Restoring American democracy won’t be easy. At least we know what won’t work

At least some of the illusions of Donald Trump’s first term are gone. One hears very little of the then-prevalent chatter, coming mostly from the pundit class, about institutional “guardrails.” If they existed at all, those guardrails were constructed of papier-mâché. We are reminded of the quote by Britain’s first U.N. ambassador, Alexander Cadogan, when reflecting on mid-20th-century totalitarianism: “What forces itself to one’s attention is the degree to which everything favours the evildoer, if he is blatant enough.”

Should electoral democracy survive the next three years and more humane and decent people be charged with running the government, what can they do to reinstitutionalize democracy, or, more simply, to Trump-proof the political system? We know what won’t work: back to normal, return to the status quo, “turning the page.” That’s what Joe Biden tried to do, possibly with the advice of the same political consultants who have turned the cliché about “kitchen table issues” into a tiresome mantra. While Biden’s instincts were honorable, he, along with other administration actors like Attorney General Merrick Garland, were wrong. It couldn’t work; the status quo ante to which they wanted to return was riddled with the same flaws that led inexorably to Trump in the first place.

Public advocates like former federal judge J. Michael Luttig, journalist and historian Anne Applebaum, and university scholars Steven Levitsky and Kim Scheppele, have argued that a post-Trump America requires fundamental political reform to counter what they describe as a “fast slide into competitive authoritarianism,” whereby elections are maintained, however rigged they may be, and are accompanied by the erosion of democratic checks, institutional norms and a politically neutral civil service. Political writer and editor Josh Marshall has called for “a new civic contract” for post-Trump America; others have advocated a New Deal for the 21st century.

A broken Congress

Trump’s authoritarian rampage exposed an existing imbalance in the American political system, and any attempt at reform must reverse not only his depredations but the gradual, decades-long accretion of presidential powers, whether legal, informal or usurped. In effect, what we now have is a presidential dictatorship, made worse by the willing or eager acquiescence of the Republican-controlled Congress. That means rebuilding the power of Congress, as advocates have urged. But there are significant practical problems even with doing that, let alone instituting a sweeping new civic contract.

For the last half-century, public approval of Congress has consistently been low; with the exception of a few spikes in approval, such as after 9/11, congressional approval ratings rarely rise above the teens. Does anyone think those numbers would increase substantially if the legislature were to enact controversial measures for fundamental reform, particularly when half the electorate has been preconditioned by decades of Fox News and right-wing radio to hate anything that resembles progressive change? That would likely activate the midterm phenomenon, whereby supporters of reform either become complacent or discouraged and stay home, while opponents of reform, along with low-information swing voters, troop to the polls as they did in 1994 and 2010.

Second, given the GOP’s electoral power in the less populous, usually gerrymandered states, along with the built-in constitutional advantage of the apportionment of U.S. senators (per capita, a voter in Wyoming has 67 times more Senate representation than a voter in California), Republicans will never be far from a majority in either house, and will have a near-permanent blocking minority in the Senate at least as long as that chamber’s current rules remain in effect.

These constitutional, procedural and demographic roadblocks to getting an effective, reform-minded Congress on its feet would not be nearly so challenging if America had a normal center-right party that accepted the written and (often more important) unwritten rules of party behavior in a civic democracy.  But the GOP has become an authoritarian party along the lines of the United Russia Party, a mere parliamentary vehicle through which an absolute leader can rule under a façade of democracy. I recognized this trend in the Republican Party more than 15 years ago, which is why I left it; it does not seem likely to me that the GOP will “normalize” within the next 10 or 15 years. Trump is too entwined in the party’s DNA.

The judicial crisis

Beyond the need to strengthen Congress, there is a grave judicial crisis, including the ossified form of the Constitution itself. Reformers must face the unpleasant fact that the normal, traditional method of instituting significant change in the constitutional order — the amendment process — is effectively a dead letter. The last important amendment adopted, the 26th, which lowered the voting age to 18, was ratified 55 years ago. Since the demise of the Equal Rights Amendment in the late 1970s, the Constitution has become essentially unamendable.

This has left us with a paradox. On the one hand, the Constitution is moribund with respect to formal amendment. On the other, thanks to unlimited judicial activism by a corrupt Republican supermajority of the present Supreme Court, the Constitution is almost infinitely amendable in pursuit of the GOP’s political agenda. Whole sections of the Constitution, such as the 14th Amendment’s insurrection clause and the militia qualification to the Second Amendment, have been read out of the document. But blanket presidential immunity, which doesn’t exist (remember Watergate?), has been miraculously discovered, while 90-year-old independent regulatory agencies are suddenly found to be unconstitutional. The Court majority’s jurisprudence resembles the line in Lewis Carroll’s “Through the Looking Glass”: “When I use a word, it means just what I choose it to mean — neither more nor less.”

The enemy is us

Beyond congressional weakness, constitutional ossification and the authoritarian tendencies of Republican politicians, there remains an even bigger problem: the American people. Trump has run for president three times, and the number of Americans who voted for him increased each time. Trump should have been buried by a landslide in 2020 because of his disastrous (and, arguably, criminally negligent) handling of the COVID pandemic. Had he taken sensible measures immediately, rather than choosing not to spook Wall Street, perhaps 700,000 of the 1.2 million U.S. COVID deaths could have been prevented, putting the U.S. death rate on par with other developed nations like Canada. Yet in the 2020 election, with the pandemic still raging and the unemployment rate near 7 percent, Trump received 10 million more votes than in 2016. Rational voter response as a feedback device for presidential performance has clearly become a broken mechanism.

Trump’s incitement of an attempted overthrow of the Constitution on Jan. 6, 2021, should have legally disqualified him to hold federal office again, but thanks to his pals on the Supreme Court, that avenue was closed and it was left to the voters. In the 2024 election, with the unemployment rate at 4.1 percent, Trump added 3 million more votes to his 2020 total. Political consultants, with their talent for trivialization, would say that those proverbial kitchen-table issues — the price of eggs, say — determined the result, and eclipsed “unimportant” voter concerns like democracy and the rule of law. The real reason might be that public opinion polls offer only a limited menu of choices as to voter motivation, and millions of people will default to claiming economic issues when their actual motivations have more to do with fantasy and prejudice.

Events of the last century have repeatedly shown that an authoritarian-minded and disciplined minority can gain power and rule over a divided, complacent or discouraged majority. We must face the unsavory fact that more than a third of the electorate has been molded, after decades of right-wing media and fundamentalist indoctrination, into authoritarian foot soldiers whose definitions of “democracy” and the “rule of law” are vastly different from those found in political science texts. It’s a vacuous cliché to say we are in a historic political crisis, but that somehow Trump voters bear no moral responsibility.

Robert Altemeyer, a Canadian psychologist, described such people in 2006 in an eerily prophetic manner:

They are highly submissive to established authority, aggressive in the name of that authority and conventional to the point of insisting everyone should behave as their authorities decide. They are fearful and self-righteous and have a lot of hostility in them that they readily direct toward various out-groups. They are easily incited, easily led, rather uninclined to think for themselves, largely impervious to facts and reason and rely instead on social support to maintain their beliefs. … They would march America into a dictatorship and probably feel that things had improved as a result. …  And they are so submissive to their leaders that they will believe and do virtually anything they are told. They are not going to let up and they are not going away. [Emphasis mine.]

After Jan. 6, no one, in or out of government, wanted to address the future implications of Trump’s cultlike veneration and the willingness of significant numbers of his followers to use violence. Whether he was in or out of office, virtually every prominent political opponent of Trump (as well as judges, election officials and ordinary poll workers) has been subject to death threats. Instead, during 2021, even as death threats and intimidation occurred, Trump was assumed to be washed up and MAGA was described as a transient phenomenon. For their part, Republicans mouthed a kind of Kafkaesque logic: Since the coup had failed and Biden was seated as president, fears that Trump would overthrow democracy were nothing more than overblown Democratic hysteria.

That leaves people who are serious about instituting another New Deal or civic compact or whatever they might call it with the daunting task of constructing a perfected democratic order that would be proof not only against a would-be dictator but would protect the American people from themselves, or at least their worst instincts. It might be similar to the institution-building in the first years of the Federal Republic of Germany, or what the new government of Hungary must now undertake. But whatever form might be decided upon, its planners and executors must not rationalize away the psychological condition of tens of millions of American citizens as a malignant normality that must never be mentioned, let alone addressed.

Confronting an entrenched plutocracy

Years of right-wing media conditioning have predisposed these Americans to seek bogeymen in the country’s “elites.” That word, however, no longer carries its traditional meaning of the fabulously rich and politically well-connected. For the Republican base, it means public school teachers and librarians, university instructors (some of whom make McDonald’s-level wages), physicians who recommend vaccines, or government employees. Conspicuously missing, by the way, are billionaires.

Because of the perverse nature of America’s political culture, widening income inequality since 1980 has, paradoxically enough, not resulted in a political revolt against the rich and a demand for a more progressive income tax and better wages and benefits, but in large segments of the Republican Party who identify as working class becoming willing handmaids of the oligarchs.

The very rich have always exercised outsized social power and jealously guarded their wealth through political influence. But as wealth inequality has become extreme through the Bush-Trump tax cuts, financial deregulation and the massive growth of tech, a section of the wealthy has achieved hyper-wealth, a difference of degree that amounts to a difference in kind. These deci-billionaires and centi-billionaires, disproportionately from the tech industry, seek not merely to protect their riches but to comprehensively transform society to their liking.

Whether this is called neo-reaction, techno-fascism or the Dark Enlightenment, the society sought by Silicon Valley billionaires like Elon Musk, Peter Thiel and Alex Karp might be described as their utopia and our “1984.” Musk was let loose, with no authorization other than force majeure, to vandalize the federal government, damaging its capacity in everything from nuclear safety to medical research to statistical collection. His motive was to cripple institutions that compete with billionaires in setting public policy.

For many years, Thiel has loudly stated his opposition to women voting. As one filmmaker with experience socializing with billionaires has written, “When Peter Thiel said, ‘I no longer believe that freedom and democracy are compatible,’ he wasn’t talking about your freedom. He was talking about his own. You don’t exist.” Thiel also subsidizes a stable of propagandists who proclaim the glories of turning America into a feudal state run by people like Peter Thiel.

Palantir CEO Alex Karp has written a manifesto advocating turning over the country to tech moguls like himself, with the goal of transforming America into a thoroughly militarized technological Sparta with limitless electronic surveillance. And now, Silicon Valley bosses like Mark Zuckerberg, Jeff Bezos and Sergey Brin, who in the past were not identified as political reactionaries, have moved increasingly to the right.

The kind of new political order that Silicon Valley seems to envision brings to mind Winston Churchill’s warning of what would happen if the democracies succumbed to the Axis: “[I]f we fail, then the whole world, including the United States, including all that we have known and cared for, will sink into the abyss of a new Dark Age made more sinister, and perhaps more protracted, by the lights of perverted science.”

What works – and what doesn’t

Those are the actors that proponents of democratic revitalization must face: a congressional Republican Party that will rubber-stamp the acts of any GOP Führer; a corrupt and reactionary court that can nullify reform at whim; a large, disciplined and politically active segment of the electorate that favors authoritarianism; and the wealthiest plutocracy in history, determined to spend whatever it takes to bury political and social equality. Under the circumstances, it is no wonder that “turning the page” was futile, and would be again.

Turning the page didn’t work after the most traumatic event in American history. Only two Confederates were tried, convicted and executed for war crimes after the 1865 surrender at Appomattox. Virtually all of the defeated rebel state’s generals and senior officials escaped punishment; the most infamous massacre of the war, at Fort Pillow, went unavenged and its perpetrator, Nathan Bedford Forrest, became the first Grand Wizard of the Ku Klux Klan. Treason indictments against Robert E. Lee and other high-ranking Confederates were drawn up, then quietly shelved.

“Reconciliation” with the defeated traitors meant that Reconstruction was half-heartedly pursued and then ended ahead of schedule while pardons were issued. The country paid the price with a century of Jim Crow, the foisting on us of monuments to treason and insurrection, and even, for a time, the segregation of the federal workforce. Many of the political goals that Confederates could not win on the battlefield they obtained through the weakness and lack of principle of the nominal victors and, of course, the desire to forget and “move on and not get stuck in the past.” As a result, the South has remained our problem child for a century and a half, roughly as the Balkans are to the rest of Europe.

The contrast with World War II is instructive. In 1945, there was no way under national or international law that the operatives of the Nazi state could be tried. No relevant precedent existed, and given the unique crimes the Nazi hierarchy had committed, it would require ex post facto laws to prosecute them. It took an ad hoc international tribunal that established its own rules to do it.

Plenty of influential Americans opposed the Nuremberg Tribunal, including Chief Justice Harlan Stone, who decried it as “a fraud” on the German people; Associate Justice William O. Douglas, who asserted that it substituted power for principle; and Sen. Robert A. Taft Sr., who called it victor’s justice and “a blot on the American record that we shall long regret.” Even The Atlantic chipped in, calling it a dangerous precedent. Yet the Nuremberg Tribunal is now generally seen as a remarkably fair execution of justice given the unprecedented circumstances, and a foundation for international criminal law.

Rebuilding a democracy that can defend itself

Americans who cherish the rule of law and common decency might want to consider whether their venerable institutions — given constitutional decay, a partisan high court and the way powerful defendants with unlimited funds can run out the clock on statutes of limitations — are up to reestablishing a functioning democracy that will not teeter on the brink of dissolution every few years. Are innovations as bold as the Nuremberg Tribunal necessary to restore the republic?

Friends of democracy must be prepared to initiate reforms that will ruffle or offend conventional wisdom and give fits to establishment practitioners of “both sides” journalism. They must begin work immediately on a “Project 2029,” a legislative blueprint (including draft legislation) to hit the ground running. They cannot assume they will have ample time for extended hearings and a glacial legislative pace, given the urgent need to restore constitutional government and properly functioning federal agencies. They must tackle multiple issues, from restoring the federal workforce to reestablishing science research and environmental law, finally taxing billionaires, binding the president and Supreme Court with ethics laws, and publicly-financed federal elections that would end the meddling of the rich.

None of that would find favor with the current Supreme Court; Congress, however, could use its Article I powers either to increase the size of the Supreme Court (a reform that has been proposed many times since FDR), or to establish a new court altogether.

One proposal would constitute the current Supreme Court justices as just nine of the 179 federal appellate court judges, who would rotate on and off the high court for fixed terms (perhaps two or four years) and staggered appointments, so that its membership would be a continuing body, not unlike the U.S. Senate. This arrangement would avoid the current stasis that allows wealthy interests to game the outcome of legal cases, since those interests could never be sure of the judicial body’s composition from one term to the next. These are far-reaching reforms that will cause the pretended deep thinkers to swoon, but as one observer has stated: “You can have democratic self-government or the corrupt Court — not both.”

But even thoroughly revamped federal courts might not be enough to deal with the Trump regime’s unprecedented level of lawlessness, constitutional violations and criminal corruption. (For instance, its deliberate dismantling of the nation’s infectious disease early warning system, with increased deaths a clearly foreseeable consequence, should be understood as criminal malfeasance.) Virtually every senior official has been involved in serious wrongdoing, and bringing them all to book within a legacy legal system replete with frivolous delays and endless appeals could take well over a decade, by which time many statutes of limitations will have expired.

Given that Congress has already created special courts by legislation, such as the Military Commissions Acts of 2006 and 2009, it could also establish a special domestic tribunal capable of doing what the regular courts are unlikely to accomplish: bringing the principal actors in a regime of unprecedented criminal racketeering to timely public accountability and appropriate punishment.

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The reconstruction of democracy will require creative thinking in other areas. The presidential pardon power may be absolute, but should only be used for honorable purposes. A new, reformed Supreme Court could properly decide that, yes, a pardon is absolute and irrevocable, but of course the framers never intended that George Washington or his successors could ever conceivably grant a pardon for corrupt purposes. Accordingly, pardons issued to insurrectionists, fraudsters and those who could have otherwise incriminated Trump would receive expedited review by a special panel, and barring extenuating circumstances would be revoked, with all criminal records reinstated and remaining sentences carried out.

After 12 years of Nazi rule, the democratic parties of West Germany constructed, under the vigilant eyes of the Western allied powers, a democracy that was capable of defending itself against internal coups or erosion and takeover by extremist parties. This “wehrhafte Demokratie” (literally: “well-defended democracy”) was not Jeffersonian, but unlike the Weimar Republic, it has been remarkably resilient while maintaining a high level of individual freedom. Extremist, anti-constitutional parties, incitements to violence and the systematic sowing of hatred against other citizens are not considered “the price we pay for freedom of speech”; they are seen as undermining the basis of civic democracy.

By contrast, American democracy has slipped far down the league tables of various NGOs that rank world democratic freedoms; it is now considered a “flawed democracy” that trails the G-7 countries, including Germany. Press freedom has declined even worse: The World Press Freedom Index ranked the U.S. in 64th position for 2026. The quaint American notion that indulging extremists protects freedom for the rest of us is demonstrably false.

Philosopher Karl Popper, author of “The Open Society and its Enemies,” long ago refuted a notion that seems to be tacitly practiced in contemporary America, that the broadest possible tolerance must be accorded those who would overthrow democracy, the rule of law and personal freedom:

Unlimited tolerance must lead to the disappearance of tolerance. If we extend unlimited tolerance even to those who are intolerant, if we are not prepared to defend a tolerant society against the onslaught of the intolerant, then the tolerant will be destroyed, and tolerance with them.

Before the fall of Communism and German unification, West Germany had a saying: “Bonn ist nicht Weimar.” Neither should Washington be the capital of a banana republic.