How Democracy Dies

[The Minsky Moment]

If anybody quotes lines from a Star Wars prequel, I'm going to be pissed off . . .

Weimar collapsed in part because of a constitutional infirmity - broad emergency powers granted to executive authority. Carl Schmitt argued that these provisions rendered democracy an illusion because ultimate authority resided with the person who had the power to decide when and how to declare an emergency. Schmitt was a shit, but his analysis was sound. Weimar's survival ended up turning on whether Hindenburg would refrain from invoking emergency powers and despite his misgivings, he did invoke them in response to a faked incident. That was the constitutional fig leaf used to entrench Nazi power and end democracy in Germany.

American constitutional democracy is based on separation of powers. At the core is the separation between Congress' lawmaking authority and the President's power to carry out those laws (or veto as appropriate). The key limitation is the House's exclusive power to authorize expenditure of money. Without the ability to access funds, the President cannot act alone.

What that means is that the House of Representatives lawsuit against Trump on "emergency" wall funding is by far the most consequential legal action in America since the habeas corpus suits during the Cheney-Rumsfeld administration. If, as Judge McFadden ruled from the DC District Court, the House lacks standing to enforce its exclusive power over money bills, then we (Americans) longer live in a functional constitutional democracy.  Nothing stops the President from doing whatever he wants and acting without any meaningful constraint. We will be reduced to an elective dictatorship - and one where the elected dictator was elected by a minority.  I've mentioned Judge McFadden's decision before in a snarky way, but this transcends snark.  There is a lot at stake.

The good news is that it's likely the DC Circuit reverses Judge McFadden, it's probable that the Supreme Court reviews it otherwise, and probable the Supreme Court would permit the House to sue. But the good news is also the bad news.  "Likely" and "probable" is not certain. "probable" that we avoid an elective dictatorship is not assuring.

The argument that a President wouldn't abuse that kind of authority because of "unwritten rules" or an innate sense of restraint doesn't work anymore.  We don't have that kind of President. If an envelope can be pushed it will be pushed.

Watch what happens with this case.

[The Brain]

I guess you guys shouldn't have voted Republican. Actions have consequences.

[Tamas]

I guess you guys shouldn't have voted Republican. Actions have consequences.

[Oexmelin]

I've been pushing and pushing for my colleagues and I to organize pop up Constitution workshops in shopping mall parkings, and sports events. Apparently, this is less important than writing an article about nuns in a 14th century convent. I admire the dedication to the ivory tower, but there are times when it's no longer enough to resist by publishing erudite commentaries. These are that kind of times.

[derspiess]

Just make sure your DSA comrades use correct pronouns.

[Oexmelin]

It's out of concern for others. I imagine such considerations do not rank very high amongst your fellow grand wizards.

[Malthus]

I sometimes think the exact legal mechanism of the infolding disaster isn't all that important - the American system, like all systems, ultimately relies on a sufficient number of people having loyalty to the goals of the system. The real issue is understanding how that loyalty is cultivated and how it can be lost.

In the case of America, somehow a sufficient number of people became convinced that the American system doesn't work and set out to wreck it. By wrecking it, they then demonstrate that it doesn't work, leading others to lose loyalty to it in turn (why should 'we' play by the rules if 'they' don't, and get away with it with success?).

Eventually, what had seemed like virtue (abiding by civility and decorum in politics, for example) will just look like naivete, or even deliberate selling out to the 'enemy'.

[The Minsky Moment]

I wouldn't underplay mechanics too much.  Institutional mechanisms exert a powerful inertia, especially when executive power is effected by and through a bureaucracy.

Trump's attempt to circumvent the House's authority is one that has caused genuine uneasiness among fellow Republicans.  They have raised the prospect of a President Warren or Sanders (or gasp! Ocasio-Cortez) simply enacting universal health care (or a Green New Deal) by decree.  And rightly so.  If the President can unilaterally spend $10 billion to build a useless wall in response to a fake crisis, surely the President can spend $10 trillion to address a true emergency like global warming or millions of uninsured Americans.  But without a legal mechanism to check this, that unease cannot manifest in a concrete and politically effective way.

[crazy canuck]

I sometimes think the exact legal mechanism of the infolding disaster isn't all that important - the American system, like all systems, ultimately relies on a sufficient number of people having loyalty to the goals of the system. The real issue is understanding how that loyalty is cultivated and how it can be lost.

In the case of America, somehow a sufficient number of people became convinced that the American system doesn't work and set out to wreck it. By wrecking it, they then demonstrate that it doesn't work, leading others to lose loyalty to it in turn (why should 'we' play by the rules if 'they' don't, and get away with it with success?).

Eventually, what had seemed like virtue (abiding by civility and decorum in politics, for example) will just look like naivete, or even deliberate selling out to the 'enemy'.

I don't think this is a mere legal mechanism.  This is a rejection of the American system of government. 

[Tonitrus]

I've been pushing and pushing for my colleagues and I to organize pop up Constitution workshops in shopping mall parkings, and sports events.

https://getyarn.io/yarn-clip/809828aa-4642-4dc3-be91-b67ca16a1856

I'm kinda thinking that if we're slouching towards some kind of dystopia, the Running Man universe might be my leading candidate. 

[Malthus]

I sometimes think the exact legal mechanism of the infolding disaster isn't all that important - the American system, like all systems, ultimately relies on a sufficient number of people having loyalty to the goals of the system. The real issue is understanding how that loyalty is cultivated and how it can be lost.

In the case of America, somehow a sufficient number of people became convinced that the American system doesn't work and set out to wreck it. By wrecking it, they then demonstrate that it doesn't work, leading others to lose loyalty to it in turn (why should 'we' play by the rules if 'they' don't, and get away with it with success?).

Eventually, what had seemed like virtue (abiding by civility and decorum in politics, for example) will just look like naivete, or even deliberate selling out to the 'enemy'.

I don't think this is a mere legal mechanism.  This is a rejection of the American system of government.

I don't think it is a "mere" mechanism either; I simply suspect that the important issue is the erosion of loyalty to the system. Once that erodes, I don't think any system can long stand, no matter how it is constituted.

[grumbler]

I sometimes think the exact legal mechanism of the infolding disaster isn't all that important - the American system, like all systems, ultimately relies on a sufficient number of people having loyalty to the goals of the system. The real issue is understanding how that loyalty is cultivated and how it can be lost.

In the case of America, somehow a sufficient number of people became convinced that the American system doesn't work and set out to wreck it. By wrecking it, they then demonstrate that it doesn't work, leading others to lose loyalty to it in turn (why should 'we' play by the rules if 'they' don't, and get away with it with success?).

Eventually, what had seemed like virtue (abiding by civility and decorum in politics, for example) will just look like naivete, or even deliberate selling out to the 'enemy'.

I don't think this is a mere legal mechanism.  This is a rejection of the American system of government.

You are just repeating his argument, without acknowledging that you are doing so.

[Zanza]

I don't think it is a "mere" mechanism either; I simply suspect that the important issue is the erosion of loyalty to the system. Once that erodes, I don't think any system can long stand, no matter how it is constituted.

One of the nicknames of the Weimar Republic was "democracy without democrats". German has a word "staatstragend" which is basically describing those parties loyal to the constitution. However, in the Weimar republic you did not only have Communists, Monarchists and Nazis that were not loyal to the constitution. Even the Social Democrats and the Catholic Centre party were only lukewarm supporters of the democratic liberal order and still considered "democratic socialism" or a Catholic-dominated monarchy as their ideals.

That's one of the reasons the Weimar Republic eventually failed.

[grumbler]

I don't think it is a "mere" mechanism either; I simply suspect that the important issue is the erosion of loyalty to the system. Once that erodes, I don't think any system can long stand, no matter how it is constituted.

I think that you are 100% correct.  In both the US and the UK, what we are seeing is the dismissal of the idea that a party's policies can be rejected by the people, indicating a need to change policies.  Instead, the rejected party sets out to prove that the public hasn't rejected their policies at all, that their policies are in fact correct, and that the public rejection is simply a distortion created by a hostile press.

This is just a belief that there is a "silent majority" in favor of any given set of policies; that one's own policies are, in fact, supported by the majority of the "real citizens" no matter the result of polls or elections.

[crazy canuck]

I sometimes think the exact legal mechanism of the infolding disaster isn't all that important - the American system, like all systems, ultimately relies on a sufficient number of people having loyalty to the goals of the system. The real issue is understanding how that loyalty is cultivated and how it can be lost.

In the case of America, somehow a sufficient number of people became convinced that the American system doesn't work and set out to wreck it. By wrecking it, they then demonstrate that it doesn't work, leading others to lose loyalty to it in turn (why should 'we' play by the rules if 'they' don't, and get away with it with success?).

Eventually, what had seemed like virtue (abiding by civility and decorum in politics, for example) will just look like naivete, or even deliberate selling out to the 'enemy'.

I don't think this is a mere legal mechanism.  This is a rejection of the American system of government.

You are just repeating his argument, without acknowledging that you are doing so.

You misunderstand.  The Court's ruling that Congress cannot bring suit is not a mere legal technicality.  Even if the Trumpists behave as Malthus states, it should not matter because the Courts are supposed to be there to protect against such things.  If the Courts do not fulfill their constitutional role then that is not a "legal mechanism" by which democracy dies.  It is an abdication of constitutional responsibility.