[h=1]Trump’s impeachment acquittal shows how democracy could really die[/h]
The Senate’s sham trial revealed a philosophical flaw in American liberal democracy.
https://www.vox.com/2020/2/5/21115539/trump-impeachment-acquittal-vote-democracy
[h=3]Impeachment’s worrying parallels abroad[/h] To understand the threat from this process, it’s worth looking at a country that
has become an autocracy despite retaining a legal code that seems, on paper,
fully democratic: Hungary.
“Hungary is not a democracy anymore,” Zsuzsanna Szelényi, a former Hungarian member from Prime Minister Viktor Orbán’s party, told me during a 2018 visit to Budapest. “The parliament is a decoration for a one-party state.”
Orbán and much of his inner circle are not strongmen on the classical model, but devilishly clever lawyers. After winning the country’s 2010 elections in a landslide, they ended up writing new laws and reinterpreting old ones in a way that rendered future elections largely noncompetitive.
The government controls the airwaves and media companies to such a degree that the opposition can’t get a fair hearing. A patchwork of nonsensical regulations makes it nearly impossible for pro-democracy organizations to serve as a check on the government. Tax law and economic regulations are fundamentally political, enforcement cherry-picked in a way that punishes government critics and enriches its cronies.
All of this happens despite a Hungarian constitution that still protects “the free establishment and operation of political parties” and “the freedom and diversity of the press.” The legal trappings of a democracy, including regular elections, a liberal-sounding constitution, and nominally independent courts, mask the actual authoritarianism of the system. It’s how sympathetic Western intellectuals like Christopher Caldwell can
visit Budapest and still write that “[Orbán’s] power had been won in free elections” with a straight face.
The brilliance of this system comes in the way it manufactures its own false legitimacy. The Hungarian government can tell both its citizens and the international community that it is still a democracy. It holds elections that aren’t obviously rigged, in the sense of having falsified ballot counts, to vindicate its claim that the people still rule. In a world where democracy is (for now) the dominant political ideology, that’s valuable for both maintaining support at home and avoiding problems internationally.
The United States is, of course, not Hungary. But the Republicans have treated the impeachment trial as a rough equivalent of a Hungarian election: a parody of its actual thing, a performance that undermines the aim of holding the executive branch accountable while claiming to follow constitutional obligations to do just that.
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Hungary’s example exposes a flaw in this dependence on such “neutral” procedures: that they don’t just enforce themselves. People interpret the law, sometimes with an eye toward fairness and sometimes without one, but always through the lens of their own values and worldview. When in power, they tend to come up with legalistic ways of justifying the policy or outcome they’d prefer.
This is one of the central theses of a school of legal thought that rose to prominence in the 1980s, called “
critical legal studies.” CLS scholars argued that the law is “indeterminate,” that legal texts mean nothing on their own and, instead, are interpreted by judges through the lens of their own particular priorities.
“It turns out that the limits of craft are so broad that in any interesting case any reasonably skilled lawyer can reach whatever result he or she wants,” Mark Tushnet, a Georgetown University law professor and one of the key thinkers in this school of thought,
wrote in 1983.
A classic example of this indeterminacy in action came just last month, when the Trump administration argued that the
2002 law authorizing Bush’s invasion of Iraq provided legal justification for their assassination of an
Iranian general (Qassem Soleimani). This was
obviously not the intent of the 18-year-old law, but enough of an argument can be put together for it to serve as a fig leaf for the president’s preferred policy.
CLS scholars argue that the indeterminacy of the law often leads to it being used to entrench structures of domination. Court rulings aren’t neutral expressions of legal reasoning but political processes determined by the interactions of involved parties (like judges, attorneys, and interest groups filing amicus briefs). Given underlying asymmetries in social and political power, the law can be used to secure the interests of those in power — even laws that are written with egalitarian intent.
There are
problems with the CLS thesis as a comprehensive theory of law. But its essential insight, that people in power can interpret the law creatively to entrench their power, has been darkly vindicated in places like Hungary. It also helps us understand the specific kind of danger the impeachment farce is warning us about.
Republicans will not vote to give Trump dictatorial powers; we will not wake up tomorrow, the day after, or the year after in a police state. The risk, instead, is that the legal procedures necessary for a liberal democracy to work — the fairness of elections, the separation of powers, the protections of minority rights — become hollowed out from the inside, rendered meaningless despite remaining on the books.