Title: The J.A. Corry Lecture with Samuel Issacharoff - An event to honour the life and work of Professor Alvin Cheung - Emergencies, Alien and Domestic

Date: Friday, March 7, 2025

Description: An old saying has it that war is bad for liberty but good for democracy. In exchange for support to face an external threat and the suspension of rights during wartime, citizens are often rewarded with greater political liberties post conflict. In contrast, responses to domestic “enemies” are more threatening to democracies, undermining legitimacy during a crisis and eroding rights in the aftermath. These themes are considered in light of emerging populist challenges to democracy. 

Speakers: 

• Samuel Issacharoff, Reiss Professor of Constitutional Law, New York University School of Law
• Cherie Metcalf, Associate Dean (Research), Professor, Queen's Law
• Alyssa King, Assistant Professor, Queen's Law 

Podcast: 

Transcript:

[Auto-generated transcript. Edits may have been applied for clarity.]

0:03
Welcome everybody who's here in person and who's joining us online for today's event, the JA Corey Lecture, which this year is also a special event to celebrate and honor the life and work of our colleague Alvin Chung. So I want to begin, of course, by acknowledging that as we're gathering here today at Queens, both virtually and in person, we are situated on traditional lands. The plane important role in the history

0:34
and the continuing lives of the Anishinaabe (Ah- nish-in-ah-bay) and Haudenosaunee (Ho-den-o-show-nee) people who of course had relationships with these lands that go far back beyond the origins of colonial relationships with the land. And so we acknowledge those and we just make a point of saying that we're grateful today to be able to gather here in this place together for this special event. The JA Corey lecture is person endowed lecture. It recognizes

1:05
and has contributed to in honor of JA Cory. He was a principal at Queens University and also a sort of dedicated and prolific scholar whose work touched on the connections between law and politics. And indeed, the topic of the Quarry Lecture is to address some aspect of the relation between law and politics well. So I can think of a topic that's really much more central to that than the subject of our lecture

1:36
today,

1:37
which will be delivered for us by the Corey Lecture, points out that we're supposed to have a distinguished lecturer.

1:46
So I think we've accomplished that today. We're so delighted to welcome Professor Samuel Zacharoff, who's the Reese is it Reese professor of constitutional law at NYU, at the Faculty of Law there. He he does have like a long list of research interests, which personally I love. I don't like if people fixate too much on one thing. But you know, anyway, I'm just kidding. But among his numerous research interest is a specialization

2:17
on law and political process in particular. And this is really his contribution here just to create almost a new area of inquiry in the broader field of constitutional law. And thinking about this comparatively also is an important element of his work.

2:35
He

2:36
there's many accolades

2:38
and normally I would go all through them, but we had a nice discussion at lunch and then said we would a little bit cut to the chase so that he can actually focus on discussing the important work that he is going and the important work and important ideas that he's going to present for us today. Discussing threats to democratic freedoms, where we see these more likely to emerge and when we can perhaps be more optimistic

3:10
about their preservation. So I will turn it over. And thank you again so very much for coming and giving this lecture for us, you know.

3:26
Thank you. And thank you, Dean Flood, for the invitation.

3:32
You wanted something optimistic?

3:36
As of 2 1/2 hours ago, the border is still open. I made it here,

3:44
and I say that

3:48
jokingly in part, but it actually ties into the main theme of the talk talk today. But before I do, let me just say a word that this is in memory of of Alvin. Alvin was my supervisee. I oversaw his dissertation project.

4:11
A lot of what I am working on now and what I'll be Speaking of today is deeply influenced by my interaction with him. He was one of the really pioneer thinkers in how democracies get unwound. And his contribution was to think of it not in the way that is easiest for outside lawyers to comprehend,

4:43
which is big constitutional change, but how the ordinary mechanisms of law can be captured, can be sabotaged, and can be used against the core principles of democracy. So that's what I learned a great deal from Alvin about, and that heavily influences what I'm going to talk about today. So let me begin with

5:12
stepping back a year or so

5:14
between

5:16
late 2023. In late 2024, there were roughly 85 major elections in the countries that we consider to be democratic. To some extent, it's always a question of how you count, and freedom houses one count and other groups have other counts. But basically we know what we're talking about when we refer to countries that can have a legitimate change of government as a result of the electoral process.

5:48
And three things held in these 85 or so count contest. The first was that almost without exception, the incumbents lost and Mexico's a big time exception. But but basically, the combination of popular dissatisfaction, contempt for the ruling elite, and the

6:19
the presence of social media and other destabilizing forms of organization meant that the elections were basically a referendum on throwing the bums out. And that's what populations did in country after country.

6:33
The second thing that was characteristic was that despite all the attack on fake news and election fraud and all this sort of stuff that that you know, we know a great deal about it in the United States, but it's true in many, many other countries. It it has been raised

6:52
Despite that the election processes held. And we can say with fair confidence that in every country that held elections for the head of state, you had the winners prevail. The people who won actually won. Now I don't include in that the non democratic countries that have show elections. I don't include Iran, I don't include Venezuela, I don't include Russia, and I don't

7:23
include there was one

7:26
military coup during the election in Africa that doesn't really count as the democratic transition in by its terms. But that helped. And the third thing that helped in all the countries was that we have no idea who was elected in the sense that we don't know what the governing coalition, we don't know what the new political equilibrium will be. So you go from country after country after country in Britain,

7:57
Labour and the Tories together get less than 50% of the vote. You go to France where the historic post war parties are the Gallus and the and the Socialists. They're gone. They're gone. They don't even exist. Basically. You go to Germany and you see the Social Democrats getting 13%. You see the prevailing Christian Democrats in the 20s. You see a fragmentation of political authority. And if you go to the United States,

8:28
what you see is something absolutely fascinating. If you divided the population into quartiles and you said, OK, here's high, high education, high income,

8:44
not so high income, but high education, that's basically

8:49
professors and people like that.

8:52
Then you go to low education, high income, low education, low income,

8:59
divide those quartiles. What you find in 1996 was that Bob Dole, the Republican candidate, was up in this quartile, meaning his median voter was high income, high education, and Bill Clinton was in the lowest court left quartile, which is low education, low income, right. That was the division between the Republicans and Democrats, and the Democrats prevailed

9:27
in 2024

9:31
where Bob Dole was almost exactly in the same position as Kamala Harris

9:36
and where Bill Clinton was is Donald Trump. Now,

9:42
Trump won. He has, he's the president, as you may have heard, and but he's at the head of a coalition that is fundamentally unlike anything we've had before. We have the patrician family, the party, the party of big business, all of a sudden being the publican party. That's unstable. We don't know how that's going to play out. Leaving aside the personal characteristics of the candidate, it is a fundamental political

10:14
reorientation and that is true all over Western democracies. If you look at the social base of the working class, you look at the working class political expression today, it is likely to be the populist insurgent parties, It is likely to be Maloney, it is likely to be Le Pen, it is likely to be

10:42
the populist antagonists of what are considered elite values.

10:49
And they went. They're winning.

10:52
And they are winning in a way that challenges our established democratic order because for the first time in the 200 years or so of democratic ascendancy, we no longer have politics, democratic power politics, channeled through established institutions to which the political parties and the traditional political parties, keep in mind, the United States, for example, we've had the same political party, same 2

11:25
for 200 years, through civil wars, through world wars, through depressions, through assassinations, through all sorts of things. We've had the same two parties. We've never seen them flip in this fashion in so short a period of time. So the question is, who is getting elected? And if you have institutional instability, all of a sudden you get individuals emerge and individuals who are loud, individuals who are

11:56
angry, individuals who are frequently hateful. Not that they I hate them, I might, but that they are. They arouse people on antipathy, on the basis of antipathy toward others

12:13
and there is the risk of being led by demagogues

12:19
and that is a democratic weakness. It has been forever. If you go back to through acidities and the accounts of the Peloponnesian wars. What you read about is the moment that Athens fails is the moment when it cannot control the passions of the citizenry, when they decide on ill-fated military ventures, because the the passionate speaker in the Agra has managed to draw

12:50
them into that. If you look at Hobbs and his description of the various forms of political leadership, what you see is he says the problem with democracy is that in a democracy the orators will rule. And by that House was the translator of Thucydides, and he's referring to the same pattern. You read the the framers, the The Federalist Papers, and they speak. Madison speaks often of the risk of passion,

13:22
that that is what can undermine democracy. You go to Machiavelli and you see that he understands, I think, better than anybody ever had at that point, and perhaps since as well. He understands that the difference between Athens and Rome was that Athens had no institutions that could channel popular will and popular passion. Rome did. Rome was stable. Athens was not in back. Machiavelli's view, and that's the view that influenced

13:53
the framers of our of the American Constitution. That was the political theory that they were responding to. You needed institutions that would provide stability. Otherwise, it was unclear how popular sovereignty could prevail.

14:10
And so the question that I want to address is what happens when in the modern world, we start living the through Syrian nightmare, We start living the Hobbesian nightmare in the sense that unmoored orators, demagogues, so forth, can capture the imagination of the population and

14:38
seduce them and tell them, here's a simple answer. You have to hate the other. You have these kinds of elites to act against, whether it's, you know, the educated scientific elites in the United States or whether it's a different kind of elite in in Brazil, whether it's what Prime Minister Modi refers to as the Khan market elite. I was very upset when he used that formulation.

15:10
I've been in Delhi a number of times, New Delhi and one of my favorite places to go to coffee shop and and great bookstore and all that is Con Market. And then I heard that that's the pejorative. Oh my God, he's got me right. OK, that's the pejorative. But we hear that in all sorts of places. And what happens when these people take hold? And one of the questions that's posed now,

15:39
and it's being posed in Europe and it came up in the United States, including in the US Supreme Court in a decision called Trump the Anderson, which I meant, which I'll talk about a little bit later, is whether democracy can do something to forestall this. Why must we allow these enemies of democratic stability to be able to warm their way into the electoral process, irresponsibly

16:11
make claims? And this is I'm, I'm, I'm really trying not to be partisan here. I'm just trying to say this is the argument. If they irresponsibly make claims, why can't we foreclose them in some fashion from being able to do damage to democracies? And lingering in the background of all this

16:33
is the famous quote from Joseph Gerbils, the propaganda minister of of the Nazis, who said the greatest joke on democracy is that they allowed us to take power from within.

16:47
And why should we permit

16:51
anti democratic groups to take advantage of the openness of democratic societies and do something about it? So the first challenge is what happens when democracies say there's a threat,

17:06
and because of that threat, we need to start closing ranks. We need to curtail some of the open characteristics of democracy. Or put quite simply, can we scale back on all this liberty crap if it's expedient for us? And it's an interesting question because I don't consider it to be a question of principle. I consider it to be a question of what works,

17:37
and one of the interesting features of of the history of democracy is that democracy seems to flourish in the aftermath of war. And that seems paradoxical, because war is the ultimate condition in which liberty is constrained, in which executive functions are dominant, in which

17:59
whatever checks there may be on the government are dampened.

18:05
Britain held no elections during the entirety of World War 2. Churchill run went Churchill ran one time in the 30s and never stood for election again,

18:18
right. And if you look at the history of the franchise, if you look at the history of democracy, democratic participation, you see that it expands after major wars. So that the great British reforms of the 1830s followed the Napoleonic Wars, the American franchise for women followed World War One, the American franchise for for blacks in the United States followed World War 2. They follow

18:49
periods where there are demands upon the population to make collective sacrifice, which includes a a huge curtailment of liberty. In fact, our what we consider to be our liberal tradition Harkins back to the Magna Carta. And what was the Magna Carta but a pact that was signed because King John needed support from the nobles for war,

19:15
and so he had to make greater demands upon that part of the population, upon the nobility. And the exchange was, we want greater democratic checks upon the crown. And that has been traditionally a pattern by which democracies get rooted in the population and democratic capabilities are expanded in response to the successful waging of a national effort in response.

19:47
Two war.

19:49
Now,

19:50
war is an emergency situation,

19:54
and there's no reason to think that war is the only emergency situation that might emerge. War is, by definition, the mobilization of the population against an external threat. And if it is a mobilization against an external threat?

20:15
Why should it be different if the external threat is a sovereign state of some kind? Why would it be different if it were a volcano? An earthquake.

20:26
A major disaster of some kind?

20:30
How about COVID

20:32
right during COVID and there's a wonderful set of studies done by Jeff King and, and colleagues around the world, but Jeff King's at UCL in London and, and what they find is that you had huge, huge constriction, constrictions of liberty during COVID, right. We had to wear masks. We couldn't go places, we couldn't leave our house. Depends what country you're in, but you couldn't leave your house except

21:03
on designate at designated times. To go into a restaurant, you have to show your phone and show a QR code. In many, many countries,

21:11
these were the most intrusive state organization of the lives of the ordinary citizens that we have had in democratic countries outside of extremes of wartime

21:27
curfews, everything imaginable.

21:30
And what King and his co-authors find is that in the democratic countries

21:37
after COVID emergency ended,

21:40
this snapped right back. There was number lingering effect on the curtailment of liberty because the population been mobilized for certain emergency. Now we have a

21:53
more difficult time. Again, social media contributes to this, so that some part of the population will always see conspiracy and various things in this. So we don't have the ease of mobilization that we had in simpler times. But nonetheless,

22:07
what's striking is that in every democratic country, there is no legacy of the COVID restrictions that we see in place today.

22:19
By contrast, China,

22:22
it began to unleash a pattern of surveillance of the citizenry which continues unabated to this day, and in fact has become built into the what the form of social control. So

22:37
I take from this

22:39
the following proposition

22:42
that if you can mobilize

22:46
democracies against a threat,

22:50
then you can curtail liberty. You can do all sorts of things in order to successfully wage the campaign against. Now this is not new to me.

23:06
This is a theory that was important in democratic debates in the last century following the collapse from within a vimar in Germany of Italian nascent democratic experiment

23:23
and in Europe. This took this had the name was called militant democracy. And in the great initial works by Karl Lowenstein, the argument ran as follows. Why do we need to wait for them to take power if we know they're trying to? We know that they're a real threat. Let's move now. Let's not get hung up on all of our democratic niceties. No, we don't have to subsidize their parties. No, we don't have to give them

23:53
parliamentary immunity. No, we don't have to let them March in the streets. We can move against them. We can show that we can be proactive instead of after the war, say, Oh my God, how did this happen to us? And that was, you know, I'm really boiling it down, but that's basically the theory of milk democracy. And so militant democracy is basically, why can't we do what we did with COVID over these anti democratic operations?

24:24
Now every European country

24:28
has either in its constitution, almost all or coupled in their statutes, a provision for militant democracy today. And militant democracy has many forms. It can be banning parties, it can be banning individuals, it can be jailing individuals for certain speech characteristics,

24:50
it can be selling Nazi paraphernalia,

24:55
which is a criminal offence in France and Germany.

25:00
I gave a variant of this talk in Germany a year ago,

25:05
and I said, keep your eye on the ball of how democracies are vulnerable. And I started off by saying, here's the image I don't want you to take away. And I put a picture of Donald Trump and next to a picture of Adolf Hitler,

25:21
that scowl, you know that I'm a tough guy. I'm scowling this. And then I put a quote below. 1 from Trump

25:30
and one from Mein Kampf.

25:32
And in terms they were almost parallel.

25:36
And there's kind of a gasp in the audience.

25:40
I didn't realize. I didn't realize that you can't quote mine. Kampf in a German classroom with a picture of, of Hitler on, on the on the on the monitor. That's illegal,

25:55
you say? OK, so invited you from America, you're going to get mine, Kampf and Hitler, right? I mean, this is, this is what you get.

26:03
Um, so this is um, but that's militant democracy,

26:10
right? You don't have to put up with this stuff.

26:14
And I didn't really mean to transgress. I just, it never just I just, it never occurred to me that this this was an issue that I was walking into.

26:23
So,

26:25
so they do this

26:28
and that's very good because Milton democracy now translates into the same kind of protective mechanisms that can be operationalized in war and that can be operationalized in the term in case like COVID.

26:45
Unfortunately, the history of militant democracy in Europe after the war is it has been

26:52
almost without exception, a complete failure.

26:56
And it's a failure because

26:59
it's either too early or too late. It's too early because what they pick off is irrelevant. Stupid little fringe parties that have no popular support either so they feel good about themselves all we ban them

27:15
or it's too late because what are you going to do when the parties actually have support?

27:23
And

27:25
so the big cases on militant democracy, the two most significant cases are both from Germany, both in the post war period. And early on the court confronted a group called the Socialist Right Party. And Socialist Right Party was basically the Nazi party trying to reestablish itself. It was they wore the same uniforms. They talked about we need faithful men from the old order. They talked about all they had, all the code words.

27:56
They didn't say we're going to overthrow democracy. They didn't say we're going to reestablish Hitler's rule. But in effect, they did that and it took the court and the society a long time, but they banned them. And so that's the major, the most important decision on militant democracy out of out of the German, out of any court.

28:15
And then a few years later, they banned the Communist Party of East Germany, which was basically a front for, I'm sorry, the Communist Party of West Germany, which was basically a front for East Germany. It was basically a fifth column. It was a an advanced shock troops for the Soviet bloc. And so they banned them.

28:36
Now,

28:38
under the circumstances,

28:40
although the opinions are interminably long and tortured, under the circumstances, the theory was quite simple.

28:48
These folks are not part of this order and they are faithful to a foreign order.

28:55
With the Communist Party it was easy because the foreign was across in the East and the foreign was different and was had its own military, had its own state, had its own geographic territory.

29:11
With the Nazi party, it was right after World War 2. So the Nazis, the neo Nazis of the 1940s were basically pledging fidelity to a prior form of state organization that had held Germany. Now, that's the weakest part of my argument, because it's actually quite important, because I'm going to define that as an alien group, because it held state power with its own army, with its own military,

29:41
with its own, I'm sorry, with its own government forces, with its own pledges, all that.

29:47
And the Communist Party was outside.

29:51
And so the question is presented in Germany today,

29:56
not exactly with neo Nazis, but not that far from it. Because there are extreme right wing parties in Germany. The most important is a party called the AFD,

30:09
and they have strong ties to the fascist past. They have all sorts of statements of it, but they're not

30:19
pledging and they're not the organic outgrowths of the Nazi party when it held state authority. And so the big question in Germany in in militant democracy is can you ban the AFD? And this is where the question of it's too late, not too early comes in because the AFD is the second largest political party in Germany. And if you look at the map of Germany

30:50
today and you look at voting preferences, what you see is that the AFD wins is the dominant party in the entirety of what used to be East Germany. And so the

31:05
claim that has to be made is that we, the good citizens of West Germany, having taken you E Germans in and integrated, you now want to explain democracy for you. You can vote, but not for whom you want. You can vote for whom we find acceptable. And the good citizens of East Germany might say,

31:27
how is that not the system that we used to operate under? How is that a democratic order rather than an imposition through the form of elections, through sham elections?

31:41
That's the hard question in Germany today. And it's the question that was presented in Italy with Maloney, who comes directly out of the Fascist Party background organically, but who is a sophisticated leader in her own right and has emerged as the most important leader in Europe right now, the most capable state head of state, head of government in Europe. So

32:06
that's the question, has has the

32:11
militant democracy given us any confidence that democracies can in fact move to ban

32:21
anti democratic or demagogic or dangerous elements, this populist upsurge around the world through just simply curtailment of liberty, right? Can you do that successfully?

32:37
And the recent history has been there's no evidence that it has worked anywhere and there's no evidence that anybody has the political will to ban a party that is potentially a, if not a majoritarian party, certainly a plurality party, certainly a party that is capable of being in discussions for governmental coalitions.

33:04
So let me take this to the United States because

33:09
about 10 years ago, yeah, it's 10 years now, I published a book called Fragile Democracies on how how to reconstitute democracies or how to constitute democracies in the post 1989 world where you don't have all the institutions in place. And the argument at the time was that courts had emerged as a major player in doing this, but that courts had to weigh

33:39
all sorts of restrictions on democratic access, including the former communist parties in in Eastern Europe, including attempts at

33:51
white reassertion in South Africa, including all sorts of things that pushed the boundaries of the liberty side of how we how we think about democratic governance.

34:04
And at the time, I was writing this in large part for an American audience that is very taken by the 1st Amendment tradition. And so I wanted to say, hey, don't get all high and mighty with me because we in the United States have militant democracy right in our Constitution. And you don't even realize it because nobody pays attention to this clause and the clauses, Article 3 of the 14th Amendment, which is the insurrection clause. And so I put it right in my book and I said,

34:35
you know, it's right there and nobody's ever, nobody talks about it. I don't know there's any scholarship on it. Well, now you know, that was then.

34:43
And So what that says is basically, hey, you were a Confederate, you're not holding public office. It's real simple. It's illustration principle as the term is used in Europe, that you just are not going to reestablish Confederate authority through the electoral process. We're not going to let the openness of a democracy be the be the obstacle to you.

35:09
And so the

35:13
IT was applied after the Civil War. Basically, if you wanted to hold office, you had to take an oath. And part of the oath was that you had never held office in the Confederacy. It wasn't hard to tell who was an insurrectionist because the Confederate States of America was structured organically, just like the United States of America. It had the same division of authority in in the governmental structures

35:44
had state structures. It had an army. The army's wore uniforms, they had insignias, they had ranks. And so you could tell easily at the time who had been an insurrectionist. And the clause said you're banned and it was applied. And the mechanism for application was varied. At first, the South of the United States was under military occupation by the North. And so the military just went through and, and, and qualified people

36:16
to be, to be officials and to participate in the democratic process if they slip through and they got elected. There was a procedure called a quo warranto procedure, which is a little bit like a criminal procedure, except the sentence is not incarceration. The sentence is you're removed from office, but you have many of the trappings of criminal procedure that attached to it, protections and evidentiary rules and things of that sort.

36:44
Shortly thereafter, beginning in the 1870s and continuing through the rest of the 19th century,

36:51
Congress repealed the prohibitions based upon the insurrection clause. And it did so because basically the time had come and part of it was a nasty part of American history. That is the the end of Reconstruction and the acceptance of the reassertion of white dominance. But part of it was also the war was gone, and it made no sense to apply a prohibition based upon conduct

37:22
30 years prior.

37:23
It was applied once in the 20th early 20th century to a socialist candidate, but basically it had no history thereafter.

37:31
But it sits in our constitution as an invitation to militant democracy. And so in the run up to the 2024 election, 2 states decided that the activities of January 6th, when group of people

37:49
stormed the capital of the United States

37:52
January 6/20/21,

37:56
that that was an act of insurrection. And they decided that Donald Trump was responsible for this kind of insurrectionary activity.

38:07
And so they held a trial in Colorado to establish that

38:16
and to remove Donald Trump from consideration for the presidency uh, based upon the insurrection clause. Colorado by itself and then the main Secretary of State

38:29
on her own accord said, I am impressed by the findings of the Colorado court. So I too will declare that Donald Trump is ineligible for to be a candidate for president United States in Maine.

38:44
Now, there's a lot of problems with this one being that you start balkanizing who's in, who's out. And the Secretary of State of, I'm sorry, the attorney general of Missouri announced that he was beginning proceedings to disqualify Joe Biden on the grounds that his his mismanagement of the southern border crisis in the United States was an invitation to unwind the United States and was and therefore fell under the giving

39:14
aid to enemies of the country clause of Section 3 of the 14th Amendment. So you're going to have this cascade and obviously the consequences for democracy were not going to be good. It goes to the US Supreme Court and the US Supreme Court looks at it and says, well, this can't be. And I had written an article shortly before and I said, this can't be that they've got striked down. I said the only way to strike it down really within the constitutional framework is to say that the activation clause of the 14th Amendment,

39:46
Section 5 of the 14th Amendment, which gives Congress the power to pass legislation and furtherance of it, that that's the only way to do it has to be Congress. It has to be done at the national level.

39:57
And uh, I said, the only problem I have writing this as an academic is that.

40:02
The 14th Amendment is an urban interpreted that way because there's lots of parts to the 14th amendment that states are free to implement on their own without without enabling legislation from Congress. Supreme Court wrote an opinion in which you said we have never authorized states tax pursuant to the 14th Amendment except pursuant to enabling legislation.

40:22
So, yeah, if I had the power to say we've never done it, even though you have, I could have written that also. But, you know, there's limitations to the roles we play in in our various capacities.

40:35
But the harder part for me was

40:40
the the part that I am going to conclude with, which is really

40:48
what the Supreme Court was responding to, was the breakdown of institutional order in our political process.

40:59
Donald Trump should not have been a candidate. There should have been a Republican Party capable of filtering the candidacies as the two major parties had in the past

41:10
that broke down.

41:12
By the time it breaks down, he is the dominant political figure in the United States. And in fact, as we saw in the election when it was held, he won just under, under, under an absolute majority, just like, you know, a few hundredths of a percentage point below an absolute majority.

41:30
To think that a democracy could withstand

41:35
the elimination from consideration of the dominant political figure of our time, the person who gets basically a majority of the vote,

41:46
is lunacy. No democracy can sustain itself in the face of popular rejection of its principles.

41:58
And so the conclusion, to my mind

42:02
is that

42:06
you can't protect democracy

42:09
through the tools that have developed in opposition to outside enemies. That what demarks

42:18
Trump in my view, and Bolsonaro

42:22
and Moldy and Orban and Kazinski and all these figures who emerge from within democracy to reject the some of the core tenants, the illiberal Democrats of our time. What marks them is not is that they are not alien at all. They are in fact organic to our political culture and our political problems at the moment. And there is no history of successfully using

42:54
the tools that are developed for fighting the outsiders

42:59
from the inside in this fashion.

43:02
And to, to make it more controversial, what I'm what I'm saying, and this is based upon some talks I've given in in, in Poland in the past, and then another one that I'm giving in a couple of months.

43:19
It's always tempting to use the extreme tools that societies can use to protect themselves against the outsider, against those deemed to be inside political insider, insider political threats. It's always tempting,

43:37
and

43:39
the militant democracy tool of banning prescribing is one of them. The parallel one is criminal prosecution,

43:48
right? So you go after the enemies for criminal acts and lock her up or put them in jail or indict Trump four times in the run up to the election.

44:03
And what you get is a major challenge to democratic integrity at this point and at that point. And you also tend to get a rallying around that person as a victim, as a martyr. It doesn't work. And it's, I think unprincipled also.

44:24
The temptation is we don't know what to do about the breakdown of democratic institutions at present. We don't know what to do about the rise of this angry populist, anti established way of of looking at the world

44:44
and the temptation is to fall back on swift one time cures, Ban them, jail them.

44:54
And I think that the history of democracies is not does not point to success for that approach to to the issue. Thank you very much.

45:15
Going to a listener for a few remarks and then we'll have Q&A.

45:25
Right, for those of you who don't know me, my name is Alyssa King. I'm an assistant professor at the Law Faculty and Alvin's wife. And thank you, Sam, for for coming today and sharing your work. As Canada goes into its own national elections, it's especially timely and important here as well.

45:46
We already have reports of foreign interference in recent elections in various writings and element. That seems to combine the idea of the external threat that specific democratic defence mechanisms might be able to combat with internal elements. Right, Because there is organic support in these same writings for the MP's whose elections were the object of interference and that might make a coherent legal response harder to mount.

46:14
Um,

46:16
I wanted to say a few words linking this paper to Alvin's work, but of course what I say is going to be inadequate. I'm just not able at at this time to fully get into Albans intellectual legacy. It involves too much of confronting who we lost.

46:35
And of course Sam was also Alvin's mentor and advisor and they would have their own interpretations of each other and responses to each other that I can't anticipate. But I'll try to channel some of the implications that can be drawn out from lines in Alvins work and Sam's discussion today. So Sam talks about how the sort of big blockbuster one time democratic defence mechanism doesn't work, right? It doesn't work

47:06
at the point where we have widespread support for

47:12
a candidate who is a threat to democracy. If we don't have widespread support, civil society support for democracy, then you're not going to be able to fix that through a one time prosecution.

47:26
And another thread from from Sam's work is that, you know, where should the response be? If it's not going to be through this one time mechanism or through the courts and that way, then it should be at the ballot box and in the streets. And where Alvins work kind of picks up on that right is talking about what are some of the barriers that have developed or might develop to that kind of civil society mobilization, mobilization. And I wanted to highlight

47:59
two elements as importance of sub constitutional norms and then the rule of law as a distinct principle because that one I think gives us an answer to OK, well, if lawyers can't come up with them

48:12
14th amendment theories to disqualify somebody, what what could they do? And so one of the key insights of this talk, right is that there's this no, no magical constitutional organic law fix for a populist threat to democracy. It would be nice if there was that there was some clear way to defend against an attack from within. But Sam's talk suggests that that's

48:38
not the case, right? It didn't help Donald Trump. It didn't halt the rise of AFD in the recent German elections.

48:47
Um,

48:48
so if democracy has to be able to defend itself in other ways, right, Alvin would pick up a on that and say that is exactly why those elements, those sub constitutional norms are where authoritarians attack. He argued that authoritarian countries and those sliding into authoritarianism often have good reason to disguise elements of the nature of the regime. So these regimes are not necessarily

49:19
going to reach for constitutional change as a first choice,

49:26
particularly as, say, a populist authoritarian is consolidating power. Rather, they're going to alter laws, regulations or unwritten norms around more everyday matters like grant money,

49:39
building leases, tax audits, the banking system.

49:44
Right? So Alvin's research focuses on the ways in which state power can be disguised. And there's a through line in his work from a decade ago, I think right before he was your student. He published an article on intra executive policy laundering in which agencies try to make some other power responsible for their preferred rule, to his more recent writing on astroturf litigation in which non governmental actors try to use things like tort to enforce

50:15
on what governmental actors are unable or unwilling to enforce directly.

50:22
And

50:23
this exercise of state power by private actors creates a kind of space of plausible deniability for the authoritarian. So in, Alvin wrote a blog post in 2016

50:38
arguing presciently that Donald Trump might mobilize his supporters to engage in political violence against his opponents, as the Hong Kong government had done with violence against protesters in 2014. So you may remember that as the Umbrella Movement before the protests that then happened in in 2019.

51:01
And of course, we did see that mobilization

51:05
both in Hong Kong again and in the United States,

51:10
right? And as in Hong Kong, where the pro government rioters went unpunished, right, the the January 6th riders have now been pardoned.

51:25
Likewise, Elvin was concerned with the conscription of paper plaintiffs to accomplish what we're actually governmental aims. So he wrote about how private entities invoked trespass and nuisance to clear out occupation style protests and defamation laws, right, to suppress speech that the government didn't like. Not only in Hong Kong, but also in Canada, right? You see private entities suing occupiers

51:54
in relation to say, indigenous land claims.

51:58
Um,

52:00
and he wrote about Texas legislation which invites private individuals to file suit against people who access abortions out of state, as well as the doctors suspected of helping them. The Trump must administration is also an example of this right where we have lots of very obviously administrative actions being taken by somebody who is ostensibly outside the government and we have obfuscation

52:29
by the Department of Justice lawyers in US trial courts about who actually is in charge.

52:38
Alvin also argued that crackdowns can on can be disguised by the use of private law mechanisms that are not subject to our public law expectations. So governments don't need to change nominally democratic or even liberal laws, right, if they can suppress political participation by disrupting its material underpinnings. So if you if you want to vote

53:07
right, can you hire poll workers? Can you print ballots? It's a lot harder for ACLU lawyer Chase Strangio to argue for transgender rights if his organization's accounts keep getting frozen, right? So none of this has happened yet. Some of it could

53:25
right. Instead of looking to direct abrogation of constitutional rights to speech and assembly, we would then look at how secure civil society actors who would exercise these rights are in their activities. So can they rent office space?

53:41
Can they rent out a banquet hall? The Foreign Correspondents Club in in Hong Kong just cancelled its annual dinner because they could not actually rent out a banquet hall. Can they open a bank account? And can they withdraw money from the bank account and use it? Will the money stay in your bank account once it is in there?

54:03
This is now a live question in the United States where federal money

54:08
came out of a bank account that it was in

54:11
right. So we'll protesters

54:13
keep their jobs. Will they keep their government grants if they engage in speech that the government does not like? Think about, for example, US professors, right? These are the kinds of issues that Alvin highlighted in his work.

54:30
And I think Alvin would share Sam's skepticism about the ability of law to contain populism.

54:37
But Alvin would say that lawyers can and indeed must do something to defend and strengthen principles of legality independent of principles of democracy. Because although law can't provide us all the answers, it can't contain populism. It can't necessarily even defend democracy, right, if the democracy doesn't want to be defended. But a breakdown in legality is fatal to the forces that can.

55:06
And so for civil society to operate, you need ordinary rules of things like property and contract or tax or competition law. And these rules have to apply more or less equally to most actors most of the time.

55:23
And he wrote in his 2022 University of Toronto Law Journal article, Legal gaslighting. Keeping hold of what things actually are going on right isn't always simple. Regimes will often disguise not only their tax on liberal democracy, but also attacks that go instead to legal certainty and to the rule of law, which Alvin treated in that article as a distinct value. So some of the backsliding

55:54
that we see in the United States and we've seen in other countries like Poland is so concerning because it's not only democratic backsliding, but its rule of law backsliding that's opening the door, has opened the door to arbitrary exercise of state power. And that arbitrary exercise of power makes it much more difficult to organize any sort of a democratic response to threatened democratic

56:22
breakdown

56:24
because it undermines legal security. And it creates a situation in which civil society actors essentially can't plan the level of risk that their actions will bring them. And it means that people can't be sure of maintaining things that they currently have a legal right to, like money in their accounts or a lease to their property. When people aren't sure of maintaining things they've legal right to,

56:55
their scope for

56:58
political action is curtailed.

57:00
They cannot plan

57:02
and I'd argue that we see elements of this in the United States, right. So again, this inability to name like who is the depart, what? OK, there is no official Department of Government efficiency.

57:15
We can't name an administrator or we name somebody who's clearly not the administrator.

57:22
Civil society actors are no longer necessarily dealing with competent, nonpartisan federal officials. They can expect, for example, extra attention from the tax authorities. And this is being telegraphed as as something right that we want the IRS to do, although at the same time we're slashing numbers. So apparently, you know, paid out grant money. In this case, it was paid out to a city

57:51
can disappear from a bank account

57:54
up so far, banks are keeping people's accounts open. Landlords are not wholesale canceling leases in Washington, DC,

58:03
but these are now live possibilities in the way that they weren't before.

58:08
And as lawyers, we are well placed to identify obfuscation in this area and to refuse to go along with it.

58:16
Specifically, lawyers can identify when analogies to other jurisdictions are dishonest, which was Alvin's focus in legal gaslighting. Or when government uses private law to disguise what is in substance a regulation reflecting a policy decision,

58:35
right? So this guy is a policy decision is actually disposition of property or a contract. And this was Alvin's focus in an unpublished article on the government as property owner. As Alvin was fond of reminding his 1L public law classes, Canada is not special, right? So political forces within Canada often rhyme with those in the United States

59:04
can talk about it, you know, Westminster system being superior to presidentialism. But at some point that's not necessarily enough. The common law tradition is also decidedly mixed, as Alvin often enjoyed pointing out and sort of skewering

59:23
our rush to to Whig history. You have ordered liberty and you have Magna Carta, but you also have the Doctrine of Discovery and the reserve system.

59:33
The British Empire has a very storied history of espousing the rule of law while working to undermine reliance on that rule of law by some groups of people.

59:45
Alvin's work reminds us that the state of affairs is one to be resisted,

59:50
even it is, as it is often a common one

59:55
between our countries, and that democracy and simple legal certainty depend on that resistance.