This article is a commentary on several law review articles discussing democratic erosion.
Constitutional Democracy and Scholarly Fashions
Miguel Schor, Constitutional Democracy and Scholarly Fashions, 68 Drake Law Review 359 (2020).
The Article is a commentary of a book written by two authors, one originalist, and the other a proponent of a living Constitution. Together they describe the global and local trend of how people feel about democracy.
30 years ago, individuals and scholars were opptimistic about the role of democracy. The Berlin wall had just come down and there it appeared countries everywhere were adopting democratic institutions.
Today, the trend both globally and locally is pessimistic. To support a healthy democracy, a healthy marketplace of ideas is also important. The development of technology has made this marketplace difficult to keep healthy beacuse bad ideas and incorrect information are in a situtation where they can thrive. People also do not hear competing viewpoints, making it difficult to develop meaningful discussions on solutions to problems.
In the US, there is a growing sense that democracy is struggling. One author believes this is because the representitives poorly represent and believes the best solution is through gradual incremental alteration through the courts to encourage Constitutional change. Another author believes the promises of sole executive authority (and use thereof) has caused the division and believes the best solution is through Constitutional Amendment.
Constitutional Hardball
Mark Tushnet, Constitutional Hardball, 37 John Marshall Law Review 523 (2004).
Constitutional Hardball is the practice of legislative and executive bodies striving for a policy that creates political tension by testing preconceived notions of the constitutional order. That is, one party wants it this way while the other party wants it that way. The tension between the two creates this game of hardball.
The author then goes on to describe a few examples of Constitutional hardball. First, the author describes how the New Deal was constitutional hardball. A series of legislation designed to change our constitutional function and threats of power for each certain politicl actors.
Another example and more detailed example is Marbury v. Madison. For context, there were two parties, the federalists supporting Adams and the Democratic-Republicans supporting Jefferson. These parties were at odds but the federalists were losing power. To support themselves a bit, they passed a Judiciary Act that expanded the jurisdiction of federal courts. The Democratic-Republicans saw this as the federalists attempting to entrentch themselves into the judiciary. When Jefferson took office, he immediately repealed the act and replaced it with his own. This laid the foundation for Marbury because it was a question whether the courts would retain this broad authority granted by the federalists to keep the aspiring Democratic-Republican party in check.
The Article then concludes by disussing how to keep Hardball from happening. Essentially, the hopes are not optimistic and it involves extremely poloarized individuals recognizing the need to stop playing the game.
The Age of Political Fragmentation
Richard H. Pildes, The Age of Political Fragmentation, 32 Journal of Democracy 146-159 (2021).
Political Fragmantation refers to how political power has been fragmented or divided and distributed into the hands of many political actors. With the large number of actors with no apparent leader, it becomes difficult for Congress to legislate.
Essentially, Congress is becoming less effective. The author argues that political parties are necessary to effective development of legislation. Parties provide a base to protect hesitant members, encourage legislation for a common purpose, and have effective leadership to manage those interests.
However, with the development of social media, anyone can disrupt the democratic process. Users of the media scathe at how the legislature is not being effective, and in so doing makes it harder for the legislature to be effective. Many new legislators now use social media for their support rather than political parties. This lack of party reliance makes interest groups more influencial on free agent actors who do not need to worry about reprecautions from a base.
Essentially, the author is suggesting legislating in secret as a party so the media does not have time to disrupt the effectiveness of Congress until it is too late.
Fragile Democracies
Samuel Issacharoff, Fragile Democracies, 120 Harvard Law Review 1405 (2007).
In today’s world, many nations utilize democracy. Unfortunately, those democracies are still weak and may be susceptable to attacks by those who seek to subvert democratic authority.
In the US, we are generally considered a strong democracy where the only test available to limit speech against democracy is the clear and present danger test. However, in many other nations, if they wait until there is a clear and present danger threatening their democracy, then it is already too late. These nations, the author argues, ought to be allowed to exercise authority to restrict speech, party organization, and party involvement in having a voice during elections if they threaten democracy. Although the author concedes that the US likely has enough police power to regulate these dangers, he also believes these provisions would be helpful in furthering democratic success in the United States.
Disclaimer
The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.
