—Miguel Schor, Drake University School of Law
American exceptionalism is a term of art comparativists employ to write and think about the United States. Two remarkable phenomena underpin the claim of American exceptionalism. First, the United States self-consciously envisioned itself as setting an example to the world when it drafted a new constitution in the late eighteenth century. Reason rather than history, or so the framers believed, would henceforth become the benchmark for constitutions. The Constitution, as well as the revolution that gave it birth, occasioned a vast literature that informs the nation’s identity. That sense of a shared identity is unraveling as Americans begin to reckon with the legacies of slavery and the degradation of their democracy. Second, although no wealthy, long-standing democracy has ever suffered a democratic breakdown, the United States came surprisingly close to one with the Capitol riot on January 6, 2021. A considerable body of literature, less adulatory than that celebrating the founding of the republic, explores Trumpism. The flaw in that literature is that it largely fails to connect how our exceptional constitution facilitated the political construction of our dysfunctional democracy. The American experiment in self-government had much to teach the world about democratic emergence at its inception. Today, it offers important lessons on democratic erosion.
The Capitol riot laid bare how unexceptional and ordinary American democracy has become. In ordinary democracies devotion to leaders engulfs institutions. The devotion shown to Donald Trump by the Capitol rioters and by his voters who believe that the 2020 election was fraudulent presents a profound challenge to the claim made by John Marshall in Marbury v. Madison (1803) that we are a “government of laws, and not of men.” In an ordinary democracy, plebiscitary leaders rely on lies and emergencies to inflame and divide the public. They are prone to experiencing autogolpes such as the Capitol riot since elected leaders use their office to enrich themselves and their cronies and seek to overturn elections as well as terms limits to avoid accountability.
Wealthy, long standing democracies are not immune to what political scientists call backsliding or erosion. When the United States is measured against its peer democracies, a small group of 22 nations that have been continuously democratic since 1950, the degree to which its democracy has been degraded is exceptional. It elected a demagogue to the presidency in 2016 who is having remarkable success in pushing a lie that the 2020 election was stolen. Political forces allied with Trump are busy changing electoral rules to ensure that the right result is reached in 2024. The degree of polarization exhibited by American citizens, compared to other wealthy democracies, is remarkable. The views of Americans about their democracy have nosedived while their willingness to contemplate political violence has markedly increased. The United States, in short, is undergoing a profound sectarian crisis over its national identity.
Constitutions are written with an eye towards the lee shore. Publius in The Federalist warns of the dangers of demagogues and the violence of factions. The breakwaters designed in the eighteenth century to prevent these twin vices from emerging are having perverse consequences in the twenty-first century. The conceit of constitutional conservatives that the “original” plan of the Constitution can escape the forces unleashed by changed circumstances are as fantastical as were the sycophantic views of King Canute’s courtiers who told him that he had the power to hold back the tides.
Publius hoped that the electoral college would prevent a demagogue from becoming president. The United States is the only presidential democracy with a system of indirect election. This creates two problems. First, a system of indirect election empowers political minorities thereby facilitating the election of a demagogue. The polarizing rhetoric employed by demagogues makes it difficult for them to command political majorities. Second, the roughly two month time gap between the popular vote and the certification of the election by the Congress provides far too much time for officials and citizens alike to seek to subvert the results by legal chicanery and force. The only barriers to subverting the presidential election day vote are found in a rickety nineteenth century statute, the Electoral Count Act of 1887, and a fast fraying political convention that the November election should be respected.
Publius hoped that the violence of factions would be blunted by institutional complexity. The American constitution when compared to those of its peer democracies continuously in operation since 1950 is exceptional to the extent to which it makes constitutional and political reform difficult. Majorities in the United States must navigate a degree of institutional and temporal complexity found in no other successful, long-term democracy. Democracies around the globe are facing a crisis of adaptability as they confront economic globalization, illegal migration, climate change, new information technologies, and a pandemic. It is as if America and her peer democracies were running a natural experiment on how best to deal with this crisis. Although democracies have survived crises in the past by adapting to changed circumstances, the United States faces greater headwinds than its peer democracies given its unusually complex institutional arrangements.
Institutional complexity has a second perverse consequence which is that that demagogues thrive on ineffective government. The problems created by ineffective government play out differently in poor, developing nations than they do in wealthy, long-standing ones. The provision of basic public goods is sorely lacking in developing nations, which provides an entrée for strongmen. In a wealthy, long-standing democracy such as the United States, deeply divisive identity issues do much of the work that ineffective government plays in developing nations. Every political system must navigate two big issues: who we are and who gets what. America’s complex machinery of government means that politicians who focus on the rhetoric of divisive identity issues have an easier time of it than do politicians who seek to forge legislative solutions to her problems. When politics becomes polarized, excessive institutional complexity exhibits a Trumpian lean.
America’s sectarian, constitutional crisis is compounded by a methodological malaise occasioned by historical happenstance. For much of the latter part of the twentieth century, democracy looked reasonably secure in the United States. Constitutionalists understandably focused on normative issues and the role of the Supreme Court. Democracy no longer looks secure in the twenty-first century. How America’s constitutional law professors have long conceptualized the Constitution is the reverse of how Publius envisioned the proposed plan of the convention. The Supreme Court was a bit player in The Federalist. The problem of constitutional design was at its heart. It is this older sense of the work that a constitution does that needs to be reclaimed if constitutional law professors and the students they teach are to play a role in helping the nation confront the problems it faces. American constitutionalists, in short, will need to grapple with the role her exceptional constitution played in the political construction of her unexceptional democracy.
Suggested citation: Miguel Schor, American Exceptionalism and the Capitol Riot One Year Later, Int’l J. Const. L. Blog, Jan. 6, 2021, at: http://www.iconnectblog.com/2021/01/american-exceptionalism-and-the-capitol-riot-one-year-later/