Rot and Reform – Dissent Magazine

An interview with David Bateman and Julie C. Suk on the state of American democracy in 2026.
Traditionally, anniversaries serve two functions. They allow us to take stock of where we are, and they allow us to celebrate what has been accomplished with the passage of time. The 250th anniversary of the Declaration of Independence is coming at a low point in the country’s complex history, which makes the latter feel out of place. Instead, it seemed better to use the opportunity to consider our current condition and think about how to improve it. Julie C. Suk and David Bateman, professors of law and government, respectively, have written extensively and thought deeply about all the ways that U.S. government institutions are not serving us well. We spoke in April about our undemocratic past, our undemocratic present, and our possible democratic future.
—Patrick Iber
 
 
Patrick Iber: Let’s begin with a diagnosis. We’re 250 years into the American democratic experiment, with all of its limitations and contradictions. How healthy is our democracy in 2026?
David Bateman: It’s extremely unhealthy. We’re not yet a competitive authoritarian regime, but we’re close to the threshold. We’ve seen dramatic backsliding, degradation of democratic and constitutional checks, and a profound rot in both the constitutional order as well as the more political institutional structures that keep a healthy democratic regime in place. I don’t think America has ever been an especially healthy democratic regime, but right now the rot is at the top. So we’re in a very bad spot.
Julie C. Suk: I agree—and I also agree that it’s not just a blip that started a year ago. There’s been dysfunction in most of the institutions that are set up by the Constitution to check power and to allow the people to control or consent to being governed.
Iber: The latest V-Dem Institute Democracy Report said that the United States is in a faster deterioration process than any democracy in recent times, setting aside old-fashioned military coups. What’s going on? And how is what we’re living through now different from the past? The Jim Crow South had sub-national authoritarian enclaves; in certain ways, U.S. democracy is no older than 1965.
Bateman: It is different in many ways. Jim Crow rested on disenfranchisement and a series of institutional manipulations, as well as outright violence, to secure what were effectively one-party states. Those were compatible with a type of very limited democratic structure at the federal level. I don’t mean the United States had a functioning democracy, because roughly a tenth of the population was effectively disenfranchised, and a third of the country effectively had a one-party system because of deliberately rigged institutions. But at the national level, with one big exception in 1860, we’ve had no real doubt about the transfer of power since 1800. That very minimal idea of a democracy—when losers lose, they leave office—has become increasingly contested in recent years.
What’s distinct in this moment is that the assault on democracy is happening at the top, less through electoral manipulation (although there have been some efforts) than by using federal government institutions to coerce civil society. Examples include the Federal Communications Commission’s threats to broadcasters, government support for allies who control major news networks, and efforts to coerce universities. That is all in keeping with the broader package of democratic backsliding that we see globally.
Suk: One thing that we’re seeing is constitutional developments that have greenlit the rise of executive power. Certainly, there are arguments that Donald Trump is violating the Constitution every day. But evolutions in constitutional law that produced a doctrine of increasing executive power and limiting the ability of Congress to act as a check on the executive are important background conditions. In addition to the Supreme Court striking down acts of Congress at various points, thereby diminishing its ability to check the president, you also have the Supreme Court staying out of partisan gerrymandering, which affects the kind of Congress we get and its likelihood of checking abuses of power. That’s why I don’t see what’s happening now as a sudden collapse of democracy, but the consequence of decay that has been happening for reasons we can explain.
Iber: Through the conservative legal movement, or other factors?
Suk: I don’t think it’s all because the conservative legal movement pushed a unitary executive theory. Before the unitary executive theory really takes hold, we have the rise of judicial supremacy. I would say that cases like Brown v. Board of Education and Roe v. Wade were as responsible for the rise of judicial supremacy as the conservatives who came before them, like Chief Justice William Howard Taft in the 1920s. Even if it starts with conservatives, I don’t think the conservative legal movement is to blame for opening the door to the kind of abuses of power that are being enabled now.
Iber: The late political scientist Juan Linz talked about the weaknesses of presidential systems. They create multiple sources of legitimate authority; Congress could be seen as incarnating the democratic authority of the people, but so could the president, and when they enter into conflict, you often see democratic breakdowns. Is what we’re experiencing now a sort of resolution to the Linz problem? You don’t need the institutional break if you control all of the branches of government.
Bateman: I appreciate your bringing up Linz, whose argument is that this is about two separate, irreconcilable authorities, and there’s no way to break the deadlock through constitutional means. Parliamentary systems have the vote of no confidence. You go back to the people. In presidential systems, the only way you can go back to the people is effectively through extra-
constitutional claims to the authority of the people.
I actually don’t think that’s the problem here, because I don’t think we have a constitutional crisis in this country. We have constitutional decay, we have democratic decay, we have democratic backsliding, but a crisis in which Congress had the capacity and will to act, would actually be an important check on what we’re seeing. And to connect it to Julie’s point, Congress expanded executive power enormously, from the Progressive Era on, in big bursts. But almost all of those expansions of executive power were accompanied by an expansion of congressional power to unilaterally say no. That was struck down by the Supreme Court in 1983 in INS v. Chadha. This case abolished what had been called the “legislative veto,” which allowed Congress—sometimes even just one chamber—to veto administrative actions in areas where Congress had given the president authority. This didn’t seem to matter much immediately, but it profoundly changed the long-term balance between the branches. We now have a situation in which the president can act unilaterally, often using powers Congress delegated to it. But Congress cannot act unilaterally in response, except through the very blunt and unpopular method of not passing appropriations bills and initiating a government shutdown, or the soft and easily ignored process of oversight. Any legislative effort to constrain the president requires the president to sign on. It’s become a much less effective branch as a result.
None of the various checks on executive power we have—an independent judiciary, special prosecutors, norms protecting attorneys general’s independence—are perfect. However, when all of those institutions have decided to be in lockstep with a president breaking the law, the only plausible solution we have within our existing constitutional order is Congress. And if Congress can’t do it—because of the steep thresholds for congressional action, so that you need supermajorities to pass legislation over the president’s opposition—then it’s not going to happen.
Iber: You have to wait for the next elections and expect that they’ll be free and fair.
Bateman: And the elections might very well be free and fair. One of the things we’ve seen in democratic backsliding globally is that election quality has improved. Elections are likely more well-administered in Turkey today than they were twenty years ago. And despite everything, 2020 was probably one of the most well-administered elections in American history; 2024 might have been better yet. Backsliding around the globe is not happening primarily through rigging elections; it’s happening mostly by coercing civil society, creating an unfair process well before the elections happen.
Iber: It’s easy to imagine that someone with a different personality than Trump would not act exactly the way he has, even if they were from the same party. He’s a very unusual human being. But he’s exposing the weaknesses in the system that predate him. Americans tend to be very attached to their Constitution, to assume that there’s a genius inherent in the order under which we live. I wonder if Trump is opening up some space to reconsider that fundamental premise. What features would a democratic system have that was better than the one that exists in the United States?
Suk: Trump is expanding executive power and adopting oppressive measures through executive orders that have a legal argumentation. (This is similar to autocrats elsewhere who are responsible for democratic backsliding this century.) For example, many judges, upon first glance, said the birthright citizenship executive order was flagrantly unconstitutional. But if you read the executive order, it begins with legal reasoning, purporting to embrace, rather than flout, the text of the Fourteenth Amendment. To take another example, Trump is firing a lot of people, and he’s claiming that Congress’s efforts to restrain his authority to do that violate various provisions of Article II of the Constitution.
We can say Trump is flagrantly violating the law, but the law has also been shifting to make it plausible under the Supreme Court’s interpretations that he’s not actually flagrantly violating the law.
We have one of the shortest Constitutions in the world. A lot of these questions are consolidated by interpretation, in part because the Constitution doesn’t speak to a lot of it. Modern constitutions, including the constitutions of most of the states in the United States, are more specific about institutional design. And maybe that is what we need for the complex, vast, multiracial democracy that we are. Maybe we need to be more explicit about how these institutions are designed and what powers they have and what powers they don’t have.
Bateman: We have probably the most difficult-to-amend Constitution in the world. Every additional state has made it more difficult, because it increases the number of veto points. On the other hand, we amend the Constitution all the time through the courts. And the courts have an enormous amount of flexibility, because we recognize that court decisions are the mechanism through which we accommodate our short, unspecified Constitution to the vastness of the American empire and the American state. The court uses this power, and we give it the power, because we see amending the Constitution itself as such an impossible task. If you raise the idea of amending the Constitution through the regular Article V path, people will laugh in your face.
Iber: I want to highlight the point that you just made: the Constitution is constantly being changed by the courts. I don’t think that that’s a common understanding of the way that the American legal system works, but as soon as you say it, it’s clear that it is the case. Julie, I know that this is an area that you’ve worked on; you’ve argued that there’s a misinterpretation here of how difficult it is to amend the Constitution.
Suk: When people say “difficult,” they’re talking about the supermajority threshold. Two-thirds of both houses of Congress and three-fourths of state legislatures need to ratify amendments. That’s difficult. But we should also be focused on how the federal constitutional amendment process under Article V actually cuts the people out. It is possible to have proposals that come through a constitutional convention, but you don’t get a constitutional convention under Article V unless two-thirds of state legislatures petition Congress, and then Congress calls for one. Our elected representative institutions are the gatekeepers to constitutional amendment, and if you think that those institutions are no longer representative and are gerrymandering to entrench their own power, that is a real problem. At the state level, there are initiative and referendum processes where citizens can bypass the legislature by collecting signatures, but we have nothing like that at the federal level. If these institutions are unrepresentative, we don’t have a means of changing the Constitution legally through Article V. We would need a revolution.
Iber: There are certain reforms that have passed into common understanding among liberals, like statehood for Washington, D.C. and Puerto Rico, or ending the filibuster. These are the kinds of ideas that seem to be on the table. And they would certainly, at least in the short run, provide certain kinds of partisan advantages that would address some of the malapportionment of the Senate. Are those ideas enough? Or should we be thinking about deeper structural reforms?
Suk: I don’t think at this point a few more votes in the Senate is going to make a huge difference with the policies that you want Congress to be passing. The Senate is overall malapportioned, but the Constitution makes it impossible to change that, even by Article V amendment, because Article V says that the equal suffrage of the states cannot be changed by two-thirds of Congress and three-fourths of state legislatures. Each state whose equal suffrage would be affected would have to consent to that change, and it’s hard to imagine states that would lose some of their representation agreeing to such a thing. Another option is just to abolish the Senate. That would only require a normal Article V amendment.
There are big challenges to achieving this. You have to get the American people to a point where they recognize that their institutions are not serving them well. But to the extent that we’re going to have lawmaking institutions be democratic and proportionately representative, it does seem like the only legal way to make the Senate democratic would be to abolish it and then to reconstitute it by constitutional amendment.
Bateman: Puerto Ricans are divided on the question of statehood. I don’t think we should be proposing it as a solution to Democrats’ electoral disadvantages. The Republican Party would likely be competitive there, so it’s not even going to reliably advantage the pro-democracy party. That’s not a reason not to grant statehood, but it is a reason why we should separate it out from other reforms that might immediately strengthen a pro-democracy coalition.
I support getting rid of the filibuster, but the Senate remains the most malapportioned legislative body in the entire world. There are other reforms. Congress, for instance, could require proportional representation for the House of Representatives. But that wouldn’t necessarily produce a multiparty system, because there’s a huge push from the electoral college and from the Senate to have two parties. Unless you reform those, proportional representation in the House would have only limited effects.
Julie is right that the best way to do this is to get rid of the Senate. Article V is a barrier. Can we accomplish this through other paths? Consider something like the Parliament Act of 1911 in the United Kingdom, which said that the House of Lords could delay legislation but not veto it. Could Congress pass legislation changing the Senate’s internal procedures to deem that any bill that arrived to it from the House would automatically pass after some defined period? There would be obvious constitutional objections. But if you could build a coalition that could pass it in the first place, you can envision building a judicial coalition that might acquiesce to it. The point is, we need to start thinking creatively about reforms.
I think the problem is not so much persuading people to dislike the institutions. I think they dislike Congress. They dislike the president. They increasingly dislike the Supreme Court. If you proposed changing all these systems, they would say, “Sure.” The problem is getting people to agree on the solution, and convincing them that it’s the design, and not the people, that is the problem.
Iber: You mentioned the goal of a multiparty system. Can you elaborate on why that would be more democratic than the two-party system that we currently have?
Bateman: One of the attractions of a multiparty system is that it allows you to check extremism. I was in Marseille a couple years ago for the French elections. If you were in a more left-wing district, every square inch was postered with leftists and centrists saying, “Vote against the fascists.” And if you were in a centrist district, you had all these posters, in addition to the centrist ones, from the left saying, “Yeah, they’re neoliberals, but it’s important.” The anti-fascist bloc fought hard against each other during the first round, but coordinated in the second by encouraging their supporters to back whichever was the more viable anti-fascist party. You can make those choices in a multiparty system.
Multiparty systems also allow parties to do something they have a hard time doing today, which is presenting what their members actually want and being responsible for those positions. I think one of the bigger problems in American politics is that there are very few things that induce responsibility. That’s a structural problem.
Iber: Some of the reforms that have been mentioned would likely produce a response accusing the people carrying them forward of pushing their own authoritarian project. David, I know you think that it is possible to play pro-democracy hardball, but it’s certainly not what Fox News is going to say, and it may not even be what CNN is going to say. How do you get ahead of that problem?
Bateman: Any of the reforms that we can envision will be presented as a power grab, and they probably would be a power grab. It is rarely the case that we’ve achieved any type of political reform in this country without aligning it with the priorities of some major interest, usually a political party. We are likely going to need some type of pro-democracy or democracy-reinforcing hardball: reforms that stretch the boundaries of acceptable political behavior or break democratic norms, but which produce new institutions that are likely to stabilize democracy over the long term. And any type of pro-democracy hardball is going to be polarizing.
Suk: One of the areas that I’ve been thinking about the most is what we can do about the Supreme Court. That’s the subject of my next book, The Shadow Court, which will be out in September. We’ve already mentioned how the Senate is very malapportioned. It also has more constitutional power than the House with regard to the courts; only the Senate votes on judicial appointments and the appointments of all other officers of the United States. That’s very anomalous internationally. If you’re going to have an institution like the Supreme Court do constitutional lawmaking, it’s completely unacceptable to have the most malapportioned representative body have the only say on the president’s appointments. In most other countries, both chambers of the bicameral legislature are involved in appointments to the court that decides the big constitutional questions. Americans really need to think about creating another court, which I call the shadow court. It could be like a shadow cabinet—it doesn’t even have to have any real power—but you could constitute an institution within Congress that acts almost like the Office of Legal Counsel in the Justice Department, which had real bite in previous presidential administrations (it’s been sidelined under Trump). These would be lawyers and jurists who provide independent legal opinions on the legality and constitutionality of the president’s actions for Congress. There’s nobody in Congress right now who is willing to defy the decisions of the Supreme Court or pass legislation that openly confronts it. For Congress to have the confidence to do that, they need their own high-profile legal advisors.
It’s hard to do because every time Congress has tried to be a little bit inventive, the Supreme Court has struck it down. Congress tried to create an election commission where the Speaker of the House could name some members, and that was held in Buckley v. Valeo to violate the appointments clause, which states the president can appoint the officers of the United States only with the advice and consent of the Senate. So we are trying to engage in institutional innovation in a cage of constraint. But even within that cage, there’s room for experimentation with any institutional innovation that involves soft power, without the force of law.
We need to think about law as also having power because of its creativity and its ability to persuade. We need to create places of soft law that will not be struck down by the court. The problem is that, very often, members of Congress will ask, “Why should I waste my political capital on something that’s not even going to be binding?”
Bateman: Congress can determine its own procedures. Various types of internal congressional procedures have been written in the statute. That’s how we have the reconciliation bill, which doesn’t have a sixty-vote requirement in the Senate. The Senate could say, “We will consider no judicial nominee that has not also been approved by the House of Representatives.” It could write this into its own procedures, or Congress could pass legislation setting those procedures.
Suk: You create a vetting procedure.
Bateman: Those types of things, you can start doing. Because of how empowered the Supreme Court is, I imagine it might want to strike this down. But it would be a stretch, and if you were able to build the coalition to do this in the first place, the Court might think twice.
Suk: Before the adoption of the Seventeenth Amendment, which moved from state legislatures picking senators to direct elections, a lot of state legislatures had already started to have advisory elections so that even though technically it was the legislature picking senators, they effectively had direct elections. So there’s a lot more experimentation we could do with advisory bodies.
Ireland had a draconian abortion ban in its constitution, which was added in 1983 in response to Roe v. Wade. When it was finally repealed in 2018, it was because Parliament decided to have citizens’ assemblies, for a variety of reasons on a variety of topics, for years. Even though the assemblies’ deliberations did not bind Parliament, they made it clear that the people in Ireland were not supportive of having such a draconian abortion ban. Once the citizens had spoken, Parliament had to put the option to repeal the amendment on the referendum ballot. It is worth some experimentation to at least present information to the public, whether it comes from an alternative set of jurists or citizens’ assemblies. We might get to a place where there’s enough political pressure for those who exercise hard power to exercise it differently.
Iber: Whether or not these reforms take place will depend a great deal on the kind of leadership that politicians are willing to exercise. In the last election, the pro-democracy arguments seemed like a defense of current institutions. Some people, after the results of the election, concluded that democracy itself is not a winning issue. I don’t share that interpretation, but I do think that we have to combine a democratic vision with an acknowledgment that people are not happy with the way our democracy is working, and they don’t necessarily understand why. How can we make a pro-democracy agenda that is not about defending the status quo, but about building something better?
Bateman: I don’t think that the 2024 result was evidence that Americans don’t care about democracy. I think it’s evidence that democracy as we think of it does not have the same meaning for most people. If you look at how Trump ran in 2024, he claimed he was restoring democracy. It is significant that he wasn’t denying the right of the people to govern. He was saying the people’s real will had been defrauded.
I do agree that there is a lot of dissatisfaction with institutions, but I don’t think you’re going to persuade people by talking about democracy, because democracy doesn’t have a precise and agreed upon meaning in people’s lives. Rather than focusing on the message, I would prefer a focus on organizing and institutions. You need to thicken the intermediary institutions in regular people’s lives. All of the intermediary institutions of the Democratic Party have frayed their local connections. There’s still a lot of them, but they’re pretty hollow. And while that’s somewhat true on the Republican side, it’s less so; evangelical churches, for example, are much more connected with members and are able to move people.
I don’t think this change is going to come from the parties. I don’t think there’s a right way to message this. You have to connect it to people’s actual experiences, and unless they have democratic experiences, and have a definite sense of what it means for their lives, it’s going to be tough to really get them on board. The biggest part of this is unions. They are real anchors that can connect people to political institutions and give them a sense of real agency.
Suk: What really moves people is not an abstract idea of democracy, but outcomes, including material outcomes. Americans have a vague understanding that the institutions aren’t working. They are skeptical of elites and oligarchy. They would not describe their ideology as anti-oligarchic, but I think it’s more anti-oligarchic than it is democratic. I think part of Kamala Harris’s problem was that she was using the word “democracy” to describe what many people experienced as oligarchy. Where I am in New York City, Zohran Mamdani’s election campaign focused on material outcomes and skepticism of oligarchy, and that got people engaged in changing our institutions in a democratic direction.
David Bateman is an associate professor in government and public policy at Cornell University. He has written extensively on democratic backsliding, democracy-
reinforcing hardball, and ideologies of race and racism, and is the author of Disenfranchising Democracy and, with Ira Katznelson and John Lapinski, Southern Nation.
Julie C. Suk is a professor of law at Fordham University School of Law, where she teaches constitutional law and civil procedure. Her research focuses on constitutional amendment and reform. She is the author of We the Women: The Unstoppable Mothers of the Equal Rights Amendment, After Misogyny: How the Law Fails Women and What to Do about It, and The Shadow Court: Rescuing Democracy from the Supreme Court (forthcoming September 2026).
Patrick Iber is co-editor of Dissent.
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