A University of Chicago Law School professor has well-researched insight into the existential questions about the nature – or even future – of democracy in America.
Aziz Huq is the Frank and Bernice J. Greenberg professor of law at the University of Chicago Law School. Professor Huq literally wrote the book on Assessing Constitutional Performance.
“President Donald Trump’s abrupt firing of FBI Director James Comey prompted two immediate questions: Is the firing legal, and is this a constitutional crisis?” Professor Huq questioned. “But are these even the right questions to pose?”
“Since assuming office in January, Donald Trump has been called a fascist, an authoritarian and a would-be autocrat, but what are the precise dangers his presidency poses?” Alexandra Rosenmann at Alternet wondered.
Professor Huq has ideas on how best to assess that question.
“Democratic decline is a recurrent phenomenon of the early 21st century. My colleague Tom Ginsburg and I recently mined Polity— a database with information about the democratic attributes of countries worldwide — and identified 37 recent instances in which the quality of a nation’s democratic institutions shrank substantially,” Huq explained. “Examining these comparative cases, which range from Poland and Hungary to Thailand, Egypt, and Turkey, illuminates the institutional mechanisms of democratic decline. It therefore provides guidance for thinking about pathways along which antidemocratic institutional changes might proceed closer to home.”
Military coups aren’t the most likely model for destroying democratic institutions.
“One lesson is that the road away from democracy is rarely characterized by overt violations of the formal rule of law. To the contrary, the contemporary path away from democracy under the rule of law typically relies on actions within the law. Central among these legal measures is the early disabling of internal monitors of governmental illegality by the aggressive exercise of (legal) personnel powers. Often, there are related changes to the designs of institutions, which might be brought about through legislation,” Professor Huq explained. “Ironically, the law is deployed to undermine legality and the rule of law more generally.”
Of course, it takes lawyers to use the rule of law to undermine democracy.
“Won’t the presence of good lawyers within the executive branch prevent the strategic deployment of law (and gaps in the law) against legality?” Professor Huq asked. “Alas, it is instead striking that many of the new breed of populist autocrats are lawyers by training. This includes Lech Kaczyński (Poland), Viktor Orbán, and Vladimir Putin. All have teams of (often American-trained) lawyers, willing and able to further their entrenchment in power.”
“Firing Comey can simultaneously be legal, and also a step toward what some have called an ‘illiberal democracy’ — or toward something even worse,” Huq argued. “Legislators and bureaucrats have the power to slow down such a degradation, but only if they recognize what is happening, and respond.”
Watch Vox correspondent Carlos Maza explain: