[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.]
—James A. Gardner, University at Buffalo School of Law
We are in the midst of a global pandemic not just of coronavirus, but of populist authoritarianism. Diseases often prey mainly on the young and the weak, and many victims of the current wave of autocratization have been new, recently established democracies, or older ones with a long history of underlying conditions. But this pandemic has also attacked the strongest, including of course the United States. Does the recent US election suggest a recovery of some kind? If so, to what degree, and with what prognosis?
As with physical disease, the critical question in cases of political pathology seems to be one of resilience. During the late twentieth century, a robust proliferation of liberal democracies seemed to provide a kind of global herd immunity that inoculated newer and weaker states against more serious forms of democratic backsliding. Any such immunity, however, has been of no help in fighting off the most recent mutation, launched following the 2008 global recession. Consequently, any assessment of resilience must look to the characteristics of individual states. In this enterprise, Machiavelli, who perhaps alone among political theorists thought deeply about the conditions in which authoritarianism can be successfully imposed, may be of some use.
In Machiavelli’s framework, a state’s resilience against authoritarianism comes in two varieties, short-term and long-term, which he often expressed in terms of the initial difficulty of “taking” a state and the subsequent difficulty of “holding” it. Experience shows, according to Machiavelli, that highly centralized states tend to possess short-term resilience, but not long-term – they are hard to take, but easy to hold – and this is especially true if the people are unaccustomed to freedom. Thus, for example, “the difficulty is in taking possession of the Turkish state, but once it has been conquered it is very easy to hold on to.” Highly decentralized states, in contrast — especially if accustomed to freedom — generally display little resilience in the short term, but considerable resilience over the long haul. “[K]ingdoms governed like France,” Machiavelli claimed, can be “enter[ed] with ease, once you have won over some baron of the kingdom; for one always finds some unhappy people.” Subsequently, however, “to hold on to it is accompanied by endless difficulties.”
How resilient, on this model, is the United States? Its high degree of decentralization, and the longstanding freedom of its people, seem to put it into Machiavelli’s category of low short-term but high long-term resilience: vulnerable to authoritarian infiltration, even to takeover, but strongly resistant over the longer term.
Power in the United States is unusually dispersed. In the vertical dimension, it is one of the world’s most decentralized federations. Horizontally, power is dispersed among a bicameral legislature which includes an unusually powerful upper chamber; an executive not dependent for tenure on legislative approval; and a meaningfully independent federal judiciary with broad jurisdiction and a long history of using judicial review to protect its own autonomy. If Machiavelli was correct, each of these power centers, like the baronies of sixteenth-century France, might conceivably function either as a site of authoritarian infection or as a source of democratic resistance.
What, then, is the condition of the various US power centers following the 2020 election? At the national level, the US presidency has now changed hands, from a right-wing populist to a firmly committed liberal democrat. This is significant; around the world the national executive has been by far the most important vector of populist authoritarianism, and control of that institution may even be indispensable to authoritarianism’s success along any time horizon. On the other hand, the long-term impact on the executive branch of Trump’s four years of rule is far from clear. In a typical tactic from the authoritarian’s playbook, Trump waged open warfare on the professional civil service, and we do not yet have a clear idea of the extent to which this may have affected its institutional characteristics. Perhaps more importantly, Trump worked tirelessly to undermine the rule of law, which provides the bureaucracy with its raison d’être and serves as the foundation of its impartiality and professionalism. Long-term damage to the rule of law could thus imply permanent damage to the institutional executive that a Biden presidency might find difficult to cure.
The federal Congress, although now formally in Democratic hands, is deeply divided. The House of Representatives appears firmly committed to liberal democracy, though somewhat less decisively than in 2018 due to shrinkage in the Democratic majority. The Senate sits on a knife edge, in principle under liberal democratic control, but following four years of firm and consistent support for an authoritarian regime. Its composition, moreover, grossly over represents portions of the citizenry with seemingly weak ties to liberal democracy.
At the same time, the federal courts, though still showing considerable independence, seem to have suffered some degree of infection. A long, deliberate program by Republicans to capture the federal judiciary has had an impact on the character and disposition of federal judges, though the goal of capture has never been realized to an extent that would deliver the courts fully into the service of an authoritarian leader, as, for example, in Ecuador, Nicaragua, or Hungary. Nevertheless, the Supreme Court has for decades presided over a long illiberalization of the constitutional jurisprudence of democracy, reducing the Court’s dependability as a site of liberal resistance.
On the subnational level, conditions vary widely. Authoritarianism has spread considerably among the states, though far from uniformly, associated exclusively with Republican control. However, even the worst cases, like North Carolina and Wisconsin, have not traveled very far down the road to authoritarianism by global standards. Nevertheless, there is no reason to expect pushback against authoritarianism on the national level from states that have been moving along the same path. Following the 2020 election, it appears that Republicans will control the governorship and both chambers of the state legislature (a so-called “trifecta”) in 23 states; Democrats will enjoy a trifecta in 15 states; and control is divided in the remaining 12 states.
Given these conditions, what might be the patient’s prognosis? It is of course extremely difficult to make any kind of prediction, if only because the situation is entirely unprecedented. Certainly, the United States is not yet out of the woods: many vital organs still harbor the disease, and it seems to spread easily in current economic conditions. Does the US Constitution’s dispersion of power, as Machiavelli claimed, enhance its ability to resist authoritarianism? Scholars disagree about whether presidentialism provides greater protection than parliamentarism against populist authoritarianism; it seems to have provided little protection in Latin America. Several scholars have recently argued that federalism shields subnational liberal democracies from national authoritarianism, a conclusion I find dubious in light of Trump’s repeated, harsh attacks on subnational autonomy wherever it produced policies – or electoral results – of which he disapproved. A national authoritarian regime with deeper roots and better-defined commitments than Trump’s might have more success in undermining democracy in subnational liberal democratic strongholds like New York or California.
There are also of course many unknowns. To what extent might modern political parties serve as barrier-breaching vectors of infection, transmitting authoritarianism across institutional firewalls? Might Republicans return to the liberal democratic fold once the constant stimulus provided by a vocally authoritarian president fades? Is a Biden Administration capable of addressing the grievances that have driven segments of the population to lose faith in democracy as a form of collective organization?
Finally, in the end, even if Machiavelli was right, he may not offer decentralized states much of a prize. “Difficult to hold,” in the Machiavellian vocabulary, seems to mean episodic, violent resistance that the central state can never fully subdue. Such an existence may be better than living permanently under autocracy, but it is not much to look forward to.
Suggested citation: James A. Gardner, Symposium on the Legacies of Trumpism and Constitutional Democracy in the United States — Decentralization and Resistance to Authoritarianism, Int’l J. Const. L. Blog, Jan. 22, 2021, at: http://www.iconnectblog.com/2021/01/decentralization-and-resistance-to-authoritarianism/
 Niccolò Machiavelli (1964). The Prince. Edited and Translated by Mark Musa. New York: St. Martin’s Press. Page 31. (Original edition 1532.)
 Ibid. Machiavelli did not seem to consider that a state might have both types of resilience, which may be a shortcoming in the modern context – i.e., where some states are both decentralized and immensely powerful.
 David M. Driesen (2020). The Unitary Executive Theory in Comparative Context. Hastings Law Journal, Vol. 70: 1-54.
 James A. Gardner (forthcoming 2021). Illiberalism and Authoritarianism in the American States. American University Law Review, Vol. 70.