—Miguel Schor, Drake University School of Law
The assault on the Capitol on January 6, 2021, demolished the idea of American exceptionalism, the idea that the United States is a democratic model that other nations should emulate. The groundwork for the attack was laid by a campaign of lies waged by the President and his allies that the election was stolen. The assault was an attempted autogolpe. It was also a manifestation of Trumpism, which is a very ordinary form of politics once thought to be practiced primarily in the developing world. Trumpism’s key features are the following: (1) loyalty to a leader supplants loyalty to institutions; (2) emergencies are normalized to mobilize supporters and exhaust opponents; (3) clientelist policies are used to buy votes; (4) electoral rules are manipulated to protect incumbents; and (5) lies are normalized.
The issue is whether Joe Biden’s agenda–the American Rescue Act, the American Jobs Plan, and the American Families Plan–provides an antidote for Trumpism. The size (around $6 trillion) and boldness of the programs have led political pundits to compare Biden’s agenda to F.D.R.’s New Deal during the Great Depression. What has received less attention, though, is the small d democratic argument advanced both by Joe Biden and F.D.R. Biden, in his April 29, 2021 speech to Congress, and F.D.R., in his 1944 state of the union address where he called for the creation of positive socio-economic rights, both argued that the government needed to provide social benefits to ordinary citizens for democracy to endure.
Is the small d democratic claim made by President Biden and President Roosevelt right? To critically assess this claim, it needs to be mapped onto our existing theories of democratic erosion and breakdown. Those theories can be grouped into three families of explanations: (1) exogenous shocks; (2) leadership; and (3) ordinary citizens.
Exogenous shocks matter. They explain why so many democracies around the globe are facing headwinds. Those shocks are (1) climate change; (2) globalization; (3) new information technologies; (4) illegal migration; and (5) the pandemic. The “Global Trends 2040” report published by the U.S. National Intelligence Council provides a sobering and pessimistic analysis of the impact these shocks will have on democracies around the globe. The report concludes that exogenous shocks are “likely to manifest more frequently and intensely in almost every region and country.” The consequence is “disequilibrium” as there is “likely to be a persistent and growing gap between what people demand and what governments and corporations can deliver.”
The other two families of explanations are political or endogenous to a polity. The Federalist begins and ends with a warning about the dangers of demagogues. The most famous of all the essays in The Federalist warns of the violence of factions. Contemporary constitutionalists, much like the framers, are deeply concerned about democratic erosion, but the terminology they use is different. They warn of “populist authoritarian leaders” and the dangers of widespread polarization. The fear though is the same. Democracy can break down or become corrupted by pressure from above or below.
One cannot readily engineer around exogenous shocks so constitutionalists understandably focus on the political or endogenous causes of democratic breakdown and erosion. American constitutional scholars have largely focused on leadership or the presidency as the source of the problem. There are at least seven major monographs published in the last two years focused on the American presidency. These monographs tap into a long running fear that the presidency is a potential danger to representative democracy.
Reform to the office of the presidency is needed, but new parchment barriers will not fix the problem that Donald Trump presented for American democracy. The core constitutional job description of the presidency is to “take Care that the Laws be faithfully executed.” The president is the chief administrator of vast legislative programs and her discretion is cabined by law and by unwritten norms. Both proved remarkably ineffective. Donald Trump made it clear on the campaign trail and by his behavior as President that he was bound by neither law nor norms. He claimed that the “deep state,” that is the administrators whose job is to uphold the Constitution and the laws of the United States, was the enemy of the people. He installed cronies to run agencies and treated issues of public policy as propaganda problems that simply needed the “correct” messaging and packaging. Damaging the capacity of the administrative state, in short, can be a potent political strategy.
The causes of democratic erosion in the United States lie not in the supply side, but the demand side of the political market for demagogues. The issue is why do citizens sometimes hire presidents who promise to abuse their powers. Electing a demagogue to the office of the chief executive is unusual in long-standing, wealthy democracies, but not in flawed semi-democracies veering towards autocracy. The lessons from these polities are instructive. Strong leaders arise in nations that are unable to solve collective action problems. These are typically societies where corruption, criminality, violence, and ineffective government are pervasive. Trump repeatedly made these claims about the United States government in his campaign for the presidency and in his inaugural address. These claims were largely not true about the United States but they were believed by his voters. This environment provides the demand side for populist authoritarianism.
It turns out that the small d democratic claims made by President Biden and by F.D.R. are right. Citizen trust in government is crucial if democracy is to long endure. That trust is strengthened if voters believe that the state is working and and it is eroded if they believe it is not. Joe Biden, though, is facing two problems that F.D.R. did not: a polarized electorate and razor thin majorities in the Congress. Polarization is the more serious of the two problems. Our constitutional system worked tolerably well under conditions of mass democracy from roughly the end of WWII until the 1980s when the parties were heterogenous and not that far apart ideologically. The system started to fall apart as the parties became more polarized in the 1980s. Trumpism is both a product and an accelerant of polarization.
Biden’s problems are compounded by our exceptionally undemocratic Constitution. If we look at America’s peer democracies – the 22 nations that have been democratic since 1950 – the United States has the least democratic constitution. The exceptional features of the American constitutional order include a political class that has broad authority to entrench itself by changing voting rules; strong bicameralism with two houses of equal strength and malapportionment in the Senate; staggered elections; the Electoral College; a Supreme Court poorly constrained by checks and balances; and a very high bar to amendment.
The framers adopted these institutions as a safeguard against democratic erosion from below. In The Federalist No. 10, Madison warns of the violence of factions due to the propensity of mankind to fall into mutual animosities often for frivolous and fanciful reasons. The cure, or so the framers believed, was institutional complexity. They fashioned, as the historian Richard Hofstadter wrote, the constitution against parties. The paradox of American constitutionalism is that this guardrail against democratic breakdown is having the opposite effect in contemporary American politics for two reasons.
The first is that institutional complexity plus polarization tilt the playing field towards Trumpism. Democracies fall into two broad categories. In flawed democracies, politicians mobilize voters by means of polarizing rhetoric, attacking policy elites, and damaging the capacity of the state to solve collective action problems. In well-functioning democracies, politicians mobilize voters by seeking consensus and enacting legislation that builds state capacity. Biden, unlike Trump, needs legislation to pursue his agenda. This institutional playing field did not favor demagogues in the early American republic, when citizen demands for government outputs was considerably less, but it does under conditions of mass democracy.
The second reason flows from the pressures contemporary democracies face. Democracies endure because they are flexible, which enables them to deal with emergencies. The world’s democracies are facing considerable headwinds due to exogenous shocks. Citizen demands for government outputs will increase and democratic adaptability will be tested. That is a problem for all democracies but it will fall more heavily on the United States than on its peer democracies. America’s peer democracies – those continuously in operation since 1950 – are overwhelmingly parliamentary democracies. Parliamentary democracies are built around the idea that parties should be able to legislate. Presidentialism is not. It is as if the Atlantic world were running a natural experiment as to which constitutional systems can best deal with these exogenous shocks. Constitutional systems that facilitate legislation may ultimately prove more adaptable.
Suggested citation: Miguel Schor, Does President Biden’s Agenda Provide an Antidote to Trumpism? Int’l J. Const. L. Blog, Jun. 2, 2021, at: http://www.iconnectblog.com/2021/06/does-president-bidens-agenda-provide-an-antidote-to-trumpism/
 Bob Bauer and Jack Goldsmith, After Trump: Reconstructing the Presidency (Lawfare Press 2021); Jeffrey Crouch, Mark J. Rozell, and Mitchel A. Sollenberger, The Unitary Executive Theory: a Danger to Constitutional Government (University of Kansas Press 2020); Daniel A. Farber, Contested Ground: How to Understand the Limits of Presidential Power (University of California Press 2021); Michael W. McConnell, The President Who Would Not Be King: Executive Power Under the Constitution (Princeton University Press 2020); Eric A. Posner, The Demagogue’s Playbook: The Battle for American Democracy from the Founders to Trump (Macmillan All Points Books 2020); Saikrishna Prakash, The Living Presidency: An Originalist Argument Against its Ever-Expanding Powers (Harvard University Press 2020); and Stephen Skowronek, John A. Dearborn, and Desmond King, Phantoms of a Beleaguered Republic: The Deep State and the Unitary Executive (Oxford University Press 2021).