Former Supreme Court Justice Mariano-Florentino Cuéllar has this long piece posted today on the Foreign Affairs website, “How to Survive a Constitutional Crisis: The Three Guardrails That Can Save Democracy.” The three “guardrails” he identifies are the courts, state and local governments, and the independent media.
Justice Cuéllar, who left the court in 2021 to become president of the Carnegie Endowment for International Peace, writes, “Never in history has the country faced such a massive, ‘flood the zone’ strategy from a president who muses openly about a third term, implies that he can choose to impound funds previously appropriated by Congress, and does not appear to care about the Constitution as it has been established by court doctrine and understood by generations of legal scholars.”
The three guardrails are not a cure-all, he says. “Courts, federalism, and the independent media will not alone protect the country in every circumstance. But they can enable crucial action to respond to a relentlessly power-hungry administration.”
Justice Cuéllar assures that “Americans are not now living under an authoritarian regime,” because “the three critical guardrails of the U.S. system remain in place and can continue to provide essential constraints on a lawless executive: courts are ruling, states are going about their functions, and the media and ideas sector are relentlessly explaining to a divided American public what the administration is doing and why it matters.”
And he warns that this is not the time to give up hope — “Prematurely assuming that the foundations of U.S. democracy are crumbling and that the edifice will collapse can make people run for cover at precisely the moment when they should instead be reinforcing them.”
Related:
Former Justice Cuéllar criticizes SCOTUS “Unwelcome Forays Into Foreign Policy”
