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Draft:Guardrails of Democracy

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Guardrails of Democracy

The term "Guardrails of Democracy" and its various permutations such as "Constitutional Guardrails" and "democratic" or "governmental norms," generally refers to the legal and social mechanisms that prevent Democracy from devolving into a non-democratic condition of tyranny such as authoritarianism and Totalitarianism or Anarchy. In this line of thinking, the citizen is most protected from government overreach, tyranny of the majority (often associated with Populism) and extra-legal behavior in a duly constituted and healthy democracy.

The sentiment behind the term "Guardrails of Democracy" dates to at least the 18th century where the American Founders wrestled with what a modern democracy might look like and how to sustain it. The original Greek concept of Democracy, according to Herodotus, dates to the 430s B.C.E. The first contemporary use of the term seems to trace back to January 2021 when the Brennan Center for Justice published an article that called for "concrete progress in strengthening government." This was very shortly after the January 6th attack on the US Capitol. Since then, the notion of guardrails (explicit and implicit) has been picked up by public organizations and figures such as National Constitution Center, International Foundation for Electoral Systems, Bill Kristol, Sen. Mitch McConnell, Mark Esper, Gen. Mark Milley, and Steven Levitsky.

The underlying idea concerning the need for guardrails is not new but was catalyzed by the first Trump presidency and his attempts to overturn the results of the 2020 election. Earlier examples of guardrail stressors in the U.S. include FDR's Court Packing Plan. the 2004 reauthorization controversary over President George W. Bush's domestic intelligence program and the Watergate scandal. Internationally, the starkest examples of where tyranny displaced participatory government are Nazi Germany and Fascist Italy. In this century, we have notable examples in Indonesia and Hungary where democracy is weak or under threat.

Guardrail Examples in the United States

In the U.S., the guardrails are principally found in the Constitution and the body of domestic law and political practice that has developed since 1787. These include:

Guardrails and the US Supreme Court

Reflecting the political swings of the country at large, the Supreme Court has fluid majorities yet, even then, its decisions can be unpredictable when viewed through the lens of political dogma. One bell weather that is frequently cited is the Chief Justice and his party affiliation. While helpful, it can occasionally be very misleading, as it was with Chief Justice Earl Warren. Perhaps President Andrew Jackson's quote (perhaps apocryphal) in 1832 best sums up the role of the Court and the inherent tensions between the branches of government: "John Marshall has made his decision; now let him enforce it!"[1][2].

It is worth noting that at all levels of Judicial Review, the cases that are declined can say as much about "the Bench" as do the decisions they hand down (e.g., the Supreme Court's refusal to hear the Alex Jones appeal of a lower court's decision in Lafferty et al. vs. Jones).

Guardrails and the US Congress To be an effective check on executive power, Congress must rise above partisan loyalties. Arguably, doing so has been the exception not the norm and even when initiative are well-intentioned, they are painted otherwise by the opposition party.


The propensity to put party before country manifested itself most recently and dramatically in the aftermath of the 2020 presidential elections. This is relevant insofar as the Cognitive bias prevents an elected representative from reasonably assessing factual information and legislating in the public good. Today, about one third of those in Congress have publicly aligned themselves with the Election Denial wing of the Republican Party. These include:


Other Judicial Remedies as Guardrail Examples While difficult and costly to pursue, there are times when groups and individuals have sought other Judicial Remedies (often Civil) to redress matters in which the executive branch and private collusion may have taken place and may or may not be protected by Executive privilege or the First Amendment. Recent rulings include:

Non-Governmental Guardrail Examples These are among the Non-Governmental Organizations (NGO) and Quasi-Governmental (receive some public funds) entities that have a pro-democracy charter, a history of activities supporting good governance, the Rule of Law and/or participatory democracy.

References

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  1. ^ Boller & George 1989, p. 53.
  2. ^ Miles 1973, p. 519.

Bibliography

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  • Dean, John W., III The Nixon Defense, New York: Viking, 2004.
  • Hall, Kermit L., Ed. The Oxford Companion to the Supreme Court of the United States, New York: Oxford University Press, 1992.
  • Rakove, Jack N. Original Meanings, Politics and Ideas in the Making of the Constitution, New York: Knopf, 1997.
  • Wright, Benjamin F., Ed. The Federalist, The Famous Papers of the Principles of American Government, New York: MetroBooks, 2002.
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