Con Law Writing Assignment #3

Why are constitutional safeguards by themselves not enough to secure a democracy?

• It is up for the citizens to honor the spirit of democracy even if it’s not prescribed in Constitution.

• Even well designed Constitutions fail (e.g. Argentina and Philippines)

• Constitutions can be incomplete, with gaps and ambiguities that lead to different interpretations

  • it does not define limits on executive power during crises, no safeguards for appointing loyalists, etc.

Mutual Toleration (HDD Ch. 5)

• our rivals have the right to exist, compete for power, and govern as long as they follow Constitutional rules

• Legitimacy is important because if you view your rivals as illegitimate or threats, it could justify authoritarian measures

• when mutual toleration is weak, democracy becomes weak due to fear

Institutional Forbearance

• avoiding actions that, while respecting the letter of the law, violate its spirits (just because you can doesn’t mean you should)

• politicians do not push their limits (e.g. pre 22nd amendment term limits, trump pardoning jan. 6 rioters)

• no forbearance can lead to exploitation — How?

  • powerful actors can destroy the trust necessary for fair systems to operate

  • they exploit loopholes to serve personal partisan interests (examples: packing the court, overusing executive orders)

  • can use it to cripple opponents and disadvantaged groups

How do mutual toleration and institutional forbearance reinforce each other?

• you are more likely to be forbearing when you respect rivals

• less tempted to break norms if you do not view rivals as subversive

• BUT, mutual toleration can also motivate politicians to use their institutional powers as broadly as they can get away with

Importance of legitimacy in institutions:

• modern democracies don’t die by violent overthrow, but rather through erosion of institutions and under the color of legitimacy

• the more powerful actors push their limits, the more the system will be eroded, and public trust lost

Which constitutional mechanisms (formal + informal) were tested on january 6th

Formal:

• verification of election by Congress

• courts reviewing election results/policies/other actions (this is how we know the results were real)

• legislative investigation

• agency investigation

• impeachment

• criminal indictments

Informal:

• peaceful transfer of power

• mutual tolerance

• institutional forbearance

How do we know the peaceful transfer of power was violated?

• some actions were criminal: people died, violent speech and actions occurred

  • it’s not constitutionally criminal because it’s an informal norm but it’s a behavioral violation that harms democracy

How was low mutual tolerance displayed on Jan. 6?

• trump demonizing Biden and other political opponents

• claiming the election was stolen out of fear that the order side was going to get power

How did each branch of government react on January 6th?

President:

• inciting the riot, demonizing opponents, saying election was stolen

• mike pence refused to reject electoral votes

Legislative:

• investigative process afterwards, establishing a select committee, leading to criminal referrals

Judicial:

• prosecuted 1600 individuals for their involvement

What does each branch’s role say about the role of checks and government?

• legislative and courts worked together to investigate and prosecute those involved, but trump pardoned many for convicted, using his executive power to under judicial actions

  • the role of checks and balances can become weaker by constantly undoing other branches actions

From a federalism standpoint, how did overlapping state and federal responsibilities affect accountability on january 6th?

• the District of Columbia government, and the D.C. National Guard created a fragmented command structure that hindered accountability on January 6th

• due to D.C.'s unique status as a federal district, security duties were divided among the U.S. Capitol Police, federal agencies (DOJ/FBI, DHS), and the DC Metropolitan Police (MPD), leading to confuBased on what we’ve read in Tyranny of the Minority, do any of these structural features
  reflect design flaws that make crisis response harder?sion over command authority, delayed intelligence sharing, and a delayed deployment of National Guard reinforcements

• The U.S. Capitol Police Board, composed of three officials, made the decision not to request National Guard support beforehand. This decision-making structure made it difficult to pinpoint individual responsibility for the lack of preparation.

• While federal agencies (FBI/DHS) received intelligence about potential violence, "bureaucratic delays" and a lack of coordination resulted in this information not being properly communicated to local law enforcement (MPD).

Based on what we’ve read in Tyranny of the Minority, do any of these structural features reflect design flaws that make crisis response harder?

• The authors argue these flaws allow partisan minorities to thwart the will of the majority, particularly in moments of intense political polarization. 

• the U.S. institutional framework, with its extreme decentralization, is a weakness. The inability to rapidly coordinate between federal and state troops (National Guard) during the January 6th attack is an example of what they consider a lack of robustness in our federal system, where state governments can act independently of, or contrary to, national interests.

• The Constitution is designed to allow for minority control —How?

  • a small minority or a single official can use the Senate, the Electoral College, and courts to block reform, the system turns from a democracy into a "tyranny of the minority"

  • allowing a small minority or a single official to cause massive delays, as happened with the delayed deployment of the National Guard to the Capitol.

How was low institutional forbearance displayed on jan. 6th?

• the executive branch pressured Mike Pence to reject the electoral votes, a ceremonial role that was treated as dictatorial rather than ministerial

• The executive branch used the "Stop the Steal" rally to encourage supporters to march on the Capitol, intentionally placing pressure on lawmakers at the exact moment they were fulfilling their constitutional duty to certify the election.

• many lawmakers afterwards who were visibly scared turned around and told people that there was nothing wrong, it was “legitimate political discourse'“

  • Mitch McConnell shut down investigations

  • Republican lawmakers censured Liz Cheney and Adam Kissinger for rebuking the riot

Were there any moments where mutual toleration and institutional forbearance were still held on jan. 6th?

• Pence’s refusal to block certification showing institutional forbearance

• lawmakers from both parties, including many Republicans who had initially planned to object to certain electoral slates, returned to the Capitol to complete the constitutional duty of certifying the 2020 election results

• State and federal courts continued to reject lawsuits aimed at overturning the election results up to and on January 6th, upholding the rule of law despite intense pressure.

Why do the authors of HDD argue that mutual toleration and institutional forbearance are as vital as written laws?

• They contend that while written laws provide a framework, they are insufficient on their own because no constitution can anticipate every possible contingency or prevent leaders from exploiting legal loopholes to undermine the system from within

• modern democracies don’t die by violent overthrow, but rather through erosion of institutions and under the color of legitimacyHow does Tyranny of the Minority complicate this view—does it suggest that relying solely
  on norms is enough, or that the constitutional structure itself now magnifies norm
  breakdowns?

How does Tyranny of the Minority complicate this view—does it suggest that relying solely on norms is enough, or that the constitutional structure itself now magnifies norm breakdowns?

• argues that while mutual toleration and institutional forbearance are essential for democracy, they are no longer enough because the U.S. constitutional structure itself has become a "pernicious enabler" of minority rule, magnifying the damage caused by the breakdown of these norms.

• The book argues that outdated counter-majoritarian institutions (such as the Electoral College, the Senate filibuster, and extreme judicial review) empower a radicalized partisan minority to thwart popular majorities and govern, transforming the system designed to protect against the "tyranny of the majority" into one that enables a "tyranny of the minority".

How did Jan 6 test the peaceful transfer of power as both a norm and a constitutional process? What does that reveal about the limits of written design?

• The Constitution provides the structural framework for electing a new president and setting the end of terms, which dictates a legal change in leadership, and the peacefulness of it is a democratic norm essential for stability

• it is a constitutional process but also a norm essential for upholding democracy

• revealed that written constitutional law is only as strong as the actors willing to follow it

  • It showed that legal "norms" can fail if a political leader is willing to bypass them, as the Constitution does not mandate a graceful concession

How did misinformation and the rejection of credible sources fuel polarization and delegitimize democratic outcomes in Day of Rage?

• the strategic use of misinformation and the rejection of credible information were used to fuel polarization, demonize opponents, and distort democraStic processes. By promoting fabricated narratives and conspiracy theories, such initiatives amplify anger, create existential threats, and erode trust in established media

Similar situation to Jan 6th?

• Brazil, January 8th, 2023

• supporters of Jair Bolsonaro, following his defeat, stormed the government, causing vandalism

Identify one instance surrounding Jan 6 where institutional forbearance was shown and one where it was abandoned

Shown: mike pence refusing to deny election results

Abandoned: GOP lawmakers blocking non-loyalists (Liz Chenery) rather than uphold democracy, McConnell shutting down investigations

What are the short and long-term constitutional consequences of abandoning restraint?

• rapid deterioration of democratic norms and institutional stability, shifting the system from a rule of law to a rule of power.

• immediate challenges to judicial authority — Disregard for court orders by the executive branch can trigger a constitutional crisis as judiciary is last line of defense

• executive overreach to long-term democratic backsliding — unchecked executive actions undermine separation of powers

• the normalization of autocratic behavior

• erosion of protection and individual rights

Tyranny Ch. 6: how might repeated constitutional hardball create
conditions for permanent minority control even after crises pass?

• A dedicated minority can use the US Constitution's inherent structural features—specifically the Senate (with its unequal representation), the Electoral College, and the Supreme Court—to block majority-supported policies and override majority preferences in elections.

• The abuse of procedures like the filibuster and legislative hold-ups allows a minority in Congress to block policies favoured by the majority

• where a minority can "play for keeps" and entrench its power through the law, the US system can remain structurally biased towards minority control even during periods of apparent calm. 
  

How is the intentional exploitation of structural flaws the greatest current threat to America’s guardrails of democracy?

• Actors are aggressively utilizing, and often bypassing, existing legal frameworks (such as the Supreme Court's "shadow docket" and executive orders) to shift power toward loyalty-based governance rather than the rule of law.

If the framers could watch Day of Rage, which parts of the Constitution might they view as functioning as intended, and which as having failed to evolve?

• he framers of the U.S. Constitution would likely experience a mix of horror, validation of their fears, and surprise at the evolution of American institutions

• The framers would be relieved that, despite intense violence, the constitutional machinery technically worked. Congress completed the count of electoral ballots, confirming the election results, and the presidential transition took place.

• they feared mob violence, so they likely would not see the violent storming of the Capitol as a "well-regulated" action

• The framers, who feared the rise of a demagogue or a "monarchical" leader, would be horrified to see a President accused of inciting a mob to storm the Capitol

• they feared factions — Seeing political leaders and a large portion of the public justify or downplay the violence to serve party interests would represent a failure

In light of Tyranny Ch. 8, what reforms could help prevent another January 6?

• reforming the electoral college

• make congressional redistricting done by all independent commissions

• behavioral changes, maybe more parties so extremely partisan factions are less likely

• reforming to ensure majority rule —> abolishing the Senate filibuster, replacing the Electoral College with a national popular vote, ending partisan gerrymandering

What did Washington warn against in his farewell address?

• urges against forming political parties — it destroys the nation through factionalism

• put aside differences and protect the nation above everything

• importance of checks and balances — not following them creates despotism

how did Adams set the precedent for peaceful transfer of power?

• he protected the presidency from his cabinet and forged trust and dedication to election integrity

How was trump not restrained in his second term like he was in his first?

1st term: advisors and cabinet sought to restrain him from prosecuting political opponents

2nd term: he put people in his advisor positions that would not oppose him, he started his aggressive retribution campaign

Why were most of the Jan. 6th rioters from urban or diverse areas?

• they believed that they were being replaced and ultimately becoming the minority, causing fear

• the structures we have in place are upholding White systems, and people were afraid to lose that power

TBM Ch. 1 — how does a democracy get to a place of peaceful transfer of power?

• they believe they can win in the future

• must believe that losing will not bring catastrophe

• periods of far reaching social change can cause existential fear, because people believe that institutions that once supported them are turning against them and becoming the minoritymI

Were institutions still held in the immediate aftermath of Jan. 6th?

• yes, institutions were still held — investigations immediately started

• no domino effect of political violence

• courts made independent decisions

• people were held accountable

• trump was impeached

Are institutions still held NOW, 6 years later?

• held, but weakened

• it instilled a narrative of fear of what could happen

• there has been an increase in the lack of faith in the democratic process because both sides want to win at all costs, and use institutional methods to advance their agenda

• there is now a lack of institutional forbearance — trump pardoning rioters

• political parties are delegitimized

• narrative that the media is untrustworthy — can move toward a consolidation of power

• national guard in the streets, show of force against American people

How is the constitution designed to allow for minority power?

• through structural mechanisms that create "minority rule" in specific scenarios

• Senate's equal state representation and filibuster — allows minority to block legislation

• the Electoral College — This system allows a presidential candidate to win the presidency without winning the national popular vote, effectively giving a minority of voters the power to decide the executive.