[Editor’s Note: In light of this week’s inauguration, I-CONnect is pleased to feature a five-part symposium on the state of US constitutionalism after Trump. The introduction to the symposium can be found here.]
—Andrea Scoseria Katz, Washington University School of Law
Blaring on the TV as this post is being finalized is the U.S. House of Representatives voting to impeach the President for a second time,a move without precedent in American history. The motivating events, which have kept us glued to the TV for the last few weeks, scarcely need any introduction. On January 6th, the American Congress met for the largely ceremonial task of tallying and approving the vote totals from the fifty states bearing witness to Joe Biden’s victory in the November presidential election. A mile-and-a-half away, Donald Trump—who for months has stoked panic with the false claim that the election was “stolen” from him—told an excited crowd of 8,000, “We will never concede,” and directed them to “walk down to the Capitol” and “fight like hell.” The rioters did as they were told. Storming through police barricades, they streamed into the Capitol as lawmakers fled or barricaded themselves behind doors. The intruders sacked the halls, breaking into offices, smashing windows and doors, destroying furniture and desecrating statues before a delayed backup force of federal guards cleared them off the premises. The rioters left behind debris—signs, flags, gas masks, even feces and urine—and five dead: two policemen and three civilians who perished in the events.
A coup or not a coup? Political scientists on Twitter spent the day tying themselves in definitional knots. A coup with no (overt) military involvement? With no coordination at the top? Carried out by so many individuals milling around in costumes taking selfies? Some of the farcical images admittedly gave rise to inspired moments of black humor: an intruder who stole a lectern may have listed it for auction on eBay. My own view: any lexical confusion is less an issue of democratic theory than a reflection of the vestiges of white supremacy in America, with its temptation to humanize white crime, as well as of the legacy of American exceptionalism. Can it happen here? In this case, seeing is not exactly believing. The minimalist democrat defines democracy as a political regime that channels disagreement awayfrom violence and into fair elections. The minimal constitutionalist defines constitutional crisis as the moment where legal processes fail to contain disagreement, and violence erupts. By either of those definitions, American democracy is in crisis.
American politics have been depressingly coarse, rancorous and ideological since at least the Clinton impeachment of 1998, but it was only with the election of Donald Trump that the hypothesis was seriously examined: could America fall victim to fascism? In the aftermath of the 2016 election, popular books proliferated with titles like On Tyranny, One Nation After Trump, Rules for Resistance, American Resistance, and No Is Not Enough. Political scientists and legal scholars chimed in with well-timed works like How Democracies Die, Constitutional Democracy in Crisis?, How to Save a Constitutional Democracy, When Democracy Trumps Populism, and Can It Happen Here? Most concluded that American democracy had crept up to the edge of the precipice, but some factor remained, stopping the slide. For many, that factor was: the American people itself. Summarizing the lessons of the popular anti-Trump “resistance” genre, Washington Post critic Carlos Lozada describes uplifting calls to resist a future of “ideological haste, wild conviction, and coarsened thought” and recommit to the “task of making ‘one nation after Trump.’”
In the scholarly world, things were more mixed. Scholars naturally subdivided by method and mood: the cultural scholars and the institutionalists, respectively, who professed optimism in the possibility of resilience and renewal, or fear at a continued slide into institutional decay. Can It Happen Here?, an edited volume of essays by eminent scholars like Cass Sunstein, Bruce Ackerman, Geoffrey Stone, and Martha Minow, offers a perfect example. Where the institutionalists saw slow, gradual decline and larger structural forces contributing to Trump’s rise (a lack of constitutional defenses, per Tom Ginsburg and Aziz Huq; a globe-wide “disenchantment with democracy,” per Stephen Holmes; liberal democracy’s perpetual temptation to authoritarianism, per political psychologists Karen Stenner and Jonathan Haidt), those who took political culture as their starting point predicted a loud, unified condemnation of Trump’s depredations and a triumphant reassertion of democracy. Eric Posner, well-known for the argument that a “rich, large, and diverse” nation like America is “unpropitious” soil for the sort of hypnotic takeover of the mob practiced by Hitler and Mussolini, predicted that Trump’s “divisive fulminations and reckless actions” would erode public support and his power. Cass Sunstein assured us that the American public’s “culturally engrained” respect for “rights and for the central ingredients of self-government” would check the president’s excesses. Noah Feldman offered that it is “the veneration of the US constitution that pervades American political culture” that “eases [his] mind” and “should ease yours.”
Should it? Pronouncements like these, which insinuate that Americans carry around in their hearts immutable democratic tenets, sound especially shabby today. Prediction is hard, we know. But now, more than ever, claims about the distinctiveness of American political culture must be rejected, not just because last week’s events exposed the falsity of such neo-Tocquevillian hubris about America as a “shining city on a hill,” but because it is the force of such deep-seated ideas about culture that has continually deviated conversations about political reform in America away from institutional design. Ginsburg and Huq are quite right when they conclude that our eighteenth-century constitution “doesn’t reflect the learning from recent generations of constitutional designers,” that it “singularly lacks the provisions necessary to slow down a would-be autocrat bent on the slow dismantling of democracy” (provisions like minority parliamentarian rights of inquiry and investigation, statutory bans on gerrymandering, supermajoritarian judicial appointment processes, or independent ombudsmen as rights defenders), and that consequently, American democracy is even more “vulnerable to backsliding than the regimes that failed in Poland, Hungary, Venezuela, Turkey, and elsewhere.” In the grip of exceptionalism, Americans have been blinded to the need for democratic defense.
So-called handbooks, manuals, or forensic anatomies of democratic decay, of which there are now many, identify several common triggering factors: the charismatic autocratic leader, the unscrupulous propagandists, the credulous masses in varying states of economic deprivation, the enabling elites. It should be by now clear that the U.S. betrays all of these: Trump, powerful right-wing media conglomerates like Fox, mendacious party men like Senators Ted Cruz and Josh Hawley, and certainly, and sadly, the 77% of identified Republicans who believe, against all evidence, that there was widespread fraud in the 2020 election. A minority of the population, true, but in a minoritarian electoral system—and when sufficiently frightened or incensed to embrace violence—enough to do great damage. As Steve Schmidt, Republican strategist-turned-Democrat and adopted spokesman for the anti-Trump movement, offered recently, “Our American experiment very nearly came to end, because all that it takes to end it is the collapse of faith and belief. When you have 80% of a political party that says that elections aren’t legitimate anymore, we’re on life support as a democratic nation. And that’s all it took, 4 years of Donald Trump, to bring this country to one of its lowest points in its history.” The lesson of last week’s events is the fragility of American democracy.
Just hours after the January 6th riot, once Congress had reconvened to begin its work certifying the election, no fewer than eight senators and more than 100 representatives proceeded to repeat the false claim of election fraud and “voted for the lie that had forced them to flee their chambers.” It was a stunning failure to connect the years of enabling President Trump’s willful lies to the ultimate endgame of violence. Constitutional scholars would make the same mistake if they did not connect America’s institutional sclerosis—unrepresentative political institutions, economic inequality and a failed response to globalization motivated by institutional capture—to the decay of a democratic political culture. If Trump is the arsonist who set the house ablaze, structural factors provided the timber.
As the sun sets on the Trump administration, one news program closed its reporting with twin images from Washington, D.C. In one, a moving van parked outside of White House began to pack up boxes. In the other, a mass of armed guards slept on the floor of the U.S. Capitol. President Trump leaves behind him a republic in far worse shape than when he arrived. It is difficult to predict what lies ahead, although “democracy without guardrails,” a sort of trench-warfare style of politics of gamesmanship and distrust, seems a likely bet. Many are predicting a split in the Republican party among conservatives and the far-right that could, in the short- or medium-term, trigger a realignment in the American party system. The risk is that such ugly politics will worsen the cynicism around liberal democracy that led to the present conflagration. At any rate, the tragic reality is that American political life today is centered around an axis of conflict that many long viewed as irrelevant: the struggle between democracy and authoritarianism. To assume democracy is embedded in hearts and minds is to abandon our responsibility to provide a defense for it. If we learned nothing else on January 6th, 2021, we should learn this.
Suggested citation: Andrea Scoseria Katz, Symposium on the Legacies of Trumpism and Constitutional Democracy in the United States:
Can it Happen — Is It Happening Here?, Int’l J. Const. L. Blog, Jan. 20, 2021, at: http://www.iconnectblog.com/2021/01/symposium-part-i-the-legacies-of-trumpism-and-constitutional-democracy-in-the-united-states-is-it-happening-here/
 Ginsburg and Huq, “How We Lost Constitutional Democracy,” in Can It Happen Here? 151 (Cass R. Sunstein ed. 2018); Holmes, “How Democracies Perish,” in id. at 392; Stenner and Haidt, “Authoritarianism is Not a Momentary Madness,” in id. at 214-16.
 Posner, “The Dictator’s Handbook, US Edition,” in Can It Happen Here? 17 (Cass R. Sunstein ed. 2018).
 Sunstein, “Lessons from the American Founding,” in id., 79.
 Feldman, “On ‘It Can’t Happen Here,’” in id., 173..
 One particularly good example among these isJan-Werner Müller, What is Populism? (2016).
 Levitsky and Zilblatt, How Democracies Die, 208-210.