- Democracy is not at risk, argues Brooklyn Law School professor and former dean, Nicholas Allard.
- The US Constitution was written and designed to outlast misdeeds, and US democracy has lasted longer than any other in history.
- American democracy might depend on the three branches of government functioning, but there are three other powers that keep it alive: the states, constitutionally protected institutions, and most importantly, the people.
Is our beloved USA about to fall like ancient Rome, where the emperor and patricians distracted the common people from the loss of their rights with free bread, gladiator fights, and circuses?
No. Thankfully and emphatically, no! What we are observing is our constitution working as intended, methodically, fairly, and purposefully – though often slowly.
We can take comfort and pride in our brilliantly engineered complex legal system founded on the will of the people and their consent to be governed; not by authoritarian rulers, oligarchs, or bosses of criminal enterprises – but by the rule of law. All the bad news is in reality the good news that over the long-term, our system of equal justice under law protects our people.
Our Constitution is designed to outlast misdeeds and shocks to the body politic.
It has lasted longer than any democracy in history. It is designed to outlast us all.
It is counterintuitive, but the steady drumbeat of news about illegality by powerful influential people is really emblematic of how effective the Constitution is at providing different ways for citizens to stand up to power.
The Constitution assures that everyone is subject to the rule of law.
Every grade school student in the United States learns about the three separate co-equal branches of government: the Legislative Branch, the Executive Branch, and the Judicial Branch. That is American Constitutional Law – American Law 101.
However, what we all know about the three co-equal branches of the federal government is just the beginning of the brilliance of our constitutional system and separation of powers.
Power also resides in several other reservoirs within the Constitution in order to hold government accountable, and to check abuse of power in order to make sure American remains a government “of the people, by the people, and for the people.”
At this historic moment, it seems as if two of the three branches are sputtering, if not completely broken: The White House and Congress.
In contrast, the Judiciary, despite ideological differences and room for improvement, seems to be functioning well. Judges, lawyers, and juries are doing their part to preserve and protect equal justice and fairness according to our agreed upon rules of law.
And these three branches are really but three of at least six very powerful engines that drive our ship of state. So, there is plenty of power to keep us moving until the broken branches recover.
What I mean by that is, for starters, the fourth engine is the states collectively and individually.
We are a federal system with both federal and state governments, including state executives, legislators, judges, and prosecutors. The state governments form a very independent and strong power base that counter-balances the federal government. And, they do go their own way. Recent examples include issues such as immigration, environment, e-commerce, privacy, and prosecutions of violations of state law.
The fifth powerful engine is made up by the constitutionally protected institutions, which are designed to hold government accountable.
The reason for the First Amendment freedom of the press and religion is not simply to give these interests a protected way to endure. The press and religious communities have a job to do. The job for the press is to pursue truth, inform the public, and hold the government accountable for its policies and actions. Our religious and spiritual leaders and institutions are protected so that people can freely adhere to, observe, and express their personal beliefs. They are the living example of the moral and ethical path they expect government to follow.
The sixth and the most powerful engine of all is the nuclear option for effecting change: the people.
Our system of government is supposed to be limited. The people hand power to the government, only for it to be doing what the people need to be done that they cannot do for themselves. But when government is unresponsive to the peoples’ needs, then the people can take back their inalienable rights. The peoples’ free speech, association and petition rights, and other rights in the Bill of Rights and 14th Amendment are their shield and sword to combat authoritarianism. And yes, protecting the right to vote and the legitimacy of elections matter.
Our democracy is imperfect and messy, but it is a thing of beauty. So, in the end, all of us can faithfully execute the role of United States citizen, and can to the best of our ability, preserve, protect, and defend the Constitution of the United States.
Nicholas Allard is a professor of Law, Brooklyn Law School, where he served as President and Dean from 2012 to 2018.
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