The Lawyer as Citizen in a Democracy Under Attack By Michael Curry
Democracy Under Attack When we think of the death of a democracy, we most often think of the sudden overthrow of a government that results in fascism, communism, or military rule. Since the end of the Cold War, however, it has been more common for democratic governance to end through the actions of democratically elected leaders who methodically subvert democratic institutions and erode democratic norms step by step, often within the law. These leaders gain control of the institutions and use them to consolidate and maintain power. Anti-democratic policies are often passed by a compliant legislature or approved by courts that have lost their independence. There are still elections, and people still vote, but only a veneer of democracy remains. Those are findings from a comparative study and historical analysis of democracies worldwide.1 The study paid particular attention to the dynamics that either sustained or imperiled democratic governance. The authors of that work identify four broad categories of autocratic behavior that should concern supporters of a democratic order: 20 San Antonio Lawyer® | sabar.org
(1) Th e rejection or questioning of the democratic rules of the game. Examples of this type of conduct include violating the Constitution, canceling elections, or suggesting the need to restrict fundamental civil or political rights or organizations. Additional examples include undermining the legitimacy of election results (or refusing to accept them) or endorsing the use of extraconstitutional or violent means to force a change in the government. (2) Denying the legitimacy of opponents. This category includes describing opponents as an existential threat to national security, the Constitution, or our way of life; or baselessly suggesting that they are subversives, foreign agents working with foreign governments, unpatriotic, or criminals who have or will violate the law and are, therefore, unqualified for office. (3) Toleration or encouragement of violence. This category refers to behavior such as maintaining connections to violent armed gangs or militias, refusing to condemn other significant acts of
political violence in the past, or tacitly endorsing violence by supporters against opponents. (4) A willingness to curtail the civil liberties of opponents or the media. For example, supporting expanded libel or defamation laws; supporting laws restricting protests, government criticism, or particular civic or political organizations. Other actions within this category are threatening legal or punitive action against critics or the media or praising repressive measures of other governments.2 We also have to be concerned about actions that break what have been called the “soft guardrails of democracy.”3 The “guardrails” are the norms necessary for maintaining a democratic order. They keep one individual or faction from sidelining the opposition or permanently consolidating power and ending the competition. These unwritten rules are not enshrined in the Constitution. Instead, they are enforced by public, political, and institutional disapproval. Examples of critical democratic norms are the principles of mutual
