Perhaps the most striking example of rewriting the rules to lock in an authoritarian advantage comes from the United States. The end of post–Civil War Reconstruction in the 1870s led to the emergence of authoritarian single-party regimes in every post-Confederate state. Single-party rule was not some benign historical accident; rather, it was a product of brazenly antidemocratic constitutional engineering.
During the era of Reconstruction, the mass enfranchisement of African Americans posed a major threat to southern white political control and to the political dominance of the Democratic Party. Under the 1867 Reconstruction Act and the Fifteenth Amendment, which prohibited suffrage limitations on account of race, African Americans suddenly constituted a majority of the voting population in Mississippi, South Carolina, and Louisiana and a near-majority in Alabama, Florida, Georgia, and North Carolina. Federal troops oversaw the mass registration of black voters throughout the South. Nationwide, the percentage of black men who were eligible to vote increased from 0.5 percent in 1866 to 80.5 percent two years later. In many southern states, black registration rates exceeded 90 percent. And black citizens voted. In the 1880 presidential election, estimated black turnout was 65 percent or higher in North and South Carolina, Tennessee, Texas, and Virginia. Enfranchisement empowered African Americans: More than two thousand southern freedmen won elective office in the 1870s, including fourteen congressmen and two U.S. senators. At one point, more than 40 percent of legislators in Louisiana’s and South Carolina’s lower houses were black. And because African Americans voted overwhelmingly Republican, black enfranchisement invigorated Republican and other challengers to the once-dominant Democrats. The Democrats lost power in North Carolina, Tennessee, and Virginia in the 1880s and 1890s, and they nearly lost it in Alabama, Arkansas, Florida, Georgia, Mississippi, and Texas. If democratic elections continued, political scientist V. O. Key observed, it “would have been fatal to the status of black belt whites.”
So they changed the rules—and did away with democracy. “Give us a [constitutional] convention, and I will fix it so that…the Negro shall never be heard from,” former Georgia senator Robert Toombs declared as Reconstruction was coming to an end. Between 1885 and 1908, all eleven post-Confederate states reformed their constitutions and electoral laws to disenfranchise African Americans. To comply with the letter of the law as stipulated in the Fifteenth Amendment, no mention of race could be made in efforts to restrict voting rights, so states introduced purportedly “neutral” poll taxes, property requirements, literacy tests, and complex written ballots. “The overarching aim of all of these restrictions,” historian Alex Keyssar observed, “was to keep poor and illiterate blacks…from the polls.” And because African Americans were overwhelmingly Republican, their disenfranchisement could be expected to restore the Democrats’ electoral dominance. The goal, as a state senator from North Carolina put it, was to write a “good square, honest law that will always give a good Democratic majority.”
South Carolina, whose population was majority black, was a pioneer of vote restriction. The 1882 “Eight Box Law” created a complex ballot that made it nearly impossible for illiterates to exercise the franchise, and since most of the state’s black residents were illiterate, black turnout plummeted. But that wasn’t enough. In 1888, Governor John Richardson declared, “We now have the rule of a minority of 400,000 [whites] over a majority of 600,000 [blacks]….The only thing that stands today between us and their rule is a flimsy statute—the Eight Box Law.” Seven years later, the state introduced a poll tax and a literacy test. Black turnout, which had reached 96 percent in 1876, fell to just 11 percent in 1898. Black disenfranchisement “wrecked the Republican Party,” locking it out of the statehouse for nearly a century.
In Tennessee, black suffrage made Republicans so competitive in 1888 that the pro-Democratic Avalanche predicted “a sweeping Republican victory” in the next election unless something were done. The following year, Democratic legislators introduced a poll tax, strict registration requirements, and the Dortch Law, which created a complex ballot that required literacy. As the legislature debated, the Avalanche proclaimed, “Give us the Dortch bill or we perish.” Afterward, the headline of the Memphis Daily Appeal read: “Safe at Last—Goodbye Republicans, Goodbye.” The Democrats swept to victory in 1890, while the Republicans “collapsed.” The Daily Appeal editorialized that the Dortch Law’s effects were “most admirable. The vote has been cut down woefully and wonderfully to be sure, but the ratio of Democratic majorities has been raised at least four-fold.” By 1896, black turnout was close to zero.
In Alabama, where the Democrats nearly lost the governorship to a populist in 1892, they “turned to suffrage restrictions to escape their difficulties.” After the state legislature approved a bill to suppress the black vote, Governor Thomas Jones reportedly said, “Let me sign that bill quickly, lest my hand or arm become paralyzed, because it forever wipes out the [populists]…and all the niggers.” The story repeated itself in Arkansas, Florida, Georgia, Louisiana, Mississippi, North Carolina, Texas, and Virginia.
These “reform” measures effectively killed democracy in the American South. Even though African Americans constituted a majority or near-majority of the population in many states, and even though black suffrage was now enshrined in the Constitution, “legal” or neutral-sounding measures were used to “insure that the Southern electorate…would be almost all white.” Black turnout in the South fell from 61 percent in 1880 to just 2 percent in 1912. The disenfranchisement of African Americans wiped out the Republican Party, locking in white supremacy and single-party rule for nearly a century. As one black southerner observed, “The whole South—every state in the South—had got into the hands of the very men that had held us as slaves.”
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One of the great ironies of how democracies die is that the very defense of democracy is often used as a pretext for its subversion. Would-be autocrats often use economic crises, natural disasters, and especially security threats—wars, armed insurgencies, or terrorist attacks—to justify antidemocratic measures. In 1969, after winning reelection to his second and final term in office, President Ferdinand Marcos of the Philippines began to consider how he might use an emergency to extend his rule. Marcos did not want to step aside when his second term expired in 1973, as the constitution dictated, so he drew up plans to declare martial law and rewrite the constitution. But he needed a reason. An opportunity arrived in July 1972, when a series of mysterious bombings rocked Manila. Following an apparent assassination attempt on Defense Secretary Juan Ponce Enrile, Marcos, blaming communist terrorists, enacted his plan. He announced martial law on national television, insisting somberly, “My countrymen…[this] is not a military takeover.” He argued that “a democratic form of government is not a helpless government” and that the constitution—the one he was suspending—“wisely provided the means to protect it” when confronting a danger like insurrection. With this move, Marcos ensconced himself in power for the next fourteen years.
Crises are hard to predict, but their political consequences are not. They facilitate the concentration and, very often, abuse of power. Wars and terrorist attacks produce a “rally ’round the flag” effect in which public support for the government increases—often dramatically; in the aftermath of September 11, President Bush saw his approval rating soar from 53 percent to 90 percent—the highest figure ever recorded by Gallup. (The previous record high—89 percent—had been set by Bush’s father, George H. W. Bush, in the wake of the 1991 Persian Gulf War.) Because few politicians are wi
lling to stand up to a president with 90 percent support in the middle of a national security crisis, presidents are left virtually unchecked. The USA PATRIOT Act, signed into law by George W. Bush in October 2001, never would have passed had the September 11 attacks not occurred the previous month.
Citizens are also more likely to tolerate—and even support—authoritarian measures during security crises, especially when they fear for their own safety. In the aftermath of 9/11, 55 percent of surveyed Americans said they believed it was necessary to give up some civil liberties to curb terrorism, up from 29 percent in 1997. Likewise, Roosevelt’s internment of Japanese Americans would have been unthinkable without the public fear generated by the Pearl Harbor attack. After Pearl Harbor, more than 60 percent of surveyed Americans supported expelling Japanese Americans from the country, and a year later, Japanese American internment still enjoyed considerable public support.
Most constitutions permit the expansion of executive power during crisis. As a result, even democratically elected presidents can easily concentrate power and threaten civil liberties during war. In the hands of a would-be authoritarian, this concentrated power is far more dangerous. For a demagogue who feels besieged by critics and shackled by democratic institutions, crises open a window of opportunity to silence critics and weaken rivals. Indeed, elected autocrats often need crises—external threats offer them a chance to break free, both swiftly and, very often, “legally.”
The combination of a would-be authoritarian and a major crisis can, therefore, be deadly for democracy. Some leaders come into office facing crisis. For example, Fujimori took office amid hyperinflation and a mounting guerrilla insurgency, so when he justified his 1992 presidential coup as a necessary evil, most Peruvians agreed with him. Fujimori’s approval rating shot up to 81 percent after the coup.
Other leaders invent crises. There was a backstory to Ferdinand Marcos’s declaration of martial law in 1972: His “crisis” was largely fabricated. Acutely aware that he needed to justify his plan to skirt the constitution’s two-term limit in the presidency, Marcos decided to manufacture a “communist menace.” Facing only a few dozen actual insurgents, President Marcos fomented public hysteria to justify an emergency action. Marcos wanted to declare martial law as early as 1971, but selling his plan required an act of violence—a terrorist attack—that generated widespread fear. That would come the following year with the Manila bombings, which U.S. intelligence officials believed to be the work of government forces, and the assassination attempt on Defense Secretary Enrile—which Enrile later admitted was “a sham.” In fact, he said he was “nowhere near the scene” of the reported attack.
Whether real or not, would-be authoritarians are primed to exploit crises to justify power grabs. Perhaps the best-known case is Adolf Hitler’s response to the February 27, 1933, Reichstag fire, just a month after he was sworn in as chancellor. The question of whether a young Dutchman with communist sympathies started the fire in the Berlin parliament building or whether the Nazi leadership itself did remains a matter of debate among historians. Whatever the case, Hitler, Hermann Göring, and Joseph Goebbels arrived at the burning Reichstag and immediately used the event to justify emergency decrees that dismantled civil liberties. This, along with the Enabling Act one month later, destroyed all opposition, consolidating Nazi power until the end of the Second World War.
A security crisis also facilitated Vladimir Putin’s authoritarian turn. In September 1999, shortly after Putin was named prime minister, a series of bombings in Moscow and other cities—presumably by Chechen terrorists—killed nearly three hundred people. Putin responded by launching a war in Chechnya and a large-scale crackdown. As in the case of Nazi Germany, there is some debate over whether the bombings were committed by Chechen terrorists or by the Russian government’s own intelligence service. What is clear, however, is that Putin’s political popularity received a major boost with the bombings. The Russian public rallied behind Putin, tolerating, if not supporting, attacks on the opposition over the months and years that followed.
Most recently, the Erdoğan government in Turkey used security crises to justify his tightening grip on power. After the AKP lost its parliamentary majority in June 2015, a series of ISIS terrorist attacks enabled Erdoğan to use the rally-’round-the-flag effect to call snap elections and regain control of parliament just five months later. Even more consequential was the July 2016 coup attempt, which provided justification for a wide-ranging crackdown. Erdoğan responded to the coup by declaring a state of emergency and launching a massive wave of repression that included a purge of some 100,000 public officials, the closure of several newspapers, and more than 50,000 arrests—including hundreds of judges and prosecutors, 144 journalists, and even two members of the Constitutional Court. Erdoğan also used the coup attempt as a window of opportunity to make the case for sweeping new executive powers. The power grab culminated in the April 2017 passage of a constitutional amendment that demolished checks on presidential authority.
For demogagues hemmed in by constitutional constraints, a crisis represents an opportunity to begin to dismantle the inconvenient and sometimes threatening checks and balances that come with democratic politics. Crises allow autocrats to expand their room to maneuver and protect themselves from perceived enemies. But the question remains: Are democratic institutions so easily swept away?
5
The Guardrails of Democracy
For generations, Americans have retained great faith in their Constitution, as the centerpiece of a belief that the United States was a chosen nation, providentially guided, a beacon of hope and possibility to the world. Although this larger vision may be fading, trust in the Constitution remains high. A 1999 survey found that 85 percent of Americans believed the Constitution was the major reason “America had been successful during this past century.” Indeed, our constitutional system of checks and balances was designed to prevent leaders from concentrating and abusing power, and for most of American history, it has succeeded. President Abraham Lincoln’s concentration of power during the Civil War was reversed by the Supreme Court after the war ended. President Richard Nixon’s illegal wiretapping, exposed after the 1972 Watergate break-in, triggered a high-profile congressional investigation and bipartisan pressure for a special prosecutor that eventually forced his resignation in the face of certain impeachment. In these and other instances, our political institutions served as crucial bulwarks against authoritarian tendencies.
But are constitutional safeguards, by themselves, enough to secure a democracy? We believe the answer is no. Even well-designed constitutions sometimes fail. Germany’s 1919 Weimar constitution was designed by some of the country’s greatest legal minds. Its long-standing and highly regarded Rechtsstaat (“rule of law”) was considered by many as sufficient to prevent government abuse. But both the constitution and the Rechtsstaat collapsed rapidly in the face of Adolf Hitler’s usurpation of power in 1933.
Or consider the experience of postcolonial Latin America. Many of the region’s newly independent republics modeled themselves directly on the United States, adopting U.S.-style presidentialism, bicameral legislatures, supreme courts, and in some cases, electoral colleges and federal systems. Some wrote constitutions that were near-replicas of the U.S. Constitution. Yet almost all the region’s embryonic republics plunged into civil war and dictatorship. For example, Argentina’s 1853 constitution closely resembled ours: Two-thirds of its text was taken directly from the U.S. Constitution. But these constitutional arrangements did little to prevent fraudulent elections in the late nineteenth century, military coups in 1930 and 1943, and Perón’s populist autocracy.
Likewise, the Philippines’ 1935 constitution has been described as a “faithful copy of the U.S. Constitution.” Drafted under U.S. colonial tutelage and approved by the U.S. Congress, the charter “provided a textbook example of liberal democracy,” with a separation of powers, a bill of rights, and a two-term limit in the presidency. But President Ferdi
nand Marcos, who was loath to step down when his second term ended, dispensed with it rather easily after declaring martial law in 1972.
If constitutional rules were enough, then figures such as Perón, Marcos, or Brazil’s Getúlio Vargas—all of whom took office under U.S.-style constitutions that, on paper, contained an impressive array of checks and balances—would have been one- or two-term presidents rather than notorious autocrats.
Even well-designed constitutions cannot, by themselves, guarantee democracy. For one, constitutions are always incomplete. Like any set of rules, they have countless gaps and ambiguities. No operating manual, no matter how detailed, can anticipate all possible contingencies or prescribe how to behave under all possible circumstances.
Constitutional rules are also always subject to competing interpretations. What, exactly, does “advice and consent” entail when it comes to the U.S. Senate’s role in appointing Supreme Court justices? What sort of threshold for impeachment does the phrase “crimes and misdemeanors” establish? Americans have debated these and other constitutional questions for centuries. If constitutional powers are open to multiple readings, they can be used in ways that their creators didn’t anticipate.
Finally, the written words of a constitution may be followed to the letter in ways that undermine the spirit of the law. One of the most disruptive forms of labor protests is a “work to rule” campaign, in which workers do exactly what is asked of them in their contracts or job descriptions but nothing more. In other words, they follow the written rules to the letter. Almost invariably, the workplace ceases to function.