Nathan Gardels is the editor-in-chief of Noema Magazine.
It is a mark of just how deep the crisis of governance across Western democracies has become that conflict irresolvable through political competition is giving way to the reconsideration of founding constitutions and the institutions they invest with legitimacy.
At its heart, this crisis is about trust. As the political scientist Francis Fukuyama has argued, “Belief in the corruptibility of all institutions leads to the dead end of universal distrust. American democracy, all democracy, will not survive a lack of belief in the possibility of impartial institutions; instead partisan political combat will come to pervade every aspect of life.” And so it has.
Tribunes Of The People
The ongoing populist surge of recent years did not cause the crisis. It is a symptom of the decay of democratic institutions that, captured by the organized interests of an insider establishment, failed to address the dislocations of hyper-globalization, the disruptions of rapid technological change and the attendant creep of widening cultural cleavage. Too many were left behind and struggled while others prospered and played.
Adding danger to decay, the fevered partisans of populism are intent on throwing out the baby with the bathwater, assaulting the integrity of the very institutions which protect republics from themselves through checks and balances, or that are critical to the fair administration of complex societies. The rebellion against a moribund political class has become a revolt against governance itself and the infrastructure that goes with it.
Populists who fashion themselves as tribunes of the people have never met independent and impartial institutions they can happily abide. Believing they are the embodiment of majority will, any constraint on their power is portrayed as a contrivance by elites to keep the masses down. When cemented with cultural resentment against those at the top who look down on the unsophisticated rabble living in the sticks and outside the fashionable status sphere, anti-elitist sentiment has enough truth value to stick.
We’ve seen versions of this over recent years where the previous governments in Poland and Brazil, as well as the present government in Israel, have sought to politicize the top courts and limit their independence from the powers that be. Hungary under Viktor Orbán, an outright proponent of illiberal democracy, has done the same, seeking further to stifle independent media, think tanks and civil society organizations for good measure.
In Mexico, Claudia Sheinbaum, the president-in-waiting elected by a landslide earlier this year, has pledged to continue pursuing President Andrés Manuel Lopez Obrador’s plan for popular election of that nation’s Supreme Court, thus making its slant coincide with the interests of the ruling party. Sheinbaum, like her predecessor, is also bent on disempowering the independent electoral commission that oversees the polls and certifies voting outcomes.
Institutional Vandalism
With the U.S. Supreme Court already dominated by ultra-conservative judges, partisans of Donald Trump have turned their attention to slashing the powers of what it calls “the administrative state” — those agencies with the discretionary authority under legislative mandate to regulate private sector activities in realms from environmental impact to food and drug safety to publicly traded securities to the monopolistic conduct of large companies. Most of these agencies have been in place since the early 20th century as the Progressive Era’s response to the vast inequality, child labor, unsanitary industry, crony corruption and robber barons of the unregulated Gilded Age.
The aim of modern-day populists is to both diminish and politicize the regulatory technocracy to fit their agenda. The famous Project 2025 plan prepared by the Heritage Foundation in anticipation of another Trump presidency has gone so far as to propose the abolition of the National Oceanic and Atmospheric Administration — the key body monitoring climate change, which they don’t believe in. My colleague Nils Gilman aptly calls this endeavor “institutional vandalism.”
Though the Trump campaign has sought to distance itself from the details of Project 2025, which may scare sensible voters in the runup to the November election, few have any doubts that it provides the essential roadmap for action if Republicans come to power.
Changing Constitutions
Following verdicts to overturn Roe vs. Wade on abortion, blunt the scope of regulatory agencies and codify presidential immunity, the realization of what a stacked Supreme Court means has prompted President Joe Biden to engage the battle over institutions head on.
As his last stand after bowing out of the presidential race, the president is embarking on a quixotic quest to undo the impact of recent rulings and seek a constitutional amendment to reform how the Supreme Court works. First, arguing that “no one is above the law,” he would repeal the presidential immunity recently granted and impose a “binding code of conduct” with strict ethics guidelines prohibiting political activity by justices and requiring transparent disclosure of gifts.
The core structural change of Biden’s proposal is to get rid of lifetime terms and limit them to 18 years, with staggered appointments every two years (when one of the terms expires) to avoid the enduring sway of justices chosen by one political regime and ideological persuasion. In short, a process which would perpetually unstack the highest court instead of invite and enable its stacking.
This is an uphill battle, for sure, since amending the constitution would entail a 2/3 vote of both houses of Congress and approval of ¾ of all state legislatures.
The Achilles Heel of Democracies
“Defend the institutions” is hardly a rallying cry that will stir the passions of the public in the same way as the instinctive appeal of demagogues who promise simple solutions to complex problems while blaming all misfortune on the world outside or perceived enemies within. But repairing and restoring the integrity of democracy’s infrastructure is the only path back to trust. That is a tall order in the short term.
Popular emotion is the Achilles heel of democracies. Institutions that temper emotion through the cool deliberation of disinterested reason are what make the system work to the benefit of all.
As Fukuyama rightly says, democracies can’t survive without at least a belief in the possibility of impartial platforms for the administration of justice and governance. That proposition will be tested as never before in the battle over institutions in the near years ahead.
