Democracy Unmoored

Associate Editor Gaurav Mukherjee is joined in conversation by Samuel Issacharoff to discuss his new book, ‘Democracy Unmoored’. For more information about the book, click here. A transcript of the interview can be found below the video.

[Editors’ note: The below transcript of the interview has been lightly edited for clarity]

Gaurav Mukherjee: Hello friends of the IACL Blog, and welcome to another video book interview. I am Gaurav Mukherjee of NYU Law and an Assistant Editor for the Blog, and I am based in New York City.

I am delighted to be joined today by Professor Samuel Issacharoff, who is the Bonnie and Richard Reiss Professor of Constitutional Law at the New York University Law School. Sam is the author of several books and journal articles. Along with Pam Karlan and Rick Pildes, he pioneered the field of the law of democracy, and I’ve had the pleasure of being in the class with Rick and him. We’re here today to talk about Sam’s new book Democracy Unmoored: Populism and the Corruption of Popular Sovereignty. Welcome, Sam, and congratulations on the new book, it is a tour de force that offers an explanatory account of the rise of authoritarian populism and what we can do to beat them back.

To start us off, could you tell us what you thought was missing in the existing literature that you hoped to address with this book?

What do you hope to be the central contribution of this book and who do you see as the target audience for the book?

Samuel Issacharoff: Well, part of the shift was the response to my last book which was Fragile Democracies. At one of the book presentations on that Ira Katznelson – the Columbia University political scientist – was a commentator, and he asked the question whether what I called fragile democracies was a condition of new democracies as they emerge from an autocratic past or whether that was some inherent disease or weakness of democracies that they all carry forward like a genetic misprint that can manifest at any time. This is an observation that's not new to Professor Katznelson. If we go back to political theory, Thucydides made this comment about why Athens couldn't resist going into Sicily; Hobbes talked about how democracy is the tyranny of the orators; Machiavelli understood that Rome had institutions: so that was an insight into processes.

I looked carefully at the processes underway in post-1989 democracies that seemed to be reproducing themselves in the more established democracies – usually in the advanced industrial countries, but including in India. So, this book is in large part a response to that question: what is it about democracy that sustains it in a period of growth and then weakens it when it is stuck and its institutions start to fail? What I thought was missing from the literature was sufficient attention to the institutional dimension of why populism comes to the fore and how it governs. I also wanted to understand why the manner in which it governs – this anti-institutionalism – is a threat going forward to the re-stabilization of democracy. Most of the literature has focused on what I’d call the fascistic impulses of populism in office – even though it’s elected to office. Mussolini was elected and Hitler was sort of elected, so that’s not enough to distinguish it. But there’s always the demagogy; there’s always the xenophobia; there’s always the invitation to racialism or ethnic strife or religious strife, but this is a book mostly about the institutional convention of democratic governance and how it is challenged by populism.

Gaurav Mukherjee: I really enjoyed how you structured your book. The text is peppered with observations and anecdotes from everything that you've done in the last few decades. What do you hope to be the central contribution of this book and who were you writing for? Who is your target audience for this book?

Samuel Issacharoff: Well, that's a hard one because I found that I could not write a book for the popular trade press because there was too much nuance to the analysis that I feared would get lost. So, I wrote it for an academic press, but I wrote it in what I hope is a very approachable way. While there are a few technical places, they’re very few for the most part. I think it's very approachable and very readable and not particularly dominated by any one national setting. This is so that you don't have to be an American lawyer or an Indian lawyer or a Polish lawyer to appreciate it. The audience is the educated public who are worried about the demise of democracy, and this is a serious issue and it's an issue that we all live with. Let me give you one example: the crisis in Ukraine and the Russian invasion. When I was young in the United States, at a moment like this, all the TV talk shows would have the members of the Senate Foreign Relations Committee. That was the American establishment. Those guys had been in there for decades, they knew every world leader. Today, nobody knows who's on the Senate Foreign Relations Committee because it doesn't matter. So, there's a sense among the educated population that things are spinning out of control and this book is directed at that population.

Gaurav Mukherjee: What are the central takeaways and arguments from the book?

Samuel Issacharoff: The book has three parts. The first part is titled The World the Populists Found and it's based in the US but is a comparative assessment around the world. It's a world in which the key institutions of democracy have failed – most centrally the legislative branch. If we think about the idealized form of democracy, it always starts with the legislature. In the American constitution, Article I is the Congress. It's not the President. Congress was assumed to be where power and decision-making would reside and around the world, we see that the legislative branch has receded, and governments operate by executive decree.

What we also see is that the legislative branches fail in response to the collapse of political parties which provided the organizational glue for getting things done, for turning aspirations into policy, to programs. As a result, the populists encountered a world of deep suspicion toward the institutions – these are the elites who are always getting the best. We see the way in which that manifests through the economic advantage bestowed on democracies throughout the 20th century suddenly fails. The idea that democracy is a more participatory form of governance is failing as these intermediary organizations like political parties collapse. So that's the first part of the book: what went wrong in democracies that opened this path up for the populists?

The second part of the book deals with what it looks like when populists are in power. Here, they tend to exacerbate institutional decline, they attack electoral institutions whether it's in Mexico or Brazil or in India. Or, as in the United States, they tend to move against constraints on executive power and toward forms of unilateralism. Populists tend to operate through one-off deals rather than institutions of governance and this is where the term and the notion of corruption comes up in the title.

I take from the developmental economic literature – and this is one of the areas where I rely on a difficult body of inquiry. Developmental economic literature tries to ask the question of under what circumstances we see corruption. It turns out that corruption is inversely related to the level of economic development in a country. The more developed a country becomes, the more institutions, rather than individuals, take hold: this is basically a Max Weber insight carried forward. You then get lower levels of corruption. When I started to do these studies that for the past 20 years gave rise to many articles and now two books, I started to observe that there was a corruption scandal in every country I looked at where democracies were weakening.

I would dismiss it: well Zuma has fantasies of a big palace, etc. It wasn't central to my story. Then I sort of had an epiphany: my eyes opened up and I said, “wait, it can't not be central if I'm seeing it in every single place”. So something's going on with this, and that led to the conclusion from the second part of this book, which is a partial response to my first book about the centrality of grounding democracy and constitutionalism using constitutional courts. These courts could hold out as a central buttress for democracy for a period but we see now that constitutional courts have failed. Let me give you an example from when I went to Poland to address the Polish opposition just before the last presidential election. Poland, in its transition from a Soviet satellite, one of the central institutions was the Constitutional Court. However, by the time I got there a few years ago, the Constitutional Court was irrelevant. They've been completely decimated by the Jarosław Kaczyński government and the Law and Justice Party, and no longer play a central role in deciding matters. Oddly, the Supreme Court in Poland (which is a court with a much more limited authority and can only hear normal appeals from the civil and criminal system and can't hear constitutional cases) was becoming a major irritant to the government. Why? Because it was an embedded bureaucratic organization. In Europe, generally, judges are career-track track people ­­- so they come in as apprentices when they just graduate law school and they rise up through the ranks of the judicial bureaucracy. They are difficult to move and dislodge, and it's interesting that both their bureaucratic orientation and their limited mandate on only ordinary law proved to be the undoing of Zuma in South Africa. Ordinary courts proved to be a major problem for Bolsonaro in Brazil and continue to be an irritant in all these regimes. So, this is a book about the importance of ordinary law and holding on to very fundamental rule of law principles. It is not a book that venerates constitutionalism as such - it tends to play a much more limited role in this book.

The third part of the book is basically about where to now, and what can be done to revitalize democracy. The temptation when you write a book like this is always: well, here's my five-point program and just do what you do.

Gaurav Mukherjee: Well, you do have a four-point program to be fair!

Samuel Issacharoff: It's not a very good one because I think if there were four points that were an easy fix it'd be like the economist and the $20 bill on the floor. If it's really there, somebody would have found it already. I’m not here to say: “I'm smarter than everybody else: here's what but to do”, but to show how difficult it is. Because if one of the problems is executive unilateralism then you need more state competence. But if another problem is that you need more separation of powers, you’d need to address the decline in state competence and buttress the parts of government that can get things done. This in turn means we need to give more power to the executive and these run in parallell. That’s the last part of the book: it is about why it is so difficult to engage with processes of institutional repair because it's much easier on the disrepair side.

Gaurav Mukherjee: I really enjoyed how clear you were about the trade-offs: that there are no easy fixes and if you push in one direction, the cart tends to run away in the other. Something that is very striking about the book is its breadth and contemporaneity. Given that the sands of political events kept shifting and you had to cover a number of jurisdictions, how did you manage the challenges this mode of scholarship poses?

Samuel Issacharoff: You raise questions both about methodology and what it means to write a book as opposed to articles when you're dealing with a moving target. Let me say that I decided to write a piece on the elements of political theory that play into democracy, and one is the right of participation, and another is the sort of equality of citizens - the dignity that it offers, and the sense of solidarity. I then started to think about how those can come undone because I started to write this in the post-2008 moment when democracy was thoroughly under stress even though we were still (at least in the United States) in the optimism of the Obama era. Or at least I was in the optimism of the Obama era. The book was largely conceptualized before the election of Donald Trump. So, this is not a book about Donald Trump, although obviously, he figures as one of the examples of the phenomenon that I'm concerned about, given that I am in the United States and given the centrality of the United States in public thought around the world.

I think about this more broadly. I want to refer to the work I did and still do with Rick Pildes and Pam Karlan. We built this field called the Law of Democracy. It was largely an American-focused enterprise, and in 2000 and 2001, two things happened that shook me up. One was the attack on the World Trade Center on September 11th and the second was the Florida election of 2000. One showed me how democracies deal with national security threats, which we haven't had to do very much in this country - at least not since the civil war period. The second was how democracies deal with contested elections that represent a deep political challenge. What I realized was that we're not the only democracy, so there's got to be a lot of examples of this around the world and that's when I started to shift my focus away from the United States and write internationally. I'm never going to be the expert on South African law or Indian law, but the first time I was ever in New Delhi to present a paper on Indian election law I was dealing with these electoral cases, which in India were seen as attempts to prohibit proselytizing, and it was seen as part of the religious coordination with very difficult side issues. I came in from the outside and said “Hey, wait a second. These are electoral speech cases these are about preserving the integrity of the political process.” And the response from my audience in India when I presented this was that's kind of interesting that you would look at it that way because nobody here has ever looked at it that way and they very much appreciated it.

We in the United States have a lot to learn from this and they said that they had never heard an American come to India and say that before. And you know - it's always the other way around. I had the same experience in South Africa there's just a certain like “Who are you?”, “Where do you come off ?” On the other hand, if you can open the aperture a little bit and step back, you get a different picture. The comparative picture is harder to do. I'm always subject to the critique of “What's your method?”, “How did you pick your case studies?”, and “did you do your double blinds?”. I say no, I'm just telling you what I see, and you can take it or leave it on its own terms. On the question of the moving target, it's really hard and I was starting the book process when COVID began. That pushed me back a bit and I think it's a better book for that, because one of the chapters that will be of some controversy I suspect is about January 6th. As someone from Argentina, that's not a coup. Let me tell you how you do a coup. The one thing we do very well in Argentina is a coup d’état. My basic view is if American democracy is going to be overthrown, it's not going to be by someone wearing a Viking outfit, running half-naked through the Capitol. That's not the existential threat we think it is.

Gaurav Mukherjee: Yeah, that was just a cookout that went too far.

Samuel Issacharoff: So, I stepped back from the intensity of the moment and I won't disguise I was very pleased that Joe Biden won the election.  By stepping back from the intensity of the moment, we equilibrate and get some sense of how these fit into the bigger picture. I would have liked to have come out with this book five years ago, but I don't know if I knew enough.

Gaurav Mukherjee: I think academics around the world will join you when you say they had wished they'd written a book that came out five years ago!

Samuel Issacharoff: We’re always five years behind!

Gaurav Mukherjee: What do you think are some of the really big unanswered questions in the field of comparative studies of authoritarianism today? What are the kinds of questions that are looming in your mind that have not been tackled by the field?

Samuel Issacharoff: I think the big question is what democratic politics will look like over the next period of time. We've had the fragmentation thesis play out -  what my colleague Rick Pildes called the fragmentation of political authority, and this is true across the democratic world with a few exceptions. India is complicated because first it was fragmentation, but now there's reconsolidation in ways that might be troubling. What will political authority look like? Is the future really the BJP? Is it really Modi reconstituting a populist party on more or less openly authoritarian bases? Will it be this kind of endless personality-driven form? Will there be a capacity to get things done?

We have a new challenge from Hélène Landemore, [and other] folks who want to find more plebiscitary mechanisms. Look at the constitutional referendum in Chile where the constitution would have devolved power into endless kinds of small plebiscitary looking organizations of the state.

Gaurav Mukherjee: You have a fascinating piece on that with Sergio Verdugo, which I recommend everyone to check out.

Samuel Issacharoff: Any plugs for our piece is great! So, I think how democratic politics will be organized going forward is the key question because we can look back over the last 200 years, which I call the period of democratic ascendancy. That was basically the consolidation of a certain kind of stronger central government legislature as policy organ, the executive with dynamic administrative powers, and basically a social welfare consensus. The Labor Party and the Tories were always going to disagree about where the boundaries were, but they didn't really disagree on the core elements of it. But now it's all up for grabs, and it's up for grabs because the institutions that kind of held that together have weakened or in some instances disappeared. Take the last French presidential election, where the combined votes of the Socialists and Gaullists were under 10%. They were both eliminated.  When I was a kid, that would have been inconceivable. It just could not be imagined that the Congress party would disappear from the Indian Parliament, and now it's a reality. So, I think that's the critical question of our time. I think it's a little too easy to write the denunciations of the banality of some of these populist figures who've come forward, but I think the positive vision of how a stable decent politics can be restabilized – I think that's the critical issue of our time.

Gaurav Mukherjee: Thank you, listeners, and viewers, for joining us today. And for more of the same, keep up to date with the Blog by following us on Twitter or subscribing to our mailing list. Lastly, if you’ve recently published a book on constitutional law and would like to be featured in a book interview, contact us at iacl.blogeditor@gmail.com

Suggested citation: ‘Democracy Unmoored - Book Interview: Samuel Issacharoff in conversation with Gaurav Mukherjee’ IACL-AIDC Blog (4 April 2023) https://blog-iacl-aidc.org/v-book-interv/2023/3/30/democracy-unmoored-rj4x7