Donald Trump’s baseless questioning of the legitimacy of the 2020 election has spawned a lot of handwringing regarding our democracy. As warranted as these concerns are, though, the reality is that American democracy has been dying a slow death for quite some time thanks to the nationalization of American politics — due to the simple fact that in a multiethnic, continental nation, more and more decisions are being made at the most central level of government, and by unelected judges and bureaucrats at that. Instead of actually reckoning with our democratic weakness — our dearth of veritable self-government — we have been evading the problem by defining democracy down.
In a 1993 American Scholar essay, “Defining Deviancy Down,” the late New York Senator Daniel Patrick Moynihan argued that societies can only tolerate a certain level of deviancy from accepted norms and modes of social behavior. When the conduct of a sufficiently large swath of the citizenry falls beneath these standards, we respond by revising our standards downward so as to legitimize said conduct. In sum, the conduct is no longer regarded as sub-standard; it becomes standard.
Unfortunately, Americans have engaged in a similar dynamic vis-à-vis our democracy. We see ourselves as stakeholders in a vibrant democracy — government “of the people, by the people, for the people.” However, decision-making power has grown increasingly concentrated in the hands of unelected judges and federal bureaucrats.
Rather than pushing back on these undemocratic developments, Americans respond by defining democracy down. We accept undemocratic accretions of power and then haggle over whether they will be pressed into the service of Democratic or Republican ends. All the while, we cry out that it is the death of democracy if our tribe doesn’t get its way. Soon enough, rather undemocratic exercises of governmental power are celebrated as democratic so long as they align with our partisan objectives. Democracy is defined downward, while the stakes of national politics — and the resultant levels of animosity and contempt — are revised upward.
Take the example of judges, particularly Supreme Court justices. As things stand now, nine unelected lawyers on the Supreme Court hold the bulk of governing power in the United States of America with respect to abortion, the scope of gun rights, the definition of marriage, and the permissiveness of our campaign finance system. These are some of the most consequential, weighty issues in American politics, yet our democratic processes at both the state and federal levels can only work around their edges.
Instead of pushing back on this unsavory, undemocratic reality, we press it into the service of partisanship. Whether it is Merrick Garland’s or Amy Coney Barrett’s nomination to the Supreme Court, those unhappy with the nomination — likely because they see the judge’s philosophy as insufficiently aligned with their partisan objectives — cry out that filling the seat would constitute a betrayal of democracy. “Let the people decide,” they say.
But the real betrayal of democracy is the fact that we’ve allowed ourselves to reach a situation in which our claim to self-rule hinges on whom we elect every four or six years to then nominate and confirm our real (judicial) rulers. How strange.
Most telling was the post-Barrett devolution of discourse on the left into talk of court packing. If a 6-3 conservative Supreme Court majority really does constitute such an immense threat, then the logical response for Democratic politicians would be to strip its appellate jurisdiction. Under Article III Section 2 of the U.S. Constitution, Congress could do this, making itself “the sole arbiter of the constitutionality of the laws it enacts,” in the words of former Deputy Assistant Attorney General Mark Agrast.
If the end goal is indeed democracy, then this seems reasonable enough. Why not let the people’s elected representatives have the final say? The main roadblock to jurisdiction stripping, however, is the Congress itself. Our elected representatives do not want to have the final say on very much at all — not the Constitution (thank God) and not even on typical legislative matters (i.e., their job).
All too often, legislators are happy to delegate their lawmaking duties to executive branch technocrats and regulators. It’s easier to articulate a broad principle; it’s harder to translate that principle into the details of actual law. In addition to requiring real work, doing so also may carry political costs (the horror). Thus, we’re left with a deeply undemocratic situation whereby we elect people who proceed to pass off the work of governance to other (unelected) people.
The big question is whether we will earnestly reckon with our democratic dearth or continue to allow the underlying problems to fester. Will we aim to revivify our democracy? Or will we simply label outcomes we like as democratic and outcomes we dislike as undemocratic?
Democracy entails both the suffusion of the franchise and what we might call “meaningful majoritarianism” — that people have a real say in the governance of their polity. Elections having consequences is a boon to democracy; so is devolution. Both make our choices as citizens more meaningful in our everyday lives; both help create veritable self-government.
Therefore, both parties should be pushing back against the accretions of judicial power and Congress’ reckless delegation of its legislative powers to the executive branch. Moreover, if we are to redefine democracy upward, certain partisan preferences will have to be sacrificed at the altar of democracy. Republicans should lend an ear to arguments advocating for Puerto Rican statehood and federal representation. Democrats should allow more sub-national polities — states and localities — to exercise meaningful majoritarianism with respect to issues like abortion, gun rights, and other “culture war” issues that are best sorted out at sub-national levels to begin with, provided that the bedrock protections of the Bill of Rights are respected.
Perhaps, then, as we enter into what seems to be yet another two years of divided government, we can quit our cheap partisan talk of democracy and gear up for a real democratic reckoning. One can at least dream.
Thomas Koenig is a recent Princeton University graduate who will be attending Harvard Law School in the fall of 2021. Follow him on Twitter @TomsTakes98.