We have met the enemy and he is us: Thoughts inspired by Tarunabh Khaitan’s “Killing a constitution with thousand cuts”

Ed Note – We are hosting an international blog symposium on India and Global Decline in Democracies as a part of our New Scholarship initiative. We will be discussing Professor Tarunabh Khaitan’s article, which he introduced here. More information on the symposium can be found here. This post is the eighth response in the series, by Professor Mark A. Graber.

As India has become another constitutional democracy afflicted with right-wing populist disorder, so Tarunabh Khaitan has joined such esteemed constitutional physicians as Gabor Halmai, Kim Lane Scheppele and Wojceich Sadurski as a master of diagnosing that illness and discussing the symptomology.  “Killing a Constitution with a Thousand Cuts: Executive Aggrandizement and Party-State Fusion” offers both a detailed analysis of how constitutional democracy is being enfeebled in India and a framework for analyzing the enfeeblement of constitutional democracy across the globe.  Professor Khaitan documents how Narendra Modi and his political allies in the Bharatiya Janata Party (BJP) over the past decade have slowly consolidated one party rule in the executive branch of the national government while systemically making the executive branch less accountable to voters, to other government institutions, and to the civil society.  Khaitan makes the powerful case that, as India and other constitutional democracies transition towards what the American political scientist Clinton Rossiter described as “constitutional dictatorship,” the maintenance of popular government increasingly requires a robust and diverse array of practices that permit voters, other governmental institutions and institutions in civil society to check executive power.  When checks on executive power are systemically weakened, as in India and throughout the world, constitutional democracy is weakened, as in India and throughout the world.

The Modi government relies heavily on the contemporary “autocratic playbook.”  As Khaitan, Steven Gardbaum and others observe, right-wing populists bent on subverting constitutional democracy are wolves in sheep’s clothing.  They do not advertise their hostility to constitutionalism or use the military to capture the government.  Contemporary authoritarian wannabees gain control of the government through normal elections and then slowly, but steadily consolidate their rule by weakening practices that might bring attention to their failures as a ruling coalition and enable the people to replace their coalition with another ruling party.  Modi and the BJP’s “mode of operation [is] subtle, indirect, and incremental, but also systemic.”  Khaitan acknowledges that each step of the way might be reasonable taken in isolation.  Mark Tushnet and Bojan Bugaric in a forthcoming book point out that the precise degree of judicial independence in any regime is a matter of legitimate debate.  The threat to constitutionalism, Khaitan points out, is the multi-pronged attack on every check on executive power, not any particular move that might be justified as a legitimate effort to rebalance political forces in a constitutional democracy.  Yaniv Roznai uses the metaphor of a frog in a pot where the temperature is slowly raised.  By the time the frog realizes the threat, the frog no longer has the capacity to jump out.  The only apparent disanalogy is that experiments on frogs and recent developments in constitutional democracy suggest frogs have better capacities to avoid destruction than many democratic peoples.

 The American version of Khaitan’s article might be entitled “Killing a Constitution with a Hundred Cuts: Executive Aggrandizement and Charismatic Rule in the United States.”  Unsurprisingly, Professor Khaitan’s concern with internal subversion led by an executive heading a complaisant party reverberates loudly in the United States. Constitutional democracy is being enfeebled here and there. Jack Balkin speaks of “constitutional rot” when describing the state of politics in the United States.  As in India, constitutional democracy is being undermined from within rather than from without.  Donald Trump was the electoral college winner in 2016.  Over the past four years, he and the Republican Party have taken steps, none of which arguably violate the strict letter of the Constitution of the United States, to reconstruct the electorate in ways that privilege the election of Republican Party members, hollow out government in ways that eliminate institutional barriers to one-party Republican rule and presidential self-dealing, and diminish the power of the media and other civil society institutions to publicize administration corruption and misdeeds.  As in India, constitutional democracy is dying with a whimper rather than a bang.  The Trump Administration has not declared martial law or suspended elections.  Rather, on almost a daily basis Trump and the Republican Party take a step that incrementally weakens the capacity of popular majorities to mobilize against the present government and replace that government with a coalition more commitment to progressive constitutionalism.  For the first time in American history or at least for the first time since 1876, significant doubts exist as to whether ballots in the national election will be fairly counted across the county and whether a losing president will voluntarily leave office.

 Important differences may nevertheless exist between the manifestations of right-wing populism in the United States and in India, though on this score I confess some expertise on the United States and none on India.  Right-wing populism in the United States is personified in Donald Trump, who has converted the Republican party from a coalition that included right-wing populists to a right-wing populist coalition.  Right-wing populism in the United States is Trump.  Whether the Republican party will remain a right-wing populist coalition after Trump is an open question.  The BJP appears to be the main vehicle for right-wing populism in India.  Modi does not appear to have the BJP in his back pocket to nearly the same extent as Trump controls the contemporary Republican Party.  At least from afar, the impression is that the BJP would be far more capable of dumping Modi for misdeeds damaging to the party than the Republican Party is capable of dumping Trump.  If current trends continue, everyone aboard the good ship Trump is likely to drown in the next election.  In what form the Republican Party and right-wing populism will be revived cannot yet be determined.  Modi’s fall, at least from my perspective on the other side of the world, would not have the same impact on the BJP.

A right-wing populism rooted in a charismatic demagogue may undermine constitutional democracy more rapidly than a right-wing populism rooted in party-state fusion.  Trump’s toxic brew of ignorance, bigotry and corruption has enfeebled constitutional democracy over the past four years at a faster rate than constitutional democracy has been enfeebled in India.  Republicans have rarely challenged Trump’s worst instincts in part because they may feel their electoral success depends on giving Trump close to their full obedience.  Trump was elected without much support from Republic office holders, many of whom now fear displeasing the president will cost them their legislative positions.  India’s political system, again viewed for afar by a decidedly non-expert, appears to have more checks against the installation of an impulsive immoderate and brazenly self-interested chief executive.  Modi, from afar, does not appear as ignorant or as corrupt as Trump, though Khaitan indicates he may be as bigoted.  He appears to have greater commitment to constitutional democracy than Trump, however weak those commitments may be.  The differences between Trump and Modi may just be the differences between Trump and Modi.  The differences may be that ignorant, corrupt demagogues are likely to fare better in a presidential system in which they are not vetted by national legislators than in a parliamentary system in which legislators would never risk their party on a person as personally corrupt as the present president of the United States.  Legislators may have more influence on Indian parties than they do on parties in the United States, which often risk becoming vehicles for the president’s reelection campaign.  Whatever the precise cause of the difference, a comparison between the United States and India highlights the particular susceptibilities of a presidential system to charismatic demagogues during a time of extreme polarization, even at a time when all forms of constitutional democracy are under attack by right-wing populists.

 “Killing a Constitution with a Thousand Cuts” and other classics in the literature on the crisis of constitutional democracy focus on how right-wing populism is undermining constitutional government. The failures of governance responsible for the right-wing populist surge are often mentioned only in passing.  Scholarship examines what is being done to us, the proponents of constitutional democracy, putting aside what we did to ourselves. Khaitan writes in this vein.  He provides for more details on how the Modi government weakened executive accountability in India than on why Modi and the BJP became attractive to substantial number of Indians.  Readers learn that the Congress Party that governed India from 2004-2014 “was mired in numerous corruption allegations,” but little about those corruption allegations or other factors that might have made voters more receptive to the BJP’s ethnocultural appeals. 

Deborah Hellman’s work on corruption may provide a good starting place for thinking about the revolt against alternatives to right-wing populism in India and across the globe.   Her article, “Defining Corruption and Constitutionalizing Democracy,” observes that corruption understood broadly occurs when government officials and a political system cease to act for the public good, and not merely when government officials take money in return for political favors.  Constitutional democracy around the world was suffering from this broad form of corruption when the right-wing populist surge occurred.  Politics was corrupted by the numerous political actors on the right and left whom the public perceived, often correctly, as more interesting in finding legal ways to use political office to enrich than serving the public interest.  Globalization was corrupting politics by destroying the middle class that Ganesh Sitaraman and others emphasize provides the backbone for constitutional democracy.  The roots of the right-wing populist surge across the globe lie in the ways these corruptions of constitutional democracy enabled right-wing populist entrepreneurs to gain power by mobilizing the ethnocultural commitments of persons left behind by the global economy and disgusted by the behavior of all governing officials. 

The neo-liberal politics that most constitutional democracies adopted at the turn of the twenty-first century undermined commitments to constitutional democracy, which requires a strong and confident middle class, in many regimes.  By the late 1990s, major coalitions on the left and right throughout the world were practicing different forms of trickle down economics.  Republicans in the United States claimed the benefits of tax cuts would trickle down to less affluent citizens.  Democrats in the United States claimed that the benefits of globalization would trickle down to less affluent citizens.  “Progressives” may have been correct when they claimed that more benefits tricked down from their embrace of international markets then from their rivals embrace of deregulation, but many people could clearly discern the difference.  What many people in places the globalized economy left behind discerned was both deregulation and globalization dramatically exacerbated economic cleavages, creating increasing membership in an upper class now immune to most changes in the economy while maximizing the vulnerability of most people to economic downswings. 

 Political leaders in the United States opposed to the right-wing populist surge too often adopted legalistic understandings of corruption that do not resonate with many voters.  Trump, Democrats assert, committed tax fraud and is constitutionally barred from induceing foreign leaders to stay at his hotels as an implicit condition for doing business with the United States.  By comparison, no law forbids the Clintons from signing multi-million dollar book deals or being paid more than one-hundred thousand dollars for short speeches.   Many citizens are far more inclined to equate the two.  They see all politicians as using office to enrich themselves at a time when the gap between the affluent and less affluent is greater than at any time in contemporary world history.  Persons prone to be recruited by populist appeals are far less inclined than constitutional lawyers to make legalistic distinctions between the different ways political leaders in the United States convert public office into private gain.  What matters to many citizens is that politicians across the spectrum routinely create and take advantage of opportunities to entrench themselves in the upper, upper class not available to most Americans. 

Right-wing populism feeds on the political and personal behavior of those championing neo-liberal policies.  As politics becomes a contest between the party of the rich and the party of a different rich, many citizens are not inclined to measure with a fine comb which party of the rich will adopt policies whose benefits will trickle down to them.  If one party of the rich routinely disparages right-wing populist ethnocultural commitments and other party of the rich is at least willing to pay lip service to those ethnocultural commitments, the choice seems obvious.  Donald Trump may be a spoiled boor, but his insulting behavior toward both the political class and people deemed not fully Americans provides some catharsis for people who no longer think constitutional politics will make a meaningful difference in their lives.

The remedies the literature on right-wing populism offer are as other directed as the analysis of the right-wing populist surge.  Tom Ginsburg, Aziz Huq, and others focus on how constitutional democracies might place more institutional barriers against right-wing populists.  Few works explore how more voters might be induced to support progressive and other forms of constitutional democracy.  Barriers are nice, but any democracy in which a high percentage of the people support Donald Trump or Narendra Modi is likely to be in crisis until those people can be convinced that a function democracy better serves their interests than gaining ethnocultural satisfaction.

The American naval commander, Oliver Hazard Perry, after winning a major battle during the War of 1812 informed his superiors, “We have met the enemy and they are ours.”  More than one hundred years later, the political cartoonist Walt Kelly had Pogo, his lead character, inform readers that with respect to the environment, “We have met the enemy and he is us.”  Pogo might have been speaking of constitutional democracy in the twenty-first century.  Khaitan and other distinguished commentators who have documented the enfeebling of constitutional democracy in India and elsewhere have done a wonderful job chronicling and framing the strategies right-wing populists employ when seeking to convert constitutional regimes committed to universal human rights into autocratic regimes committed to narrow ethnocultural ideals.  This literature champions too often fails to acknowledge that providing better barriers that will fence out the populist horde from power is insufficient.  Those of us who share Professor Khaitan’s concern with the fate of constitutional democracy in India and around the world must devote some attention to the failings of the alternatives to right-wing populism and the constitutional politics necessary to mobilize more people to support the institutions and practices of a more thickened progressive cosmopolitan constitutional democracy.

Professor Mark Graber

Professor Mark Graber is a Visiting Professor of Law at Yale Law School and a Regents Professor at the University of Maryland Carey School of Law. He is recognized as one of the leading scholars on constitutional law and politics

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