Can legal formalism help save democracy? That is a question posed by a very interesting draft paper posted by Will Baude of the University of Chicago last week, “The Real Enemies of Democracy.” Baude’s paper is a response to Pam Karlan’s 2020 Jorde Symposium lecture, “The New Countermajoritarian Difficulty,” in which Karlan laments the recent Supreme Court’s failure to take action against anti-majoritarian forces that dilute the votes of, or outright disenfranchise, millions: the Electoral College, the filibuster, campaign finance, gerrymandering, and anti-suffrage laws.
But Baude has his eyes set on a different horizon: “I worry that democracy faces far worse enemies than the Senate, the Electoral College, or the Supreme Court. Those enemies are the ones who resist the peaceful transfer of power, or subvert the hard-wired law of succession in office.” And he suggests a different bulwark to hold them back: “The shield against them may be more formalism, not less.”
I agree with Baude’s sense of the threats, but I think the hope that formalism—or even the rule of law generally—will save us is misplaced. It was often said of the Soviet Union that it had an extremely rights-protective constitution; better than that of the United States, even. But of course the problem was that the Communist Party was not really bound by it. Formal guarantees mean nothing without the will to back them up. Law without faith is dead.