By David K. Shipler
Right-wingers
who tamper with democracies should be careful what they wish for. They might
hold positions of power today, but as they undermine the checks and balances
that stabilize and restrain, they hand formidable tools to their opponents who
might take over tomorrow.
This is poorly understood in both
Israel and the United States, two democracies now imperiled by extreme agendas
that would weaken longstanding mechanisms designed to protect minority rights
and moderate governmental authority.
The political right ought to take
note: If Israel’s religio-nationalist government dismantles the separation of
powers by emasculating the judiciary, what’s to prevent some centrist or more
liberal government from driving unencumbered through the same gaping holes? After
all, the right-wing governing coalition has only a four-seat majority in a
120-member parliament.
In the US, similarly, if Republican
“conservatives” regain the White House and disempower independent agencies by
transferring power to the president, as Trump’s team plans—and if they continue
dismantling the non-partisan machinery of elections in swing states they
control—what’s to prevent Democrats from doing the same where they hold or gain
majorities? When you destroy the careful balances in a pluralistic system, the
new structure is available to everyone, not just to you.
A case in point is Donald Trump’s anti-constitutional
argument that Vice President Mike Pence, as President of the Senate, could have
rejected slates of electors from some states that went for Joe Biden in 2020. But
if Pence had that power, so would every vice president: Vice President Al Gore could
have thrown out Florida’s Bush electors in 2000, where the popular vote was
razor close and justifiably contested. And Vice President Kamala Harris could do
it in 2024 if she doesn’t like certain states’ results.
Why don’t reporters interviewing
avid Trump supporters ever point this out and ask for reactions?
It could be that Trump and his spellbound
flock don’t grasp the universality of the powers they seek to acquire. Perhaps
they think that only they will benefit by eroding the professional integrity of
vote-counting, for example, not imagining that their opponents might use the
same tactic. Perhaps they don’t see how a Democratic president could use the
immense authority they seek for Trump should he be re-elected. In a society still
largely subject to the rule of law, which carries with it a respect for precedent,
consistency, and equal protection, systemic changes are just that: systemic. They
flow through the entire system, no matter which faction is in charge, now or in
the future.
It could also be that Republicans—privately—don’t
really think Democrats are nefarious. Maybe right-wing politicians don’t
believe what they say about liberals and progressives. Perhaps, in their heart
of hearts, Republicans recognize that the “radical left” is not so devoid of
civic and moral virtue that it would threaten democracy with the tools the Republicans
are forging for themselves.
Indeed, that’s the flaw in this
doomsday scenario: The Democrats are not the same, at least not now. Gore didn’t
throw out Florida’s electors, and neither will Harris. Democratic state
legislatures are not rushing to curtail voting rights or politicize
vote-counting. There is no moral equivalency between Republicans and Democrats.
But will that be forever? Power is
an aphrodisiac. The judicial system is growing more sharply partisan on both
sides. Gerrymandering is a time-honored tradition by both parties. Imperious
moves to stifle speech come from the left as well as the right. The danger of
concentrating authority in too few hands, without sufficient checks, remains as
acute today as when James Madison warned at the Constitutional Convention: “All
men having power ought to be distrusted to a certain degree.”
So it also is in Israel, which has
no constitution but a set of Basic Laws that are supposed to set the standards
for governmental action. Without a constitutional text, the Supreme Court has overturned
some statutes and practices as “unreasonable,” a squishy concept that Prime
Minister Benjamin Netanyahu’s government has just outlawed. (The Court itself will
hear a case requesting that it overturn that new ban on its authority, setting up
what Israelis loosely call a “constitutional crisis.”)
In addition, Netanyahu has proposed
giving government officials a majority on the commission that appoints judges,
and granting the Knesset, Israel’s parliament, the power to overturn any
Supreme Court ruling with a simple majority vote. The specter of emasculating
the courts—the only check on executive/legislative power—has ignited vast street
demonstrations, disinvestment, protests by respected former intelligence and military
officers, and refusals to serve by numerous military reservists. At least the
center and left are alarmed, even if the right is not.
Ironically, Israel’s Supreme Court
has moved somewhat to the right as new justices have been appointed during
years of conservative government. So, if the judiciary is weakened and the rightist
coalition loses its narrow majority in the future, a more centrist or
left-tilting government could presumably overturn conservative Supreme Court decisions.
These might include rulings limiting
the rights of Arab citizens, for example, or allowing more Jewish West Bank settlements
on Palestinians’ land, or permitting gender discrimination by Haridim, the ultra-religious
Jews who increasingly demand the separation of men and women in public
transportation and elsewhere.
In fact, for many Israelis on both
sides of the conflict over the judiciary, the very nature of the country is at
stake—whether it remains a secular and pluralistic state or becomes increasingly
theocratic, run by extensively by religious law. A centrist or slightly liberal
government, empowered to overrule the Supreme Court, could conceivably sweep
away judgments that uphold an expanded religious authority in domestic life, open
the door to Israeli annexation of the West Bank, and other policies favored by
the hard right. That is the risk that Netanyahu and his extremist partners run
by changing the rules of the game.
Ultimately, citizens in both Israel
and the United States will decide the momentous question, which is much larger
than the personalities or slogans or temporal policies of the candidates. All
democracies contain the built-in mechanism of their own destruction: the
popular vote, which can elect those who will slice away the protections,
usually little by little, until the citizens wake up one morning to find that
their precious freedoms to choose how they are governed have disappeared. In a well-informed
citizenry, the alarm sounds long before, across the entire political spectrum.