America - A Crisis of Democracy?

I was honoured to speak this week at a Human Rights Symposium in Warsaw, Poland. The program was jointly sponsored by the University of Warsaw and Loyola University of Chicago. Two days of panels and lectures by American and European scholars, activists and advocates provided a wide ranging and energetic examination of a burning contemporary political issue- “Is Global Democracy in Crisis?” They were kind enough to ask a retired Chicago lawyer to weigh in on the topic “The United States- A Status Report on Democracy and the Rule of Law.”  An ambitious, broad and important subject which I embraced with humility and enthusiasm. Are the doomsayers correct and is Trumpian American on the fast track to Fascism? Are we becoming an illiberal Democracy? Or are liberal and progressive bedwetters overreacting to short term and necessary disruptions created by an unconventional President? The audience was American and European college students and the good news is that the level of interest and engagement was high. On reflection, I decided to memorialise my remarks in writing here- always healthy to broaden your audience, 

At the outset, a matter of self disclosure. First, I am an optimist by nature. I am not a gloom and doom guy. I am rather measured when evaluating events and resist hasty verdicts that the sky is falling or the world order is collapsing. If there is a silver lining in a dark cloud, I will find it.  Second, I am a a rather proud American- borderline chauvinistic- a patriot. I read the Declaration of Independence, Lincoln’s Gettysburg Address, the Constitution and the Bill of Rights and say “How Can You Not Love a Place That Proclaims And Lives these Values?”  To wax poetic, I tear up when I read the welcoming words on the Statute of Liberty and hold my hand over my heart when the national anthem is played at sporting events. To me America the Beautiful- the Land of the Free and the Home of the Brave are not just idealistic words- they capture the essence of an admirable societal and political project. 

I also submit I am not alone in these sentiments. Polls show that Americans are proud of their history, proud of their system and convinced they play a unique role in the pursuit and preservation of liberty and freedom domestically and globally. We are actually a rather arrogant bunch. Listen to the glowing self descriptions, tendered by politicians, journalists, philosophers and historians over the years. The United States is the “exceptional country,” the “indispensable nation,” the “benevolent superpower,” the “beacon of democracy,” and the “shining city on a hill.” There is overwhelming objective evidence suggesting the the United States is special- that it is unique- that it is different. We have the strongest economy in the world- characterised by a commitment to both the free market and a safety net for its citizens. We have the strongest military in the word with the capability of projecting power on a global scale. We are a cultural powerhouse, dominating the arts, music, sports and entertainment. The current multilateral systems on trade and public health were primarily designed by American leadership. We are a magnet for immigrants seeking a better life. By any standard of measurement the USA is an impressive place. Finally, we have actively promoted the wisdom of our governance model worldwide. We have never hesitated to lecture others on the wisdom of choosing the American way. We openly use our system as an instrument for building alliances and executing our foreign policy- reminding friends, neighbours and neutrals of the difference between our model and the errant ways of dictators, autocrats and tyrants. George Bush spent his entire 2005 inauguration address sharing his dream of a globe network of benign and peace loving democracies overcoming the axis of evil.  Heady stuff ! 

However, a review of thousands of articles, podcasts and interviews generated over the past ten years reveals a growing concern that America has lost its way- that its governing model is developing cracks in the foundation. An economic and military powerhouse is run by a political class that is polarised, confused and with no sense of history or a proper appreciation of our fundamental democratic principles. Basically, a Republic under stress, more accurately duress that appears fragile to objective observers, both nationally and internationally. Where is this angst coming from? Is it simply Trump Derangement System or is something more insidious going on? A thoughtful inquiry requires a review of the basics. What are the components of a successful democratic republic based on the rule of law. Luckily, it is rather simple formula. The essentials are 1) Free and fair elections. By definition, a democracy is driven by the choices votes make thru the electoral process. Citizens must trust the system. Democratic legitimacy is based on confidence in the integrity of the voting results. 2) The governing structure depends on a system of checks and balances. Aspiring autocrats have limited  freedom of action because they must interact with countervailing forces in the system. The Founding Fathers wisely divided ruling responsibility between three branches of government- the Executive, the Legislature and the Judiciary. Centralised and unfettered power was explicitly understood to be a threat to democracy. No monarchy here- no Kings here!  Therefore,  you design a legislature with the power of the purse and create an independent judiciary with an ability to ensure that the Executive and Legislature stay within constitutional boundaries. 3) You need a Bill of Rights identifying core individual and institutional rights that cannot be taken away arbitrarily by the government. 4) You need a vibrant and active civil society characterised by private property, a free press and dynamic independent non governmental institutions - eg- universities, churches and civic and charitable voluntary organisations.  The benchmarks and standards are clear- How is 21st Century America doing? Unfortunately, not well. There are flashing red lights in each of these categories- strongly suggesting democratic backsliding- a democratic recession. The warning signs have intensified dramatically since 2017 and correlate with the Trump Presidencies. 

First, we have witnessed a systematic campaign to undermine electoral integrity. There have been persistent false claims that the 2020 Presidential election campaign was “rigged” and that Donald Trump was unfairly denied re-election. 60 failed lawsuits and assorted recounts have confirmed the election was not stolen and these polemics are the modern example of “The Big Lie.” Despite the overwhelming objective evidence, recent polls show that 30% of the American electorate still believes the 2020 election was stolen.  Repetition works even if the statement is false. The January 6, 2021 Capital invaders acted on these falsehoods and attempted to prevent the peaceful transfer of power. This was unprecedented. There were false elector slates submitted by 7 states in an effort to change the certified results. Hundreds of rioters and insurrectionists were tried and convicted in the criminal justice system and President Trump pardoned them all on January 20, 2025- basically reversing the judgement of the American legal system. His action was a de facto endorsement of the bad faith attack on the 2020 electoral process. It is hard to identify any other act which so cynically debases the electoral system- it openly castrates its legitimacy. There is also a calculated effort to restrict voter access to the polls with over 400 bills introduced between 2021 and 2024. A healthy Republic seeks to expand the franchise - not make it harder to vote. Redistricting and gerrymandering schemes also attack the concept of one man/one vote. Reversing the protections of the Voting Rights Act empower legislatures to distort the election map, machinery and apparatus. Basically, attacking the system as rigged or reconfiguring the system to guarantee outcomes creates a cynical and disbelieving public. Voters who think the process is a sham will choose not to participate and aspiring autocrats feed on apathy and fill the vacuum with there own nonsense and schemes. 

Second, the system of checks and balances is under sustained attack by the current President. There is an unapologetic effort to increase the nature and scope of Executive Power. The administration is eliminating or defunding government departments created by Congress eg USAID and the Department of Education. They are firing employees with civil service protection. They are governing by Executive Order and bypassing Congress. They are impounding or refusing to spend funds for projects authorised by Congress. They are firing inspector generals in all Cabinet departments. They have fired board members of independent agencies - before their congressionally established terms have expired and without cause. This includes the NLRB, the FTC, the FCC, the CDC and the FDA. They are attempting to fire a Federal Reserve Governor and have threatened to fire the Federal Reserve Chair because of policy disagreements. They have fired all board members at the Kennedy Center and the National Endowment of the Arts. They have fired the members of the Joint Chiefs of Staff and the NSA. They have fired the advisory boards at the NIH and CDC. They have attacked federalism by placing federal military forces in cities where no such assistance has been requested by state or local authorities. They are threatening to withhold federal disaster funds from Democrat controlled states. They have attacked judicial independence with personal attacks on judges, intimidating juries and using the pardon power as a political tool. They have ignored court orders, politicised the Justice Department by firing US Attorneys who refuse to do their bidding and openly ordered the Attorney General to seek indictments against Trump’s political adversaries including James Comey, John Bolton and Leticia James. The abuses of power are mind boggling and the concentration of arbitrary power in the Executive Branch, if unchecked, will do permanent damage to democratic and rule of law principles. 

They have also aggressively attacked the independent press and free media. They employ rhetoric describing the press as an “Enemy of the People”- the same language used by Stalin and Mao. They have threatened to revoke the licenses of NBC, CBS and ABC.They revoke the press credentials and restrict access to official proceedings for journalists and outlets they don’t like. They are pressing court cases making it easier to pursue libel cases against the media. They are flooding the zone on social media platforms with disinformation and misinformation- making the truth indiscernible with creates space for them to create their own narrative. They are using AI and deepfakes to deceive the public. They are mainstreaming conspiracy theories. They endorse foreign propaganda narratives.

Finally, they are using every power lever available to disrupt any organ of civil society that they view as opponents to their agenda and world view. They have threatened law school accreditation over diversity policies. They seek to restrict physician speech by attacking medical boards and regularly attack the ABA, AMA and NEA over political policy differences. They threaten the tax status of non profits and think tanks that don’t toe the administration line. They target law firms who have represented political opponents and shake them down with threats that potentially destroy their practices. They withhold grants to universities and demand changes on university policies on admission, faculty recruitment and viewpoint diversity that are fundamentally attacks on academic freedom. They file frivolous complaints against lawyers for intimidation purposes. They openly seek to chill the expression of differing or dissenting views by withholding government benefits or contracts. 

Frankly, the scope of the attacks on traditional democratic customs, norms, traditions and laws is exhausting. The debate is now focused on whether the changed can be halted or reversed. We shall see! Consistent with my expressions of confidence and optimism above, I still believe the centre will hold and the system will be resilient. People are gradually recognising the autocratic playbook in action and will act to confront the excesses directly. I am more concerned our polity may be permanently harmed by the entire toxic atmosphere created by this series of coordinated actions. Language matters and the language employed by President Trump in making his arguments on the necessity for change are very disturbing. He degrades language and degrades thought in the process. “Enemies of the People” is dystopian language- hard to walk that back after!  Describing political opponents as “vermin”  and emigres as “invaders” and “animals” who are “poisoning the blood” of the nation is not elevating the political atmosphere or enhancing  our long term democratic prospects.  The regular use of “terrorists and lunatics”, “human scum”, “radical left thugs”, and “traitors” to describe opposition political leaders is not a stirring example of commitment to the rule of law. We must defend our institutions before they are fully destroyed or capture; we must maintain our power of discernment and seek to the truth in an age of disinformation; we must, support civil society organisations under attack and demand lawyers, journalists, academics and civil servants fulfill their ethical obligations and vigorously fight back. Democratic norms should be non negotiable. Democracy will gradually erode good people claim exhaustion, retire from the fight and conclude the struggle isn’t worth it.