Jonah Patel
Democracy is under threat from politicians who subvert the spirit of the law, while maintaining a veneer of legality and constitutionality. This is known as 'constitutional hardball'. In the US, this has been seen in the rise of Trump, and in the actions of Chavez, Putin, Orban and Erdogan. To protect democracy, the constitution must be continuously updated, and reformed. The Protecting Our Democracy Act, for example, would clarify the Constitution's prohibition on self-pardons.
| Characteristics | Values |
|---|---|
| Forbearance | Politicians on both sides of the aisle deploy their institutional prerogatives with restraint |
| Checks and balances | Politicians do not engage in constitutional hardball |
| Reform | Democracy requires continuous updating |
| Rights | Free speech, free exercise of religion, equal protection, voting rights, expanding the franchise, and the guarantee of republican government for all states |
| Prohibition on self-pardons | Any pardon issued by the president to themselves has no legal effect |
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What You'll Learn
- The role of politicians in constitutional hardball
- The importance of restraint in a system of checks and balances
- The need for continuous updating of the Constitution
- The protection of fundamental rights, such as free speech and equal protection
- The clarification of the Constitution's prohibition on self-pardons
The role of politicians in constitutional hardball
Democracy relies heavily on forbearance, which means that politicians on both sides of the aisle deploy their institutional prerogatives with restraint. They do not engage in constitutional hardball, or deploy the letter of the law in ways that subvert the spirit of the law. When contemporary democracies die, they usually do so via constitutional hardball. Democracy’s primary assailants today are not generals or armed revolutionaries, but rather politicians—Chavez, Putin, Orban, Erdogan—who eviscerate democracy’s substance behind a carefully-crafted veneer of legality and constitutionality.
Serious constitutional reform may seem like a daunting task, but Americans have refounded their democracy before. After the Civil War and during the Progressive era and the civil-rights movement, political leaders, under pressure from organized citizens, remade democracy. The American constitution requires continuous updating. American democracy thrived because it allowed itself to be reformed. Given the scale of the threat, reforming democracy over the next decade is among the most pressing challenges we face today.
Politicians must also be aware of the threat posed by constitutional hardball and take steps to prevent it. This includes clarifying the constitution's prohibition on self-pardons, as proposed in the Protecting Our Democracy Act. By making explicit that any pardon issued by the president to themselves has no legal effect, politicians can help to uphold the constitution and protect democracy.
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The importance of restraint in a system of checks and balances
A dead constitution might protect democracy by providing a system of checks and balances that relies on restraint. This is particularly important in the context of constitutional hardball, where politicians may subvert the spirit of the law while maintaining a veneer of legality and constitutionality.
Restraint is essential in a system of checks and balances because it ensures that politicians do not abuse their institutional prerogatives. This restraint prevents the deployment of the letter of the law in ways that undermine its spirit. For example, the Protecting Our Democracy Act seeks to clarify the Constitution's prohibition on self-pardons, ensuring that any pardon issued by a president to themselves has no legal effect.
A system of checks and balances with restraint helps to maintain the integrity of democratic institutions. This integrity is crucial for protecting the rights and freedoms that are fundamental to democracy, such as free speech, free exercise of religion, and equal protection. These rights enable participation and support the recognition of equal standing among all citizens.
Additionally, restraint in a system of checks and balances can help prevent the rise of authoritarianism and the erosion of democratic values. As seen in the cases of Chavez, Putin, Orban, and Erdogan, politicians can eviscerate democracy's substance while maintaining a carefully crafted appearance of legality and constitutionality. Restraint helps to prevent this abuse of power and protects the democratic system from within.
Finally, restraint in a system of checks and balances is important because it allows for the continuous updating and reform of the constitution. As argued by Huq and Ginsburg, the constitution should always be unfinished and subject to change. This flexibility ensures that the constitution remains relevant and responsive to the needs of a changing society, as demonstrated by the reforms that occurred after the Civil War and during the Progressive era and civil rights movement in the US.
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The need for continuous updating of the Constitution
The United States Constitution requires continuous updating to protect democracy. The country's democracy has thrived because it has allowed itself to be reformed. The Constitution's system of checks and balances works when politicians on both sides of the aisle deploy their institutional prerogatives with restraint. This means they do not engage in constitutional hardball, or deploy the letter of the law in ways that subvert the spirit of the law.
The Constitution includes protections that are constitutive of democracy, such as the rights of free speech, free exercise of religion, and equal protection. These rights stand alongside amendments protecting voting rights and expanding the franchise, as well as the textual guarantee of republican government for all the states.
Serious constitutional reform may seem like a daunting task, but Americans have refounded their democracy before. After the Civil War and during the Progressive era and the civil-rights movement, political leaders, under pressure from organised citizens, remade the country's democracy.
The Protecting Our Democracy Act would respond to the threat of constitutional hardball by clarifying the Constitution's prohibition on self-pardons. It would make explicit that any pardon issued by the president to themselves has no legal effect and shall not deprive a court of jurisdiction over the pardoned offence.
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The protection of fundamental rights, such as free speech and equal protection
A dead constitution may protect democracy by providing a framework for the protection of fundamental rights, such as free speech and equal protection. These rights are enshrined in the Constitution and serve as a guarantee of democratic values. While institutions may sometimes fail to uphold these rights, their existence in the Constitution ensures that they remain a fundamental part of the democratic system.
The Constitution's protection of free speech, for example, goes beyond simply enabling participation in democracy. It stands as a safeguard against the evisceration of democracy's substance by politicians who may seek to subvert the spirit of the law while maintaining a veneer of legality and constitutionality. Similarly, the right to equal protection under the law ensures that all citizens are recognised as having equal standing, promoting a democratic ideal.
Amendments to the Constitution have also played a crucial role in expanding and protecting democratic rights. For instance, amendments have been made to protect voting rights and expand the franchise, ensuring that a broader segment of the population can participate in democratic processes. Additionally, the Constitution guarantees a republican form of government for all states, further entrenching democratic principles.
The Constitution's role in defending democracy is not static but requires continuous updating to address new challenges. As seen in the past, political leaders, under pressure from organised citizens, have refounded democracy through serious constitutional reform. This ongoing process of reform ensures that the Constitution remains a living document, adaptable to the changing needs of a democratic society.
While a dead constitution may provide a foundation for the protection of fundamental rights, it is essential to recognise that democracy requires active defence. This involves vigilance against the rise of constitutional hardball, where politicians exploit loopholes or deploy the letter of the law to undermine its spirit. By upholding the principles of forbearance and restraint, democracies can safeguard their constitutional systems and prevent their erosion from within.
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The clarification of the Constitution's prohibition on self-pardons
The Constitution's role in defending democracy is a complex and multifaceted issue. It relies heavily on forbearance, with a system of checks and balances that works when politicians on both sides exercise restraint and do not engage in "constitutional hardball". This involves deploying the letter of the law in ways that subvert its spirit, which has been observed in the rise to power of politicians like Chavez, Putin, Orban, and Erdogan.
Serious constitutional reform can seem daunting, but it is a necessary and ongoing process to protect democracy. The Constitution requires continuous updating to address the scale of threats to democracy, as demonstrated by historical examples such as the Civil War, the Progressive era, and the civil rights movement.
The rights enshrined in the Constitution, such as free speech, free exercise of religion, and equal protection, are fundamental to democracy. They enable participation and voting rights while guaranteeing republican government for all states.
To further protect democracy, there have been calls to clarify the Constitution's prohibition on self-pardons. This involves making explicit that any pardon issued by the president to themselves has no legal effect and cannot deprive a court of jurisdiction over the pardoned offense. This clarification ensures that the president cannot use their power to pardon as a tool to subvert the law and evade accountability.
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Frequently asked questions
A dead constitution is one that is no longer updated or reformed to meet the changing needs of a country.
A dead constitution might protect democracy by including rights such as free speech, free exercise of religion, and equal protection.
Voting rights, expanding the franchise, and the guarantee of a republican government for all states are examples of rights that are protected by a dead constitution.
Yes, a dead constitution can be changed through serious constitutional reform. This has happened in the US after the Civil War, during the Progressive era, and the civil rights movement.
Politicians play a crucial role in upholding the spirit of the law and refraining from engaging in constitutional hardball, which is the use of legal loopholes to subvert the law's intent.
