history question

of the Jews in ‘43 had come immediately after the ‘German Firm’ stickers on the windows of non-Jewish shops in ‘33. But of course this isn’t the way it happens. In between come all the hundreds of little steps, some of them imperceptible, each of them preparing you not to be shocked by the next. Step C is not so much worse than Step B, and, if you did not make a stand at Step B, why should you at Step C? And so on to Step D.

“And one day, too late, your principles, if you were ever sensible of them, all rush in upon you. The burden of self-

deception has grown too heavy, and some minor incident, in my case my little boy, hardly more than a baby, saying ‘Jew swine,’ collapses it all at once, and you see that everything, everything, has changed and changed completely under your nose. The world you live in—your nation, your people—is not the world you were born in at all. The forms are all there, all untouched, all reassuring, the houses, the shops, the jobs, the mealtimes, the visits, the concerts, the cinema, the holidays. But the spirit, which you never noticed because you made the lifelong mistake of identifying it with the forms, is changed. Now you live in a world of hate and fear, and the people who hate and fear do not even know it themselves; when everyone is transformed, no one is transformed. Now you live in a system which rules without responsibility even to God. The system itself could not have intended this in the beginning, but in order to sustain itself it was compelled to go all the way.

“You have gone almost all the way yourself. Life is a continuing process, a flow, not a succession of acts and events at all. It has flowed to a new level, carrying you with it, without any effort on your part. On this new level you live, you have been living more comfortably every day, with new morals, new principles. You have accepted things you would not have accepted five years ago, a year ago, things that your father, even in Germany, could not have imagined.”

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TEXAS DECLARATION OF CAUSES FOR SECESSION (1861)

With the election of Abraham Lincoln as president, many southerners believed that he would move to abolish slavery, which was central to the economy of the southern states. In late 1860 South Carolina voted to secede from the Union, and in early 1861 it was joined by Alabama, Mississippi, Florida, Georgia, Louisiana, and Texas. On February 4 these states declared themselves the Confederate States of America. After the attack on Fort Sumter they were joined by Virginia, Arkansas, Tennessee, and North Carolina. In the following document Texas explained why it was seceding.

Texas abandoned her separate national existence and consented to become one of the Confederated States to promote her welfare, insure domestic tranquility [sic] and secure more substantially the blessings of peace and liberty to her people. She was received into the confederacy with her own constitution, under the guarantee of the federal constitution and the compact of annexation, that she should enjoy these blessings. She was received as a commonwealth holding, maintaining and protecting the institution known as negro slavery--the servitude of the African to the white race within her limits--a relation that had existed from the first settlement of her wilderness by the white race, and which her people intended should exist in all future time. Her institutions and geographical position established the strongest ties between her and other slave-holding States of the confederacy. Those ties have been strengthened by association. But what has been the course of the government of the United States, and of the people and authorities of the non-slave-holding States, since our connection with them?

The controlling majority of the Federal Government, under various pretences and disguises, has so administered the same as to exclude the citizens of the Southern States, unless under odious and unconstitutional restrictions, from all the immense territory owned in common by all the States on the Pacific Ocean, for the avowed purpose of acquiring sufficient power in the common government to use it as a means of destroying the institutions of Texas and her sister slave-holding States.

By the disloyalty of the Northern States and their citizens and the imbecility of the Federal Government, infamous combinations of incendiaries and outlaws have been permitted in those States and the common territory of Kansas to trample upon the federal laws, to war upon the lives and property of Southern citizens in that territory, and finally, by violence and mob law, to usurp the possession of the same as exclusively the property of the Northern States.

The Federal Government, while but partially under the control of these our unnatural and sectional enemies, has for years almost entirely failed to protect the lives and property of the people of Texas against the Indian savages on our border, and more recently against the murderous forays of banditti from the neighboring territory of Mexico; and when our State government has expended large amounts for such purpose, the Federal Government has refused reimbursement therefor, thus rendering our condition more insecure and harrassing than it was during the existence of the Republic of Texas.

These and other wrongs we have patiently borne in the vain hope that a returning sense of justice and humanity would induce a different course of administration.

When we advert to the course of individual non-slave-holding States, and that [of] a majority of their citizens, our grievances assume far greater magnitude.

The States of Maine, Vermont, New Hampshire, Connecticut, Rhode Island, Massachusetts, New York, Pennsylvania, Ohio, Wisconsin, Michigan and Iowa, by solemn legislative enactments, have deliberately, directly or indirectly violated the 3rd clause of the 2nd section of the 4th article of the federal constitution, and laws passed in pursuance thereof; thereby annulling a material provision of the compact, designed by its framers to perpetuate amity between the members of the confederacy and to secure the rights of the slave-holdings States in their domestic institutions--a provision founded in justice and wisdom, and without the enforcement of which the compact fails to accomplish the object of its creation. Some of those States have imposed high fines and degrading penalties upon any of their citizens or officers who may carry out in good faith that provision of the compact, or the federal laws enacted in accordance therewith.

In all the non-slave-holding States, in violation of that good faith and comity which should exist between entirely distinct nations, the people have formed themselves into a great sectional party, now strong enough in numbers to control the affairs of each of those States, based upon the unnatural feeling of hostility to these Southern States and their beneficent and patriarchal system of African slavery, proclaiming the debasing doctrine of the equality of all men, irrespective of race or color--a doctrine at war with nature, in opposition to the experience of mankind, and in violation of the plainest revelations of the Divine Law. They demand the abolition of negro slavery throughout the confederacy, the recognition of political equality between the white and the negro races, and avow their determination to press on their crusade against us, so long as a negro slave remains in these States.

For years past this abolition organization has been actively sowing the seeds of discord through the Union, and has rendered the federal congress the arena for spreading firebrands and hatred between the slave-holding and non-slave-holding States. ...

And, finally, by the combined sectional vote of the seventeen non-slave-holding States, they have elected as president and vice-president of the whole confederacy two men whose chief claims to such high positions are their approval of these long continued wrongs, and their pledges to continue them to the final consummation of these schemes for the ruin of the slave-holding States.

In view of these and many other facts, it is meet that our own views should be distinctly proclaimed.

We hold as undeniable truths that the governments of the various States, and of the confederacy itself, were established exclusively by the white race, for themselves and their posterity; that the African race had no agency in their establishment; that they were rightfully held and regarded as an inferior and dependent race, and in that condition only could their existence in this country be rendered beneficial or tolerable.

That in this free government all white men are and of right ought to be entitled to equal civil and political rights; that the servitude of the African race, as existing in these States, is mutually beneficial to both bond and free, and is abundantly authorized and justified by the experience of mankind, and the revealed will of the Almighty Creator, as recognized by all Christian nations; while the destruction of the existing relations between the two races, as advocated by our sectional enemies, would bring inevitable calamities upon both and desolation upon the fifteen slave-holding States.

By the secession of six of the slave-holding States, and the certainty that others will speedily do likewise, Texas has no alternative but to remain in an isolated connection with the North, or unite her destinies with the South.

For these and other reasons, solemnly asserting that the federal constitution has been violated and virtually abrogated by the several States named, seeing that the federal government is now passing under the control of our enemies to be diverted from the exalted objects of its creation to those of oppression and wrong, and realizing that our own State can no longer look for protection, but to God and her own sons--We the delegates of the people of Texas, in Convention assembled, have passed an ordinance dissolving all political connection with the government of the United States of America and the people thereof and confidently appeal to the intelligence and patriotism of the freemen of Texas to ratify the same at the ballot box, on the 23rd day of the present month.

Adopted in Convention on the 2nd day of Feby, in the year of our Lord one thousand eight hundred and sixty-one and of the independence of Texas the twenty-fifth.

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THE CHINESE EXCLUSION ACT (1882)

With the California gold rush of 1848-1850, Chinese immigration to the U.S. started, and it continued with the expansion of mining and the building of the transcontinental railroad. Chinese also had a strong presence in the laundry business, especially in San Francisco. Racism and fears of Chinese competition leading to a reduction of wages or lost jobs resulted in a backlash against Chinese laborers, led ironically by Irish laborers who had previously experienced discrimination, and demands for restrictions on Chinese immigration. The Knights of Labor supported these demands. In 1877 workers demonstrating in San Francisco for a shorter working day burned a large number of Chinese laundries. The movement culminated in 1882 in the Chinese Exclusion Act.

Whereas, in the opinion of the Government of the United States the coming of Chinese laborers to this country endangers the good order of certain localities within the territory thereof: Therefore,

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That from and after the expiration of ninety days next after the passage of this act, and until the expiration of ten years next after the passage of this act, the coming of Chinese laborers to the United States be, and the same is hereby, suspended; and during such suspension it shall not be lawful for any Chinese laborer to come, or having so come after the expiration of said ninety days, to remain within the United States. …

3. That the two foregoing sections shall not apply to Chinese laborers who were in the United States on the 17th day of November, 1880, or who shall have come into the same before the expiration of ninety days next after the passage of this act. ...

13. That this act shall not apply to diplomatic and other officers of the Chinese Government traveling upon the business of that government, whose credentials shall be taken as equivalent to the certificate in this act mentioned, and shall exempt them and their body and household servants from the provisions of this act as to other Chinese persons.

14. That hereafter no State court or court of the United States shall admit Chinese to citizenship; and all laws in conflict with this act are hereby repealed.

15. That the words “Chinese laborers,” wherever used in this act, shall be construed to mean both skilled and unskilled laborers and Chinese employed in mining.

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THE DAWES ACT (1887)

The Dawes Act arose out of misguided humanitarian concerns. Reformers were convinced that eliminating Indian reservations would help integrate them into mainstream society. The reformers believed that the weakness of Indian culture was the absence of individual property rights. Congressman Henry Dawes, author of the act, once expressed his faith in the civilizing power of private property with the claim that to be civilized was to “wear civilized clothes ... cultivate the ground, live in houses, ride in Studebaker wagons, send children to school, drink whiskey [and] own property.” The law provided for individual ownership of reservation land. Those Indians who accepted allotments would become U.S. citizens after twenty-five years. The remaining lands (often the best) were sold to speculators. Despite its altruistic grounding, the act resulted in depriving Indians of a large percentage of their land. By 1934 the amount of land owned by Indians had dropped by sixty-five percent. It also weakened Indian culture.

An act to provide for the allotment of lands in severalty [individual ownership] to Indians on the various reservations, and to extend the protection of the laws of the United States and the Territories over the Indians, and for other purposes.

Be it enacted, That in all cases where any tribe or band of Indians has been, or shall hereafter be, located upon any reservation created for their use, either by treaty stipulation or by virtue of an act of Congress or executive order setting apart the same for their use, the President of the United States be, and he hereby is, authorized, whenever in his opinion any reservation or any part thereof of such Indians is advantageous for agricultural and grazing purposes to cause said reservation, or any part thereof, to be surveyed, or resurveyed if necessary, and to allot the lands in said reservations in severalty to any Indian located thereon in quantities as follows:

To each head of a family, one-quarter of a section;

To each single person over eighteen years of age, one-eighth of a section;

To each orphan child under eighteen years of age, one-eighth of a section; and,

To each other single person under eighteen years now living, or who may be born prior to the date of the order of the President directing an allotment of the lands embraced in any reservation, one-sixteenth of a section; …

5. That upon the approval of the allotments provided for in this act by the Secretary of the Interior, he shall … declare that the United States does and will hold the land thus allotted, for the period of twenty-five years, in trust for the sole use and benefit of the Indian to whom such allotment shall have been made, … and that at the expiration of said period the United States will convey the same by patent to said Indian, or his heirs as aforesaid, in fee, discharged of such trust and free of all charge or encumbrance whatsoever: …

6. That upon the completion of said allotments and the patenting of the lands to said allottees, each and every member of the respective bands or tribes of Indians to whom allotments have been made shall have the benefit of and be subject to the laws, both civil and criminal, of the State or Territory in which they may reside; … And every Indian born within the territorial limits of the United States to whom allotments shall have been made under the provisions of this act, or under any law or treaty, and every Indian born within the territorial limits of the United States who has voluntarily taken up, within said limits, his residence separate and apart from any tribe of Indians therein, and has adopted the habits of civilized life, is hereby declared to be a citizen of the United States, and is entitled to all the rights, privileges, and immunities of such citizens, whether said Indian has been or not, by birth or otherwise, a member of any tribe of Indians within the territorial limits of the United States without in any manner impairing or otherwise affecting the right of any such Indian to tribal or other property. …

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HENRY BILLINGS BROWN, PLESSY v. FERGUSON (1896)

In the a number of cases in the 1880s the Supreme Court weakened the effect of the Fourteenth Amendment by narrowing definitions of provisions such as “due process” and “privileges and immunities.” It ruled that the amendment applied only to state discrimination and not to discrimination by individuals against other individuals. These decisions, which made it difficult for the national government to protect the rights of citizens culminated in the decision of Plessy v. Ferguson. On June 7, 1892, Homer Plessy entered a railroad car in New Orleans, Louisiana that was designated according to state law for use by whites only. Although Plessy was only one-eighth black, he was still considered black according to state law, and thus required to sit in a “colored” car. When Plessy refused to leave the white car and move to the colored car, he was arrested. He appealed his case through the Louisiana court system and eventually to the U.S. Supreme Court in 1896. In ruling against him, the Court established the principle of “separate but equal,” which was not overturned until the 1954 decision of Brown v. Board of Education of Topeka, Kansas.

Mr. Justice BROWN … delivered the opinion of the court.

This case turns upon the constitutionality of an act of the general assembly of the state of Louisiana, passed in 1890, providing for separate railway carriages for the white and colored races.

The first section of the statute enacts “that all railway companies carrying passengers in their coaches in this state, shall provide equal but separate accommodations for the white, and colored races, by providing two or more passenger coaches for each passenger train, or by dividing the passenger coaches by a partition so as to secure separate accommodations: provided, that this section shall not be construed to apply to street railroads. No person or persons shall be permitted to occupy seats in coaches, other than the ones assigned to them, on account of the race they belong to.”

By the second section it was enacted “that the officers of such passenger trains shall have power and are hereby required to assign each passenger to the coach or compartment used for the race to which such passenger belongs; any passenger insisting on going into a coach or compartment to which by race he does not belong, shall be liable to a fine of twenty-five dollars, or in lieu thereof to imprisonment for a period of not more than twenty days in the parish prison, and any officer of any railroad insisting on assigning a passenger to a coach or compartment other than the one set aside for the race to which said passenger belongs, shall be liable to a fine of twenty-five dollars, or in lieu thereof to imprisonment for a period of not more than twenty days in the parish prison; …

The information filed in the criminal district court charged, in substance, that Plessy, being a passenger between two stations within the state of Louisiana, was assigned by officers of the company to the coach used for the race to which he belonged, but he insisted upon going into a coach used by the race to which he did not belong. Neither in the information nor plea was his particular race or color averred.

The petition for the writ of prohibition averred that petitioner was seven-eights Caucasian and one-eighth African blood; that the mixture of colored blood was not discernible in him; and that he was entitled to every right, privilege, and immunity secured to citizens of the United States of the white race; and that, upon such theory, he took possession of a vacant seat in a coach where passengers of the white race were accommodated, and was ordered by the conductor to vacate said coach, and take a seat in another, assigned to persons of the colored race, and, having refused to comply with such demand, he was forcibly ejected, with the aid of a police officer, and imprisoned in the parish jail to answer a charge of having violated the above act.

The constitutionality of this act is attacked upon the ground that it conflicts both with the thirteenth amendment of the constitution, abolishing slavery, and the fourteenth amendment, which prohibits certain restrictive legislation on the part of the states.

1. That it does not conflict with the thirteenth amendment, which abolished slavery and involuntary servitude, except a punishment for crime, is too clear for argument. Slavery implies involuntary servitude, —a state of bondage; the ownership of mankind as a chattel, or, at least, the control of the labor and services of one man for the benefit of another, and the absence of a legal right to the disposal of his own person, property, and services.

A statute which implies merely a legal distinction between the white and colored races—a distinction which is founded in the color of the two races, and which must always exist so long as white men are distinguished from the other race by color—has no tendency to destroy the legal equality of the two races, or re-establish a state of involuntary servitude. Indeed, we do not understand that the thirteenth amendment is strenuously relied upon by the plaintiff in error in this connection.

2. By the fourteenth amendment, all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are made citizens of the United States and of the state wherein they reside; and the states are forbidden from making or enforcing any law which shall abridge the privileges or immunities of citizens of the United States, or shall deprive any person of life, liberty, or property without due process of law, or deny to any person within their jurisdiction the equal protection of the laws. …

The object of the amendment was undoubtedly to enforce the absolute equality of the two races before the law, but, in the nature of things, it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality, or a commingling of the two races upon terms unsatisfactory to either. Laws permitting, and even requiring, their separation, in places where they are liable to be brought into contact, do not necessarily imply the inferiority of either race to the other, and have been generally, if not universally, recognized as within the competency of the state legislatures in the exercise of their police power. The most common instance of this is connected with the establishment of separate schools for white and colored children, which have been held to be a valid exercise of the legislative power even by courts of states where the political rights of the colored race have been longest and most earnestly enforced. …

So far, then, as a conflict with the fourteenth amendment is concerned, the case reduces itself to the question whether the statute of Louisiana is a reasonable regulation, and with respect to this there must necessarily be a large discretion on the part of the legislature. In determining the question of reasonableness, it is at liberty to act with reference to the established usages, customs, and traditions of the people, and with a view to the promotion of their comfort, and the preservation of the public peace and good order. Gauged by this standard, we cannot say that a law which authorizes or even requires the separation of the two races in public conveyances is unreasonable, or more obnoxious to the fourteenth amendment than the acts of congress requiring separate schools for colored children in the District of Columbia, the constitutionality of which does not seem to have been questioned, or the corresponding acts of state legislatures.

We consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it. The argument necessarily assumes that if, as has been more than once the case, and is not unlikely to be so again, the colored race should become the dominant power in the state legislature, and should enact a law in precisely similar terms, it would thereby relegate the white race to an inferior position. We imagine that the white race, at least, would not acquiesce in this assumption. The argument also assumes that social prejudices may be overcome by legislation, and that equal rights cannot be secured to the negro except by an enforced commingling of the two races. We cannot accept this proposition. If the two races are to meet upon terms of social equality, it must be the result of natural affinities, a mutual appreciation of each other’s merits, and a voluntary consent of individuals. … Legislation is powerless to eradicate racial instincts, or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation. ….

The judgment of the court below is therefore affirmed.

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FRANKLIN ROOSEVELT, EXECUTIVE ORDER 9066 (February 19, 1942)

Soon after the bombing of Pearl Harbor, a small group of bureaucrats in the War Department (later the Defense Department), urged on by the Chamber of Commerce, began urging the evacuation of people of Japanese ancestry (including American citizens) from the West Coast. This was initially opposed by the Justice Department, which argued that no reason was given for the necessity of the evacuation. However the Attorney General, Francis Biddle, quickly yielded to the War Department as long as the latter was in charge of evacuation. When the matter was put to President Roosevelt, who was preoccupied with the progress of the war, he was non-committal. The War Department drafted an evacuation order, Justice approved it, and Roosevelt signed it without much scrutiny seventy-four days after Pearl Harbor.

AUTHORIZING THE SECRETARY OF WAR TO PRESCRIBE MILITARY AREAS

WHEREAS the successful prosecution of the war requires every possible protection against espionage and against sabotage to national-defense material, national-defense premises, and national-defense utilities as defined in Section 4, Act of April 20, 1918, 40 Stat. 533, as amended by the Act of November 30, 1940, 54 Stat. 1220, and the Act of August 21, 1941, 55 Stat. 655 (U.S.C., Title 50, Sec. 104):

NOW, THEREFORE, by virtue of the authority vested in me as President of the United States, and Commander in Chief of the Army and Navy, I hereby authorize and direct the Secretary of War and the Military Commanders whom he may from time to time designate, whenever he or any designated Commander deems such action necessary or desirable, to prescribe military areas in such places and of such extent as he or the appropriate Military Commander may determine, from which any or all persons may be excluded, and with respect to which, the right of any person to enter, remain in, or leave shall be subject to whatever restrictions the Secretary of War or the appropriate Military Commander may impose in his discretion. The Secretary of war is hereby authorized to provide for residents of any such area who are excluded therefrom, such transportation, food, shelter, and other accommodations as may be necessary, in the judgment of the Secretary of War or the said Military Commander, and until other arrangements are made, to accomplish the purpose of this order. The designation of military areas in any region or locality shall supersede designations of prohibited and restricted areas by the Attorney General under the Proclamations of December 7 and 8, 1941, and shall supersede the responsibility and authority of the Attorney General under the said Proclamations in respect of such prohibited and restricted areas.

I hereby further authorize and direct the secretary of War and the said Military Commanders to take such other steps as he or the appropriate Military Commander may deem advisable to enforce compliance with the restrictions applicable to each Military area herein above authorized to be designated, including the use of Federal troops and other Federal Agencies, with authority to accept assistance of state and local agencies.

I hereby further authorize and direct all Executive Departments, independent establishments and other Federal Agencies, to assist the Secretary of War or the said Military Commanders in carrying out his Executive Order, including the furnishing of medical aid, hospitalization, food, clothing, transportation, use of land, shelter, and other supplies, equipment, utilities, facilities, and services.

This order shall not be construed as modifying or limiting in any way the authority heretofore granted under Executive Order No. 8972, dated December 12, 1941, nor shall it be construed as limiting or modifying the duty and responsibility of the Federal Bureau of Investigation, with respect to the investigation of alleged acts of sabotage or the duty and responsibility of the Attorney General and the department of Justice under the Proclamations of December 7 and 8, 1941, prescribing regulations for the conduct and control of alien enemies, except as such duty and responsibility is superseded by the designation of military areas hereunder.

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NOTICE OF JAPANESE-AMERICAN “EVACUATION” (3 May 1942)

On March 28, 1942, Lieutenant General John DeWitt, who had been placed in charge of the Western Defense Command, which carried out the measures authorized by Executive Order 9066, imposed a curfew on people of Japanese ancestry. A little over a month later he issued an order requiring them to report of evacuation stations in preparation for their evacuation and interment in concentration camps.

WESTERN DEFENSE COMMAND AND FOURTH ARMY
WARTIME CIVIL CONTROL ADMINISTRATION 
Presidio of San Francisco, California, 
May 3, 1942

INSTRUCTIONS
TO ALL PERSONS OF 
JAPANESE 
ANCESTRY

Living in the Following Area:

All of that portion of the City of Los Angeles, State of California, within that boundary beginning at the point at which North Figueroa Street meets a line following the middle of the Los Angeles River; thence southerly and following the said line to East First Street; thence westerly on East First Street to Alameda Street; thence southerly on Alameda Street to East Third Street; thence northwesterly on East Third Street to Main Street; thence northerly on Main Street to First Street; thence north- westerly on First Street to Figueroa Street; thence northeasterly on Figueroa Street to the point of beginning.

Pursuant to the provisions of Civilian Exclusion Order No. 33, this Headquarters, dated May 3, 1942, all persons of Japanese ancestry, both alien and non-alien, will be evacuated from the above area by 12 o’clock noon, P. W. T., Saturday, May 9, 1942. No Japanese person living in the above area will be permitted to change residence after 12 o’clock noon, P. W. T., Sunday, May 3, 1942, without obtaining special permission from the representative of the Commanding General, Southern California Sector, at the Civil Control Station located at: Japanese Union Church
120 North San Pedro Street, Los Angeles, California.

Such permits will only be granted for the purpose of uniting members of a family, or in cases of grave emergency. The Civil Control Station is equipped to assist the Japanese population affected by this evacuation in the following ways:

1. Give advice and instructions on the evacuation.


2. Provide services with respect to the management, leasing, sale, storage or other disposition of most kinds of property, such as real estate, business and professional equipment, household goods, boats, automobiles and livestock.


3. Provide temporary residence elsewhere for all Japanese in family groups.


4. Transport persons and a limited amount of clothing and equipment to their new residence.

The Following Instructions Must Be Observed:

1. A responsible member of each family, preferably the head of the family, or the person in whose name most of the property is held, and each individual living alone, will report to the Civil Control Station to receive further instructions. This must be done between 8:00 A. M. and 5:00 P. M. on Monday, May 4, 1942, or between 8:00 A. M. and 5:00 P. M. on Tuesday, May 5, 1942.


2. Evacuees must carry with them on departure for the Assembly Center, the following property:
(a) Bedding and linens (no mattress) for each member of the family;
(b) Toilet articles for each member of the family;
(c) Extra clothing for each member of the family;
(d) Sufficient knives, forks, spoons, plates, bowls and cups for each member of the family;
(e) Essential personal effects for each member of the family. All items carried will be securely packaged, tied and plainly marked with the name of the owner and numbered in accordance with instructions obtained at the Civil Control Station. The size and number of packages is limited to that which can be carried by the individual or family group.


3. No pets of any kind will be permitted.


4. No personal items and no household goods will be shipped to the Assembly Center.


5. The United States Government through its agencies will provide for the storage, at the sole risk of the owner, of the more substantial household items, such as iceboxes, washing machines, pianos and other heavy furniture. Cooking utensils and other small items will be accepted for storage if crated, packed and plainly marked with the name and address of the owner. Only one name and address will be used by a given family.


6. Each family, and individual living alone will be furnished transportation to the Assembly Center or will be authorized to travel by private automobile in a supervised group. All instructions pertaining to the movement will be obtained at the Civil Control Station.

Go to the Civil Control Station between the hours of 8:00 AM and 5:00 PM,
 Monday, May 4, 1942, or between the hours of 8:00 AM and 5:00 PM,
 Tuesday, May 5, 1942, to receive further instructions.

J.L. DeWITT, 
Lieutenant General, U.S. Army
 Commanding

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KOREMATSU v. THE UNITED STATES (1944)

Four Japanese-Americans challenged their treatment by the government in court. The cases of Minoru Yasui, Gordon Hirabayashi, Fred Korematsu, and Mitsuye Endo all reached the Supreme Court, but only the Korematsu case directly raised the issue of the constitutionality of the internment. The case is usually presented as embodying the conflict between individual rights and military necessity. Korematsu lost by a vote of 9-3.

MR. JUSTICE BLACK delivered the opinion of the Court.

The petitioner, an American citizen of Japanese descent, was convicted in a federal district court for remaining in San Leandro, California, a “Military Area,” contrary to Civilian Exclusion Order No. 34 of the Commanding General of the Western Command, U.S. Army, which directed that, after May 9, 1942, all persons of Japanese ancestry should be excluded from that area. No question was raised as to petitioner’s loyalty to the United States. …

It should be noted, to begin with, that all legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can. …

Exclusion Order No. 34, which the petitioner knowingly and admittedly violated, was one of a number of military orders and proclamations, all of which were substantially based upon Executive Order No. 9066. That order, issued after we were at war with Japan, declared that “the successful prosecution of the war requires every possible protection against espionage and against sabotage to national defense material, national defense premises, and national defense utilities.”

One of the series of orders and proclamations, a curfew order, which, like the exclusion order here, was promulgated pursuant to Executive Order 9066, subjected all persons of Japanese ancestry in prescribed West Coast military areas to remain in their residences from 8 p.m. to 6 a.m. As is the case with the exclusion order here, that prior curfew order was designed as a “protection against espionage and against sabotage.” In Hirabayashi v. United States, we sustained a conviction obtained for violation of the curfew order. The Hirabayashi conviction and this one thus rest on the same 1942 Congressional Act and the same basic executive and military orders, all of which orders were aimed at the twin dangers of espionage and sabotage. … We upheld the curfew order as an exercise of the power of the government to take steps necessary to prevent espionage and sabotage in an area threatened by Japanese attack.

In the light of the principles we announced in the Hirabayashi case, we are unable to conclude that it was beyond the war power of Congress and the Executive to exclude those of Japanese ancestry from the West Coast war area at the time they did. … Exclusion from a threatened area, no less than curfew, has a definite and close relationship to the prevention of espionage and sabotage. …

Here, as in the Hirabayashi case, “we cannot reject as unfounded the judgment of the military authorities and of Congress that there were disloyal members of that population, whose number and strength could not be precisely and quickly ascertained. We cannot say that the war-making branches of the Government did not have ground for believing that, in a critical hour, such persons could not readily be isolated and separately dealt with, and constituted a menace to the national defense and safety which demanded that prompt and adequate measures be taken to guard against it.”

Like curfew, exclusion of those of Japanese origin was deemed necessary because of the presence of an unascertained number of disloyal members of the group, most of whom we have no doubt were loyal to this country. It was because we could not reject the finding of the military authorities that it was impossible to bring about an immediate segregation of the disloyal from the loyal that we sustained the validity of the curfew order as applying to the whole group. … That there were members of the group who retained loyalties to Japan has been confirmed by investigations made subsequent to the exclusion. Approximately five thousand American citizens of Japanese ancestry refused to swear unqualified allegiance to the United States and to renounce allegiance to the Japanese Emperor, and several thousand evacuees requested repatriation to Japan. …

Compulsory exclusion of large groups of citizens from their homes, except under circumstances of direst emergency and peril, is inconsistent with our basic governmental institutions. But when, under conditions of modern warfare, our shores are threatened by hostile forces, the power to protect must be commensurate with the threatened danger. …

It is said that we are dealing here with the case of imprisonment of a citizen in a concentration camp solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States. Our task would be simple, our duty clear, were this a case involving the imprisonment of a loyal citizen in a concentration camp because of racial prejudice. Regardless of the true nature of the assembly and relocation centers—and we deem it unjustifiable to call them concentration camps, with all the ugly connotations that term implies—we are dealing specifically with nothing but an exclusion order. To cast this case into outlines of racial prejudice, without reference to the real military dangers which were presented, merely confuses the issue. Korematsu was not excluded from the Military Area because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire, because the properly constituted military authorities feared an invasion of our West Coast and felt constrained to take proper security measures, because they decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily, and, finally, because Congress, reposing its confidence in this time of war in our military leaders—as inevitably it must—determined that they should have the power to do just this. There was evidence of disloyalty on the part of some, the military authorities considered that the need for action was great, and time was short. We cannot—by availing ourselves of the calm perspective of hindsight—now say that, at that time, these actions were unjustified.

Affirmed.

MR. JUSTICE MURPHY, dissenting.

This exclusion of “all persons of Japanese ancestry, both alien and non-alien,” from the Pacific Coast area on a plea of military necessity in the absence of martial law ought not to be approved. Such exclusion goes over “the very brink of constitutional power,” and falls into the ugly abyss of racism.

In dealing with matters relating to the prosecution and progress of a war, we must accord great respect and consideration to the judgments of the military authorities who are on the scene and who have full knowledge of the military facts. The scope of their discretion must, as a matter of necessity and common sense, be wide. And their judgments ought not to be overruled lightly by those whose training and duties ill-equip them to deal intelligently with matters so vital to the physical security of the nation.

At the same time, however, it is essential that there be definite limits to military discretion, especially where martial law has not been declared. Individuals must not be left impoverished of their constitutional rights on a plea of military necessity that has neither substance nor support. Thus, like other claims conflicting with the asserted constitutional rights of the individual, the military claim must subject itself to the judicial process of having its reasonableness determined and its conflicts with other interests reconciled.

The judicial test of whether the Government, on a plea of military necessity, can validly deprive an individual of any of his constitutional rights is whether the deprivation is reasonably related to a public danger that is so “immediate, imminent, and impending” as not to admit of delay and not to permit the intervention of ordinary constitutional processes to alleviate the danger. … Civilian Exclusion Order No. 34, banishing from a prescribed area of the Pacific Coast “all persons of Japanese ancestry, both alien and non-alien,” clearly does not meet that test. Being an obvious racial discrimination, the order deprives all those within its scope of the equal protection of the laws as guaranteed by the Fifth Amendment. It further deprives these individuals of their constitutional rights to live and work where they will, to establish a home where they choose and to move about freely. In excommunicating them without benefit of hearings, this order also deprives them of all their constitutional rights to procedural due process. Yet no reasonable relation to an “immediate, imminent, and impending” public danger is evident to support this racial restriction, which is one of the most sweeping and complete deprivations of constitutional rights in the history of this nation in the absence of martial law. …

That this forced exclusion was the result in good measure of this erroneous assumption of racial guilt, rather than bona fide military necessity is evidenced by the Commanding General’s Final Report on the evacuation from the Pacific Coast area. In it, he refers to all individuals of Japanese descent as “subversive,” as belonging to “an enemy race” whose “racial strains are undiluted,” and as constituting “over 112,000 potential enemies … at large today” along the Pacific Coast. In support of this blanket condemnation of all persons of Japanese descent, however, no reliable evidence is cited to show that such individuals were generally disloyal, or had generally so conducted themselves in this area as to constitute a special menace to defense installations or war industries, or had otherwise, by their behavior, furnished reasonable ground for their exclusion as a group.

Justification for the exclusion is sought, instead, mainly upon questionable racial and sociological grounds not ordinarily within the realm of expert military judgment, supplemented by certain semi-military conclusions drawn from an unwarranted use of circumstantial evidence. …

The main reasons relied upon by those responsible for the forced evacuation, therefore, do not prove a reasonable relation between the group characteristics of Japanese Americans and the dangers of invasion, sabotage and espionage. The reasons appear, instead, to be largely an accumulation of much of the misinformation, half-truths and insinuations that for years have been directed against Japanese Americans by people with racial and economic prejudices—the same people who have been among the foremost advocates of the evacuation. A military judgment based upon such racial and sociological considerations is not entitled to the great weight ordinarily given the judgments based upon strictly military considerations. Especially is this so when every charge relative to race, religion, culture, geographical location, and legal and economic status has been substantially discredited by independent studies made by experts in these matters.

The military necessity which is essential to the validity of the evacuation order thus resolves itself into a few intimations that certain individuals actively aided the enemy, from which it is inferred that the entire group of Japanese Americans could not be trusted to be or remain loyal to the United States. No one denies, of course, that there were some disloyal persons of Japanese descent on the Pacific Coast who did all in their power to aid their ancestral land. Similar disloyal activities have been engaged in by many persons of German, Italian and even more pioneer stock in our country. But to infer that examples of individual disloyalty prove group disloyalty and justify discriminatory action against the entire group is to deny that, under our system of law, individual guilt is the sole basis for deprivation of rights. Moreover, this inference, which is at the very heart of the evacuation orders, has been used in support of the abhorrent and despicable treatment of minority groups by the dictatorial tyrannies which this nation is now pledged to destroy. To give constitutional sanction to that inference in this case, however well intentioned may have been the military command on the Pacific Coast, is to adopt one of the cruelest of the rationales used by our enemies to destroy the dignity of the individual and to encourage and open the door to discriminatory actions against other minority groups in the passions of tomorrow. …

I dissent, therefore, from this legalization of racism. Racial discrimination in any form and in any degree has no justifiable part whatever in our democratic way of life. It is unattractive in any setting, but it is utterly revolting among a free people who have embraced the principles set forth in the Constitution of the United States. All residents of this nation are kin in some way by blood or culture to a foreign land. Yet they are primarily and necessarily a part of the new and distinct civilization of the United States. They must, accordingly, be treated at all times as the heirs of the American experiment, and as entitled to all the rights and freedoms guaranteed by the Constitution. …

MR. JUSTICE JACKSON, dissenting.

Korematsu was born on our soil, of parents born in Japan. The Constitution makes him a citizen of the United States by nativity, and a citizen of California by residence. No claim is made that he is not loyal to this country. There is no suggestion that, apart from the matter involved here, he is not law-abiding and well disposed. Korematsu, however, has been convicted of an act not commonly a crime. It consists merely of being present in the state whereof he is a citizen, near the place where he was born, and where all his life he has lived.

Even more unusual is the series of military orders which made this conduct a crime. They forbid such a one to remain, and they also forbid him to leave. They were so drawn that the only way Korematsu could avoid violation was to give himself up to the military authority. This meant submission to custody, examination, and transportation out of the territory, to be followed by indeterminate confinement in detention camps.

A citizen’s presence in the locality, however, was made a crime only if his parents were of Japanese birth. Had Korematsu been one of four—the others being, say, a German alien enemy, an Italian alien enemy, and a citizen of American-born ancestors, convicted of treason but out on parole—only Korematsu’s presence would have violated the order. The difference between their innocence and his crime would result, not from anything he did, said, or thought, different than they, but only in that he was born of different racial stock.

Now, if any fundamental assumption underlies our system, it is that guilt is personal and not inheritable. Even if all of one’s antecedents had been convicted of treason, the Constitution forbids its penalties to be visited upon him, for it provides that “no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted.” But here is an attempt to make an otherwise innocent act a crime merely because this prisoner is the son of parents as to whom he had no choice, and belongs to a race from which there is no way to resign. …

A military order, however unconstitutional, is not apt to last longer than the military emergency. Even during that period, a succeeding commander may revoke it all. But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens. The principle then lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes. ...

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HOW DEMOCRACIES DIE

FROM: Steven Levitsky & Daniel Ziblatt, How Democracies Die (New York, 2018)

Harvard University professors Levitsky and Ziblatt have studied the failure of democracies around the world, especially in Latin America and Europe. In this recent book they apply the lessons they have learned to the question of democracy in the United States.

At midday on September 11, 1973, after months of mounting tensions in the streets of Santiago, Chile, British-made Hawker Hunter jets swooped overhead, dropping bombs on La Moneda, the neoclassical presidential palace in the center of the city. As the bombs continued to fall, La Moneda burned. President Salvador Allende, elected three years earlier at the head of a leftist coalition, was barricaded inside. During his term, Chile had been wracked by social unrest, economic crisis, and political paralysis. Allende had said he would not leave his post until he had finished his job—but now the moment of truth had arrived. Under the command of General Augusto Pinochet, Chile’s armed forces were seizing control of the country.

Early in the morning on that fateful day, Allende offered defiant words on a national radio broadcast, hoping that his many supporters would take to the streets in defense of democracy. But the resistance never materialized. The military police who guarded the palace had abandoned him; his broadcast was met with silence. Within hours, President Allende was dead. So, too, was Chilean democracy.

This is how we tend to think of democracies dying: at the hands of men with guns. During the Cold War, coups d’etat accounted for nearly three out of every four democratic break​ downs. Democracies in Argentina, Brazil, the Dominican Republic, Ghana, Greece, Guatemala, Nigeria, Pakistan, Peru, Thailand, Turkey, and Uruguay all died this way. More recently, military coups toppled Egyptian President Mohamed Morsi in 2013 and Thai Prime Minister Yingluck Shinawacra in 2014. In all these cases, democracy dissolved in spectacular fashion, through military power and coercion.

But there is another way to break a democracy. It is less dramatic but equally destructive. Democracies may die at the hands not of generals but of elected leaders—presidents or prime ministers who subvert the very process that brought them to power. Some of these leaders dismantle democracy quickly, as Hitler did in the wake of the 1933 Reichstag fire in Germany. More often, though, democracies erode slowly, in barely visible steps. …

This is how democracies now die. Blatant dictatorship—in the form of fascism, communism, or military rule—has disappeared across much of the world. Military coups and other violent seizures of power are rare. Most countries hold regular elections. Democracies still die, but by different means. Since the end of the Cold War, most democratic breakdowns have been caused not by generals and soldiers but by elected governments themselves. … Democratic backsliding today begins at the ballot box.

The electoral road to breakdown is dangerously deceptive. With a classic coup d’etat, as in Pinochet’s Chile, the death of a democracy is immediate and evident to all. The presidential palace burns. The president is killed, imprisoned, or shipped off into exile. The constitution is suspended or scrapped. On the electoral road, none of these things happen. There are no tanks in the streets. Constitutions and other nominally democratic institutions remain in place. People still vote. Elected autocrats maintain a veneer of democracy while eviscerating its substance.

Many government efforts to subvert democracy are “legal,” in the sense that they are approved by the legislature or accepted by the courts. They may even be portrayed as efforts to improve democracy—making the judiciary more efficient, combating corruption, or cleaning up the electoral process. Newspapers still publish but are bought off or bullied into self-censorship. Citizens continue to criticize the government but often find themselves facing tax or other legal troubles. This sows public confusion. People do not immediately realize what is happening. Many continue to believe they are living under a democracy. …

Because there is no single moment—no coup, declaration of martial law, or suspension of the constitution—in which the regime obviously “crosses the line” into dictatorship, nothing may set off society’s alarm bells. Those who denounce government abuse may be dismissed as exaggerating or crying wolf. Democracy’s erosion is, for many, almost imperceptible. …

We know that extremist demagogues emerge from time to time in all societies, even in healthy democracies. The United States has had its share of them, including Henry Ford, Huey Long, Joseph McCarthy, and George Wallace. An essential test for democracies is not whether such figures emerge but whether political leaders, and especially political parties, work to prevent them from gaining power in the first place—by keeping them off mainstream party tickets, refusing to endorse or align with them, and when necessary, making common cause with rivals in support of democratic candidates. Isolating popular extremists requires political courage. But when fear, opportunism, or miscalculation leads established parties to bring extremists into the mainstream, democracy is imperiled.

Once a would-be authoritarian makes it to power, democracies face a second critical test: Will the autocratic leader subvert democratic institutions or be constrained by them? Institutions alone are not enough to rein in elected autocrats. Constitutions muse be defended—by political parties and organized citizens, but also by democratic norms. Without robust norms, constitutional checks and balances do not serve as the bulwarks of democracy we imagine them to be. Institutions become political weapons, wielded forcefully by those who control them against those who do not. This is how elected autocrats subvert democracy—packing and “weaponizing” the courts and other neutral agencies, buying off the media and the private sector (or bullying them into silence), and rewriting the rules of politics to tilt the playing field against opponents. The tragic paradox of the electoral route to authoritarianism is that democracy’s assassins use the very institutions of democracy—gradually, subtly, and even legally—to kill it. …

Historically, our system of checks and balances has worked pretty well—but not, or not entirely, because of the constitutional system designed by the founders. Democracies work best—and survive longer—where constitutions are reinforced by unwritten democratic norms. Two basic norms have preserved America’s checks and balances in ways we have come to take for granted: mutual toleration, or the understanding that competing parties accept one another as legitimate rivals, and forbearance, or the idea that politicians should exercise restraint in deploying their institutional prerogatives. These two norms undergirded American democracy for most of the twentieth century. Leaders of the two major parties accepted one another as legitimate and resisted the temptation to use their temporary control of institutions to maximum partisan advantage. Norms of toleration and restraint served as the soft guardrails of American democracy, helping it avoid the kind of partisan fight to the death that has destroyed democracies elsewhere in the world, including Europe in the 1930s and South America in the 1960s and 1970s.

Today, however, the guardrails of American democracy are weakening. …The weakening of our democratic norms is rooted in extreme partisan polarization—one that extends beyond policy differences into an existential conflict over race and culture. America’s efforts to achieve racial equality as our society grows increasingly diverse have fueled an insidious reaction and intensifying polarization. And if one thing is clear from studying breakdowns throughout history, it’s that extreme polarization can kill democracies.

There are, therefore, reasons for alarm. … But if other countries’ experiences teach us that that polarization can kill democracies, they also teach us that breakdown is neither inevitable nor irreversible. …

Potential demagogues exist in all democracies, and occasionally, one or more of them strike a public chord. But in some democracies, political leaders heed the warning signs and take steps to ensure that authoritarians remain on the fringes, far from the centers of power. When faced with the rise of extremists or demagogues, they make a concerted effort to isolate and defeat them. Although mass responses to extremist appeals matter, what matters more is whether political elites, and especially parties, serve as filters. Put simply, political parties are democracy’s gatekeepers.

If authoritarians are to be kept out, they first have to be identified. There is, alas, no foolproof advance warning system. Many authoritarians can be easily recognized before they come to power. They have a clear track record: Hitler led a failed putsch; … Mussolini’s Blackshirts engaged in paramilitary violence. … But politicians do not always reveal the full scale of their authoritarianism before reaching power. Some adhere to democratic norms only to abandon them later. …

So how do we identify authoritarianism in politicians who don’t have an obvious antidemocratic record? … We have developed a set of four behavioral warning signs that can help us know an authoritarian when we see one. We should worry when a politician 1) rejects, in words or action, the democratic rules of the game, 2) denies the legitimacy of opponents, 3) tolerates or encourages violence, or 4) indicates a willingness to curtail the civil liberties of opponents, including the media. Table 1 shows how to assess politicians in terms of these four factors.

A politician who meets even one of these criteria is cause for concern. What kind of candidates tend to test positive on a litmus for authoritarianism? Very often, populist outsiders do. Populists are antiestablishment politicians—figures who, claiming to represent the voice of “the people,” wage war on what they depict as a corrupt and conspiratorial elite. Populists tend to deny the legitimacy of established parties, attacking them as undemocratic and even unpatriotic. They tell voters that the existing system is not really a democracy but instead has been hijacked, corrupted, or rigged by the elite. And they promise to bury that elite and return power to “the people.” This discourse should be taken seriously. When populists win elections, they often assault democratic institutions. …

Keeping authoritarian politicians out of power is more easily said than done. Democracies, after all, are not supposed to ban parties or prohibit candidates from standing for election—and we do not advocate such measures. The responsibility for filtering out authoritarians lies, rather, with political parties and party leaders: democracy’s gatekeepers.

Table l: Four Key Indicators of Authoritarian Behavior

1. Rejection of (or weak commitment to) democratic rules of the game	• Do they reject the constitution or express a willingness to violate it? • Do they suggest a need for antidemocratic measures, such as cancelling elections, violating or suspending the Constitution, banning certain organizations, or restricting basic civil or political rights? • Do they seek to use (or endorse the use of) extraconstitutional means to change the government, such as military coups, violent insurrections, or mass protests aimed at forcing a change in the government? • Do they attempt to undermine the legitimacy of elections, for example, by refusing to accept credible electoral results?
2. Denial of the legitimacy of political opponents	• Do they describe their rivals as subversive, or opposed to the existing constitutional order? • Do they claim that their rivals constitute an existential threat, either to national security or to the prevailing way of life? • Do they baselessly describe their partisan rivals as criminals, whose supposed violation of the law (or potential to do so) disqualifies them from full participation in the political arena? • Do they baselessly suggest that their rivals are foreign agents, in that they are secretly working in alliance with (or the employ of) a foreign government—usually an enemy one?
3. Toleration or encouragement of violence	• Do they have any ties to armed gangs, paramilitary forces, militias, guerrillas, or other organizations that engage in illicit violence? • Have they or their partisan allies sponsored or encouraged mob attacks on opponents? • Have they tacitly endorsed violence by their supporters by refusing to unambiguously condemn it and punish it? • Have they praised (or refused to condemn) other significant acts of political violence, either in the past or elsewhere in the world?
4.Readiness to curtail civil liberties of opponents, including media	• Have they supported laws or policies that restrict civil liberties, such as expanded libel or defamation laws, or laws restricting protest, criticism of the government, or certain civic or political organizations? • Have they threatened to take legal or other punitive action against critics in rival parties, civil society, or the media? • Have they praised repressive measures taken by other governments, either in the past or elsewhere in the world?

Successful gatekeeping requires that mainstream parties isolate and defeat extremist forces, a behavior political scientist Nancy Bermeo calls “distancing.” Prodemocracic parties may engage in distancing in several ways. First, they can keep would-be authoritarians off party ballots at election time. This requires that they resist the temptation to nominate these extremists for higher office even when they can potentially deliver votes.

Second, parties can root out extremists in the grass roots of their own ranks. …

Third, prodemocratic parties can avoid all alliances with antidemocratic parties and candidates. As we saw in Italy and Germany, prodemocratic parties are sometimes tempted to align with extremists on their ideological flank to win votes or, in parliamentary systems, form governments. But such alliances can have devastating long-term consequences. … The demise of many democracies can be traced to a party’s “greater affinity for extremists on its side of the political spectrum than for [mainstream] parties close to the opposite side.”

Fourth, prodemocratic parties can act to systematically isolate, rather than legitimize, extremists. This requires that politicians avoid acts—such as German Conservatives’ joint rallies with Hitler in the early 1930s …—that help to “normalize” or provide public respectability to authoritarian figures.

Finally, whenever extremists emerge as serious electoral contenders, mainstream parties must forge a united front to defeat them. They must be willing to “join with opponents ideologically distant but committed to the survival of the democratic political order.” In normal circumstances, this is almost unimaginable. … Each party’s followers would be infuriated at this seeming betrayal of principles. But in extraordinary times, courageous party leadership means putting democracy and country before party and articulating to voters what is at stake. When a party or politician that tests positive on our litmus test emerges as a serious electoral threat, there is little alternative. United democratic fronts can prevent extremists from winning power, which can mean saving a democracy.

Gatekeeping in America

In The Plot Against America [2005], American novelist Philip Roth builds on real historical events to imagine what fascism might have looked like in prewar America.

An early American mass-media hero, Charles Lindbergh, is the novel’s central figure: He skyrockets to fame with his 1927 solo flight across the Atlantic and later becomes a vocal isolationist and Nazi sympathizer. But here is where history takes a fantastic turn in Roth’s hands: Rather than fading into obscurity, Lindbergh arrives by plane at the 1940 Republic Party convention in Philadelphia at 3:14 A.M., as a packed hall finds itself deadlocked on the twentieth ballot. Cries of “Lindy! Lindy! Lindy!” erupt for thirty uncontained minutes on the convention floor, and in a moment of intense collective fervor, his name is proposed, seconded, and approved by acclamation as the party’s nominee for president. Lindbergh, a man with no political experience but unparalleled media savvy, ignores the advice of his advisors and campaigns by piloting his iconic solo aircraft, Spirit of St. Louis, from state to state, wearing his flight goggles, high boots, and jumpsuit.

In this world turned upside down, Lindbergh beats Franklin Delano Roosevelt, the incumbent, to become president. And Lindbergh, whose campaign is later revealed to be linked to Hitler, goes on to sign peace treaties with America’s enemies. A wave of anti-Semitism and violence is unleashed across America. …

The premise—an outsider with dubious democratic credentials comes to power with the aid of a foreign nation—cannot help but resonate. But the comparison raises another striking question: Given the severity of the economic crisis in 1930s America, why didn’t this happen here? …

Extremist figures have long dotted the landscape of American politics. In the 1930s alone, as many as eight hundred right-wing extremist groups existed in the United States. Among the most important figures to emerge during this period was Father Charles Coughlin, an anti-Semitic Catholic priest whose fiery nationalist radio program reached up to forty million listeners a week. Father Coughlin was openly antidemocratic, calling for the abolition of political parties and questioning the value of elections. His newspaper, Social Justice, adopted pro​fascist positions in the 1930s, naming Mussolini its “Man of the Week” and often defending the Nazi regime. Despite his extremism, Father Coughlin was immensely popular. Fortune magazine called him “just about the biggest thing ever to happen to radio.” He delivered speeches to packed stadiums and auditoriums across the country; as he traveled from city to city, fans lined his route to see him passing by. Some contemporary observers called him the most influential figure in the United States after Roosevelt.

The Depression also gave rise to Louisiana governor and senator Huey Long, who called himself “the Kingfish.” Long was described by the historian Arthur M. Schlesinger Jr. as “the great demagogue of the day… .” The Kingfish was a gifted stump speaker, and he routinely flouted the rule of law. As governor, Long built what Schlesinger described as “the nearest approach to a totalitarian state the American republic has ever seen,” using a mix of bribes and threats to bring the state’s legislature, judges, and press to heel. Asked by an opposition legislator if he had heard of the state constitution, Long replied, “I’m the constitution just now.” Newspaper editor Hodding Carter called Long “the first true dictator out of the soil of America.” When Franklin Roosevelt’s campaign manager, James A. Farley, met Mussolini in Rome in 1933, he wrote that the Italian dictator “reminded me of Huey Long.”

Long built a massive following with his call to redistribute wealth. In 1934, he was said to have “received more mail than all other senators combined, more even than the president.” By then his Share Our Wealth movement had more than 27;000 cells across the country and a mailing list of nearly eight million names. Long planned a presidential run, telling a New York Times reporter, “I can take this Roosevelt. … I can out​promise him. And he knows it.” Roosevelt viewed Long as a serious threat but was spared when Long was assassinated in September 1935. …

In short, Americans have long had an authoritarian streak. It was not unusual for figures such as Coughlin, Long, Joseph McCarthy, and George Wallace to gain the support of a sizable minority—30 or even 40 percent—of the country. We often tell ourselves that America’s national political culture in some way immunizes us from such appeals, but this requires reading history with rose-colored glasses. The real protection against would-be authoritarians has not been Americans’ firm commitment to democracy but, rather, the gatekeepers—our political parties. …

Gatekeeping institutions go back to the founding of the American republic. The 1787 Constitution created the world’s first presidential system. Presidentialism poses distinctive challenges for gatekeeping. In parliamentary democracies, the prime minister is a member of parliament and is selected by the leading parties in parliament, which virtually ensures that he or she will be acceptable to political insiders. The very process of government formation serves as a filter. Presidents, by contrast, are not sitting members of Congress, nor are they elected by Congress. At least in theory, they are elected by the people, and anyone can run for president and—if he or she earns enough support—win.

Our founders were deeply concerned with gatekeeping. In designing the Constitution and electoral system, they grappled with a dilemma that, in many respects, remains with us today. On the one hand, they sought not a monarch but an elected president—one who conformed to their idea of a republican popular government, reflecting the will of the people. On the other, the founders did not fully trust the people’s ability to judge candidates’ fitness for office. Alexander Hamilton worried that a popularly elected presidency could be too easily captured by those who would play on fear and ignorance to win elections and then rule as tyrants. “History will teach us,” Hamilton wrote in the Federalist Papers, that “of those men who have overturned the liberties of republics, the great number have begun their career by paying an obsequious court to the people; commencing demagogues, and ending tyrants.” For Hamilton and his colleagues, elections required some kind of built-in screening device. The device the founders came up with was the Electoral College. Article II of the Constitution created an indirect election system that reflected Hamilton’s thinking in Federalist 68: “The immediate election should be made by men most capable of analyzing the qualities adapted to the station, and acting under the circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern them.” The Electoral College, made up of locally prominent men in each state, would thus be responsible for choosing the president. Under this arrangement, Hamilton reasoned, “the office of president will seldom fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications.” Men with “talents for low intrigue, and the little arcs of popularity” would be filtered out. The Electoral College thus became our original gatekeeper.

This system proved short-lived, however, due to two short​comings in the founders’ original design. First, the Constitution is silent on the question of how presidential candidates are to be selected. The Electoral College goes into operation after the people vote, playing no role in determining who seeks the presidency in the first place. Second, the Constitution never mentions political parties. Though Thomas Jefferson and James Madison would go on to pioneer our two-party system, the founders did not seriously contemplate those parties’ existence. The rise of parties in the early 1800s changed the way our electoral system worked. Instead of electing local notables as delegates to the Electoral College, as the founders had envisioned, each state began to elect party loyalists. Electors became party agents, which meant that the Electoral College surrendered its gatekeeping authority to the parties. The parties have retained it ever since.

Parties, then, became the stewards of American democracy. Because they select our presidential candidates, parties have the ability—and, we would add, the responsibility—to keep dangerous figures out of the White House. They must, therefore, strike a balance between two roles: a democratic role, in which they choose the candidates that best represent the party’s voters; and what political scientist James Ceaser calls a “filtration” role, in which they screen out those who pose a threat to democracy or are otherwise unfit to hold office.

These dual imperatives—choosing a popular candidate and keeping out demagogues—may, at times, conflict with each other. What if the people choose a demagogue? This is the recurring tension at the heart of the presidential nomination process, from the founders’ era through today. An overreliance on gatekeeping is, in itself, undemocratic—it can create a world of party bosses who ignore the rank and file and fail to represent the people. But an overreliance on the “will of the people” can also be dangerous, for it can lead to the election of a demagogue who threatens democracy itself. There is no escape from this tension. There are always trade-offs.

For most of American history, political parties prioritized gatekeeping over openness. There was always some form of a smoke-filled room. In the early nineteenth century, presidential candidates were chosen by groups of congressmen in Washington, in a system known as Congressional Caucuses. The system was soon criticized as too closed, so beginning in the 1830s, candidates were nominated in national party conventions made up of delegates from each state. Delegates were not popularly elected; they were chosen by state and local political party committees, and they were not bound to support particular candidates. They generally followed the instructions of the state party leaders who sent them to the convention. The system thus favored insiders, or candidates backed by the party leaders who controlled the delegates. Candidates who lacked support among their party’s network of state and local politicians had no chance of success.

The convention system was also criticized for being closed and undemocratic, and there was no shortage of efforts to reform it. Primary elections were introduced during the Progressive era; the first was held in Wisconsin in 1901, and in 1916, primaries were held in two dozen states. Yet these brought little change—in part because many states didn’t use them, but mostly because elected delegates were not required to support the candidate who won the primary. They remained “unpledged,” free to negotiate their vote on the convention floor. Party leaders—with their control over government jobs, perks, and other benefits—were well-positioned to broker these deals, so they remained the presidency’s gatekeepers. Because primaries had no binding impact on presidential nominations, they were little more than beauty contests. Real power remained in the hands of party insiders, or what contemporaries called “organization men.” For prospective candidates, securing the backing of the organization men was the only viable road to the nomination.

The old convention system highlights the trade-offs inherent to gatekeeping. On the one hand, the system wasn’t very democratic. The organization men were hardly representative of American society. Indeed, they were the very definition of an “old boys” network. Most rank-and-file party members, especially the poor and politically unconnected, women, and minorities, were not represented in the smoke-filled rooms and were thus excluded from the presidential nomination process. On the other hand, the convention system was an effective gatekeeper, in that it systematically filtered out dangerous candidates. Party insiders provided what political scientists called “peer review.” Mayors, senators, and congressional representatives knew the candidates personally. They had worked with them, under diverse conditions, over the years and were thus well-positioned to evaluate their character, judgment, and ability to operate under stress. Smoke-filled back rooms therefore served as a screening mechanism, helping to keep out the kind of demagogues and extremists who derailed democracy elsewhere in the world. American party gatekeeping was so effective that outsiders simply couldn’t win. As a result, most didn’t even try.

Consider Henry Ford, the founder of the Ford Motor Company. One of the richest men in the world in the early twentieth century, Ford was a modern version of the kind of extremist demagogue Hamilton had warned against. Using his Dearborn Independent as a megaphone, he railed against bankers, Jews, and Bolsheviks, publishing articles claiming that Jewish banking interests were conspiring against America. His views attracted praise from racists worldwide. He was mentioned with admiration by Adolf Hitler in Mein Kampf and described by future Nazi leader Heinrich Himmler as “one of our most valuable, important, and witty fighters.” In 1938, the Nazi government awarded him the Grand Cross of the German Eagle.

Yet Ford was also a widely admired, even beloved, figure in the United States, especially in the Midwest. A “poor farm boy who made good,” the plainspoken businessman was revered by many rural Americans as a folk hero, alongside such presidents as Washington and Lincoln.

Ford’s restless imperiousness eventually lured him into politics. He began with opposition to World War I, launching an amateurish but high-profile “peace mission” to Europe. He dipped in and out of politics after the Great War, nearly winning a Senate seat in 1918 and then flirting with the idea of running for president (as a Democrat) in 1924. The idea quickly generated enthusiasm, especially in rural parts of the country. Ford for President clubs sprang up in 1923, and the press began to write of a “Ford Craze.” That summer, the popular magazine Collier’s began a weekly national poll of its readers, which suggested that Ford’s celebrity, reputation for business acumen, and unremitting media attention could translate into a popular presidential candidacy. As the results rolled in each week, they were accompanied by increasingly reverential headlines: “Policies in Chaos as Ford Vote Grows” and “Ford Leads in Presidential Free-for-All.” By the end of the two-month straw poll of upward of 250,000 readers, Henry Ford ran away from the competition, outpacing all twelve contenders, including President Warren Harding and future president Herbert Hoover. With these results, Collier’s editors concluded, “Henry Ford has become the issue in American politics.”

But if Ford harbored serious presidential ambitions, he was born a century too soon. What mattered far more than public opinion was the opinion of party leaders, and party leaders soundly rejected him. A week after publishing the results of its readers’ poll, in a series of articles, including one titled “The Politicians Pick a President,” Collier’s reported the results of its poll of the ultimate insiders—a group of 116 party leaders in both parties, including all members of the Republican and Democratic Party National Committees, 14 leading governors, and senators and congressmen in each party. Among these kingmakers, Ford lagged in a distant fifth position. The Collier’s editors observed that fall:

When Democratic [Party] chieftains are asked: “What about Ford?” they all shrug their shoulders. Almost without a single exception the men who constitute what is usually known as the “organization” in every State are opposed to Ford. In all the States except where there are presidential primaries these men practically hand-pick the delegates to the national conventions. … Nobody denies the amount of Ford sentiment among the masses of the people—Democratic and Republican. Every Democratic leader knows his State is full of it—and he is afraid of it. He thinks, however, that because of the machinery of selection of delegates there is little likelihood that Ford will make much of a showing.

Despite popular enthusiasm for his candidacy, Ford was effectively locked out of contention. Senator James Couzens called the idea of his candidacy ridiculous. “How can a man over sixty years old, who ... has no training, no experience, aspire to such an office?” he asked. “It is most ridiculous.”

It is, therefore, not surprising that when Ford was interviewed for Collier’s at the end of that long summer, his presidential ambitions were tempered: “I can’t imagine myself today accepting any nomination. Of course, I can’t say ... what I will do tomorrow. There might be a war or some crisis of the sort, in which legalism and constitutionalism and all that wouldn’t figure, and the nation wanted some person who could do things and do them quick.” What Ford was saying, in effect, was that he would only consider running if the gatekeeping system blocking his path were somehow removed. So, in reality, he never stood a chance. …

We can now grasp the full scale of Philip Roth’s imaginative leap in his novel The Plot Against America. The Lindbergh phenomenon was not entirely a figment of Roth’s imagination. Lindbergh—an advocate of “racial purity” who toured Nazi Germany in 1936 and was awarded a medal of honor by Hermann Goering—emerged as one of America’s most prominent isolationists in 1939 and 1940, speaking nationwide on behalf of the America First Committee. And he was extraordinarily popular. His speeches drew large crowds, and in 1939, according to Reader’s Digest editor Paul Palmer, his radio addresses generated more mail than those of any other person in America. As one historian put it, “Conventional wisdom had had it that Lindbergh would eventually run for public office,” and in 1939, Idaho senator William Borah suggested that Lindbergh would make a good presidential candidate. But here is where we return to reality. The Republican Parry’s 1940 convention was not even remotely like the fictionalized one described in The Plot Against America. Not only did Lindbergh not appear at the convention, but his name never even came up. Gatekeeping worked.

In the conclusion of their history of radical-right politics in the United States, The Politics of Unreason, Seymour Martin Lipset and Earl Raab described American parties as the “chief practical bulwark” against extremists. They were correct. But Lipset and Raab published their book in 1970, just as the parties were embarking on the most dramatic reform of their nomination systems in well over a century. Everything was about to change, with consequences far beyond what anyone might have imagined.

The turning point came in 1968. It was a heart-wrenching year for Americans. President Lyndon Johnson had escalated the war in Vietnam, which was now spiraling out of control—16,592 Americans died in Vietnam in 1968 alone, more than in any previous year. American families sat in their living rooms each evening watching the TV nightly news, assaulted with ever more graphic scenes of combat. In April 1968, an assassin gunned down Martin Luther King Jr. Then, in June, within hours of his winning the California Democratic presidential primary, Robert F. Kennedy’s presidential campaign-centered on opposition to Johnson’s escalating war—was abruptly halted by a second assassin’s gun. The cries of despair in Los Angeles’s Ambassador Hotel ballroom that night were given expression by novelist John Updike, who wrote that it felt as if “God might have withdrawn His blessing from America.”

Meanwhile, the Democrats grew divided between supporters of Johnson’s foreign policy and chose who had embraced Robert Kennedy’s antiwar position. This split played out in a particularly disruptive manner at the Democratic convention in Chicago. With Kennedy tragically gone, the traditional party organization stepped into the breach. The party insiders who dominated on the convention floor favored Vice President Hubert Humphrey, but Humphrey was deeply unpopular among antiwar delegates because of his association with President Johnson’s Vietnam policies. Moreover, Humphrey had not run in a single primary. His campaign, as one set of analysts put it, was limited to “party leaders, union bosses, and other insiders.” Yet, with the backing of the party regulars, including the machine of powerful Chicago mayor Richard Daley, he won the nomination on the first ballot.

Humphrey was hardly the first presidential candidate to win the nomination without competing in primaries. He would, however, be the last. The events that unfolded in Chicago—displayed on television screens across America—mortally wounded the party-insider presidential selection system. Even before the convention began, the crushing blow of Robert Kennedy’s assassination, the escalating conflict over Vietnam, and the energy of the antiwar protesters in Chicago’s Grant Park sapped any remaining public faith in the old system. On August 28, the protesters turned to march on the convention: Blue-helmeted police attacked protesters and bystanders, and bloodied men, women, and children sought refuge in nearby hotels. The so-called Battle of Michigan Avenue then spilled over into the convention hall itself, Senator Abraham Ribicoff of Connecticut, in his nomination speech for antiwar candidate George McGovern, decried “the gestapo tactics” of the Chicago police, looking—on live television—directly at Mayor Daley; As confrontations exploded on the convention floor, uniformed police officers dragged several delegates from the auditorium. Watching in shock, NBC anchor Chet Huntley observed, “This surely is the first time policemen have ever entered the floor of a convention.” His coanchor, David Brinkley, wryly added, “In the United States.”

The Chicago calamity triggered far-reaching reform. Following Humphrey’s defeat in the 1968 election, the Democratic Party created the McGovern-Fraser Commission and gave it the job of rethinking the nomination system. The commission’s final report, published in 1971, cited an old adage: “The cure for the ills of democracy is more democracy.” With the legitimacy of the political system at stake, party leaders felt intense pressure to open up the presidential nomination process. As George McGovern put it, “Unless changes are made, the next convention will make the last look like a Sunday-school picnic.” If the people were not given a real say, the McGovern-Fraser report darkly warned, they would turn to “the anti-politics of the street.”

The McGovern-Fraser Commission issued a set of recommendations that the two parties adopted before the 1972 election. What emerged was a system of binding presidential primaries. Beginning in 1972, the vast majority of the delegates to both the Democratic and Republican conventions would be elected in state-level primaries and caucuses. Delegates would be preselected by the candidates themselves to ensure their loyalty. This meant that for the first time, the people who chose the parties’ presidential candidates would be neither beholden to party leaders nor free to make backroom deals at the convention; rather, they would faithfully reflect the will of their state’s primary voters. There were differences between the parties, such as the Democrats’ adoption of proportional rules in many states and mechanisms to enhance the representation of women and minorities. But in adopting binding primaries, both parties substantially loosened their leaders’ grip over the candidate selection process—opening it up to voters instead. Democratic National Committee chair Larry O’Brien called the reforms “the greatest goddamn changes since the party system.” George McGovern, who unexpectedly won the 1972 Democratic nomination, called the new primary system “the most open political process in our national history.”

McGovern was right. The path to the nomination no longer had to pass through the party establishment. For the first time, the party gatekeepers could be circumvented—and beaten.

The Democrats, whose initial primaries were volatile and divisive, backtracked somewhat in the early 1980s, stipulating that a share of national delegates would be elected officials—governors, big-city mayors, senators, and congressional representatives—appointed by state parties rather than elected in primaries. These “superdelegates,” representing between 15 and 20 percent of national delegates, would serve as a counterbalance to primary voters—and a mechanism for party leaders to fend off candidates they disapproved of. The Republicans, by contrast, were flying high under Ronald Reagan in the early 1980s. Seeing no need for superdelegates, the GOP opted, fatefully, to maintain a more democratic nomination system.

Some political scientists worried about the new system. Binding primaries were certainly more democratic. But might they be too democratic? By placing presidential nominations in the hands of voters, binding primaries weakened parties’ gatekeeping function, potentially eliminating the peer review process and opening the door to outsiders. Just before the McGovern-Fraser Commission began its work, two prominent political scientists warned that primaries could “lead to the appearance of extremist candidates and demagogues” who, unrestrained by party allegiances, “have little to lose by stirring up mass hatreds or making absurd promises.”

Initially, these fears seemed overblown. Outsiders did emerge: Civil rights leader Jesse Jackson ran for the Democratic Party nomination in 1984 and 1988, while Southern Baptist leader Pat Robertson (1988), television commentator Pat Buchanan (1992, 1996, 2000), and Forbes magazine publisher Steve Forbes (1996) ran for the Republican nomination. But they all lost.

Circumventing the party establishment was, it turned out, easier in theory than in practice. Capturing a majority of delegates required winning primaries all over the country, which, in turn, required money, favorable media coverage, and, crucially, people working on the ground in all states. Any candidate seeking to complete the grueling obstacle course of U.S. primaries needed allies among donors, newspaper editors, interest groups, activist groups, and state-level politicians such as governors, mayors, senators, and congressmen. In 1976, Arthur Hadley described this arduous process as the “invisible primary.” He claimed that this phase, which occurred before the primary season even began, was “where the winning candidate is actually selected.” Members of the party establishment—elected officials, activists, allied interest groups—were, thereby, not necessarily locked out of the game. Without them, Hadley argued, it was nearly impossible to win either party’s nomination.

For a quarter of a century, Hadley was right. …

Subverting Democracy

How do elected authoritarians shatter the democratic institutions chat are supposed to constrain them? Some do it in one fell swoop. But more often the assault on democracy begins slowly. For many citizens, it may, at first, be imperceptible. After all, elections continue to be held. Opposition politicians still sit in congress. Independent newspapers still circulate. The erosion of democracy takes place piecemeal, often in baby steps. Each individual step seems minor—none appears to truly threaten democracy. Indeed, government moves to subvert democracy frequently enjoy a veneer of legality: They are approved by parliament or ruled constitutional by the supreme court. Many of them are adopted under the guise of pursuing some legitimate—even laudable—public objective, such as combating corruption, “cleaning up” elections, improving the quality of democracy, or enhancing national security. To better understand how elected autocrats subtly undermine institutions, it’s helpful to imagine a soccer game. To consolidate power, would-be authoritarians must capture the referees, sideline at least some of the other side’s star players, and rewrite the rules of the game to lock in their advantage, in effect tilting the playing field against their opponents.

It always helps to have the referees on your side. Modern states possess various agencies with the authority to investigate and punish wrongdoing by both public officials and private citizens. These include the judicial system, law enforcement bodies, and intelligence, tax, and regulatory agencies. In democracies, such institutions are designed to serve as neutral arbiters. For would-be authoritarians, therefore, judicial and law enforcement agencies pose both a challenge and an opportunity. If they remain independent, they might expose and punish government abuse. It is a referee’s job, after all, to prevent cheating. But if these agencies are controlled by loyalists, they could serve a would-be dictator’s aims, shielding the government from investigation and criminal prosecutions that could lead to its removal from power. The president may break the law, threaten citizens’ rights, and even violate the constitution without having to worry that such abuse will be investigated or censured. With the courts packed and law enforcement authorities brought to heel, governments can act with impunity.

Capturing the referees provides the government with more than a shield. It also offers a powerful weapon, allowing the government to selectively enforce the law, punishing opponents while protecting allies. Tax authorities may be used to target rival politicians, businesses, and media outlets. The police can crack down on opposition protest while tolerating acts of violence by progovernment thugs. Intelligence agencies can be used to spy on critics and dig up material for blackmail.

Most often, the capture of the referees is done by quietly firing civil servants and other nonpartisan officials and replacing them with loyalists. … Institutions that cannot be easily purged may be hijacked, subtly, by other means. … Judges who cannot be bought off may be targeted for impeachment. Governments that cannot remove independent judges may bypass them through court packing. …The most extreme way to capture the referees is to raze the courts altogether and create new ones. … In each of these cases, the referees of the democratic game were brought over to the government’s side, providing the incumbent with both a shield against constitutional challenges and a powerful—and “legal”—weapon with which to assault its opponents.

Once the referees are in tow, elected autocrats can turn to their opponents. Most contemporary autocracies do not wipe out all traces of dissent, as Mussolini did in fascist Italy. … But many make an effort to ensure that key players—anyone capable of really hurting the government—are sidelined, hobbled, or bribed into throwing the game. Key players might include opposition politicians, business leaders who finance the opposition, major media outlets, and in some cases, religious or other cultural figures who enjoy a certain public moral standing.

The easiest way to deal with potential opponents is to buy them off. Most elected autocrats begin by offering leading political, business, or media figures public positions, favors, perks, or outright bribes in exchange for their support or, at least, their quiet neutrality. Cooperative media outlets may gain privileged access to the president, while friendly. …

Players who cannot be bought must be weakened by other means. Whereas old-school dictators often jailed, exiled, or even killed their rivals, contemporary autocrats tend to hide their repression behind a veneer of legality. This is why capturing the referees is so important. ...

Governments may also use their control of referees to “legally” sideline the opposition media, often through libel or defamation suits. … As key media outlets are assaulted, others grow wary and begin to practice self-censorship. …

Elected autocrats also seek to weaken business leaders with the means to finance opposition. … Finally, elected autocrats often try to silence cultural figures—artists, intellectuals, pop stars, athletes-whose popularity or moral standing makes them potential threats. … Usually, however, governments prefer to co-opt popular cultural figures or reach a mutual accommodation with them, allowing them to continue their work as long as they stay out of politics. …

The quiet silencing of influential voices—by co-optation or, if necessary, bullying—can have potent consequences for regime opposition. When powerful businesspeople are jailed or ruined economically, … other businesspeople conclude that it is wisest to withdraw from politics entirely. And when opposition politicians are arrested or exiled, … other politicians decide to give up and retire. Many dissenters decide to stay home rather than enter politics, and those who remain active grow demoralized. This is what the government aims for. Once key opposition, media, and business players are bought off or sidelined, the opposition deflates. The government “wins” without necessarily breaking the rules.

To entrench themselves in power, however, governments must do more—they must also change the rules of the game. Authoritarians seeking co consolidate their power often reform the constitution, the electoral system, and other institutions in ways that disadvantage or weaken the opposition, in effect tilting the playing field against their rivals. These reforms are often carried out under the guise of some public good, while in reality they are stacking the deck in favor of incumbents. And because they involve legal and even constitutional changes, they may allow autocrats to lock in these advantages for years and even decades. …

Perhaps the most striking example of rewriting the rules to lock in an authoritarian advantage comes from the United States. The end of post-Civil War Reconstruction in the 1870s led to the emergence of authoritarian single-party regimes in every post-Confederate state. Single-party rule was not some benign historical accident; rather, it was a product of brazenly antidemocratic constitutional engineering.

During the era of Reconstruction, the mass enfranchisement of African Americans posed a major threat to southern white political control and to the political dominance of the Democratic Party. Under the 1867 Reconstruction Act and the Fifteenth Amendment, which prohibited suffrage limitations on account of race, African Americans suddenly constituted a majority of the voting population in Mississippi, South Carolina, and Louisiana and a near-majority in Alabama, Florida, Georgia, and North Carolina. Federal troops oversaw the mass registration of black voters throughout the South. Nation-wide, the percentage of black men who were eligible to vote increased from 0.5 percent in 1866 to 80.5 percent two years later. In many southern states, black registration rates exceeded 90 percent. And black citizens voted. In the 1880 presidential election, estimated black turnout was 65 percent or higher in North and South Carolina, Tennessee, Texas, and Virginia. Enfranchisement empowered African Americans: More than two thousand southern freedmen won elective office in the 1870s, including fourteen congressmen and two U.S. senators. At one point, more than 40 percent of legislators in Louisiana’s and South Carolina’s lower houses were black. And because African Americans voted overwhelmingly Republican, black enfranchisement invigorated Republican and other challengers to the once-dominant Democrats. The Democrats lost power in North Carolina, Tennessee, and Virginia in the 1880s and 1890s, and they nearly lost it in Alabama, Arkansas, Florida, Georgia, Mississippi, and Texas. If democratic elections continued, political scientist V. 0. Key observed, it “would have been fatal to the status of black belt whites.”

So they changed the rules—and did away with democracy. “Give us a [constitutional] convention, and I will fix it so that ... the Negro shall never be heard from,” former Georgia senator Robert Toombs declared as Reconstruction was coming to an end. Between 1885 and 1908, all eleven post​Confederate states reformed their constitutions and electoral laws to disenfranchise African Americans. To comply with the letter of the law as stipulated in the Fifteenth Amendment, no mention of race could be made in efforts to restrict voting rights, so states introduced purportedly “neutral” poll taxes, property requirements, literacy tests, and complex written ballots. “The overarching aim of all of these restrictions,” historian Alex Keyssar observed, “was to keep poor and illiterate blacks ... from the polls.” And because African Americans were overwhelmingly Republican, their disenfranchisement could be expected to restore the Democrats’ electoral dominance. The goal, as a state senator from North Carolina put it, was to write a “good square, honest law that will always give a good Democratic majority.” …

These “reform” measures effectively killed democracy in the American South. Even though African Americans constituted a majority or near-majority of the population in many states, and even though black suffrage was now enshrined in the Constitution, “legal” or neutral-sounding measures were used to “insure that the Southern electorate ... would be almost all white.” Black turnout in the South fell from 61 percent in 1880 to just 2 percent in 1912. The disenfranchisement of African Americans wiped out the Republican Party, locking in white supremacy and single-party rule for nearly a century. As one black southerner observed, “The whole South—every state in the South—had got into the hands of the very men that had held us as slaves.”

By capturing the referees, buying off or enfeebling opponents, and rewriting the rules of the game, elected leaders can establish a decisive—and permanent—advantage over their opponents. Because these measures are carried out piecemeal and with the appearance of legality, the drift into authoritarianism doesn’t always set off alarm bells. Citizens are often slow to realize that their democracy is being dismantled—even as it happens before their eyes.

One of the great ironies of how democracies die is that the very defense of democracy is often used as a pretext for its subversion. Would-be autocrats often use economic crises, natural disasters, and especially security threats—wars, armed insurgencies, or terrorist attacks—to justify antidemocratic measures. … Wars and terrorist attacks produce a “rally ‘round the flag” effect in which public support for the government increases. …

Citizens are also more likely to tolerate—and even support—authoritarian measures during security crises, especially when they fear for their own safety. In the aftermath of 9/11, 55 per​ cent of surveyed Americans said they believed it was necessary to give up some civil liberties to curb terrorism, up from 29 percent in 1997. Likewise, Roosevelt’s internment of Japanese Americans would have been unthinkable without the public fear generated by the Pearl Harbor attack. After Pearl Harbor, more than 60 percent of surveyed Americans supported expelling Japanese Americans from the country, and a year later, Japanese American internment still enjoyed considerable public support.

Most constitutions permit the expansion of executive power during crisis. As a result, even democratically elected presidents can easily concentrate power and threaten civil liberties during war. In the hands of a would-be authoritarian, this concentrated power is far more dangerous. For a demagogue who feels besieged by critics and shackled by democratic institutions, crises open a window of opportunity to silence critics and weaken rivals. Indeed, elected autocrats often need crises—external threats offer them a chance to break free, both swiftly and, very often, “legally.”

The combination of a would-be authoritarian and a major crisis can, therefore, be deadly for democracy. Some leaders come into office facing crisis. ... Whether real or not, would-be authoritarians are primed to exploit crises to justify power grabs. Perhaps the best-known case is Adolf Hitler’s response to the February 27, 1933, Reichstag fire, just a month after he was sworn in as chancellor. The question of whether a young Dutchman with communist sympathies started the fire in the Berlin parliament building or whether the Nazi leadership itself did remains a matter of debate among historians. Whatever the case, Hitler, Hermann Goring, and Joseph Goebbels arrived at the burning Reichstag and immediately used the event to justify emergency decrees that dismantled civil liberties. This, along with the Enabling Act one month later, destroyed all opposition, consolidating Nazi power until the end of the Second World War. …

For demagogues hemmed in by constitutional constraints, a crisis represents an opportunity to begin to dismantle the inconvenient and sometimes threatening checks and balances that come with democratic politics. Crises allow autocrats to expand their room to maneuver and protect themselves from perceived enemies. But the question remains: Are democratic institutions so easily swept away?

The Guardrails of Democracy

For generations, Americans have retained great faith in their Constitution, as the centerpiece of a belief that the United States was a chosen nation, providentially guided, a beacon of hope and possibility to the world. Although this larger vision may be fading, trust in the Constitution remains high. A 1999 survey found that 85 percent of Americans believed the Constitution was the major reason “America had been successful during this past century.” Indeed, our constitutional system of checks and balances was designed to prevent leaders from concentrating and abusing power, and for most of American history, it has succeeded. President Abraham Lincoln’s concentration of power during the Civil War was reversed by the Supreme Court after the war ended. President Richard Nixon’s illegal wiretapping, exposed after the 1972 Watergate break-in, triggered a high-profile congressional investigation and bipartisan pressure for a special prosecutor that eventually forced his resignation in the face of certain impeachment. In these and other instances, our political institutions served as crucial bulwarks against authoritarian tendencies.

But are constitutional safeguards, by themselves, enough to secure a democracy? We believe the answer is no. Even well​designed constitutions sometimes fail. Germany’s 1919 Weimar constitution was designed by some of the country’s greatest legal minds. Its long-standing and highly regarded Rechtsstaat (“rule of law”) was considered by many as sufficient to prevent government abuse. But both the constitution and the Rechtsstaat collapsed rapidly in the face of Adolf Hider’s usurpation of power in 1933. …

Even well-designed constitutions cannot, by themselves, guarantee democracy. For one, constitutions are always incomplete. Like any set of rules, they have countless gaps and ambiguities. No operating manual, no matter how detailed, can anticipate all possible contingencies or prescribe how to behave under all possible circumstances.

Constitutional rules are also always subject to competing interpretations. What, exactly, does “advice and consent” entail when it comes to the U.S. Senate’s role in appointing Supreme Court justices? What sort of threshold for impeachment does the phrase “crimes and misdemeanors” establish? Americans have debated these and other constitutional questions for centuries. If constitutional powers are open to multiple readings, they can be used in ways that their creators didn’t anticipate.

Finally, the written words of a constitution may be followed to the letter in ways that undermine the spirit of the law. One of the most disruptive forms of labor protests is a “work to rule” campaign, in which workers do exactly what is asked of them in their contracts or job descriptions but nothing more. In other words, they follow the written rules to the letter. Almost invariably, the workplace ceases to function.

Because of the gaps and ambiguities inherent in all legal systems, we cannot rely on constitutions alone to safeguard democracy against would-be authoritarians. “God has never endowed any statesman or philosopher, or any body of them,” wrote former U.S. president Benjamin Harrison, “with wisdom enough to frame a system of government that everybody could go off and leave.”

That includes our own political system. The U.S. Constitution is, by most accounts, a brilliant document. But the original Constitution—only four pages long—can be interpreted in many different, and even contradictory, ways. We have, for example, few constitutional safeguards against filling nominally independent agencies (such as the FBI) with loyalists. According to constitutional scholars Aziz Huq and Tom Ginsburg, only the “thin tissue of convention” prevents American presidents from capturing the referees and deploying them against opponents. Likewise, the Constitution is virtually silent on the president’s authority to act unilaterally, via decrees or executive orders, and it does not define the limits of executive power during crises. Thus, Huq and Ginsburg recently warned that “the constitutional and legal safeguards of [American] democracy ... would prove to be fairly easy to manipulate in the face of a truly antidemocratic leader.”

If the constitution written in Philadelphia in 1787 is not what secured American democracy for so long, then what did? Many factors mattered, including our nation’s immense wealth, a large middle class, and a vibrant civil society. But we believe much of the answer also lies in the development of strong democratic norms. All successful democracies rely on informal rules that, though not found in the constitution or any laws, are widely known and respected. In the case of American democracy, this has been vital.

As in all facets of society, ranging from family life to the operation of businesses and universities, unwritten rules loom large in policies. To understand how they work, think of the ex​ ample of a pickup basketball game. Street basketball is not governed by rules set up by the NBA, NCAA, or any other league. And there are no referees to enforce such rules. Only shared understandings about what is, and what is not, acceptable prevent such games from descending into chaos. The unwritten rules of a half-court game of pickup basketball are familiar to anyone who has played it. Here are some of the basics:

• Scoring is by ones, not by twos as in regular basketball, and the winning team must win by two points.

• The team that makes a basket keeps the ball (“make it, take it”). The scoring team takes the ball to the top of the key and, to ensure that the defending team is ready, “checks” it by passing it to the nearest opposing player.

• The player who starts with the ball cannot shoot; he or she must pass it in.

• Players call their own fouls but with restraint; only egregious fouls are legitimate (“no blood, no foul”). But when fouls are called, the calls must be respected.

Democracy, of course, is not street basketball. Democracies do have written rules (constitutions) and referees (the courts). But these work best, and survive longest, in countries where written constitutions are reinforced by their own unwritten rules of the game. These rules or norms serve as the soft guardrails of democracy, preventing day-to-day political competition from devolving into a no-holds-barred conflict.

Norms are more than personal dispositions. They do not simply rely on political leaders’ good character, but rather are shared codes of conduct that become common knowledge within a particular community or society—accepted, respected, and enforced by its members. Because they are unwritten, they are often hard to see, especially when they’re functioning well. This can fool us into chinking they are unnecessary. But nothing could be further from the truth. Like oxygen or clean water, a norm’s importance is quickly revealed by its absence. When norms are strong, violations trigger expressions of disapproval, ranging from head-shaking and ridicule to public criticism and outright ostracism. And politicians who violate them can expect to pay a price.

Unwritten rules are everywhere in American politics, ranging from the operations of the Senate and the Electoral College to the format of presidential press conferences. But two norms stand out as fundamental to a functioning democracy: mutual toleration and institutional forbearance.

Mutual toleration refers to the idea chat as long as our rivals play by constitutional rules, we accept that they have an equal right to exist, compete for power, and govern. We may disagree with, and even strongly dislike, our rivals, but we nevertheless accept them as legitimate. This means recognizing that our political rivals are decent, patriotic, law-abiding citizens—that they love our country and respect the Constitution just as we do. It means that even if we believe our opponents’ ideas to be foolish or wrong-headed, we do not view them as an existential threat. Nor do we treat them as treasonous, subversive, or otherwise beyond the pale. We may shed tears on election night when the other side wins, but we do not consider such an event apocalyptic. Put another way, mutual toleration is politicians’ collective willingness to agree to disagree.

As commonsensical as this idea may sound, the belief that political opponents are not enemies is a remarkable and sophisticated invention. Throughout history, opposition to those in power had been considered treason, and indeed, the notion of legitimate opposition parties was still practically heretical at the time of America’s founding. Both sides in America’s early partisan battles—John Adams’s Federalists and Thomas Jefferson’s [Democratic] Republicans—regarded each other as a threat to the republic. The Federalists saw themselves as the embodiment of the Constitution; in their view, one could not oppose the Federalists without opposing the entire American project. So when Jefferson and Madison organized what would become the [Democratic] Republican Party, the Federalists regarded them as traitors, even suspecting them of harboring loyalties to Revolutionary France—with which the United States was nearly at war. The Jeffersonians, for their part, accused the Federalists of being Tories and of plotting a British-backed monarchic restoration. Each side hoped to vanquish the other, taking steps (such as the 1798 Alien and Sedition Acts) to legally punish mere political opposition. Partisan confiict was so ferocious that many feared the new republic would fail. It was only gradually, over the course of decades, chat America’s opposing parties came to the hard-fought recognition that they could be rivals rather than enemies, circulating in power rather than destroying each other. This recognition was a critical foundation for American democracy.

But mutual toleration is not inherent to all democracies. … When norms of mutual toleration are weak, democracy is hard to sustain. If we view our rivals as a dangerous threat, we have much to fear if they are elected. We may decide to employ any means necessary to defeat them—and therein lies a justification for authoritarian measures. Politicians who are tagged as criminal or subversive may be jailed; governments deemed to pose a threat to the nation may be overthrown. …

In just about every case of democratic breakdown we have studied, would-be authoritarians … have justified their consolidation of power by labeling their opponents as an existential threat.

A second norm critical to democracy’s survival is what we call institutional forbearance. Forbearance means “patient self​control; restraint and tolerance,” or “the action of restraining from exercising a legal right.” For our purposes, institutional forbearance can be thought of as avoiding actions that, while respecting the letter of the law, obviously violate its spirit. Where norms of forbearance are strong, politicians do not use their institutional prerogatives to the hilt, even if it is technically legal to do so, for such action could imperil the existing system.

Institutional forbearance has its origins in a tradition older than democracy itself. …

Think of democracy as a game that we want to keep playing indefinitely. To ensure future rounds of the game, players must refrain from either incapacitating the other team or antagonizing them to such a degree, that they refuse to play again tomorrow. If one’s rivals quit, there can be no future games. This means that although individuals play to win, they must do so with a degree of restraint. In a pickup basketball game, we play aggressively, but we know not to foul excessively—and to call a foul only when it is egregious. After all, you show up at the park to play a basketball game, not to fight. In politics, this often means eschewing dirty tricks or hardball tactics in the name of civility and fair play.

What does institutional forbearance look like in democracies? Consider the formation of governments in Britain. As constitutional scholar and author Keith Whittington reminds us, the selection of the British prime minister is “a matter of royal prerogative. Formally, the Crown could select anyone to occupy the role and form the government.” In practice, the prime minister is a member of Parliament able to command a majority in the House of Commons—usually, the head of the largest parliamentary party. Today we take this system for granted, but for centuries the Crown adhered to it voluntarily. There is still no written constitutional rule.

Or take presidential term limits. For most of American history, the two-term limit was not a law but a norm of forbearance. Before ratification of the Twenty-Second Amendment in 1951. nothing in the Constitution dictated that presidents step down after two terms. But George Washington’s retirement after two terms in 1797 set a powerful precedent. As Thomas Jefferson, the first sitting president to follow the norm, observed: “If some termination of the services of the [President] be not fixed by the Constitution, or supplied by practice, his office, nominally for four years, will in fact become for life.... I should unwillingly be the person who, disregarding sound precedent set by an illustrious predecessor, should furnish the first example of prolongation beyond the second term in office.” Thus established, the informal two-term limit proved remarkably robust. Even ambitious and popular presidents such as Jefferson, Andrew Jackson, and Ulysses S. Grant refrained from challenging it. When friends of Grant encouraged him to seek a third term, it caused an uproar, and the House of Representatives passed a resolution declaring: “The precedent established by Washington and other presidents … in retiring from . . . office after their second term has become ... a part of our republican system. ... [A]ny departure from this time-honored custom would be unwise, unpatriotic, and fraught with peril co our free institutions.” Likewise, the Democratic Party refused to nominate Grover Cleveland for a nonconsecutive third term in 1892, warning that such a candidacy would violate an “unwritten law.” Only FDR’s reelection in 1940 clearly violated the norm—a violation that triggered the passage of the Twenty-Second Amendment.

Norms of forbearance are especially important in presidential democracies. … Divided government can easily bring deadlock, dysfunction, and constitutional crisis. Unrestrained presidents can pack the Supreme Court or circumvent Congress by ruling via decree. And an unrestrained Congress can block the president’s every move, threaten to throw the country into chaos by refusing to fund the government, or vote to remove the president on dubious grounds.

The opposite of forbearance is to exploit one’s institutional prerogatives in an unrestrained way. Legal scholar Mark Tushnet calls this “constitutional hardball”: playing by the rules but pushing against their bounds and “playing for keeps.” It is a form of institutional combat aimed at permanently defeating one’s partisan rivals—and not caring whether the democratic game continues. …

Mutual toleration and institutional forbearance are closely related. Sometimes they reinforce each other. Politicians are more likely to be forbearing when they accept one another as legitimate rivals, and politicians who do not view their rivals as subversive will be less tempted to resort to norm breaking to keep them out of power. Acts of forbearance—for example, a Republican-controlled Senate approving a Democratic president’s Supreme Court pick—will reinforce each party’s belief that the other side is tolerable, promoting a virtuous circle.

But the opposite can also occur. The erosion of mutual toleration may motivate politicians to deploy their institutional powers as broadly as they can get away with. When parties view one another as mortal enemies, the stakes of political competition heighten dramatically. Losing ceases to be a routine and accepted part of the political process and instead becomes a full-blown catastrophe. When the perceived cost of losing is sufficiently high, politicians will be tempted to abandon forbearance. Acts of constitutional hardball may then in turn further undermine mutual toleration, reinforcing beliefs that our rivals pose a dangerous threat. …

Polarization can destroy democratic norms. When socio​economic, racial, or religious differences give rise to extreme partisanship, in which societies sort themselves into political camps whose worldviews are not just different but mutually exclusive, toleration becomes harder to sustain. Some polarization is healthy—even necessary—for democracy. And indeed, the historical experience of democracies in Western Europe shows us that norms can be sustained even where parties are separated by considerable ideological differences. But when societies grow so deeply divided that parties become wedded to incompatible worldviews, and especially when their members are so socially segregated that they rarely interact, stable partisan rivalries eventually give way to perceptions of mutual threat. As mutual toleration disappears, politicians grow tempted to abandon forbearance and try to win at all costs. This may encourage the rise of antisysrem groups that reject democracy’s rules altogether. When that happens, democracy is in trouble. …

The Unwritten Rules of American Politics

The American republic was not born with strong democratic norms. In fact, its early years were a textbook case of politics without guardrails. As we have seen, norms of mutual toleration were at best embryonic in the 1780s and 1790s: Far from accepting one another as legitimate rivals, Federalists and Republicans initially suspected each other of treason.

This climate of partisan hostility and distrust encouraged what we would today call constitutional hardball. In 1798, the Federalists passed the Sedition Act, which, though purportedly criminalizing false statements against the government, was so vague that it virtually criminalized criticism of the government. The act was used to target {Democratic] Republican Party newspapers and activists. In the 1800 election, which pitted President Adams, a Federalist, against Jefferson, the leader of the Republican opposition, each side aimed for a permanent victory—to put the other party out of business forever. Federalist leader Alexander Hamilton talked of finding a “legal and constitutional step” to block Jefferson’s ascent to the presidency, while Jefferson described the election as a last opportunity to save America from monarchy. Jefferson’s victory did not put an end to the intense partisan acrimony. The lame-duck Federalist Congress reduced the size of the Supreme Court from six to five to limit Jefferson’s influence over the Court. With its new majority, the Republican Congress repealed the move, and a few years later, it expanded the Court to seven to give Jefferson another appointment.

It took several decades for this hard-edged quest for permanent victory to subside. The demands of everyday politics and the rise of a new generation of career politicians helped lower the stakes of competition. The post-Revolutionary generation grew accustomed to the idea that one sometimes wins and sometimes loses in politics—and that rivals need not be enemies. Typical of this new view was Martin Van Buren, a founder of the modern Democratic Party and later U.S. president. According to Richard Hofstadter, Van Buren “typified the spirit of the amiable county courthouse lawyer translated to politics, the lawyer who may enjoy over a period of many years a series of animated courtroom duels with an antagonist, but who sustains outside the courtroom the mutual respect, often the genial friendship, of the co-professional.” Although Van Buren had “many opponents” during his career, a biographer writes, he had “few enemies.” Whereas the founders had only grudgingly accepted partisan opposition, Van Buren’s generation took it for granted. The politics of total opposition had become the policies of mutual toleration.

America’s nascent norms soon unraveled, however, over an issue the founders had tried to suppress: slavery. During the 1850s, an increasingly open conflict over slavery’s future polarized the country, investing politics with what one historian has called a new “emotional intensity.” To white southern planters and their Democratic allies, abolitionism—a cause associated with the new Republican Party—posed an existential threat. South Carolina senator John C. Calhoun, one of slavery’s most influential defenders, described a post-emancipation South in near apocalyptic terms, in which former slaves would be

raised above the whites ... in the political and social scale. We would, in a word, change conditions with them-a degradation greater than has ever yet fallen to the lot of a free and enlightened people, and one from which we could not escape . . . but by fleeing the homes of ourselves and ancestors, and by abandoning our country to our former slaves, to become the permanent abode of disorder, anarchy, poverty, misery and wretchedness.

Polarization over slavery shattered America’s still-fragile norm of mutual toleration. Democratic representative Henry Shaw assailed Republicans as “traitors to the Constitution and the Union,” while Georgia senator Robert Toombs vowed to “never permit this federal government to pass into the traitorous hands of the Black Republican Party.” Antislavery politicians, for their part, accused proslavery politicians of “treason” and “sedition.”

The erosion of basic norms expanded the zone of acceptable political action. Several years before shots were fired at Fort Sumter, partisan violence pervaded Congress. Yale historian Joanne Freeman estimates that there were 125 incidents of violence—including stabbings, canings, and the pulling of pistols—on the floor of the U.S. House and Senate between 1830 and 1860. Before long, Americans would be killing each other in the hundreds of thousands.

The Civil War broke America’s democracy. One-third of American states did not participate in the 1864 election; twenty​two of fifty Senate seats and more than a quarter of House seats were left vacant. President Lincoln famously suspended habeas corpus and issued constitutionally dubious executive orders, though, of course, one notable executive order freed the slaves. And following the Union victory, much of the former Confederacy was placed under military rule.

The trauma of the Civil War left Americans with searing questions about what went wrong. The sheer destruction—including more than 600,000 dead—shattered many northern intellectuals’ belief in the superiority of their form of democracy. Was the U.S. Constitution not the providentially inspired document it had been thought to be? This wave of self-examination gave rise to a new interest in unwritten rules. In 1885, the then​ political science professor Woodrow Wilson, the son of a southern Confederate family, published a book about Congress that explored the disparity between the promise of constitutional arrangements and the way institutions really worked. In addition to good laws, America needed effective norms.

Rebuilding democratic norms after a civil war is never easy, and America was no exception. The wounds of war healed slowly; Democrats and Republicans only grudgingly accepted one another as legitimate rivals. … With enduring partisan animosity came constitutional hardball. In 1866, the Republican Congress reduced the size of the Supreme Court from ten to seven to prevent President Andrew Johnson, a Democrat whom Republicans viewed as subverting Reconstruction, from making any appointments, and a year later, it passed the Tenure of Office Act, which prohibited Johnson from removing Lincoln’s cabinet members without Senate approval. Viewing the law as a violation of his constitutional authority, Johnson ignored it—a “high misdemeanor” for which he was impeached in 1868.

Gradually, though, as the Civil War generation passed from the scene, Democrats and Republicans learned to live with one another. They heeded the words of former House Speaker James Blaine, who in 1880 advised fellow Republicans to “fold up the bloody shirt” and shift the debate to economic issues.

It was not just time, however, that healed partisan wounds. Mutual toleration was established only after the issue of racial equality was removed from the political agenda. Two events were critical in this regard. The first was the infamous Compromise of 1877, which ended the 1876 presidential election dispute and elevated Republican Rutherford B. Hayes to the presidency in exchange for a promise to remove federal troops from the South. The pact effectively ended Reconstruction, which, by stripping away hard-fought federal protections for African Americans, allowed southern Democrats to undo basic democratic rights and consolidate single-party rule. The second event was the failure of Henry Cabot Lodge’s 1890 Federal Elections Bill, which would have allowed federal oversight of congressional elections to ensure the realization of black suffrage. The bill’s failure ended federal efforts to protect African American voting rights in the South, thereby ensuring their demise.

It is difficult to overstate the tragic significance of these events. Because civil and voting rights were regarded by many southern Democrats as a fundamental threat, the parties’ agreement to abandon those issues provided a basis for restoring mutual toleration. The disenfranchisement of African Americans preserved white supremacy and Democratic Party dominance in the South, which helped maintain the Democrats’ national viability. With racial equality off the agenda, southern Democrats’ fears subsided. Only then did partisan hostility begin to soften. Paradoxically, then, the norms that would later serve as a foundation for American democracy emerged out of a profoundly undemocratic arrangement: racial exclusion and the consolidation of single-party rule in the South.

After Democrats and Republicans accepted each other as legitimate rivals, polarization gradually declined, giving rise to the kind of politics that would characterize American democracy for the decades that followed. Bipartisan cooperation enabled a series of important reforms, including the Sixteenth Amendment (1913), which permitted the federal income tax, the Seventeenth Amendment (1913), which established the direct election of U.S. senators, and the Nineteenth Amendment (1919), which granted women the right to vote.

Mutual toleration, in turn, encouraged forbearance. By the late nineteenth century, informal conventions or work-arounds had already begun to permeate all branches of government, enabling our system of checks and balances to function reasonably well. The importance of these norms was not lost on outside observers. In his two-volume masterpiece, The American Commonwealth (1888), British scholar James Bryce wrote that it was not the U.S. Constitution itself that made the American political system work but rather what he called “usages”: our unwritten rules.

By the turn of the twentieth century, then, norms of mutual toleration and institutional forbearance were well-established. Indeed, they became the foundation of our much-admired system of checks and balances. For our constitutional system to function as we expect it to, the executive branch, Congress, and the judiciary must strike a delicate balance. On the one hand, Congress and the courts must oversee and, when necessary, check the power of the president. They must be democracy’s watchdogs. On the other, Congress and the courts must allow the government to operate. This is where forbearance comes in. For a presidential democracy to succeed, institutions that are muscular enough to check the president must routinely underuse that power.

In the absence of these norms, this balance becomes harder to sustain. When partisan hatred trumps politicians’ commitment to the spirit of the Constitution, a system of checks and balances risks being subverted in two ways. Under divided government, where legislative or judicial institutions are in the hands of the opposition, the risk is constitutional hardball, in which the opposition deploys its institutional prerogatives as far as it can extend the defunding the government, blocking all presidential judicial appointments, and perhaps even voting to remove the president. In this scenario, legislative and judicial watchdogs become partisan attack dogs.

Under unified government, where legislative and judicial institutions are in the hands of the president’s party, the risk is not confrontation but abdication. If partisan animosity prevails over mutual toleration, those in control of Congress may prioritize defense of the president over the performance of their constitutional duties. In an effort to stave off opposition victory, they may abandon their oversight role, enabling the president to get away with abusive, illegal, and even authoritarian acts. Such a transformation from watchdog into lapdog … can be an important enabler of authoritarian rule.

The American system of checks and balances, therefore, requires that public officials use their institutional prerogatives judiciously. U.S. presidents, congressional leaders, and Supreme Court justices enjoy a range of powers that, if deployed without restraint, could undermine the system. Consider six of these powers. Three are available to the president: executive orders, the presidential pardon, and court packing. Another three lie with the Congress: the filibuster, the Senate’s power of advice and consent, and impeachment. Whether these prerogatives are formally stipulated in the Constitution or merely permitted under the Constitution, their weaponization could easily result in deadlock, dysfunction, and even democratic breakdown. For most of the twentieth century, however, American politicians used them all with remarkable forbearance.

We begin with presidential power. The American presidency is a potent—and potentially dominant—institution, due, in part, to gaps in the Constitution. Article II of the Constitution, which lays out the formal powers of the presidency, does not clearly define its limits. It is virtually silent on the president’s authority to act unilaterally, via executive orders or decrees. Presidential power has, moreover, swelled over the last century. Driven by the imperatives of war and depression, the executive branch has built up vast legal, administrative, budgetary, intelligence, and war-making capacities, transforming itself into what historian Arthur M. Schlesinger Jr. famously called the “Imperial Presidency.” Postwar American presidents controlled the largest military force in the world. And the challenges of governing a global superpower and complex industrial economy and society generated ever-growing demands for more concentrated executive action. By the early twenty-first century, administrative resources at the executive’s disposal were so vast that legal scholar Bruce Ackerman described the presidency as a “constitutional battering ram.”

The immense powers of the executive branch create a temptation for presidents to rule unilaterally—at the margins of Congress and the judiciary. Presidents who find their agenda stalled can circumvent the legislature by issuing executive orders, proclamations, directives, executive agreements, or presidential memoranda, which can assume the weight of law without the endorsement of Congress. The Constitution does not prohibit such action.

Likewise, presidents can circumvent the judiciary, either by refusing to abide by court rulings, as Lincoln did when the Supreme Court rejected his suspension of the writ of habeas corpus, or by using the prerogative of the presidential pardon. Alexander Hamilton argued in Federalist 74 that because the power of pardon was so far-reaching, it would “naturally inspire scrupulousness and caution.” But in the hands of a president without scruples or caution, the pardon can be used to thoroughly shield the government from judicial checks. …

Given the vast potential for unilateral action, nearly all of which is either prescribed or permitted by the Constitution, the importance of executive forbearance is hard to overstate. George Washington was an important precedent-setting figure in this regard. Washington knew his presidency would help establish the future scope of executive authority; as he put it, “I walk on untrodden ground. There is scarcely any part of my conduct which may not hereafter be drawn into precedent.” As the occupant of an office many feared would become a new form of monarchy, Washington worked hard to establish norms and practices that would complement—and strengthen—constitutional rules. He energetically defended his designated areas of authority but was careful not to encroach on areas within the domain of Congress. He limited his use of the veto to bills he regarded as constitutionally dubious, issuing only two vetoes in eight years and writing that he “signed many bills with which my Judgment is at variance,” out of “motives of respect to the legislature.” Washington was also reluctant to issue decrees that could be seen as encroaching on congressional jurisdiction. In eight years, he issued only eight executive orders.

Throughout his life, Washington had learned that he “gained power from his readiness to give it up.” Thanks to his enormous prestige, this forbearance infused many of the American republic’s other nascent political institutions. As historian Gordon Wood put it, “If any single person was responsible for establishing the young Republic on a firm footing, it was Washington.” Norms of presidential restraint took hold. Although occasionally tested, especially during wartime, they were robust enough to constrain even our most ambitious presidents. Consider Theodore Roosevelt, who ascended to the office in 1901 after President William McKinley’s assassination. Roosevelt subscribed to what he called the stewardship theory of the presidency, which asserted that all executive actions were allowed unless expressly prohibited by law. This expansive view of presidential power, Roosevelt’s fondness for populist-style appeals to “the people,” and his “boundless energy and ambition” alarmed contemporary observers, including leaders of his own Republican Party. President McKinley’s powerful advisor, Mark Hanna, had warned against selecting Roosevelt as his vice president, reportedly saying, “Don’t you realize that there’s only one life between that madman and the White House?” As president, however, Roosevelt acted with surprising restraint. He took great care, for example, to avoid appearing to bully Congress by speaking directly to the people or attacking individual members of Congress as they debated crucial votes. In the end, Roosevelt operated well within the bounds of our constitutional checks and balances.

Even as the executive’s legal, administrative, military, and intelligence capabilities soared during the twentieth century, presidents abided by established norms of self-limitation in their interactions with Congress and the courts. Outside of wartime, they were judicious in their use of executive orders. They never used pardons for self-protection or narrow political gain, and most sought the advice of the Justice Department before issuing them. And, crucially, twentieth-century presidents rarely defied other branches of government, as Lincoln and Andrew Johnson had done during the nineteenth century. President Harry Truman complied with the Supreme Court’s blocking of his 1952 executive order to nationalize the steel industry in the face of a strike that he viewed as a national emergency. Eisenhower enforced the Supreme Court’s Brown v. Board of Education decision despite his own displeasure with it. Even Nixon acceded to congressional demands that he turn over his secret tapes after the Supreme Court ruled in Congress’s favor.

So although the office of the American presidency strengthened during the twentieth century, American presidents demonstrated considerable restraint in their exercise of that power. Even in the absence of constitutional barriers, unilateral executive action remained largely a wartime exception, rather than the rule.

A similar story can be told about presidential court packing. Court packing may take one of two forms: impeaching unfriendly Supreme Court justices and replacing them with partisan allies, or altering the size of the Court and filling the new seats with loyalists. Both of these maneuvers are, strictly speaking, legal; the Constitution permits impeachment and does not specify the size of the Supreme Court. Presidents may purge and pack the Court without violating the letter of the law. They have not done so, however, for well over a century. The only instance of Supreme Court impeachment in American history occurred in 1804, when the Republican-dominated House of Representatives voted to impeach Justice Samuel Chase, an “ardent Federalist” who had campaigned against Jefferson and criticized him during his presidency. Viewing Chase’s behavior as sedition, Jefferson pushed for his impeachment. Although Republicans tried to wrap the move in legality, the impeachment was, by all accounts, a “political persecution from beginning to end.” The Senate acquitted Chase, setting a powerful precedent against impeachment.

The Supreme Court’s size was a more frequent target of partisan machinations during America’s first century. Beginning with the Federalists’ move to shrink the Court to deny President-elect Jefferson an appointment, the U.S. Supreme Court changed size seven times between 1800 and 1869—each time for political reasons. By the late nineteenth century, however, court packing was widely viewed as unacceptable. In an 1893 book on the American political system, future president Woodrow Wilson wrote that “such outrages” were “a violation of the spirit of the Constitution.” Former President Benjamin Harrison wrote around the same time that although expanding the Court “is very tempting to partisans,” it would be “destructive, fatally so to our constitutional union.” By the 1920s, British journalist H. W. Horwill concluded chat there existed an informal norm “strong enough to prohibit the most powerful President and Congress, whatever the provocation, from taking a course which would make the Supreme Court the plaything of party politics.” …

Norms of forbearance also operate in Congress. Take the U.S. Senate. As a body whose original purpose was to protect minorities from the power of majorities (which, the founders believed, would be represented by the House), the Senate was designed, from its inception, to allow deliberation. It developed a range of tools—many of them unwritten—that enabled legislative minorities, and even individual senators, to slow down or block projects put forth by the majority. Prior to 1917, the Senate lacked any rules limiting discussion, which meant that any senator could prevent a vote on (or “filibuster”) any legislation indefinitely by simply prolonging debate.

These informal prerogatives are essential checks and balances, serving as both a source of protection for minority parties and a constraint on potentially overreaching presidents. Without forbearance, however, they could easily lead to gridlock and conflict. As political scientist Donald Matthews wrote: “[Each senator] has vast power over the chamber’s rules. A single senator, for example, can slow the Senate almost to a halt by systematically objecting to all unanimous consent requests. A few, by exercising their right to filibuster, can block the passage of all bills.” For most of American history, such dysfunction did not occur, in part because prevailing norms discouraged senators from overusing their political authority. As Matthews observed, although tools such as the filibuster “exist as a potential threat, the amazing thing is that they are rarely used. The spirit of reciprocity results in much, if not most, of the senators’ actual power not being exercised.”

Matthews’s seminal study of the U.S. Senate during the late 1950s highlights how informal norms, or what he called “folkways,” helped the institution function. Two of these folkways are closely associated with forbearance: courtesy and reciprocity. Courtesy meant, first and foremost, avoiding personal or embarrassing attacks on fellow senators. The cardinal rule, Matthews observed, was for senators to not let “political disagreements influence personal feelings.” This was difficult, for, as one senator put it, “it is hard not to call a man a liar when you know he is one.” But senators viewed courtesy as critical to their success, since, as one senator put it, “your enemies on one issue may be your friends on the next.” In the words of another senator, political self-preservation “dictates at least a semblance of friendship. And then before you know it, you really are friends.” Norms of reciprocity entailed restraint in the use of one’s power so as not to overly antagonize other senators and endanger future cooperation. In his study, Matthews concludes, “If a senator does push his formal power to the limit, he has broken the implicit bargain and can expect, not cooperation from his colleagues, but only retaliation in kind,” making legislative work much more difficult. As one senator described the norm, “It’s not a matter of friendship; it’s just a matter of, ‘I won’t be an S.O.B. if you won’t be one.’“

No institutional tool illustrates the importance of these norms more clearly than the filibuster. Prior to 1917, again, any senator could obstruct legislation by using a filibuster to delay a vote indefinitely. Yet this rarely happened. Though available to any senator, at any time, most senators treated the filibuster as a “procedural weapon of last resort.’’ According to one count, only twenty-three manifest filibusters occurred during the entire nineteenth century. A modest increase in filibuster use in the early twentieth century gave rise to the 1917 cloture rule, by which two-thirds (now three-fifths) of the Senate could vote to end debate. But even then, only thirty filibusters occurred between 1880 and 1917, according to political scientists Sarah Binder and Steven Smith. Filibuster use remained low through the late 1960s—in fact, between 1917 and 1959, the Senate saw an average of only one per congressional term.

Another congressional prerogative central to the system of checks and balances—the Senate’s power of “advice and consent” over presidential appointments to the Supreme Court and other key positions. Though stipulated in the Constitution, the actual scope of the Senate’s advice and consent role is open to interpretation and debate. In theory, the Senate could block presidents from appointing any of their preferred cabinet members or justices—an act that, though nominally constitutional, would hobble the government. This has not happened, in part, because of an established Senate norm of deferring to presidents to fill their cabinets and open Supreme Court seats. Only nine presidential cabinet nominations were blocked between 1800 and 2005; when the Senate blocked Calvin Coolidge’s attorney general pick in 1925, Coolidge angrily accused the Senate of violating an “unbroken practice of three generations permitting the president to choose his own cabinet.”

The Senate has always reserved the right to reject individual Supreme Court nominees. Even President Washington had a nomination blocked in 1795. But the Senate has historically been judicious in the use of this right. Between 1880 and 1980, more than 90 percent of Supreme Court nominees were approved, and only three presidents—Grover Cleveland, Herbert Hoover, and Richard Nixon—had nominees rejected. Highly qualified nominees were invariably approved even when senators disagreed with them ideologically. The ultraconservative Antonin Scalia, a Reagan appointee, was approved in 1986 by a vote of 98 to 0, despite the fact that the Democrats had more than enough votes (47) to filibuster.

Whether or not individual nominees are approved, the Senate has long accepted the president’s ultimate authority to appoint justices. In the 150-year span between 1866 and 2016, the Senate never once prevented the president from filling a Supreme Court seat. On seventy-four occasions during this period, presidents attempted to fill Court vacancies prior to the election of their successor. And on all seventy-four occasions—though not always on the first try—they were allowed to do so. Finally, one of the most potentially explosive prerogatives granted to Congress by the Constitution is the power to remove a sitting president via impeachment. This, British scholar James Bryce noted more than a century ago, is “the heaviest piece of artillery in the congressional arsenal.” But, Bryce continued, “because it is so heavy, it is unfit for ordinary use.” If deployed casually, constitutional scholar Keith Whittington warns, impeachment can become a “partisan tool for undermining electoral officials and overturning electoral results.” … The legal barriers to impeachment in the United States are actually quite low. Constitutionally, it only cakes a simple majority in the House of Representatives. Although the conviction and removal of a president requires a two-thirds vote in the Senate, impeachment without conviction is still a traumatic event that can weaken presidents to the point of political impotence—as occurred with Andrew Johnson after 1868. …

However, impeachment in the United States has long been governed by norms of forbearance. Constitutional scholar Mark Tushnet describes the norm: “The House of Representatives should not aggressively carry out an impeachment unless ... there is a reasonable probability that the impeachment will result in the target’s removal from office.” Since removal requires a two-thirds vote in the Senate, this means that impeachment should have at least some bipartisan support. After Johnson’s impeachment in 1868, there were no serious congressional efforts to impeach the president until the Nixon scandal more than a century later.

America’s system of checks and balances worked in the twentieth century because it was embedded in robust norms of mutual toleration and forbearance. This is not to say that America ever experienced an unadulterated golden age, where some variant of the gentlemanly Queensberry boxing rules of good sportsmanship governed the country’s politics. At various points, democratic norms have been challenged and even violated. [Two] such incidents are worth noting. …

[The first is Franklin D.] Roosevelt’s unprecedented concentration of executive power during the Great Depression and World War II. … Roosevelt’s reliance on unilateral action posed a serious challenge to traditional checks and balances. His use of executive orders—more than 3,000 during his presidency, averaging more than 300 a year—was unmatched at the time or since. His decision to seek a third (and later a fourth) term in office shattered a nearly 150-year-old norm restricting the president to two terms.

Roosevelt’s presidency never slid into autocracy, however. There are many reasons for this, but one of them is that many of Roosevelt’s executive excesses triggered bipartisan resistance. His court-packing scheme was rejected by both parties, and although Roosevelt destroyed the unwritten rule limiting presidents to two terms in office, support for the old norm was so strong that in 1947, less than two years after his death, a bipartisan coalition in Congress passed the Twenty-Second Amendment, which enshrined it in the Constitution. The guardrails were tested during the Roosevelt era, but they held.

McCarthyism posed the second significant challenge to America’s institutions, threatening norms of mutual toleration in the early 1950s. The rise of communism scared many Americans, particularly after the Soviet Union emerged as a nuclear superpower in the late 1940s. Anticommunist hysteria could be harnessed for partisan ends: Politicians could red-bait, or seek votes by casting their opponents as communists or communist sympathizers.

Between 1946 and 1954, anticommunism found its way into partisan politics. The advent of the Cold War had created a frenzy over national security, and the Republican Parry, which had been out of national power for nearly twenty years, was searching desperately for a new electoral appeal.

Wisconsin senator Joseph McCarthy found such an appeal. First elected to the Senate in 1947, McCarthy took the national stage on February 9, 1950, with an infamous speech in front of the Ohio County Republican Women’s Club in Wheeling, West Virginia. McCarthy ranted against communism and the presence of “traitors” within, and then stumbled onto a line that instantly became iconic: “I have here in my hand a list of 205 names that were made known to the Secretary of State and who nevertheless are still working and shaping the policy of the State Department.” The reaction was immediate. The press went wild. McCarthy, a demagogue who loved the attention, began repeating the speech, realizing he had hit upon a political gold mine. Democrats were outraged. Moderate Republicans were alarmed, but conservative Republicans saw the potential political benefits and supported McCarthy. …

By the time of the 1952 presidential race, it was clear that McCarthy’s virulent anticommunism was a useful club with which to beat Democrats. McCarthy was called in to speak in races across the country. Even moderate Republican presidential candidate Dwight Eisenhower, though ambivalent about McCarthy, relied on the political energy he generated. McCarthy repeatedly impugned Democratic candidate Adlai Stevenson as a traitor. … Eisenhower initially resisted joint appearances with McCarthy, but at the insistence of the Republican National Committee, the two men campaigned together in Wisconsin a month before the election.

The McCarthyite assault on mutual toleration peaked in 1952. With Eisenhower installed in the White House, Republican leaders found McCarthy’s tactics less useful. And McCarthy’s attacks on the Eisenhower administration and, especially, on the U.S. Army, left him disgraced. The turning point came in the live-televised 1954 Army-McCarthy hearings in which McCarthy was humbled by Army chief counsel Joseph Welch, who responded to McCarthy’s baseless accusations by saying, “Have you no sense of decency, sir? At long last, have you left no sense of decency?” McCarthy’s popularity declined, and six months later the Senate voted to censure him, effectively ending his career.

McCarthy’s fall discredited the practice of red-baiting, giving rise to a new pejorative label: “McCarthyism.” … Although groups such as the extremist John Birch Society “kept the McCarthyist spirit alive,” they operated at the Republican Party’s fringes. But norms of mutual toleration remained intact within the dominant factions of both parties until late in the twentieth century.

America’s democratic institutions were challenged on several occasions during the twentieth century, but each of these challenges was effectively contained. The guardrails held, as politicians from both parties—and often, society as a whole—pushed back against violations that might have threatened democracy. As a result, episodes of intolerance and partisan warfare never escalated into the kind of” death spiral” that destroyed democracies in Europe in the 1930s. …

We must conclude with a troubling caveat, however. The norms sustaining our political system rested, to a considerable degree, on racial exclusion. The stability of the period between the end of Reconstruction and the 1980s was rooted in an original sin: the Compromise of 1877 and its aftermath, which permitted the de-democratization of the South and the consolidation of Jim Crow. Racial exclusion contributed directly to the partisan civility and cooperation that came to characterize twentieth-century American politics. The “solid South” emerged as a powerful conservative force within the Democratic Party, simultaneously vetoing civil rights and serving as a bridge to Republicans. Southern Democrats’ ideological proximity to conservative Republicans reduced polarization and facilitated bipartisanship. But it did so at the great cost of keeping civil rights—and America’s full democratization—off the political agenda.

America’s democratic norms, then, were born in a context of exclusion. As long as the political community was restricted largely to whites, Democrats and Republicans had much in common. Neither party was likely to view the other as an existential threat. The process of racial inclusion that began after World War II and culminated in the 1964 Civil Rights Act and 1965 Voting Rights Act would, at long last, fully democratize the United States. But it would also polarize it, posing the greatest challenge to established forms of mutual toleration and forbearance since Reconstruction. …

Our constitutional system, while older and more robust than any in history, is vulnerable to the same pathologies that have killed democracy elsewhere. Ultimately, then, American democracy depends on us—the citizens of the United States. No single leader can end a democracy; no single leader can rescue one, either. Democracy is a shared enterprise. Its fate depends on all of us. …

America’s democratic norms, at their core, have always been sound. But for much of our history, they were accompanied—indeed, sustained—by racial exclusion. Now those norms must be made to work in an age of racial equality and unprecedented ethnic diversity. Few societies in history have managed to be both multiracial and genuinely democratic. That is our challenge. It is also our opportunity. If we meet it, America will truly be exceptional.