Donald Trump was convicted of Class E felony charges related to the falsification of business records with the intent to cover up other unlawful actions. This has put a spotlight on our judicial system and has raised a concern among many pro-Trump Americans that the judicial system has become corrupted by political ambitions. It adds to their concern that the FBI and the Department of Justice have become tools to persecute Donald Trump and that the 2020 election was stolen. Many pro-Trump Americans believe that our democracy is on the ropes.
Ironically, Americans who oppose Donald Trump agree that our democracy is on the ropes, but for quite different reasons. They point to concerns ranging from attacks on our electoral processes, disinformation spread by both traditional and social media, and violations of the law by Trump and his supporters during the January 6th assault on Congress. Anti-Trumpers are especially concerned about the use of mob violence and intimidation by Trump supporters to achieve political goals.
One does not have to take sides on which of these critiques is valid to recognize that our democracy is genuinely under stress. The very fact that the two dominant political parties in the country each are squaring off to defend American democracy is a prescription for disaster. When so much is at stake, scruples might seem like a luxury. Consequently, it's worth looking carefully at what democracy is and asking what currently are the most significant genuine threats to it.
Three features characterize a (liberal) democracy: (1) free and fair elections, (2) protections for basic civil rights, and (3) the rule of law. Societies in which these characteristics are comparatively robust can be described as democratic. These features distinguish democracy from other forms of political authority, e.g., aristocracy, theocracy, ethnocracy, plutocracy, and oligarchy.
Free and fair elections help to ensure that governing authorities will exercise power with the consent of the people or at least with the consent of most of the people. With a mandate from the majority, we can expect officials will implement public policies that are in accord with the will of the majority. This, of course, will not always be true, but free and fair elections are our best avenue toward the implementation of popular public policies.
Granting unlimited, sovereign power to the majority is not, however, an unambiguous good. As modern liberal democracies came into being centuries ago, many people expressed concern that the majority might pursue its favored public policies at the unjustified expense of the minority. Such a circumstance was labeled, "the tyranny of the majority." To guard against this, democratic societies established lists of civil rights which were to be protected against the majority will. The U.S. Bill of Rights and the French Declaration of Rights of Man and of the Citizen are two such lists. These new democratic states were founded on both the will of the majority and the rights of individuals and minorities, thus creating an unavoidable tension. Where the authority of the majority ends and the rights of the individual and minorities begin will always be contested.
Finally, the rule of law is foundational not only to democracy, but to any well-ordered society. It is nearly axiomatic that in a liberal democracy, no one is "above the law." Each person must be subject to the law equally. Their rights as individuals or as members of minorities must not be abridged, and their right to participate in the selection of government officials must be guaranteed equally.
However, non-democratic forms of government also can operate under the rule of law, just a different rule of law. In non-democratic societies, laws might be established solely by members of a certain political party or elite, unelected religious leaders, members of a specific ethnic group, the wealthiest class of citizens, a few extremely wealthy individuals, or even by a single totalitarian ruler. In each of these societies, the will of the majority and/or the rights of individuals are not fully respected. So if we prize liberal democracy, we must defend a rule of law that is consistent with liberal democracy, not just any rule of law.
Beyond protecting the will of the majority and basic civil rights, valid democratic laws are the product of institutions that are characteristic of a democratic order. Imagine a society ruled by a benign dictator who just so happens to enact popular policies and protects basic civil rights. While this might be superficially satisfactory, such a society is not democratic. Its benefits are contingent upon the will of the dictator. In contrast, a society governed by institutions designed to protect the power of the majority to enact public policy and to protect basic civil rights provides a more stable guarantee of democratic legitimacy. Laws and judicial decisions that are a product of such institutions enjoy the presumption of validity, and the authorities acting within those institutions have a prima facia claim to legitimacy.
Returning, then, to the concerns of both pro-Trump and anti-Trump Americans, which group has a better claim to understanding the real threat to democracy? The answer seems clear. Pro-Trump Americans assert that the institutions of democracy have become corrupted. They claim that mail-in balloting which was expanded during the covid pandemic allowed voter fraud to undermine our elections. Additionally, or perhaps as a result, they claim that millions of ineligible voters cast ballots in our past two presidential elections. They say at very least, enough voter fraud occurred to defeat Donald Trump and elect Joe Biden. Furthermore, they claim that a Democratic "deep state" intent on prosecuting Donald Trump and his allies have "weaponized" the Justice Department and the FBI, including state and federal prosecutors and judges.
The complaints made by pro-Trump Americans are aimed at both the electoral system and judicial protections of civil rights. Pro-Trumpers have, however, provided little to no evidence that significant changes to our institutions have taken place beyond Biden's victory and the indictments and convictions of Trump and his allies. The results of an election and/or the prosecution of any individual or individuals alone provide no reason to believe either that our institutions have or have not been corrupted. Without evidence, these attacks on our institutions themselves constitute a threat to democracy.
Our electoral system has been in operation for more than two hundred years. It has, over time, been reformed again and again by competing interests to help ensure that it accurately counts our votes. Elaborate mechanisms monitored by everyone involved in the electoral process help ensure its integrity. This gives our electoral system a strong prima facia claim to accuracy. To date, every examination of the electoral processes in 2020 (and 2016) have uncovered no reason to doubt its accuracy.
Pro-Trump criticism of our judicial processes also fall flat, even if they contain a kernel of truth. Disdain for Trump by Democratic prosecutors might well be a motivating factor in bringing charges against him and his allies, but just as with our electoral system, our judicial system has been shaped and reshaped over more than two hundred years in an effort to reach fair and accurate judgments. Most importantly, it includes trials by juries. The determination of the guilt or innocence of the defendant is entirely separate from the motives of the prosecutor. In the case of criminal charges, the prosecutor must convince each of 12 jurors -- selected with the input of the defendant -- that there is no reasonable doubt of the defendant's guilt. Any prosecutor motivated by political goals will need to demonstrate their case within these established procedures. Trump's prosecutors have done just that. It is noteworthy that at the time of this writing, 42 jurors have found Trump guilty of charges against him with none dissenting.
What differentiates pro-Trump and anti-Trump concerns about our democracy is their relationships to our institutions. Pro-Trump criticisms rely on the claim that our institutions have become corrupted. Anti-Trumper reply that those complaints about our institutions are unjustified. Until pro-Trumpers can offer evidence to support their views, it is reasonable to assume our institutions have not meaningfully changed over the course of the last eight years. Whatever legitimacy they afforded the election of past presidents, they afford Joe Biden. And whatever legitimacy they afford the countless judicial decisions made daily, they afford decisions in the Trump trials.
The concern about the fragility of our democracy among anti-Trumpers stems not from the state of our institutions, but from the direct attacks on them. Those threats are undeniable. Trump repeatedly has voiced unsupported attacks on our political and judicial institutions and encouraged political violence. He, furthermore, has made statements threatening to transform our institutions by putting in place procedures that undermine their democratic nature. Tellingly, many of his supporters openly advocate disregard for the law in a misguided effort to defend democracy. They appear to be willing to push our political system toward what they might see as a temporary, benevolent dictatorship, but a dictatorship nonetheless. They seem unconcerned that their actions would in fact deny the will of the majority, shred protections for civil rights, and undermine the rule of democratic law without guaranteeing an avenue back to democracy.
We should recognize, however, that actual societies are never purely democratic or non-democratic. They can only be characterized more or less so. Forms of authority are not like tree species. Maple trees are different from oak trees which are different from pine trees, etc. For all common purposes, any individual tree can be categorized as squarely within one or another species of tree. In contrast, categorizing a political order as democratic, plutocratic, ethnocratic, oligarchic, etc. admits of degrees. All states are a mixture of at least some of these forms. At best, we can compare existing political orders to each other and describe one as, say, more democratic than another.
So just as there are non-democratic features to our current political and judicial institutions, e.g., privately financed political campaigns and unequal access to a capable legal defense, there will remain democratic features to any political order instituted by a second Trump administration. In the event Trump is again elected president, we must make the most of these democratic features to limit what damage he does.
