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An Elegy for American Democracy

The next 13 months will largely determine whether we really are a nation of laws, writes Brennan Center Fellow Andrew Cohen.

October 10, 2019
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First they came for our norms, the informal rules and tacit agreements that had helped for generations to keep the government even remotely accountable to the governed. They came for the traditions of comity and bipartisanship, of fair play and good faith, that had tethered our democracy to fact and reason. They came by calling their political opponents their enemies, by discrediting the work of credible reporters, and by hijacking technology and using all of the levers of propaganda available to them in the internet age. 

They did these things because they could. And they could because a majority of Americans, never imagined that even our imperfect democracy would lead us to a place where we would be governed by so many elected officials and petty bureaucrats more concerned with the aggrandizement of their own power and purses than their constitutional duties. Of course we were tragically naive in this belief. Of course it meant, conveniently, forgetting America’s long history of anti-democratic practices and policies. 

When they came for our norms, and shattered them, we naturally and reasonably complained and protested. We promised that when the dark age had passed, if it were to pass, we would turn the norms we had cherished into statutes or constitutional doctrine to make it harder for the next authoritarian administration to abuse its power. We wrote often, earnestly, and well about the need to codify practices into regulations and of the wisdom of a new age of legislative power checking a runaway executive branch.

But then they came for our laws, too. They came for them by filling the federal courts with judges whose professional qualifications and personal integrity were lacking, or whose jurisprudence was rife with bias and ignorance, but whose fealty to the president and his aims was entrenched. These men and women (and they are mostly white men) will serve as poison pills to generations of Americans, keeping alive the grim legacy of this administration through decades of disastrous decisions that continue to undermine basic constitutional principles.

They came for our laws in other ways, too. They came for them by corruptly using the power of the purse to enrich the private coffers of the chief executive and his family and then daring anyone to stop them. They came with private lawyers serving public functions and with public lawyers serving private functions, all of whom shared the goal of keeping for as long as possible from the American people as much evidence of misfeasance and malfeasance as the courts and Congress would permit. They came for the Justice Department and took it.

They came for our laws, too, by refusing to cooperate in good faith with one federal investigation after another, and one congressional hearing after another, hoping that their blending of truth with fiction would befuddle the nation. Hannah Arendt identified this issue nearly 70 years ago. “The ideal subject of totalitarian rule,” she wrote, is “people for whom the distinction between fact and fiction (i.e., the reality of experience) and the distinction between true and false (i.e., the standards of thought) no longer exist.”

And they came for our laws in more mundane but no less significant ways, too. By telling the police they should be more abusive with suspects and defendants. By endorsing local efforts to suppress the votes of citizens who had voted without incident for decades. By labeling rank discrimination as a form of “religious freedom.” By encouraging white supremacists in their racist war against people of color. By mocking whistleblowers and activists. By tolerating violence against U.S. citizens by foreign powers. By calling for political opponents to be jailed.

And so, with 14 long, harsh, bitter months until the next presidential election, again we find ourselves at a crossroads in the history of the nation. A moment when our laws have been overtaken by the lawless within the executive branch and when Congress has proven itself largely supine. A moment when we cannot look to principled leaders at the Justice Department to rein in the White House or to the justices on the most conservative Supreme Court in nearly a century to serve as a check-and-balance on a Republican administration.

A moment most of us never dreamed would come. A moment of great clarity amid the clamor. 

If a renewal of American democracy is to come from the ashes of this administration, if the past few years are to have meaning beyond our age, if they are to serve as an inspiration to future generations, it’s going to be because ordinary citizens bravely distinguished between the truth and the lies, the fact and the fiction. It’s going to come from people who, at last, say “enough is enough” and then do more than offer their thoughts and prayers in the hope that our worsening national nightmare ends.

The views expressed are the author’s own and not necessarily those of the Brennan Center.