How to Save a Constitutional Democracy – Aziz Huq & Tom Ginsburg: Chicago Harper Lecture 2019
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How to Save a Constitutional Democracy – Aziz Huq & Tom Ginsburg: Chicago Harper Lecture 2019


COLIN HENNESSY: Good
evening and welcome. My name is Colin Hennessy. And I have the
pleasure of serving as the Executive Director of
the University of Chicago Alumni Association. The Alumni Association,
with the support of our amazing volunteers and
community members, many of whom are in the room this
evening, presents programming around the world ranging from
social gatherings like Phoenix Fest to tonight’s intellectual
engagement event, the Harper Lecture. And let me add,
just for a minute, that tonight’s
Harper Lecture has the most pre-registered people
ever for a Harper Lecture. Nearly 700 people wanted to join
us at this event this evening. So congratulations to all
of you who found a seat. Thank you for being with us. Now before I hand the mic
over to our volunteer chair, Charmaine Owens, I want to
take just a brief minute to provide some updates on
the University of Chicago. Now as you may imagine, there
are far too many developments for me to share en masse. So allow me just
to highlight three. First, the University of Chicago
welcomes the brightest minds and boldest thinkers, regardless
of their financial background. We believe that no cost
should prevent a student from joining our community. And we support that value
with the Odyssey Scholarship Program, our flagship
financial aid initiative. Odyssey helps to
unleash the potential of bright, talented,
and motivated students by giving them full access
to the University of Chicago. The University’s commitment
to increasing access is amplified by our
recent announcement to be among the first elite
universities in the United States to offer a test
optional option when applying to the college,
a decision that, along with our
Empower initiative, has helped to level the
admissions playing field. It’s resulted in
a 20% enrollment increase in first
generation college students in the college, a
56% increase in enrollment of students from
rural communities, and 14 veterans at
the college this year. [APPLAUSE] Second, as we near
the conclusion of our historic Impact
and Inquiry Campaign, the campus is transforming
to meet the needs of our modern day students. From new college houses and the
Harris Public Policy’s new home at the Keller Center,
to Logan Arts Center and thoughtful
renovations and facelifts to old favorites like the
OI and the Science quad, there has never been
a more exciting time to be a student at the
University of Chicago. Simply put, we believe
that great minds need the best resources,
tools, and spaces to solve the most pressing
challenges of our time. And finally, in
May of this year, the University announced
the news of a $100 million commitment from the
Pritzker Foundation to form the nation’s
first school dedicated to molecular engineering. The Pritzker School of
Molecular Engineering will expand the University’s
research, education, technology
development and impact in molecular
engineering, which builds on advances in basic
science to design technology from the molecular
level up, providing pivotal new approaches
to fundamental societal challenges. It is the first school
at the University of Chicago in three decades
and our first dedicated to engineering. These highlights only
explore the surface when it comes to the
exciting activity happening on our campuses, in Hyde
Park and around the globe. The University of Chicago
is, without question, an engine of innovation,
inquiry, and impact, changing the world. The willingness of alumni
and friends like you to give back to the
University at all levels, through your financial support
and your ongoing engagement, is a remarkable tribute to the
conviction of our community and one we are all
truly grateful for. It is now my pleasure
to introduce the Alumni Club of Chicago’s Board of
Directors Volunteer Chair Charmaine Owens to introduce
this evening’s Harper Lecture speakers. Thanks again for
joining us this evening. [APPLAUSE] CHARMAINE OWENS:
Hello, everyone. And thanks for joining us for
this evening’s Harper Lecture. I am Charmaine Owens,
Graham School MLA ’98, and current Alumni
Club of Chicago Board President, as Colin stated. The Alumni Club of
Chicago has 25 Board of Directors who organize
50 plus volunteer-led events per year, including
annual favorites, such as tours of the Argonne
Lab, French cooking classes. And now, in its eighth
season, and I shamelessly plug my event, the Annual Grant
Park Summer Broadway Concert. With more than 55,000 alumni and
14,000 parents in the Greater Chicago area, we hold
two Harper Lectures per year on various topics. Tonight’s lecture, How to Save
a Constitutional Democracy, seems to be quite timely,
given what is currently happening in Washington. Our speakers for this evening
are Aziz Huq and Tom Ginsburg. Aziz Huq is the Frank and
Bernice J. Greenberg Professor of Law and Mark Claster
Mamolan Teaching Scholar at the University of Chicago. He is a 1996 summa
cum laude graduate of the University of North
Carolina at Chapel Hill and a 2001 graduate
of Columbia Law School, where he was awarded
the John Ordronaux Prize. Professor Huq’s teaching
and research interests include constitutional
law, criminal procedure, federal courts, and legislation. His scholarship
concerns the interaction of constitutional design
and individual’s rights and liberties. His pieces have garnered the
Association of American Law School’s Junior Scholars
Paper Competition award in criminal law and
have been selected for the Harvard, Stanford,
Yale Junior Faculty Forum. Before joining the
law school faculty, Professor Huq worked as
associate counsel and then director of the Liberty
and National Security Project of the Brennan
Center for Justice at NYU School of Law. Litigating cases in
both the US Courts of Appeals and
the Supreme Court, he was also a senior consultant
analyst for the International Crisis Group, researching
constitutional design and implementation in Pakistan,
Nepal, Afghanistan Afghanistan, and Sri Lanka. He clerked for Judge Robert D.
Sack of the US Court of Appeals for the Second Circuit
and for Justice Ruth Bader Ginsberg of the Supreme
Court of the United States. And now that she has reached
rock star status, also known as the Notorious RBG. [CHEERING] In 2005, Professor Huq received
the Graduating Students Award for Teaching
Excellence and served on the American Constitution
Society’s board of directors. Tom Ginsburg is the
Leo Spitz Professor of International Law at
the University of Chicago, where he also holds an
appointment in the Political Science department. He holds BA, JD, and PhD
degrees from the University of California at Berkeley. Professor Ginsberg currently
co-directs the Comparative Institutions Project, a
National Science Foundation funded data set, cataloging
the world’s constitutions since 1789. His latest book is How to Save a
Constitutional Democracy, which he co-wrote with
Professor Huq in 2018. His co-authored
book, The Endurance of National
Constitutions in 2009 won the best Book Award from
the Comparative Democratization Section of the American
Political Science Association. His other books include
Judicial Law Review in New Democracies in
2003, Administrative Law and Governance in Asia,
2008, Ruled By Law, The Politics of Courts
in Authoritarian Regimes with Tamir Mustafa, 2008, and
Comparative Constitutional Law with Rosalind Dixon in 2011. He has served as a
visiting professor at the University of Tokyo,
Kyushu University, Seoul National University, the
Interdisciplinary Center Herzliya, the University
of Pennsylvania, and the University of Trento. Before entering law teaching,
he served as a legal advisor at the Iran-US Claims Tribunal,
the Hague Netherlands, and he has consulted with
numerous international development agencies
and governments on legal and
constitutional reform. Professor Ginsberg is
also the co-director of the Center on Law
and Globalization. Without further
ado, please join me in welcoming Professors
Aziz Huq and Tom Ginsburg. [APPLAUSE] TOM GINSBURG: So thank
you so much to everyone for coming tonight. We’re going to be
talking about our book, How to Save A
Constitutional Democracy. And it’s no secret now that
constitutional democracy as a concept and
as a phenomenon is in some trouble
around the world. Every year since 2006,
political scientists who study these things tell
us that there are fewer democracies around the world. In 2017, we hit the point
where more people in the world live in non-democracies
than democracies. And there are less democracies
than non-democracies. Actually, that year also marked
a very significant development. The Economist Intelligence Unit,
The Economist magazine’s sort of research arm, found
for the first time that the United
States had fallen from the ranks of what they call
full democracies to what they call flawed democracies, on
the basis, largely, of the way we run or fail to
run, elections. And so this is a
concern globally. Democracy seems to
be on the downswing. Autocracy seems to
be on the upswing. Very sophisticated forms
of authoritarianism that may appear on the
surface to be democratic, today’s autocrats have elections
and courts and media that might appear to be
independent, but in fact, are increasingly under the
control of single figures or single parties. Now this phenomenon
has sort of garnered a lot of different
observation, different studies, different commentary. One of the things
that we noticed is that the way
democracy ends nowadays is sort of different than in
our imagination, particularly our constitutional imagination. So I think a lot of the work
in constitutional design, in thinking about
protecting democracy focuses on a phenomenon of a sudden
collapse of democracy, a military coup or a
communist revolution. We have to keep certain parties
from competing for power because they’re anti-democratic. It turns out that’s not actually
how democracy dies anymore. Democracy dies not through the
fast route of sudden collapse, but rather through
a slow route, a sort of death by 1,000 cuts, which
we call democratic erosion. In which a number
of individual steps are taken involving different
democratic institutions, each of which on their own
might seem to be OK on its face. But when you add
them up, you get this kind of systemic
degradation of democracy. And that’s really
what our book is about and what we’re
trying to address. Now we identify two
different agents which carry out this program. One is what we call the
charismatic populist, and the other is what we
call partisan degradation. And I’ll say a word about each. Charismatic populism
is a phenomenon that we now see
around the world. We have leaders who claim
to be the single voice of the single people. That is, the people
are conceived of not as kind of a pluralist
group of entities which are debating and deliberating,
but as a single people with a single
interest, whose views and whose interests are only
known by the leader themselves. The leader claims a
distinct sort of connection with the people. And of course,
anyone who doesn’t agree with that
leader’s position is automatically not
part of the people. The other people don’t matter. And we see that language, that
rhetoric, all over the world. We see it in Turkey. We see it now in
India, increasingly, one of the world’s most
successful democracies in very difficult conditions,
is undergoing very severe degradation
and erosion right now because they’re led by
a charismatic populist. We see it, arguably,
in the United States. And we see the claim spreading. Now the problem for democracy
with a charismatic populist– and generally speaking, populism
itself is not a bad thing. You get populism as a natural
reaction in electoral politics when the elites are sort
of out of touch and not delivering policies
that people want. But when you try to
govern as a populist, or you’re a
charismatic populist, the problem is that
you are distrustful of any intermediate
institution between the people and the leader. And that leads to
systematic programs that we observe around
the world and we describe of trying to degrade
these intermediate institutions so that the leader has the
direct voice of the people. So that’s one mechanism. Another mechanism
that we observe is what we call
partisan degradation. And that occurs when a political
party is fearful that it really is not going to win in future
electoral competition and sort of upsets the
chessboard and defects on the possibility of continuing
really competitive elections. So often, it occurs because
of a general problem that we observe in lots of
political systems, which is party systems are in
big trouble nowadays. And when you think about the
causes of these phenomena, we see in many democracies party
systems are kind of changing and in some cases, eroding–
in some cases, collapsing. And when you have a void,
that’s a perfect opportunity for a charismatic populist. All these parties,
they’re all corrupt. I alone can save the country. That move works well. It’s also the case that if the
party system is collapsing, you might have a party
that thinks, well, we can’t really trust
this other side. Reciprocity has broken
down, and it might just be time to defect on democracy. So those are two mechanisms. I mean, there’s two sort of
big punch lines of the book, or two motivations. The first is that we are
writing against the idea of American exceptionalism. Since the founding
of our country, there’s been this trope that
we’re the United States. We’re different. We are a unique shining
light unto the nations. And the problems of
the rest of the world and the forces that
affect them will not affect us, that we’re
somehow immune by virtue of our vast size and
the oceans between us and the other
continents and such. And we reject that
wholeheartedly. We think the forces that
are corroding democracy around the world are very vital,
very present in the United States. And we must be,
therefore, aware of them. It’s often a kind of
common response to say, well, you know, we
have the Constitution. It’s the best thing
since sliced bread. It’s what’s kept us
going for so long. And actually, we show
that not only does the Constitution in many
ways not fail to save us, but in many ways, it
actively contributes to democratic erosion. It provides a kind of
opportunity structure for certain kinds of strategies. And we’ll talk more about that. So America is not exceptional. The other thing that
we point out and try to address in our
book is that there’s a lot of discussion
of the phenomena that I’ve mentioned so far. But one thing that few
others have really focused on is the role of law. When you look around the world
at the various little steps that are taken to
erode democracy, law is a tool of
autocrats nowadays. Control of the
courts is critical. And that means, of course, that
if law is part of the problem, it must be part of the solution. And so we try to come up
with some various mechanisms that we think might be optimal
for constitutional design in the first place. We also identify
legal mechanisms that are used for erosion. So by way of preface
to a exposition of those legal
mechanisms, I think it’s useful to say
something about how we came to identify
the particular forms, or the particular
contributions, that law can take as a contribution to
democratic backsliding or democratic erosion. When one looks over the
period that Tom described, since the first decade
of this millennium, there have been sequential
waves of democratic backsliding, i.e., reductions in
generally shared or generally agreed upon aspects
of a policy that are necessary for a
democracy, for example, real electoral competition, an
open and free public sphere, the possibility
of exit from power by an incumbent rather than the
incumbent holding on to power. There have been waves
of democratic erosion in several different continents. The first is in Latin America,
in the so-called Bolivarian revolutionary,
revolutionary countries such as Venezuela and Bolivia. There’s a second wave
of democratic erosion in Eastern Europe
that is galvanized by the electoral victory of
the Fidesz party in Hungary, spreads to Poland, where the Law
and Justice party mimics many of the measures taken
by the Fidesz party and has traveled from
there to other countries like Czechoslovakia, Austria. We’ve seen mimicry of
some of the forms observed and the political tactics
observed in Eastern Europe and Germany on the part
of AFD and in France on the part of the
National Front. In the Middle East,
we’ve seen Egypt, Israel, and further afield, India, and
even Japan copying or adopting many of the
instruments or tactics that they’ve observed elsewhere. So what we observed when we took
stock of the democratic decline globally that Tom
described was a common set of measures being adopted by
charismatic populist leaders as a way of loosening
the constraint that democratic competition
imposed upon them and reducing the
possibility that they would be, at some later point
in time, removed from power. And it shouldn’t be
a surprise that there is a common vocabulary and
tool kit of democratic erosion. As the account that I
just offered implied, there are linkages
and commonalities across backsliding countries. The Bolivarians learn
from the Venezuelans. Measures that are employed in
Venezuela, in the early 2000s turn up in North Carolina,
about a decade later. Within the European
context, there is conscious mimicry
between right of center charismatic
populist parties, both in terms of the kind of
political claim making that gets employed, but also in
terms of the specific measures, the specific legal technologies. And we would be
awry if we failed to acknowledge that part
of this global diffusion of anti-democratic
technologies is the contribution of US lawyers. Many of the people, particularly
in the European context, who are responsible for finding
legal mechanisms to unpick the constraining force
of democratic competition were trained at leading
American law schools and went home and applied their
skills in their home countries against democracy. Right? So how did they do that? What are the tools? I think what I’ll do is I’ll
talk about three of them. I’ll hand over to
Tom for the last two. And then we’ll circle back to
press on the point that Tom made about the US’s
non-exceptionalism and the vulnerabilities
created by our 230-year-old constitution, a constitution
that hasn’t been regularly updated like many other
countries’ constitutions are and that doesn’t benefit
from the learning that other countries have incorporated,
encoded in their documents, thanks to, in particular,
post-world War II experience. So I’ll give you
three pathways that are employed by backsliding
democracies around the world. Tom will give you another two. And we’ll come back
to the United States. So the first of these
pathways is the use of constitutional change to
dismantle different elements of democratic competition
or institutions that are necessary
to a democracy. Examples of this
come from Venezuela, where both Chavez
and Maduro have relied upon what they call
constituent assemblies in order to dramatically reorganize
the allocation of governing authority within the
country, and to do so, in particular, and
in the face of, and as a way of undermining,
electoral threats from people like Juan Guaido. The deployment of
constitutional change by a charismatic populist
is particularly potent. Because the charismatic populist
claims to uniquely vocalize the soul of the people. And in the terms of
the political scientist [INAUDIBLE],, they do
so in a way that is moralized and anti-pluralistic. We stand for the people. We stand against–
and it’s usually a bifurcated set of enemies. There’s usually a set of corrupt
elites, and a set of outsiders, be they immigrants
in the United States, be they the United
States and its allies if you’re standing in
the shoes of Maduro, or be they gays
and lesbians, which is the current bete
noire in Poland under the Law and Justice party. So claiming to speak with
the authority of the nation, the process of
constitutional change becomes a natural
and obvious way to circumvent
restraining institutions. So we don’t just see this
in Venezuela and Bolivia. We also see it in a
context like Hungary, where upon its narrow
electoral victory, the Fidesz party of
Viktor Orban used, in this very cunning but
technically lawful set of ways, the processes of
constitutional change to entrench themselves in
power, both in the legislature and as against a
court, a Supreme Court, that until that time had
been one of the leading lights of European liberalism. The key move, which
is worth fleshing out in the Hungarian
context, was this. Hungary’s constitution
used to have a rule that you could not amend
it without a 4/5 majority. The 4/5 supermajority
rule, however, wasn’t clearly protected
by a 4/5 majority. [LAUGHTER] So Fidesz used the
accident of a 2/3 majority to change the general amendment
rule for the Constitution and then proceeded to alter
districting procedures and to attack the courts– and I’ll come to the
courts in a second– in ways that essentially
eliminated probably the most important
check on Orban’s effort to accumulate power that existed
in the political ecosystem at the time that
Orban came to power. OK. That’s constitutional change. The second mechanism
that we observed across these jurisdictions
is the elimination of what, in the United States,
gets called interbranch checks. This is the idea that you
have at the national level, usually– we have some things to say
about federalism in the book, but let’s keep
out, for a second, the problem of substate
entities, which turns out to be more complex than people think. At the national level,
many constitutions have some kind of
fragmentation of authority. Many constitutions divide
powers between legislatures and executives in various ways. Some constitutions even
break away certain oversight authorities into ombudsmen or
independent oversight bodies. So Hungary’s constitution
did this, for example, with respect to corruption,
with respect to the media. South Africa’s
constitution is actually a best in class in the
world and does this for a whole range of things. The other interbranch check,
of course, is the courts. The assumption is that courts
are somehow standing apart from the political
process and therefore able to enforce existing
norms of legality and democratic regularity
against parties that want to defect from
the democratic game. Across jurisdictions,
what we see is– through a variety of almost
always legal measures, almost always legal measures– a elimination of these,
what in the American context would be called,
interbranch checks, although they don’t take
the form of branches in other countries. So for example, one of
the most important sets of changes that
both the Hungarian and the Polish charismatic
populist parties pursued was the elimination of
courts as a potential barrier to their exercise of authority. And they did so through devices
such as changing the retirement age for judges. Lower the retirement age,
and you, in both contexts, have the practical
effect of purging the judiciary of
many figures who would, under other
circumstances, stand in your way. The other kind of purge
that we see is more naked. So for example, in
Turkey, which is another example of a
jurisdiction where democracy seemed to be flourishing,
and under the charismatic leadership of Erdogan has
withered on the vine in a very rapid and by some light,
somewhat unexpected, turn of events, we have the
ordinary civil service laws being employed to dramatically
thin the ranks of the judiciary of individuals who might
resist the AK Parti’s agenda and perhaps favor
the more secular model of government that
was associated in particular with Turkey’s military. So there’s a variety of
different instruments that can be used to thin
or capture institutions such as the judiciary. These tools can also be used
against independent ombudsman. In Hungary, you saw the
ombudsman’s offices all taken over. In the sense that
the individual who held that position was fired,
a new person was brought in, the new person was closely
aligned with the Fidesz party, and operated in a way that
was consistent with Fidesz’s interests. The third mechanism,
and it was a mechanism that I think surprised
us a little bit when we came to the project, focuses
not upon interbranch checks, but on the possibility
of constraints from within the bureaucracy. And maybe the best way
of telling this story is by pointing to instances
in which the bureaucracy has actually played
an important role. One of our follow up pieces
of research from the book looks at places where
democracy has almost failed, but that somehow it has
come back from the brink. And we show that
Colombia in 2012 was such a case, that
Sri Lanka in 2015, and then Finland
in 1942, I believe. A commonality across
these cases is that there are bureaucratic figures– election supervisors, people
responsible for law and order, like the police, and
in some instances, the military, where the military
plays a domestic security role– who turn out to be
vital in checking the ability of a
charismatic populist to unwind the democratic game. We normally think, and the
prevailing political rhetoric of the United States
encourage us to think, that bureaucrats stand in
opposition to democracy. Either we can have bureaucrats,
or we can have democratic rule. That’s just not true. You cannot have a democracy
unless you have career, independent-minded civil
servants who are there to receive the vote, tally the
vote, and report vote totals. You cannot have a democracy,
a functioning democracy, if you have a police force,
an investigative cadre of prosecutors, or a set
of judges who are inclined to elevate the interests of
one party over the practice of democracy as a
growing concern. Bureaucracy, it turns out,
is vital to the persistence of democracy and is therefore
the object of purge, of transformation across
backsliding democracies. So there’s two other
things you would do if you’re a putative autocrat
that wants to take over. And the obvious
one is to control the electoral machinery itself. And so we see attempts to
replace electoral commissions, attempts to redraw boundaries. Actually, our
central exhibit here is, in fact, the United States. And here, just to
foreshadow some of our critiques of the
American Constitution, remember Madison
and his colleagues were writing that document in
an era before political parties. They didn’t really
think that there would be political parties. They thought their design
would immunize the system from parties. And so who did they give the
power to run elections to? State legislatures– well,
those turned out to be, of course, the proverbial
fox guarding the henhouse. And we see increasingly
elaborate strategies to entrench power by
state legislatures. And so those partisan bodies
turn out to draw the districts, such that it’s often said
voters in the United States don’t choose the politicians. Politicians choose their voters. And that’s obviously
a grave affront to the nature of democracy,
which requires elections that are ex ante competitive. That, by the way, is something
that is a bipartisan problem, lest it be thought that we’re
on one side or the other here. That, we see examples
on both sides. We also see, obviously, efforts
to disenfranchise voters. And we’ve just seen a massive
attempt by Modi in India to eliminate a million people
from the voter rolls in Assam, in a far Eastern part of India. Mainly Muslims, that’s his
preferred target group. And we also see in very
interesting strategy that, again, as he’s
mentioned before, originates with
Hugo Chavez and then spreads to North Carolina,
Wisconsin, and Michigan. And that is, when
you lose an election, before the new person
can come take office, you change the
powers of the office. So that’s what state Republicans
did in North Carolina and Wisconsin successfully. In Michigan,
actually, their effort was vetoed by the Republican
Governor Rick Snyder before leaving office. And that’s obviously admirable. That’s someone who is
committed to democracy as a going concern. But that’s a grave concern,
when you, in essence, don’t acknowledge
defeat at the polls by eliminating the
powers of the office. The other sort of
realm of things you do when you’re trying
to take over a system is to degrade the
public sphere itself. And this, of course, we
see all over the world. The idea of fake news, attacks
on journalists– journalism has become one of the world’s
most dangerous professions. And I think more journalists
were killed and kidnapped last year than ever before. And obviously, you can’t
have a functioning democracy without freedom of the press,
without freedom to criticize. And we see this
as a grave threat. Civil society
around the world is subject to all kinds of
new onerous regulations, more sophisticated tax audits,
and various registration requirements that are squeezing
the ability of civil society to act in many countries. And I would add, finally,
and particularly important to this audience, universities. A very famous example is the
Central European University in Hungary, which was
shut down and forced to move to Vienna because of its
affiliation with George Soros. But it was a very significant,
important university, a beacon of liberalism
in an illiberal country. And that was intolerable. And in other countries we
also see– places like India– we see sort of creeping
regulation of universities. Universities have
an essential role to play in democracy, obviously. We are committed
to epistemic truth. We’re committed to finding out– following inquiry
wherever it goes. And of course, that doesn’t
need much of a selling job to a University of
Chicago audience. But if you don’t have that,
then on what basis can we criticize facts? Universities, I
think, have a big role to play in making sure that
democracies are resilient. So these are the
various channels. And if we look at
the US Constitution and kind of evaluate
how we do, well, we don’t actually do that well. Right? It’s true that constitutional
amendment is really hard in the United States. So we’re sort of immune
from a particular individual taking over the system and
amending the Constitution to stay in power forever. Although that has a
perverse consequence, which channels a lot of pressure
for constitutional change to the courts, which have
expanded their own power dramatically. Such to the point
that we are now fighting presidential
elections over who gets to make judicial
appointments to the Supreme Court. That’s crazy. But that’s our system. And in some sense,
it’s a byproduct of the difficulty of
constitutional amendment. Although, you know,
from our framework, the fact that constitutional
amendment cannot be easily manipulated is
probably a good thing. We have a preferred
system we like. Which is amendments are
proposed in one legislature and adopted by the next
one after an election. So that means if you have
a proposed amendment that’s going to change the whole
system of democracy, at least the people all get a
chance to monitor it and vote and mobilize around it. So elections, we do so-so. The separation of powers
in the United States does not work as Madison wanted
it to work or thought it would. Because he didn’t anticipate
the parties, right? So we know that
Congress– and actually, today’s a perfectly good
day to illustrate it– Congress is not
acting as Congress. The Democratic House
has one position. The Republican Senate
will have another. And they’re not
defending the interests of Congress Qua Congress. It’s parties. And so when we have
unified government, it looks very
different than when we have divided government. And that’s something I
don’t think was anticipated. The courts– maybe I’ll let
Aziz talk a little bit more about that. But we don’t think the
courts do a very good job in terms of playing
their role in checking the executive branch. And I’ll just say
one other thing, which is the one
dimension we think the United States does very
well on is the public sphere. We do have a vigorous
public sphere. We have an extreme version
of freedom of speech that no other country really
has quite as robust a tradition. And we’re strong
defenders of that. And we think that’s important. Do you want to say a
little about the courts? AZIZ HUQ: Sure. I think when one talks
about the courts, it’s useful to take
a long perspective and not to focus solely
upon the Roberts court. And ask whether, in the
sweep of American history, the Supreme Court and
the federal court system have done more to hinder
or to help democracy. It’s worth remembering
that for a good portion of American history,
from the 1890s up until the 1960s
or early 1970s, depending on how you
measure these things, the United States was
not really a democracy. It was characterized by what
political scientists call subnational authoritarianism. That is, across the American
South, a substantial, and as we know from the 1890s,
outcome determinative bloc of voters were systematically
excluded from the polls– African-Americans. And the Supreme Court
over that period dabbles in a series of cases called
the White Primary Cases in the 1910s and ’20s. We’re starting to nibble away
at white hegemony in the South over the political process,
but does very little. The Supreme Court has
no meaningful role in improving the quality of
American democracy, at least until the 1950s. When the Supreme
Court does start to intervene, to broaden
the democratic franchise, it does so in the
context of education, in the famous Brown
v. Board case. Levels of educational
segregation, however, remain essentially
unchanged in the American South from 1954 when Brown was
decided to the mid-60s. It is only when Congress enacts
the Civil Rights Act of 1964 and the Voting
Rights Act of 1965 that the franchise opens
up to African-Americans. And the most
important constraint upon American democracy
in the modern era, at least after the
bar to women voting was removed in 1919, not by
the Supreme Court, is loosened. The Supreme Court does not
have anything to do with that. It is true that there
are some Supreme Court decisions from 1965
until roughly the middle of the 1990s– I would say my
characterization ends in 1990– that are facilitative of
the democratic process. It is exceedingly
hard to find opinions after 1990 that
have that effect. Whether one’s looking at
decisions interpreting the Voting Rights Act, whether
one is looking at the court’s treatment of what it calls
racial gerrymandering, or whether one looks at
campaign finance reform cases, or whether one looks at
what the court has done most recently in the North Carolina
case [INAUDIBLE] with respect to partisan
gerrymandering, the court has never been a
friend of democracy. And that is, as a
historical matter, true. So the idea that
the Constitution contains some sets of
resources, whether they be institutional in the form of
the checks and balances which are compromised by
the party structure, or the courts, which as a
matter of historical precedent, have never stood by
democracy, the Constitution simply doesn’t help. And there are elements–
and this, I think, is the last thing
we maybe will say– there are elements of the
constitutional order that positively hurt the prospects
of democratic survival. Probably the most
important of those is the argument made
available by Article II of the Constitution,
the article that describes the executive, that
all powers that plausibly can be characterized as
executive are necessarily vested personally,
or their supervision is necessarily vested
personally, in the president. This means, as one of our
colleagues at Northwestern has recently argued, that any
kind of investigation run out of the Department of Justice
without plenary control by the president is
unconstitutional. Right? So the argument is that
the Mueller investigation and anything like it
is unconstitutional. Right? Notice, as the last week
has demonstrated that, to a large extent,
Congress, when it exercises its supervisory powers,
when it exercises its impeachment-related
powers, depends in some measure upon the investigative functions
of the Department of Justice. Congress doesn’t really
have a terrific apparatus to engage in investigation. And in a world in which
that investigative apparatus is purely at the discretion
and disposal of the president, how is impeachment
supposed to work? So I think that’s
just one example. We have plenty of others. And I’m sure there’s questions. But I hope that
gives you a flavor of the arguments in the book. TOM GINSBURG: So the floor
is open for questions. AZIZ HUQ: And just to be
clear, we can’t see anything. TOM GINSBURG: Yeah. Right. We’re blinded by the light. AZIZ HUQ: It’s
really bright lights. TOM GINSBURG: Blinded by light,
it’s a Manfred Mann song. [LAUGHTER] AUDIENCE: Hello. Very interesting– I look
forward to reading this. I suspect we may be
having a longer exchange and emails afterwards. For the moment, I have a
semi-rhetorical question for you. Even just looking at the title
here, Constitutional Democracy, I came up in a generation
where the distinction between a democracy and a
republic was key, conceptually. I would further observe
that while Madison may not have observed and anticipated
parties in their present form, a key reason for non-direct
election of senators was to put a check on popular
passions, which is something we subsequently eliminated. So my semi-rhetorical
question for you is, is the very phrase
republic, small r, passe? And if not, how do we
check the masses over here and the demagogue over there? TOM GINSBURG: Do
you want to do that? AZIZ HUQ: So if one
examines Madison’s notes, for example, the notes
he prepared prior to the Philadelphia Convention
on the optimal design of constitutions, one sees
that a principle concern held by Madison, held by
George Washington, held by many others, was the
emergence of legislatures at the state level that
were populist-minded. And in particular,
minded to increase taxes on real property. There was great fear among
the particular class that sat in Philadelphia and
drafted the Constitution about redistributive
legislation. And there are many features
of the Constitution that are explicable
in terms of that fear. The indirect election of
senators is one of them. The Takings Clause is another. Madison had a variety
of different schemes for reining in state
legislatures, only some of which made it into
the Constitution. This anti-redistributive
motive in the framing of the Constitution
has largely dropped out of the constitutional
imagination. And over time, the
Republican conception– and the word Republican has
a complex meaning linked back to Roman and Machiavellian
political theory that is too complex to get into here– has given way to a far
more demotic and democratic understanding of the terms
of constitutional rule. I don’t think either of us
are originalists in the sense that we think that the implicit
form of democratic government that the framers believed
in, formed by the way that was perfectly consistent
with the peculiar institution of slavery, is one worthy
of any particular reverence. We do think that there
are important moral values in democracy. And that, I think, is the
institutional arrangement that we’re interested in
finding ways to defend, not the arrangement
that necessarily can be identified in
the writings of Madison or his slave owning cohort. [LAUGHTER] AUDIENCE: Hello. There has been discussion of
adding seats to the United States Supreme Court. I’d be curious to get
both of your comment. TOM GINSBURG: Yeah, I think
we have an op ed on this, at some point, that we’ve done. But there’s a lot of
interesting proposals. It’s actually kind of
exciting for scholars. Because scholars
have been playing with this for some time. Now all of a sudden, all
these political candidates are grappling onto
these various ideas and you know, a
lot of novel ideas. One thing, I think, that
we say it in the book and I think we agree
on is that life terms doesn’t make much sense. It might have made some
sense at a time when the life expectancy was 60. But the incentives
now, of course, are to appoint an ever
younger cohort of judges, by definition we
know less about, and then give them
power for six decades. It’s rather crazy. No other country does it. There are many other countries
that do have the term lifetime appointments, but they all
have mandatory retirement ages. And so I think that the optimal
redesign of the Supreme Court, whatever you want to say
about the number of members, would be something like
an 18 year term, which I think would be advisable. In terms of the
number of members, I think our op ed said–
it’s been a bit of time– but what ought to happen, if
there was a change in power, we don’t favor partisan
packing of the court. What we favor is
restoring the status quo ante by expanding the size of
the federal courts in general. There aren’t enough judges
in the United States, as any one sitting in
the bench can tell you. There’s not enough capacity for
what we demand that they do. And so expanding
the courts, ideally in a bipartisan way
with a set of judges who would be given to the
president on the basis– for an up or down
vote by the president, that the Senate would sort
of pre-confirm these people on a bipartisan basis. Now the political incentives
and probabilities of that may not be realistic right now. But I think that’s a good
way to restore the status quo ante of trying to get
more moderate judges, less partisan, and ones who would– and restore capacity
of the courts. AZIZ HUQ: I have a slightly
different view from Tom in what I think I’m about to say. I don’t know if you
share this view. TOM GINSBURG: We’ll find out. AZIZ HUQ: Yeah, I guess. So I teach Classical
Federal Courts, which is about the federal courts. And I start out by getting
the students to read the text of the Constitution. And I ask them how many federal
courts do there have to be, according to the Constitution. And the answer is
the Constitution requires one court,
the Supreme Court. And it requires one judge
to sit on that court. Everything else, everything else
is at Congress’s discretion. And indeed, throughout
the early republic, up until sometime between
the 1890s and the 1920s, when the judiciary
became itself, a powerful interest
group capable of mobilizing and effectuating
legislation on Capitol Hill– up until that point, Congress
vigorously exercised its power over the jurisdiction
of the federal courts to decide what kind of cases
those courts could hear. So for example, we commonly
think that the federal courts are there to hear
federal claims, cases that arise under federal law. Well, up until 1871, federal
courts had no per se power to hear federal claims. All of those claims were
heard first in state court. People forget. We have a history of
Congress aggressively using its authority to
shape the jurisdiction of the federal courts to
achieve specific policy ends. I think that the
proposals to add justices to the Supreme Court,
in an important way, fail to grasp the deep
and systemic problem that emerges from the way that
the federal courts are now organized. The deep and systemic
problem is best characterized by the following fact. Last year, three people
in the United States got money, damages,
recovery as a consequence of having their constitutional
rights violated by a police officer in the United States. It is effectively
impossible, because of judge made doctrines, to vindicate
one’s constitutional rights, particularly if one is
subject to state coercion. The federal courts today
fail to provide citizens with remedies for ordinary
constitutional violations by state officials. The reforms that
Congress could undertake ought to fix the federal
courts with reference to their role in remediating
ordinary people’s constitutional rights. And the power to do so lies
in Congress’s authority over jurisdiction. Solve that problem, and
many of the objections about the partisan
and politicized nature of what the court otherwise
is doing fall away. TOM GINSBURG: Go ahead. AUDIENCE: OK. Hello. TOM GINSBURG: And
apparently, this is the final question
that we have time for, I’m sorry to say. AUDIENCE: What I’ve noticed
you talked mostly about, like, Hungary,
Poland, and India, which is very interesting. But I’m surprised you didn’t
see a word about France and what’s been going on
with the Yellow Vests. And especially, I
would especially like to know what you think
of the fact that President Macron refused
[INAUDIBLE],, which would be a referendum through
which the French people could have their say and vote about
the main political issue in France. Do you call this democracy? I’m just curious. TOM GINSBURG: I think
you’re better situated. AZIZ HUQ: Am I? So I don’t know
what the referendum that you’re referring to is. But let me answer that
question in the context of a jurisdiction
which I do know about, which is the United Kingdom,
which is where I grew up. Because there’s
the same question that arises around referenda. In the United Kingdom, under
the unwritten constitution that English lawyers like to
imagine and kind of conjure, there is no provision
for referenda. And the referenda that
was held in 2016 over exit from the European
Union was explicitly framed as a advisory election,
as an advisory referendum, if one looks closely
at the words. And the dynamic
that has emerged is that there is a claim,
made largely by Brexiteers, that the referendum result
embodies vox populi. That this is the
people truly speaking. And the counterargument
to that is, well, no. We have a set of institutions
that channel and organize the expression of
political preferences, largely, in the United
Kingdom, through Parliament. So without knowing the
specifics of the referendum that you’re describing,
I think that the way that I think we would
think about that is what is the
role of referenda? What is the role of initiative
or the kind of raw expression of public sentiment
through policy by policy votes under
the French constitution? And is it already
a mechanism that is intended to provide a
channel for policy choice? I would flag that, at least
in the American experience, those states that have embedded
the referenda or initiative process, like California,
have moved themselves into a world in which they’re
incapable of raising revenue and have locked themselves
into budgetary commitments that are essentially
unsustainable, thanks to contrary public votes. So we can talk about this later. But I’m looking at– AUDIENCE: So basically, you
think that democracy is good. But too much democracy is bad. TOM GINSBURG: Maybe
I can say something. The way I would say– AUDIENCE: Something like that? TOM GINSBURG: –is, well– the point– AUDIENCE: You know,
I’m just curious. That’s it. TOM GINSBURG: –the
point about institutions is that in a
constitutional democracy, we have institutions which
channel democratic preferences. AUDIENCE: Sure. TOM GINSBURG: And those differ
from culture to culture. France has a tradition
of referenda. The United Kingdom does not. And that means that
what’s appropriate is different in different cases. But I would not say that
referenda are always democratic. They’re very easily and very
often subject to manipulation. AUDIENCE: Sure. Sure. TOM GINSBURG: And I think on
that note, we have to end. Because I’m getting– AUDIENCE: Sure. I’m not taking a position. I was just curious. TOM GINSBURG: Yeah. AUDIENCE: OK. Thank you. TOM GINSBURG: Great. OK. Thank you all very much
for your attention. [APPLAUSE] COLIN HENNESSY: Thank you
so much, Professors Ginsburg and Huq for joining us. Ladies and gentlemen, again,
I’m delighted that you all chose to join us this evening
for tonight’s Harper Lecture. If you’re excited
about other ways to be a part of the University
of Chicago Alumni Association, talk to me, one
of my colleagues, or visit
AlumniAndFriends.UChicago.edu. And if tonight has you longing
for our gorgeous Gothic campus in Hyde Park, please come visit
us for the Homecoming Block Party this Saturday on campus. And with that, our reception
starts just behind us. Thanks again for joining us. [APPLAUSE]

2 Comments

  • Eric Hogan

    Too late. Our system no longer functions properly. We needed to do major political reforms a long time ago to increase democratic participation. The abolition of the electoral college, the adoption of a real multi-party system, getting money out of politics, these things are no longer possible with the present political climate.

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