Erosion, Backsliding, or Abuse: Three Metaphors for Democratic Decline

Abstract

Drawing on Rosalind Dixon and David Landau’s Abusive Constitutional Borrowing: Legal Globalization and the Subversion of Liberal Democracy, this review essay calls attention to three competing metaphors for democratic decline (democratic erosion, democratic backsliding, and abusive constitutionalism) and elaborates their implications for how supporters of liberal democracy might arrest and reverse the decline. Drawing on Richard L. Hasen’s Cheap Speech: How Disinformation Poisons Our Politics—And How to Cure It, Stephen M. Feldman’s Pack the Court: A Defense of Supreme Court Expansion, and the Final Report of the Presidential Commission on the Supreme Court of the United States, the essay then turns to two proposals for legal and institutional reforms in the United States that, depending on how one understands the nature of the threat, might be understood either as further indications of (and even contributors to) democratic decline or as “constitutional hardball” in democracy’s defense. It argues that scholarly treatments of democratic decline can help sharpen for citizens and policy makers the key tradeoffs implicated by Supreme Court expansion, restrictions on extremist speech, and other proposed democracy reforms.

The U.S. Supreme Court and democratic backsliding

“…This sort of judicial obstructionism has regularly provoked efforts at Court reform in the past and may yet do so during our present democratic crisis (Keck, 2022, 2023). As I noted at the outset, in evaluating such proposed reforms, the key question is whether the risks of an unchecked anti‐democracy Court outweigh the risks of compromising judicial independence.…”

How Can the Church Reclaim Backsliders? Analysis of Church Education to Reclaim Backsliders

“…Regression in spiritual growth is evidenced by returning to sinful lifestyles as before following Jesus (Mantsinen & Tervo-Niemelä, 2020). The concept of regression stems from the Christian vision of striving to become spiritually mature Christians (Keck, 2023). A backslider is someone who, after declaring himself a true follower of Jesus, falls away from Him.…”

Good Bye, Liberal-Legal Democracy!

“…For the liberal spirit of key legal norms to be upheld, unwritten rules of political conduct must be observed, and incumbents may decide to ignore or overtly break them. A dramatic example recently emerged in the struggles over Supreme Court seats in the United States, which is another issue discussed by Keck (2022) in this same journal issue. In 2016, Republican senators refused to hold a confirmation hearing for Barack Obama's Supreme Court nominee, Merrick Garland.…”

“…Thomas Keck (2022), in this same journal issue, takes this approach in an interesting direction. Building on Dixon and Landau's critique of abusive constitutional borrowing, he examines Trump's manipulation of free speech rights to attack the foundations of the US liberal-democratic order.…”

“…The claim was unsuccessful because, among other things, the First Amendment does not apply to private entities; Trump and his followers, however, continue to call his ban an act of public "censorship." Keck (2022) argues that, given this evident abuse of free speech protections by Trump and his followers, North Americans should contemplate the European tradition of "militant democracy" and consider curtailing those rights to protect political freedoms more broadly. Readers may have different opinions about his prescriptions, but his diagnosis of the problem is spot on.…”