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We Can’t Depend on Elections and Legal Battles Alone to Defend Democracy

Karl Marx warned how easily democratic representation and rights can be lost to the forces of authoritarian reaction.

A voting booth at the Gates of Heaven Synagogue on November 8, 2022, in Madison, Wisconsin.

By all accounts, liberalism is in a state of crisis globally. Liberalism finds itself especially under threat in its contemporary “homeland” — the U.S of the post-2016 Trump era, prompting a once unthinkable question among concerned American intellectuals of different political persuasions: Is liberalism worth saving? Although much of the discourse surrounding liberalism’s contemporary crisis emanates from the U.S., it reaches far beyond American borders and manifests itself in the palpable ascendence of right-wing authoritarian governments around the world (propped up, in some cases, by openly fascist parties in power) that are led by “strongmen.” These include (until recently) Donald Trump in the United States and Jair Bolsonaro in Brazil, and to this day, Narendra Modi in India, Benjamin Netanyahu in Israel, Viktor Orbán in Hungary and Jarosław Kaczyński in Poland, among others. Orbán and Kaczyński, once lionized by Cold War liberals and neoconservatives alike for their anti-communist credentials, have increasingly embraced the politics of “illiberal democracy.” The crux of illiberal democracy is that democracy is reducible to majoritarian politics, including adherence to seemingly traditional values, which does not extend to the corollary protection of individual rights as demanded by liberal legality. Of course, none of this prevents these strongmen from invoking “law and order” to abrogate hard-won rights while stifling their opponents at every turn.

The invocation of illiberal democracy has the unintentional consequence of reminding us that liberalism and democracy did not always go hand in hand, and indeed that the two pillars remain in a fraught relationship well into the present. Classical liberalism and its subsequent heirs, which champion private property and freedom of contract, carry a brutal “counter-history” (to use Domenico Losurdo’s term) of exclusion and domination, replete with slavery, colonial genocide and an enduring legacy of disenfranchisement. Of course, this counter-history does not concern illiberal democrats in the least, even though the modern histories of their respective polities have also been shaped by disenfranchisement and genocide.

At this juncture, one might think it ill-advised to tackle the global crisis of liberalism by drawing anything from the Marxist tradition, least of all from the writings of Karl Marx. According to the usual mainstream refrain, didn’t those teachings contribute to the politics of totalitarianism, which showed utter contempt for human life, not to mention running roughshod over such liberal ideals as justice, legality and rights? Indeed, socialists must genuinely reckon with the Soviet legacy and its monstrous warts, but it may still pay to learn from Marx in a context where the struggle for democracy and rights was critically at stake, by which I mean the European Revolutions of 1848 in which Marx was an active participant.

Among commentators on the radical left, the 2016 election of Donald Trump and the failed insurrection of January 6, 2021, drew early comparisons with Marx’s classic essay on Louis Bonaparte’s coup and his subsequent self-proclamation as emperor of France, The Eighteenth Brumaire of Louis Bonaparte. The most common reference point for analogy is undoubtedly Marx’s statement that the class struggle in France, which he regarded foremost as a political struggle, generated “circumstances and relationships that made it possible for a grotesque mediocrity to play a hero’s part.” Surely Trump still fits the bill of that “grotesque mediocrity” who was made into a hero by his loyal army of supporters, especially after challenging the legitimacy of the 2020 U.S. presidential election.

The Eighteenth Brumaire offers a cautionary tale about how easily democratic representation and rights can be lost to the forces of authoritarian reaction, and how crucial it is to vigilantly defend the scope for democratic action against creeping attacks by executive powers. Lest this warning be dismissed as weak-kneed liberal claptrap, Marx himself noted “the strongest support from the proletariat” for “trial by jury, equality before the law, the abolition of the corvée [feudal labor tax] system, freedom of the press, freedom of association and true representation.”

As the March Revolution of 1848 came increasingly under attack from reactionary forces, beginning with the introduction of Prussian censorship legislation, Marx underscored the importance of defending freedom of the press, which he regarded as a critical bulwark against authoritarianism. At the same time, however, Marx was far more attuned than his liberal contemporaries about the material limitations of these rights and freedoms in would-be capitalist democracies that do not always practice what they preach. Most of these limitations are informed by the corrupting role of money in contemporary liberal democracies, ranging from issues of campaign financing and the corporatization of the media, to the “revolving door” between legislators and big business. After all, Marx was critical of “parliamentary cretinism,” which he described in the Eighteenth Brumaire of Louis Bonaparte as a malady afflicting those who limit politics to parliament and reduce political victories to parliamentary ones, all the while remaining oblivious to how some of their self-serving actions end up eroding the very conditions for representative government. In other words, Marx saw a political strategy that made elections as the primary means of defending democratic rights as insufficient and even detrimental to such a cause. The best way of protecting democracy is by deepening it beyond the ballot box and outside of parliament.

Similarly, Marx was critical of what today may be called “judicial fetishism,” which sees supreme court judges as the ultimate guardians of the constitution and its catalogue of fundamental rights. Yet Marx’s critique of parliamentary cretinism and judicial fetishism did not prevent him from endorsing “true” democratic representation and genuine judicial independence, which he contrasted at one point with that “sham independence” that masks the subservience of judges to the executive powers that appoint them. To be sure, one need not subscribe to Marx’s theoretical outlook to appreciate his prescient critique: Preeminent legal scholars, such as Ran Hirschl, Samuel Moyn and Jeremy Waldron have all written about the dangers associated with misplaced hopes in the uppermost echelons of the judiciary. It is also for good reason that Alexis de Tocqueville poignantly described the judiciary as an aristocratic carryover in his Democracy in America. Supreme courts are institutionally conservative, not transformative. For Marx, the real political transformations take place outside of courts and parliaments.

What, then, is to be done with the proliferation of strongmen bent on destroying the “rule of law” and fundamental rights and freedoms? Aside from rights to political participation, freedom of the press and bodily integrity, which are now under attack in liberal democracies with devastating consequences for broad segments of the population, freedom of association and assembly, including the right of workers to strike (legally recognized or not), are also on the precipice as the political pendulum swings evermore in favor of capital and against labor. If progressives are to avoid the pitfalls of parliamentary cretinism and judicial fetishism, where should they direct their political energies? Should they just abandon the ballot and the courts to the right? Of course not! Nor should they concede the everyday “politics of the street” to their daring political rivals.

While one should not trivialize the propensity of authoritarian leaders to undermine representative institutions and democratic rights, it would be a profound error (to which liberals are especially prone in their analyses) to treat the Trump phenomenon in the U.S. and his analogues elsewhere as the cause of liberalism’s global crisis rather than one of its most morbid symptoms. Marx and his lifelong collaborator, Friedrich Engels, saw this type of political thinking as succumbing to the “the illusion of the epoch.” It is just as much of an illusion to think that legal proceedings against Trump will somehow undo the political-economic processes that gave rise to him or will undercut his base, whose support for Trump continues to grow in tandem with said proceedings that are deemed thoroughly political. It should not come as a surprise therefore that a recent poll by the Wall Street Journal found that Trump is the “top choice for nearly 60% of GOP voters.” Recourse to the law with political intent can cut both ways, and it has previously boomeranged against those on the left who are traditionally more critical of the status quo than their right-wing rivals.

Admittedly, it is easier to focus on the Trump phenomenon than to mobilize political support for urgent structural reforms across various class and racial divides, higher corporate and wealth taxation, protecting the rights of workers to form unions and to strike, securing access to adequate housing and health care, including safe access to abortion clinics for women — to save, what Marx once described in an 1865 letter to Abraham Lincoln, “the idea of one great Democratic Republic … whence the first Declaration of the Rights of Man was issued, and the first impulse given to the European revolution of the eighteenth century.” The underlying motivation for Marx’s letter to Lincoln was the political struggle to abolish slavery in the U.S., which “defiled” the republic through and through. Today, this struggle persists in the ongoing efforts of ordinary working people and their allies to save the “social republic” (as the 1848 radicals called it) from the scourges of a viciously plutocratic capitalism that threatens their very being. On this view, the only way to effectively safeguard democratic rights and freedoms in the long run is by forging a politics that deepens democracy and does not shy away from confronting the “unwritten constitution” of the American republic, namely plutocratic capitalism. Such a politics would bring back the language of the “1% and the 99% (i.e., the language of “class”) in juxtaposition to liberal democratic ideals, which was previously the rallying cry behind the Occupy Movement, as well as broader efforts at democratic empowerment — support for unionization, promoting the formation of worker-owned and managed cooperatives, as well as factory takeovers.

Such an approach may do much to accentuate the political fault lines between liberals and Marxists, but it does not make it any less pressing when it comes to confronting liberalism’s global crisis. After all, the stakes could not be any higher in the present context of a plutocratic capitalism that has ever less regard for the political value of democratic rights and freedoms. These rights and freedoms demand vigilant defense against authoritarian assault because they open space for further political inroads that are desperately needed today.

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