American Democracy Has Been Eclipsed
by Bernard E. Harcourt – February 21, 2019
There is today no institutional counterpower to a presidential tyrant.
In her writings on revolution, Hannah Arendt reminded us that the term itself was originally used to designate the cyclical movement of the stars. When it began to be used metaphorically in politics, the word “revolution” retained the astronomical idea of a regular revolving motion. “If used for the affairs of men on earth,” Arendt observed, “it could only signify that the few known forms of government revolve among the mortals in eternal recurrence and with the same irresistible force which makes the stars follow their preordained paths in the skies.” Democracy, the ancients believed, could easily degenerate into tyranny.
In an eerie recurrence of ancient wisdom, American democracy has just been eclipsed. The United States, at this moment, is no longer a democracy, conventionally understood as a political regime of majoritarian popular rule with counter-majoritarian checks. All three branches of US government are now formally counter-majoritarian. There is today no institutional counterpower to a presidential tyrant.
This moment presents a constitutional crisis for the American people. Its possibility was always inscribed in the Constitution. By its terms, the president is not necessarily elected by a popular majority, but by a counter-majoritarian institution, the Electoral College, that is now controlled by a minority of the population residing in less-populated rural states. The Senate is by design a counter-majoritarian institution controlled by the same minority of American voters, and can thereby block any majoritarian legislation passed by the House of Representatives. The Supreme Court can be packed with judges nominated by a president elected by the counter-majoritarian Electoral College and confirmed by the counter-majoritarian Senate. In rare circumstances, all three branches of government can be counter-majoritarian. At that moment, there is no longer democratic rule.
That is precisely what has happened. The demographic shifts over the past decades, accentuation of the urban-rural divide, and extreme political sorting have caused an eclipse of democracy. President Trump was not elected by the popular vote—a rare occurrence, the only other in modern American history being in 2000 with the election of George W. Bush. Trump has now packed the US Supreme Court with a final, hotly contested appointment confirmed by the Senate. Thus, the majority of the American people are no longer formally represented by any branch of the government. And given the possible entrenchment of incumbent power, it is not clear when the light of American democracy will reappear—unless the majority of American people take matters into their own hands and constitute the only remaining counterpower to a presidential tyrant.
President Trump’s declaration of a state of emergency on February 15, 2019, sounds the latest alarm bell. Trump declared the emergency to circumvent Congress’s constitutional authority over the spending power and seize anywhere from $7 billion to $23 billion to build a wall on the US-Mexico border that a majority of the American people does not want and did not vote for. Trump himself acknowledged that there is no real emergency. “I didn’t need to do this, but I’d rather do it much faster,” Trump said as he declared the emergency. “I just want to get it done faster, that’s all.”
Trump’s arrogation of congressional power qualifies as a minor coup d’état: he has explicitly commandeered the most important constitutional power—the power of the purse—from the legislative branch, openly and in pure pretext. He has unconstitutionally seized legislative power, thinking that he can probably get away with it.
The problem is, he is probably right. As a result of the eclipse, there is no longer a counterpower in the US government. There are no effective checks or balances to his unbridled executive power. There is no effective limit to Trump’s executive authority today.
Congress likely will not be able to muster the two-thirds votes necessary to override Trump’s presidential veto of a joint congressional resolution condemning the state of emergency—should the Republican senators even vote for such a resolution. The only other potential counterpower, the Supreme Court, has been packed with carefully selected subordinates who will likely reward their appointment by deferring to Trump. Brett Kavanaugh was chosen precisely for this moment.
Many commentators caution that we should not overblow the situation. Other presidents have employed emergency powers before, so the exercise of emergency powers is not unprecedented. Plus, it is only money—Trump has not federalized the National Guard to suppress dissent. There are no storm troopers in the streets. This is not the Reichstag-fire moment.
All that is surely true. Trump’s arrogation of power only represents one other incremental step toward his concentration of power. It is important not to declare the Reichstag moment prematurely. As I have argued elsewhere, there has been a long steady counterrevolution taking place since 9/11 and this is just one other accentuation and tragic piece of evidence. It is just one other step.
But Trump’s fake state of emergency reveals that American democracy is now fully eclipsed. The United States is at the precise point when its democratic lights have been turned off. At this moment, there is no longer a constitutional mechanism to check a rogue presidential grab for power. The majority of the American people are not represented any longer. The counterrevolution has effectively prevailed.
Trump achieved this using the most classic strategy of counterinsurgency warfare, namely, legalizing a state of exception. Trump has rendered banal emergency powers and normalized unbound executive power, numbing the American people to the counterrevolution. As with the Muslim ban, Trump’s power grab functions perfectly along the new paradigm of governing through counterinsurgency warfare. The state of emergency reinforces the creation, out of whole cloth, of an internal enemy. It turns Hispanic and undocumented communities into dangerous persons—rapists, drug-dealers, and gang members. It feeds right into Trump’s “new right” discourse targeting communities of color.
At this point, there is only one potential counterpower left: the majority of the American people. What Americans should see when they look into the mirror of this state of emergency is the one last check to their rogue president: themselves. The American people are the only remaining counterpower to our eclipsed American democracy today. It is time for us collectively to exercise that power and instantiate that counterpower.
Of course, Trump’s emergency will be challenged in court, and the House Democrats will pass a resolution condemning it. Those are important strategies. They must be pursued. But they may have little effect, since the Senate and the Supreme Court, in addition to the president, are now counter-majoritarian.
We need to go beyond these ordinary channels in times of constitutional crisis. We need to become the counterpower. There is no other democratic mechanism. There is no other choice. The majority of Americans are not represented anymore; we need to present ourselves. It is up to us. We, a majority of the American people, are the only thing left standing between the eclipse of democracy and authoritarianism.
Originally posted on The Nation.