The resilience of U.S. democracy

Unlike countries where democracy recently has unraveled, the United States has at least six traits that are protecting it from autocracy, write University of Virginia law professors Kevin Cope and Mila Versteeg in The Atlantic.

They are:

— A strong network of advocacy groups. The United States has high rates of citizen engagement, and nonprofits including the American Civil Liberties Union, Democracy Forward, and Republicans for the Rule of Law are challenging the Trump administration in the courts of law and public opinion. These organizations, like for-profit corporations, have strong speech and associational rights, thanks to Supreme Court cases dating back to at least 1886, Cope and Versteeg say. 

— A powerful independent judiciary. U.S. courts have “exceptional power” to check a president’s agenda. Some national courts elsewhere lack a Marbury v. Madison–style power to conclusively strike down unconstitutional acts of the legislature or executive. And even where that power exists, judicial review in much of Europe and Latin America typically is centralized in a single constitutional court, so aspiring autocrats need to capture just a single court to effectively remove judicial constraints. 

In the United States, hundreds of lower-court federal judges with lifetime tenure have both the formal power and the political will to invalidate executive actions nationwide. Judges appointed by Republican presidents, including by President Trump himself, commonly rule against him. 

— U.S. constitutional reform is difficult. And in part because of the Senate’s filibuster rule, even ordinary legislation faces high hurdles.

That’s why Trump has attempted to implement his key initiatives mainly through more than 150 executive orders, rather than by legislation or constitutional amendment. And that means many of those policies “can be reversed almost as easily as they were enacted,” Cope and Versteeg say.

— America’s media are independent and diversified. “In Vladimir Putin’s Russia, media capture was swift: Starting in 2001, Putin’s allies simply bought critical outlets and converted them to tools of state propaganda. In contrast, America’s media organizations are so numerous and varied — even after years of consolidation and closures in the industry — that capturing them all would be nearly impossible.”

— America’s federal system. This separation of powers between regional and national governments exists in fewer than 15 percent of countries. In the United States, state governments can facilitate or frustrate immigration enforcement, state courts and prosecutors retain control over most criminal justice, and citizens may retain rights under state law even when their federal rights are diminished. 

— U.S. constitutional law and courts maintain a “unique” commitment to free speech. Public officials face significant hurdles in suing or prosecuting critics into silence.

So, while the threats to America’s democracy and the rule of law are real: “America’s 237-year-old Constitution, private organizations, and public institutions are far better positioned than their foreign counterparts under similar threat. Many of these exceptional features of American society not only make our system easier to defend — they are also a big part of why it’s so worth defending,” say Cope and Versteeg.