AP Photo/Kwiyeon Ha For 250 years, Americans have been having a conversation about legal democracy. That conversation is now in trouble. The results are on grim display in our respective areas of expertise, which are voting rights and criminal law.
Unchecked power is increasingly wreaking havoc. As its campaign and voting rights decisions make clear, the Supreme Court is unconcerned with the unequal deployment of economic and political power. As a result, our electoral process is dominated by concentrated wealth and private influence.
The fearsome power of the criminal system has always been at best tenuously restrained by law. Today, it has openly muscled its way into political waters as the executive branch flaunts its authority to prosecute and pardon. As we have both argued for years, it is ordinary people who ultimately pay the costs of such governance failures, losing their political voices, autonomy, money, safety, and even ultimately their freedom.
The problems with unchecked power in America are on the rise across the board. From the executive branch to Congress, in finance, media, and the technology sector, concentrated power has increasingly been let off the democratic leash. Public actors ignore the interests of millions of Americans. Private interests make public-facing decisions of national import. Ordinary people are getting thrown under the political bus.
Law-based democracy is supposed to be an antidote to such abuses, because law does not belong only to the powerful. “Rule of law” is a kind of shorthand for the commitment to resolve differences and disagreements through open legal discourse and process, not through raw assertions of power, coercion, or violence.
Democratic decision-making calls for an inclusive, community-wide public conversation about those laws, and how we would actually like to run our polity together. When that conversation is in trouble, it means democracy is in trouble.
Calling for more discourse or better conversation can sound like weak medicine against abusive power. But law is one of those places where words and ideas matter. In the voting sphere, words define rights that enable ordinary people to exercise extraordinary influence. In the criminal system, we can get people out of jail by using our words, no crowbar required. It matters to people of every faith and of no faith how we construe freedom of religion under the First Amendment.
The definition of the word “citizen” affects millions of families. Coming together to talk about these matters is not weak medicine; it is figuring out how we want to handle them together.
Discourse, law, and democratic values can sound old-school and almost naively idealistic. We live in times that fairly invite cynicism. But we think our legal idealism matches the values being celebrated this year. Democracy at its best is an inclusive public process through which high stakes, controversial, communal decisions can be made peacefully by a lot of very different people with contrary viewpoints.
The Declaration of Independence is itself a vocal appreciation of the promise of public legal argument and opinion. It was written (not coincidentally by lawyers) to preserve individual rights against the unchecked power of the monarch, and to institute a “Government … deriving [its] just powers from the consent of the governed.” The Framers obviously considered such legal discourse to be an indispensable tool for any polity that aspires to liberty, equality, and human dignity.
We are not starry-eyed about the Founders’ flaws and hypocrisies. After all, under their regime, neither of us would have been allowed to vote. But law and democracy are both always unfinished conversations, revised and handed down generation after generation. In order to make that conversation work more fairly for ordinary people, law must push back against unchecked power, be it state authority, private wealth, or violence. And so we are treating this semiquincentennial year as inspiration to jump-start new discussions with our students, our colleagues, the legal profession, and anyone invested in the future of American law and governance.
Alexandra Natapoff is the Lee S. Kreindler Professor of Law at Harvard Law School. Guy-Uriel E. Charles is the Charles Ogletree Jr. Professor of Law at Harvard Law School. They are co-editors of the book “America Unfinished: 250 Years of Law and Governance,” a collection of short essays from over half of the Harvard Law School faculty.
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