13 minute read
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:
(1) The 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 toleration and institutional forbearance. Mutual toleration is the notion that competing parties accept one another as legitimate rivals vying for power and influence—not enemies to be permanently sidelined. Delegitimizing the opposition invites or excuses authoritarian or anti-democratic measures, even violence, to keep opponents out of power. Institutional forbearance refers to the restraint in exercising power—avoiding actions that technically comply with the law but violate its spirit. Senate approval of the opposing party’s qualified nominees and the restrained use of the filibuster rule and impeachment powers would be examples of institutional forbearance that strengthen democracy. Violation of these norms has the opposite effect.
All of these autocratic or norm-breaking actions are too dangerous to ignore. They undermine key attributes of democracy such as reoccurring free and fair elections that provide accountability and enable the peaceful transfer of power between competing factions. They also retreat from our commitment to the rule of law—the idea that societal and governmental decisions are made according to established rules that apply to everyone, regardless of their status or position, and administered by impartial courts. And finally, this kind of conduct challenges the protection of core individual rights such as the freedom of speech, the right to vote, and freedom of the press, which enable full participation in society and advance other democratic ideals.
For context, we must remember that our democratic system of government has faced challenges almost from the outset. 4 Extreme political combat between the Federalists and the Republicans, including passage of the Alien and Sedition Acts in the 1790s, and the deadlocked election of 1800, had many believing the union would not endure but would instead dissolve into armed conflict or secession. That is what happened in the 1850s when irreconcilable divisions over slavery led to the Civil War. The 1890s saw democratic backsliding with the disenfranchisement of Black voters as a means of vanquishing the opposition and consolidating power. And in the 1970s, the misuse of executive power to target political opponents triggered the Constitutional crisis known as Watergate. 5
That we survived these past challenges— sometimes at great cost—is cold comfort to those who look at the warning signs today and worry about our democratic future. The question raised is whether we are in another period of democratic crisis. Any doubt about that was dispelled in January 2021, when a campaign of corrosive and unfounded attacks on the legitimacy of opponents, election outcomes, processes, and officials culminated in a violent assault on Congress designed to prevent the counting of electoral votes. This coordinated attack on democratic legitimacy sought to block the lawful and peaceful transfer of power through popular will—the sine qua non of a democracy. This event was not a storm that cleared the air. The origins and repercussions of that day are with us still and represent a continuing threat to our democracy.
The question presented, then, is this: In a time when our democratic system of governance is under attack, what is our duty as lawyers?
The Duty of Citizen Lawyers
In a nation built on the rule of law, the fact that less than one-half of one percent of the population 6 have formal legal training defines the unique place that lawyers have in a democracy. We can be proud of the indispensable role that lawyers have played in challenging laws and actions that undermine democratic rights. Lawyers as lawyers and lawyers as judges have been among the most effective guardians of democracy. But what about anti-democratic actions falling within the bounds of law and, therefore, outside the reach of the courts? What about the lawyer as citizen?
Our profession must accept its special obligation to promote democratic values. Our training, experience, traditions, and stature put us in a unique position as citizen lawyers to advocate for a democratic society. We are committed to the rule of law and the pursuit of verifiable truth, both ideas that are central not just to our legal system, but also to our political order. We are trained in processes dedicated to fact-finding and are bound by standards demanding truth-telling. We understand the Law’s reach and its limits, the importance of Constitutional rules and societal norms, and what happens when those are ignored, whether in the courtroom or society. We have taken an oath to support the Constitution. 7
We get up every day with the mission to prevent or solve problems and to anticipate intended and unintended consequences. Our lifeblood is separating the proven from the unproven, the relevant from the irrelevant, and fact from opinion. We know how to get at the truth and how to work in processes that establish the truth. We understand people. We have learned incrementally, through countless interactions, what informs people, what motivates people, what deters people, what inspires people—and what does not. We know how to craft persuasive arguments and how to take and defend positions. We have put all of these skills to good use, assisting clients in avoiding or resolving legal problems. We can use these same skills to address issues in the larger society and defend our democratic order.
Recent events have reminded us of the power of the systematic repetition of misinformation and the serious threat it poses to a democratic society. Of particular relevance, then, is our experience, training, and commitment to pursuing empirical or factual truth. The relationship between truth and democracy is long and complicated and involves continuing questions of who gets to decide what is true, by what means, and to what ends. 8 But that tension does not change the fact that belief in truth, the pursuit of truth, and telling the truth are ideals crucial to a functioning democracy. Truth-seeking necessarily involves not just the collection of reliable facts but identifying, rebutting, and discouraging errors and falsehoods—especially, for our purposes, disinformation campaigns. Our first obligation is to reinforce the principle that there is a distinction between truth and falsity, that that distinction matters, and that seeking the truth and speaking it are democratic values and ethical commitments critical to creating and maintaining a level of community trust necessary for democracy to work.
Can we remain silent when, for example, the impartiality or motives of judges are wrongfully impugned, when the press is bullied and attacked in an attempt to undermine its credibility and stifle criticism, when voting rights are burdened, or votes diluted through redistricting for partisan political gain, when false accusations undermine the legitimacy of elections, or when power is abused, and norms are broken to manipulate membership on our courts? Can we stand by while actors, including elected officials, generate falsehoods on matters big and small with such regularity and audacity that it cripples the exchange of ideas, normalizes lying and misinformation in public life, and makes it difficult, if not impossible, to achieve a shared view of reality necessary for democratic governance? It is respectfully submitted that the answer to those questions is, “No, we cannot.”
What We Can Do
We can be truth-tellers, town-criers, problem solvers, and leaders in the fight to reestablish democratic values. As lawyers, we have a platform to individually and collectively engage the public. We can use opinion pieces and letters in local and national newspapers, magazines, and online to set the record straight, push back against political misinformation, and promote democratic principles. We can amplify our voice by organizing our colleagues or creating task forces, standing committees, or sections around democracy issues. We can organize or support voter registration drives and encourage our clients to register and vote. We can visit with public officials and their staff about laws and policies that impact democratic rights and processes. We can insist that they and their colleagues reestablish the unwritten democratic norms of mutual toleration and restraint in exercising power in our politics and our government.
We can testify at the legislature, commissions, and city councils against anti-democratic legislation, ordinances, or procedures. We can take the opportunity to speak to neighbors, schools, and civic groups about the importance of synthesizing information from multiple sources in pursuit of the facts and about engaging in the political process with passion but also mutual toleration, respect, and restraint. We can lend our support and our voice to prodemocracy candidates and policies and can vociferously oppose anti-democratic policies or sentiments and the candidates that espouse them. We can honor, support, and assist our fellow lawyers who are on the front lines defending our democratic rights in court. We can accept the challenge of running for political office and encourage and support law students and young lawyers to make room in their lives and practices for public service. At the very least, we can model good citizenship by actively participating in our democratic society and encouraging and assisting others in doing so. What we cannot do is nothing.
Conclusion
We return to the question: what is our duty as citizen lawyers when our democracy is under attack? While no single profession or group is charged with (or can take credit for) resisting attacks on democratic values, our grounding in the law, which is the superstructure of democracy, calls us as citizen lawyers to be leaders in the fight.
Michael Curry is a 1976 graduate of the University of Texas School of Law and a member of the Austin and San Antonio Bar Associations. A San Antonio native, he lives in Austin and limits his practice to mediation.
ENDNOTES
1. Steven Levitsky and Daniel Ziblatt, How Democracies Die (New York: Crown Publishing 2018); see also, Anne Applebaum, Twilight of Democracy—The Seductive Lure of Authoritarianism (Doubleday New York 2020). Recent events in Ukraine reflect an attack on a democracy from an outside force. The referenced study and this article deal with something more insidious— challenges to democracy from within.
2. See Levitsky and Ziblatt, supra n. 1; see also Madeleine Albright, Fascism—A Warning 253 (Harper Collins 2018) (historical view of one form of authoritarianism with a list of warning signs that includes: catering to our prejudices by suggesting we treat those outside our ethnicity, race, creed, or party as unworthy; nurturing our anger against others; encouraging contempt for our governing institutions; and seeking to destroy our faith in an independent press and professional judiciary).
3. See Levitsky and Ziblatt, supra n. 1.
4. It must be acknowledged that our country was not founded as a complete democracy—women and Black men were excluded from participating—a fact that continued for most of this country’s existence. Also, the Constitution contains anti-majoritarian elements such as the Electoral College, and baked-in unequal representation through the United States Senate with its equal allocation of Senators by State regardless of the State’s population. See Lawrence Lessig, They Don’t Represent Us (Dey Street Books 2019).
5. See Suzanne Mettler and Robert C. Lieberman, Four Threats—The Recurring Crises of American Democracy (St. Martin’s Press 2020); John Meacham, The Soul of America—The Battle for Our Better Angels (Random House 2018).
6. Jackson Teague and Leah Witcher, Lawyers as Leaders, 81 Tex. B.J. 88 (Feb. 2018).
7. Tex. Gov’t. Code § 83.037(a).
8. See Sophia Rosenfeld, Democracy and Truth—A Short History (Univ. of Penn. Press 2019); Jonathan Rauch, The Constitution of Knowledge—A Defense of Truth (Washington, D.C., Brookings Institution Press 2021). See also, Timothy Snyder, On Tyranny—Twenty Lessons from the Twentieth Century 65 (New York: Tim Duggan Books 2017) (“To abandon facts is to abandon freedom. If nothing is true, then no one can criticize power, because there is no basis upon which to do so.”).
