James Gardner on Anti-Democracy in US States and Why It Matters
Today’s guest author is James Gardner, the Bridget and Thomas Black Distinguished Professor of Law at the University of Buffalo. He is a specialist in constitutional and electoral law. I heard him give the substance of this paper at a conference on Democracy at the University of Buffalo. The talk was so impressive, and the message so important, that I asked Professor Gardner to provide a written version of the talk for this website.
Gardner’s argument in short: America is a federal system where states have substantial independent power. However, the power of states is not so great that the states could overturn the ill effects of an autocratic national government in Washington. Furthermore, there has been substantial democratic backsliding in individual states – actions that could lead to unrepresentative elections, a compromised civil service, and the weakened independence of the judiciary and public universities. Worse, there is an increasing demonization of political opposition that can have a substantial effect at undercutting the democratic norms that are the cultural foundation of tolerance and compromise. There is little comfort from the study of ancient empires that democratic norms in smaller sub-units can reinstate democracy in the larger nations to which they belong. The autonomy of democratic regions and sub-units depends on the indifference of the greater imperial power. Some empires have tolerated states or provinces with independent political visions. Many have not. Bottom line: The prospects for democracy are dimming in many American states. Those states that continue to adhere to democratic norms may not be able to prevent anti-democratic tendencies at the national level.
This is a chilling argument – one which sadly, Gardner can support with substantial legal analysis and historical documentation. Read it. Be depressed. But be informed.
AUTHORITARIANISM IN FEDERAL STATES
An epidemic of democratic backsliding, and a corresponding rise in authoritarianism, has been sweeping the globe. This trend has emerged not only among young and weak democracies, but among long-established and seemingly stable ones as well. The United States has not been immune: between 2016 and 2020, the U.S. departed dramatically at the national level from longstanding principles of liberal democracy.
Unlike most nations suffering democratic backsliding, however, the United States is a federation, and indeed a highly decentralized one in which the states enjoy significant power and autonomy. Some scholars have suggested hopefully that this federal structure might contain the spread of authoritarianism in the U.S. by confining it to the national level, leaving the states intact as functioning liberal democracies. On a few occasions when federal states have transitioned from authoritarianism to liberal democracy at the national level (e.g., Argentina, Brazil), authoritarianism has occasionally lingered persistently in certain provinces. Could the reverse be true as well – might liberal democracy persist subnationally when a federal state transitions from democracy to authoritarianism?
I think the answer is no. Recent evidence from the United States demonstrates that the federal structure offers no protection against the downward spread of authoritarianism when the same authoritarian-leaning political party controls both the national and subnational governments. But even when a different party controls a state or province, a more likely outcome is what we observe in Hong Kong: slow strangulation of subnational liberal democracy by a centrally autocratic state.
The Spread of Authoritarianism among the States
Has authoritarianism spread among the American states? Globally, the main path toward authoritarianism no longer runs through a quick and decisive military coup. Today’s autocrats take power incrementally, acquiring it initially through open democratic processes and then gradually exploiting weaknesses in the system to concentrate their power and insulate themselves against future dislodgement.
Evidence of this kind of authoritarian creep sometimes manifests itself in constitutional amendment or replacement that centralizes executive power, eliminates interbranch checks, and suppresses effective partisan political competition. On the other hand, such developments may also occur in direct violation of the constitution, carried out extraconstitutionally through policy changes that do not appear in the formal constitutional document.
Democratic backsliding has become sufficiently common around the world to enable comparativists to identify an “authoritarian’s playbook” – a script or game plan that anti-democratic leaders tend to follow once in power to erode liberal democracy. Political scientist Larry Diamond has developed a detailed version of the playbook that includes the following steps: demonize the opposition as illegitimate and unpatriotic; undermine judicial independence; attack the independence of the media; subdue elements of civil society, like civic associations, universities, and human rights groups; intimidate the business community into ending its support for political opposition; enrich a new class of crony capitalists; assert political control over the civil service; gerrymander districts and rig the electoral rules; and gain control over the body that runs the elections, to further tilt the electoral playing field.
If we look for evidence of these kinds of activities in the formal constitutions of the U.S. states, we find basically nothing. No state constitution has been replaced in nearly forty years, and no recent state constitutional amendment, or even significant state judicial decision, has significantly concentrated power in the executive or eliminated interbranch checks on executive power.
If we examine legislative and policy behavior in the states, however, a very different picture emerges. Consider Diamond’s category of demonization of the opposition – expressing, that is, the sentiment that the political opposition is not fit to exercise power. In North Carolina in 2016, and in Wisconsin and Michigan in 2018, lame-duck Republican-controlled legislatures stripped incoming Democratic governors of powers their Republican predecessors had enjoyed, evidently on the view that no Democrat should have those powers.
Or, consider efforts to undermine judicial independence. Republicans at the nation level bitterly resist the idea that Congress should expand the size of the U.S. Supreme Court, yet in 2016, the Arizona and Georgia legislatures openly engaged in court-packing by increasing the sizes of their state supreme courts to allow Republican governors enough appointments to alter partisan control of those courts. Similarly, a 2019 law gave the Governor of Iowa power to appoint a majority of the judicial nominating commission, eliminating its role as an independent check on gubernatorial power.
Republican-controlled states including Alabama, Arizona, Florida, and Louisiana have imposed crippling budget cuts on their state universities in an apparent attempt to weaken these centers of free and open – i.e., liberal – inquiry. Republican-controlled states have for years waged war on labor unions, the deepest pocket contributing regularly to Democratic candidates for office, and Alabama and Wisconsin have been national leaders in centralizing the suppression of unions by overriding pro-union measures enacted by local governments.
In 2012, Arizona took a remarkable step toward undermining the independence of the civil service by ending job protections for government workers. In 2011, Wisconsin eliminated all collective bargaining rights for public university employees and health care workers.
But far and away the greatest amount of activity has been in the manipulation of electoral rules and processes. Alabama, Arizona, Georgia, Kansas, and Michigan enacted onerous proof-of-citizenship requirements to register to vote. Ohio and Kansas conducted widespread, but badly inaccurate, purges of voter registration rolls that resulted in disproportionate purging of Democratic-leaning voters. Florida and Texas have enacted severe legal restrictions, with daunting criminal liability, on voter registration drives. Ten Republican-controlled states tightened voter ID requirements even though voter impersonation fraud has been shown again and again to be nonexistent. Eight states cut back on early voting or previously extended polling place hours. And an intense effort at partisan gerrymandering in Republican-controlled swing states following the 2010 census produced significant results: in 2012, Republicans won 72 percent of Pennsylvania’s U.S. House seats on 49 percent of the vote, and 75 percent of Ohio’s U.S. House seats on 55 percent of the vote.
While no American state has backslid as far as nations like Hungary, Poland, or Turkey, numerous Republican-controlled states have deployed tactics straight out of the global authoritarian’s playbook, thereby propelling them at least some distance down the path of democratic backsliding toward authoritarianism.
Protective Effects of Federalism?
What about American states that remain attached to liberal democracy? Does federalism give them the capacity to protect themselves from infection at the national level?
In any federation, the capacity of subnational units to resist encroachment from the central state depends upon the availability of institutional pathways by which subnational units may influence national decision making. In a uniformly democratic federation, such pathways might include representation in a second chamber (as in Germany); institutions of negotiation and consultation (as in Switzerland); or exploitation of political party back channels (as in the U.S.). Available pathways of subnational influence typically also include less cooperative measures such as defiance of national directives; threatened or actual violent resistance; or even secession.
The pertinent question, then, concerns what pathways of influence might be available to a liberal democratic subunit in a nationally authoritarian federal state, and their effectiveness. Answering this question is complicated by the lack of pertinent contemporary examples, but some insight can be gleaned from an examination of the practices of ancient and early modern empires.
Ancient empires tended to be extremely heterogeneous, and were also highly decentralized. The goals of the imperial center typically were limited: collect taxes, recruit men for military service, and maintain order. As a result, ancient empires, like the Persian and Roman, were by necessity tolerant of subnational diversity, including diversity of political organization. The Ottoman millet system, under which Jewish, Christian, Armenian, and Kurdish subcommunities were permitted to govern themselves, provided a considerable degree of autonomy to subnational units within the empire.
On the other hand, if we look at the typical tactics of central control in these empires, it seems clear that subnational autonomy was limited in scope. Most ancient empires incorporated newly acquired territory by coopting existing local structures and institutions of governance through clientelism: rulers in newly acquired territories were permitted to retain their positions, and to continue ruling according to traditional laws, on the condition of becoming client kings or vassals, beholden for their positions to the imperial center. The real power in the jurisdiction was almost always a centrally appointed procurator or satrap who answered directly to the imperial center, and either commanded imperial troops or could quickly summon them. Imperial subunits thus tended to contain parallel systems of government, one indigenous and the other imperial, with the imperial one always ready to intervene.
Central empires generally maintained order in acquired provinces by coopting local elites with privileges – local leadership positions, service in the imperial bureaucracy, or in the case of the early Roman empire, Roman citizenship. Imperial centers would often allow local institutions of governance to function, including democratic or representative ones, but as facades, without real power. This, for example, was the tactic employed by the Macedonians after their conquest of Athens, though in the end, they extinguished even the facade of democracy following an Athenian revolt. Finally, imperial governments tended to tighten control over time, possibly a consequence of the telos of empire: center domination of the periphery, for the purpose of extracting benefits for the center.
The bottom line, then, seems to be that ancient empires were happy to grant local autonomy in things that didn’t matter to the imperial center; on other issues, meaningful self-rule was not permitted.
If we turn to early modern empires, such as the Spanish, Portuguese, and British ones, the picture is much the same. Local institutions and laws in acquired territories were generally respected under the principle of aeque principaliter, leading to differentiated legal regimes in which the imperial prince had different authority and privileges in different parts of the empire, and the locals enjoyed differing degrees of autonomy and freedom. The tactics of central control hardly differed even after the passage of many centuries.
In such a governance environment, what pathways of influence were available to imperial subunits? First of all, it is clear that pathways of influence readily available in centrally democratic states simply will not exist in an autocratically central state, even one that is federal in structure. There will be no second chamber to represent subnational interests, no independent federal judiciary to check central power, no opposition political parties to offer back-channel access to central lawmaking bodies, nor any free media capable of voicing opposition views. This means that the principal pathways of subnational influence in a centrally autocratic state will be negative tools of resistance and obstinacy – withholding of cooperation, defiance, secession – but with considerably enhanced risk due to the lack of restraint on the central use of violence
On the other hand, some additional pathways of subunit influence might be gained in the imperial structure. Subnational officials in ancient and early modern empires sometimes were able to appeal to imperial officials by supplication – i.e., begging. Subnational officials might be able to cultivate allies among disaffected members of the imperial ruling class. Bribery was an available tool of influence in these empires, as was negotiation, but only when the center was weak and the subunit had something to trade, most often revenue.
In light of this history, what might be the prospects facing liberal democratic subunits in the United States, such as California, New York, or Massachusetts, if the central government tilts decisively toward authoritarianism? In my opinion, successful resistance for any length of time would be virtually impossible.
First, ancient and early modern states did not view significant substate heterogeneity as inconsistent with the idea of a coherent empire. Modern states, in contrast, have since Bodin presupposed the absolute sovereignty of the state as a whole; and have since Hegel presupposed a coherent Staatsvolk that expresses its character in its constitution, laws, and public customs. These concepts greatly reduce the capacity of a modern autocracy to tolerate any kind of meaningful substate diversity.
Second, the uneven distribution of populist authoritarianism in the United States creates threatening internal tensions that are difficult to manage. At the moment, U.S. authoritarianism is concentrated in the Republican Party. As Machiavelli wrote, in a free state there is always some dissatisfied insider willing to let in a hostile outside force. It thus seems to me that, in tactical terms, today’s Republicans in liberal American states are the equivalent of a local aristocracy in an ancient or early modern republic – the dissident aristocratic faction believes it ought to enjoy more privileges than at present, and is willing, if an opportunity arises, to trade local autonomy, democracy, and freedom for those privileges.
In the end, much would depend on exactly what an authoritarian American government wants, and how badly. An unambitious central autocracy that is purely extractive, on the Persian or Ottoman models, may not care much about substate autonomy, or push very hard against it. The Trump presidency may have been of this model – mainly kleptocratic. A more ambitious central autocracy motivated by ideology, on the USSR or Chinese models, may be much more insistent.
One additional observation might be in order. Lincoln famously declared that “a house divided against itself cannot stand.” This observation has always been understood to mean that a nation half slave and half free cannot survive. But there is another way to look at it: the underlying problem might have been that a nation cannot long survive when it is partly autocratic and partly democratic. If so, then the prospects for a U.S. federation that is both stable and politically heterogeneous at the subnational level seem dim at best.
[For further details, see: (1) James A. Gardner (2021). “Illiberalism and Authoritarianism in the American States.” American University Law Review, 70: 829-912; (2) James A. Gardner (2021). “Federalism and the Limits of Subnational Political Heterogeneity”. Wisconsin Law Review, 2021(5): 1097-1140.]