Opinion

A Democracy’s Constitution Must Exist Not Only on Paper

Republicans on the Senate Homeland Security and Government Affairs Committee, led by Sen. Ron Johnson, have suddenly rediscovered their fascination in the Biden family’s connection to Ukraine. The timing and methods of their investigation deserve at least a raised eyebrow. By using their legislative offices to accuse someone of wrongdoing, they’re playing fast and loose with the rule of law and undermining American institutions.

The Constitution divided our government into three co-equal branches, creating a system of checks and balances to prevent any single individual or body from amassing unrestrained power and threatening the liberties retained by the people. One of those divisions gave judicial power to the courts alone — a provision Sen. Johnson et al. seem to have forgotten.

Early in my career, I had the opportunity to observe how difficult it is to replicate a political system like ours, and how fragile such a system is. Like many lawyers, I worked with the American Bar Association to help Russia and the other former Soviet republics draft Western-style constitutions and reform their judicial systems. In Moscow, a group of Russian judges described to me their system of “telephone justice”: After a sham trial, a senior political official would call to inform the judge what the verdict and sentence would be.

While less pernicious, the Homeland Security Committee’s non-judicial hounding of the Bidens is somewhat more honest: At least they’re not pretending to be a court of law, just a gaggle of shameless politicians. But as the Russian example teaches us, political shamelessness isn’t only unseemly — it’s dangerous.

For a short time, there seemed to be cause for optimism. Russia adopted a Western-style constitution and laws that, at least on paper, were consistent with democratic principles. They held competitive elections. They seemed to be on the path to join the ranks of democratic nations.

So what went wrong? The short answer is that democracy cannot exist on paper alone. Even the best constitution and laws depend upon broad acceptance and constant popular reinforcement. While some Russian judges and reformers were committed to democratic reforms, other elements of Russian society were not. The politicians who thrived in this changing environment were not enlightened patriots, but cynical kleptocrats intent on gaining and retaining power for their own benefit, looting the state to accumulate vast wealth.

As soon as Vladimir Putin was elected, he set about rigging the system so that he would never again have to face a free and fair election. He collected all the levers of power, including the media, to support his regime and deprive any challengers of a voice. Russia’s constitution still exists, if only on paper, but no one would dare use it to challenge Putin’s grip on power.

Having watched corruption and cynicism smother Russian democracy, I have become concerned about the fragility of our own democracy. Russia didn’t have the benefit of our 200 years of constitutional tradition, our 400 years of democratic experimentation, or our millennium of English common law. But that only means democracy here is more firmly established than it was in Russia – not that it’s indestructible.

Our Constitution, too, cannot protect our democracy if it exists only on paper. Following President Donald Trump’s impeachment, leaders in the Senate bragged about coordinating the Senate trial with the president’s defense team. They admitted that they would not view the evidence impartially as the Constitution requires. Based on their own mendacity — that having already made up their minds, it would not affect the result — they voted against hearing from any witnesses. Their trial reminded me of my lesson on “telephone justice.”

Following his promised acquittal, the president exacted revenge on public servants who had raised concerns about his conduct to their superiors and testified before Congress in its impeachment inquiry. Now emboldened and freed from all constraints on his power, he has openly intervened in criminal cases to help his friends and punish his enemies, apparently aided by his attorney general.

Our elected representatives in Congress are sworn to support and defend the Constitution. If they don’t take their responsibility seriously, who will? Appointees and career officers of the Department of Justice and other agencies take an oath to protect and defend the Constitution. If we cannot depend on them, on whom can we depend?

As in Russia, the Constitution doesn’t have to change for our treasured freedoms to begin to evaporate. All that is required is for our leaders, including in the Senate, to abuse their powers for cynical or partisan ends.

Robert Shanks, an attorney, is a member of Checks & Balances, and served as deputy assistant attorney general, Office of Legal Counsel, Department of Justice during the Reagan Administration and, subsequently, as general counsel of two federal agencies.

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