How Democracies Die

Because of the gaps and ambiguities inherent in all legal systems, we cannot rely on constitutions alone to safeguard democracy against would-be authoritarians. “God has never endowed any statesman or philosopher, or any body of them,” wrote former U.S. president Benjamin Harrison, “with wisdom enough to frame a system of government that everybody could go off and leave.”

  That includes our own political system. The U.S. Constitution is, by most accounts, a brilliant document. But the original Constitution—only four pages long—can be interpreted in many different, and even contradictory, ways. We have, for example, few constitutional safeguards against filling nominally independent agencies (such as the FBI) with loyalists. According to constitutional scholars Aziz Huq and Tom Ginsburg, only the “thin tissue of convention” prevents American presidents from capturing the referees and deploying them against opponents. Likewise, the Constitution is virtually silent on the president’s authority to act unilaterally, via decrees or executive orders, and it does not define the limits of executive power during crises. Thus, Huq and Ginsburg recently warned that “the constitutional and legal safeguards of [American] democracy…would prove to be fairly easy to manipulate in the face of a truly antidemocratic leader.”

  If the constitution written in Philadelphia in 1787 is not what secured American democracy for so long, then what did? Many factors mattered, including our nation’s immense wealth, a large middle class, and a vibrant civil society. But we believe much of the answer also lies in the development of strong democratic norms. All successful democracies rely on informal rules that, though not found in the constitution or any laws, are widely known and respected. In the case of American democracy, this has been vital.

  As in all facets of society, ranging from family life to the operation of businesses and universities, unwritten rules loom large in politics. To understand how they work, think of the example of a pickup basketball game. Street basketball is not governed by rules set up by the NBA, NCAA, or any other league. And there are no referees to enforce such rules. Only shared understandings about what is, and what is not, acceptable prevent such games from descending into chaos. The unwritten rules of a half-court game of pickup basketball are familiar to anyone who has played it. Here are some of the basics:

  • Scoring is by ones, not by twos as in regular basketball, and the winning team must win by two points.

  • The team that makes a basket keeps the ball (“make it, take it”). The scoring team takes the ball to the top of the key and, to ensure that the defending team is ready, “checks” it by passing it to the nearest opposing player.

  • The player who starts with the ball cannot shoot; he or she must pass it in.

  • Players call their own fouls but with restraint; only egregious fouls are legitimate (“no blood, no foul”). But when fouls are called, the calls must be respected.

  Democracy, of course, is not street basketball. Democracies do have written rules (constitutions) and referees (the courts). But these work best, and survive longest, in countries where written constitutions are reinforced by their own unwritten rules of the game. These rules or norms serve as the soft guardrails of democracy, preventing day-to-day political competition from devolving into a no-holds-barred conflict.

  Norms are more than personal dispositions. They do not simply rely on political leaders’ good character, but rather are shared codes of conduct that become common knowledge within a particular community or society—accepted, respected, and enforced by its members. Because they are unwritten, they are often hard to see, especially when they’re functioning well. This can fool us into thinking they are unnecessary. But nothing could be further from the truth. Like oxygen or clean water, a norm’s importance is quickly revealed by its absence. When norms are strong, violations trigger expressions of disapproval, ranging from head-shaking and ridicule to public criticism and outright ostracism. And politicians who violate them can expect to pay a price.

  Unwritten rules are everywhere in American politics, ranging from the operations of the Senate and the Electoral College to the format of presidential press conferences. But two norms stand out as fundamental to a functioning democracy: mutual toleration and institutional forbearance.

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  Mutual toleration refers to the idea that as long as our rivals play by constitutional rules, we accept that they have an equal right to exist, compete for power, and govern. We may disagree with, and even strongly dislike, our rivals, but we nevertheless accept them as legitimate. This means recognizing that our political rivals are decent, patriotic, law-abiding citizens—that they love our country and respect the Constitution just as we do. It means that even if we believe our opponents’ ideas to be foolish or wrong-headed, we do not view them as an existential threat. Nor do we treat them as treasonous, subversive, or otherwise beyond the pale. We may shed tears on election night when the other side wins, but we do not consider such an event apocalyptic. Put another way, mutual toleration is politicians’ collective willingness to agree to disagree.

  As commonsensical as this idea may sound, the belief that political opponents are not enemies is a remarkable and sophisticated invention. Throughout history, opposition to those in power had been considered treason, and indeed, the notion of legitimate opposition parties was still practically heretical at the time of America’s founding. Both sides in America’s early partisan battles—John Adams’s Federalists and Thomas Jefferson’s Republicans—regarded each other as a threat to the republic. The Federalists saw themselves as the embodiment of the Constitution; in their view, one could not oppose the Federalists without opposing the entire American project. So when Jefferson and Madison organized what would become the Republican Party, the Federalists regarded them as traitors, even suspecting them of harboring loyalties to Revolutionary France—with which the United States was nearly at war. The Jeffersonians, for their part, accused the Federalists of being Tories and of plotting a British-backed monarchic restoration. Each side hoped to vanquish the other, taking steps (such as the 1798 Alien and Sedition Acts) to legally punish mere political opposition. Partisan conflict was so ferocious that many feared the new republic would fail. It was only gradually, over the course of decades, that America’s opposing parties came to the hard-fought recognition that they could be rivals rather than enemies, circulating in power rather than destroying each other. This recognition was a critical foundation for American democracy.

  But mutual toleration is not inherent to all democracies. When Spain underwent its first genuine democratic transition in 1931, for example, hopes were high. The new left-leaning Republican government, led by Prime Minister Manuel Azaña, was committed to parliamentary democracy. But the government confronted a highly polarized society, ranging from anarchists and Marxists on the left to monarchists and fascists on the right. Opposing sides viewed each other not as partisan rivals but as mortal enemies. On the one hand, right-wing Catholics and monarchists, who watched in horror as the privileges of the social institutions they valued most—the Church, the army, and the monarchy—were dismantled, did not accept the new republic as legitimate. They viewed themselves, in the words of one historian, as engaged in a battle against “bolshevizing foreign agents.” Unrest in the countryside and hundreds of acts of arson against churches, convents, and other Catholic institutions left conservatives feeling besieged, in the grips of a conspiratorial fury. Religious authorities darkly warned, “We have now entered the vortex…we have to be ready for everything.”

  On the other hand, many Socialists and other leftist Republicans viewed rightists such as José María Gil-Robles, the leader of the Catholic conservative Confederación Española de Derechas Autónomas (CEDA), as monarchist or fascist counterrevolutionaries. At best, many on the left regarded the well-organized CEDA as a mere front for the ultraconservative monarchists who were plotting the republic’s violent overthrow. Although CEDA was apparently willing to play the democratic game by competing in elections, its leaders refused to uncondit
ionally commit to the new regime. So they remained targets of extreme suspicion. In short, neither the Republicans on the left nor the Catholics and monarchists on the right fully accepted one another as legitimate opponents.

  When norms of mutual toleration are weak, democracy is hard to sustain. If we view our rivals as a dangerous threat, we have much to fear if they are elected. We may decide to employ any means necessary to defeat them—and therein lies a justification for authoritarian measures. Politicians who are tagged as criminal or subversive may be jailed; governments deemed to pose a threat to the nation may be overthrown.

  In the absence of strong norms of mutual toleration, the Spanish Republic quickly fell apart. The new republic descended into crisis after the right-wing CEDA won the 1933 elections and became the largest bloc in parliament. The governing center-left Republican coalition collapsed and was replaced by a minority centrist government that excluded the Socialists. Because many Socialists and left Republicans viewed the original (1931–33) center-left government as the embodiment of the republic, they regarded efforts to revoke or change its policies as fundamentally “disloyal” to the republic. And when CEDA—which had a fascist-leaning youth group among its rank and file—joined the government the following year, many Republicans viewed it as a profound threat. The Republican left party declared that

  the monstrous fact of turning over the government of the Republic to its enemy is a treason. [We] break all solidarity with the present institutions of the regime and affirm [our] decision to turn to all means in defense of the Republic.

  Facing what they saw as a descent into fascism, leftists and anarchists rebelled in Catalonia and Asturias, calling a general strike and forming a parallel government. The rightist government brutally repressed the uprising. It then tried to associate the entire Republican opposition with it, even jailing former Prime Minister Azaña (who did not participate in the uprising). The country sank into increasingly violent conflict in which street battles, bombings, church burnings, political assassinations, and coup conspiracies replaced political competition. By 1936, Spain’s nascent democracy had degenerated into a civil war.

  In just about every case of democratic breakdown we have studied, would-be authoritarians—from Franco, Hitler, and Mussolini in interwar Europe to Marcos, Castro, and Pinochet during the Cold War to Putin, Chávez, and Erdoğan most recently—have justified their consolidation of power by labeling their opponents as an existential threat.

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  A second norm critical to democracy’s survival is what we call institutional forbearance. Forbearance means “patient self-control; restraint and tolerance,” or “the action of restraining from exercising a legal right.” For our purposes, institutional forbearance can be thought of as avoiding actions that, while respecting the letter of the law, obviously violate its spirit. Where norms of forbearance are strong, politicians do not use their institutional prerogatives to the hilt, even if it is technically legal to do so, for such action could imperil the existing system.

  Institutional forbearance has its origins in a tradition older than democracy itself. During the time when kings proclaimed divine-right rule—where religious sanction provided the basis of monarchic authority—no mortal constraint legally limited the power of kings. But many of Europe’s predemocratic monarchs nevertheless acted with forbearance. To be “godly,” after all, required wisdom and self-restraint. When a figure such as King Richard II, portrayed as a tyrant in one of Shakespeare’s most famous historical plays, abuses his royal prerogatives in order to expropriate and plunder, his violations are not illegal; they merely violate custom. But the violations are highly consequential, for they unleash a bloody civil war. As Shakespeare’s character Carlisle warns his compatriots in the play, abandoning forbearance meant “the Blood of English shall manure the ground….And future ages groan for this foul act.”

  Just as divine-right monarchies required forbearance, so do democracies. Think of democracy as a game that we want to keep playing indefinitely. To ensure future rounds of the game, players must refrain from either incapacitating the other team or antagonizing them to such a degree, that they refuse to play again tomorrow. If one’s rivals quit, there can be no future games. This means that although individuals play to win, they must do so with a degree of restraint. In a pickup basketball game, we play aggressively, but we know not to foul excessively—and to call a foul only when it is egregious. After all, you show up at the park to play a basketball game, not to fight. In politics, this often means eschewing dirty tricks or hardball tactics in the name of civility and fair play.

  What does institutional forbearance look like in democracies? Consider the formation of governments in Britain. As constitutional scholar and author Keith Whittington reminds us, the selection of the British prime minister is “a matter of royal prerogative. Formally, the Crown could select anyone to occupy the role and form the government.” In practice, the prime minister is a member of Parliament able to command a majority in the House of Commons—usually, the head of the largest parliamentary party. Today we take this system for granted, but for centuries the Crown adhered to it voluntarily. There is still no written constitutional rule.

  Or take presidential term limits. For most of American history, the two-term limit was not a law but a norm of forbearance. Before ratification of the Twenty-Second Amendment in 1951, nothing in the Constitution dictated that presidents step down after two terms. But George Washington’s retirement after two terms in 1797 set a powerful precedent. As Thomas Jefferson, the first sitting president to follow the norm, observed,

  If some termination of the services of the [President] be not fixed by the Constitution, or supplied by practice, his office, nominally for four years, will in fact become for life….I should unwillingly be the person who, disregarding sound precedent set by an illustrious predecessor, should furnish the first example of prolongation beyond the second term in office.

  Thus established, the informal two-term limit proved remarkably robust. Even ambitious and popular presidents such as Jefferson, Andrew Jackson, and Ulysses S. Grant refrained from challenging it. When friends of Grant encouraged him to seek a third term, it caused an uproar, and the House of Representatives passed a resolution declaring:

  The precedent established by Washington and other presidents…in retiring from…office after their second term has become…a part of our republican system….[A]ny departure from this time-honored custom would be unwise, unpatriotic, and fraught with peril to our free institutions.

  Likewise, the Democratic Party refused to nominate Grover Cleveland for a nonconsecutive third term in 1892, warning that such a candidacy would violate an “unwritten law.” Only FDR’s reelection in 1940 clearly violated the norm—a violation that triggered the passage of the Twenty-Second Amendment.

  Norms of forbearance are especially important in presidential democracies. As Juan Linz argued, divided government can easily bring deadlock, dysfunction, and constitutional crisis. Unrestrained presidents can pack the Supreme Court or circumvent Congress by ruling via decree. And an unrestrained Congress can block the president’s every move, threaten to throw the country into chaos by refusing to fund the government, or vote to remove the president on dubious grounds.

  The opposite of forbearance is to exploit one’s institutional prerogatives in an unrestrained way. Legal scholar Mark Tushnet calls this “constitutional hardball”: playing by the rules but pushing against their bounds and “playing for keeps.” It is a form of institutional combat aimed at permanently defeating one’s partisan rivals—and not caring whether the democratic game continues.

  Argentine presidents have long been masters of constitutional hardball. In the 1940s, President Juan Perón used his majority in congress to impeach three out of five supreme court justices, taking “maximum advantage” of a vaguely defined constitutional clause listing “malfeasance” as grounds for impeachment. Nearly half a century later, President Carlos Menem showed a similar
flair for pushing the boundaries. Argentina’s 1853 constitution was ambiguous in defining the president’s authority to issue decrees. Historically, elected presidents had used this authority sparingly, issuing just twenty-five decrees between 1853 and 1989. Menem showed no such restraint, issuing 336 decrees in less than a single presidential term.

  The judiciary may also be deployed for constitutional hardball. After opposition parties won control of the Venezuelan congress in a landslide election in December 2015, they hoped to use the legislature to check the power of autocratic president Nicolás Maduro. Thus, the new congress passed an amnesty law that would free 120 political prisoners, and it voted to block Maduro’s declaration of a state of economic emergency (which granted him vast power to govern by decree). To fend off this challenge, Maduro turned to the supreme court, which was packed with loyalists. The chavista court effectively incapacitated the legislature by ruling nearly all of its bills—including the amnesty law, efforts to revise the national budget, and the rejection of the state of emergency—unconstitutional. According to the Colombian newspaper El Tiempo, the court ruled against congress twenty-four times in six months, striking down “all the laws it has approved.”

  Legislatures may also overindulge their constitutional prerogatives. Take the 2012 impeachment of President Fernando Lugo in Paraguay. Lugo, a leftist ex-priest, was elected in 2008, ending the Colorado Party’s sixty-one-year run in power. An outsider with few friends in congress, Lugo faced impeachment attempts throughout his presidency. These efforts succeeded in 2012, after the president’s popularity had eroded and his former Liberal allies had abandoned him. The trigger was a violent conflict between police and peasant squatters that killed seventeen people. Although similar violence had occurred under previous governments, the opposition used the incident to bring Lugo down. On June 21, just six days after the killings, the chamber of deputies voted to impeach Lugo on grounds of “poor performance of duties.” A day later, following a rushed trial in which the president had only two hours to present his defense, Lugo was removed from office by the senate. According to one observer, the trial was an “obvious farce….Lugo’s impeachment barely even rose to the level of show trial.” Strictly speaking, however, it was legal.