. The mandate to seek secession, if there is one, must contain a duty to persuade the doubters. Before Catalonian leaders could argue the case for secession with force in front of the rest of the Spanish population, they would need to show that they have at last a solid majority in their own population behind them.

The strength of the mandate is influenced, further, by the reasons that are given in favour of secession. In a founding text, the American Declaration of Independence, it is stated ‘that Governments long established should not be changed for light and transient Causes’ and that the ‘Right to throw off such Government’ arises only as a result of ‘Abuses and Usurpations [and] a Design to reduce them under absolute Despotism.’

The Spanish union is long established. The government is democratic and no group or province within Spain is under despotism. From the Catalonian side, it does not seem that strong arguments are given for secession, and certainly nothing of the kind suggested in the American declaration. It seems mainly to be a case of resentment. It is said within Catalonia that the relatively wealthy province is being forced to subsidise poorer areas in the country. But that kind of redistribution is standard in a well-governed country and obviously nothing like despotism.

However, the Catalonian leaders may still have a democratic mandate to seek independence. They therefore represent a minority within Spain with a valid interest in a vital matter. The rest of Spain therefore has a duty to respect the interests of that minority. One way to do that might be to negotiate with Catalonia for a different constitutional settlement.

But, again, if such negotiations were to result in proposals for a radical centre-provincial realignment, the democratically relevant constituency for ratifying the realignment would be the entire Spanish population, for example as represented in the national assembly, the Cortes.