Is Democracy More Important Than Life Itself?

by Neil H. Buchanan

A little more than a year ago, I published "Is the Rule of Law More Important Than Breathing?"  (We also republished it as a "Dorf on Law Classic" in December.)  In that column, I posed and considered an excruciatingly difficult conundrum: If we could solve only one big problem, would we spend the immediate future fighting climate change or saving constitutional democracy?

I conceded that this was possibly a false choice, because some win-win possibilities always present themselves, but it is always important to ask what one's priorities should be.  I surprised myself by concluding that, because the threat of climate change is pressing but not literally a matter of being able to continue breathing in the immediate moment, the threats that Donald Trump (as well as the political toxicities that led to Brexit and the emergence of Viktor Orban in Hungary and other dictators) present to the world should be our top concern.

We now terrifyingly find ourselves with a new contender for the primary concern facing the world.  The coronavirus pandemic has already killed over 120,000 people worldwide in only a few short months, with many more deaths already unavoidable.  Now that we are no longer looking at worst-case climate scenarios that give us little more than a decade to make large changes, with "breathing" being the literal issue in a very immediate sense, where does the rule of law enter into the calculus?

In my column last year, I framed the choice between climate and the rule of law via the lens through which I view most questions: justice between generations.  I had spent a bit more than a decade thinking and writing about the question, "What do we owe future generations?"  I had long since landed on the answer: "A livable environment."  It was a comfortable conclusion, even though it did involve acknowledging possible tradeoffs between economic outcomes and green policies.  (Happily, any such tradeoffs are in fact quite small, where they exist at all).

All of that, however, was based on the unexamined presumption that the rule of law was not in play.  Constitutional democracy is always in peril in one way or another, but the continued existence of "a government of laws and not men" -- with meaningful elections, the peaceful transfer of power, limitations on executive fiat, a commitment to fight corruption, and so on -- was no more of a concern than the ground under our feet.

Or the air we breathe.  When 2016 turned everything upside down, we suddenly found ourselves looking at a world in which an autocrat-wannabe would be able to turn the U.S. into a kleptocratic state, and the rest of what we arrogantly called "the free world" seemed to be moving in that direction, too.  As Republicans revealed again and again that they would pose no barrier to Trump -- most prominently in their cavalier dismissal of the impeachment charges against him -- it became ever more clear that the world is dangerously close to the end of its multi-century democratic experiment.

What do we owe future generations?  I concluded, reluctantly, that we owe them self-determination and the rule of law even more than we owe them a less-degraded planet.  (Again, where both can be achieved, we would obviously do both.)  Giving them the continued ability to make their own decisions about how to mitigate and possibly undo the problems that are coming their way -- and to be able to change policies and governments in order to reflect the popular will in a meaningful sense -- is our highest ethical duty to those who will follow us.

As uncomfortable as it feels to say, "Climate change is not our primary challenge," I did grow more comfortable saying so as I gave speeches and seminars around the UK and Europe exploring the topic last year.  The rule of law truly is, I think, more important even than breathing -- at least in a not-exactly-immediate sense.

But again, we now face something that is very, very immediate.  What, if anything, should change about the way we think about future generations and our obligations to them?

I ask this question partly in response to a USA Today op-ed by Bruce Bartlett, who argued yesterday that everyone -- including people in the Republican Party, which Bartlett abandoned in disgust even before Trump came along -- must support Joe Biden in this year's election.

I almost always find myself agreeing with Bartlett, and I certainly agree with his bottom line here.  What caught my eye, however, was the following exhortation: "But every American must understand that curing the coronavirus is Issue 1 through infinity at this moment."  Although I share the sense of dread that would motivate that claim, I am not sure that I agree.

In a sense, this is another instance in which there is no conflict between goals.  Just as green economic policies can increase economic growth, defeating Trump due to his impact on climate change is as good as defeating him to prevent his becoming an even greater tyrant.  If we need to add "... and he is also causing needless deaths from COVID-19 because of his narcissism, ignorance, and lack of human decency," that does not change the conclusion.

Imagine, however, that Trump somehow had figured out a way to handle the pandemic deftly and was thus minimizing loss of life.  Suppose also that he -- because he is still power hungry -- threatened to undo all the good that he was doing and then not share his life-saving secrets with his successor, if he were to be forced from office.

I know, I know.  Hypothetical scenarios from law professors can be pretty "out there," and this one might set new standards for implausible premises.  Even so, I am finding it instructive to think about this question: Would we trade off pandemic life-saving in order to prevent the establishment of a dictatorship?  And as a followup: Does our answer change if our focus is entirely on future generations?

The first question -- Would we trade lives for democracy? -- is in a sense a mirrored version of the "deals" that Trump and his followers have been pushing for years.  "Hey, black people, what have you got to lose?  Your unemployment rate is lower than ever."  "Hey, retirement savers, look at your 401(k) balances and ask yourself whether you really care whether Trump committed treason or betrayed an ally."  "Hey, suburban women, we're preventing caravans of brown people from killing your kids, so forget about the misogyny and ugliness coming from the White House."

Here, we are asking whether we would accept a horrible outcome -- more preventable deaths -- in order to prevent someone from installing himself as emperor for life and beyond.  We have two incommensurable goals, and we face a simple, stark question: Do we want one or the other?  Which is worse?

What makes this kind of choice especially difficult is that choosing the broader goal -- the continuation of the rule of law -- imposes costs only on some people.  It is the "trolley problem" in extreme form, except that it is not deaths-for-deaths but deaths-for-democracy.  Some people will die, in this hypo, if everyone decides not to do what is necessary to minimize death.  Even if that decision is made under a veil of ignorance, that does not change the reality that some people -- and only some people -- will not live to enjoy the rule of law.

The followup question -- Does this change if we prioritize future generations? -- is especially interesting because it forces us to think beyond our immediate fears.  It is true that some future people will never come into existence if their would-be parents are killed in the pandemic, but every counterfactual world consists of different people if we look far enough into the future.  "What if Hitler had never been born?" questions force us to acknowledge that the rest of history (including who exists) would necessarily change, and even smaller counterfactuals have butterfly effects that change who would be born.

When I delivered a version of my "What do we owe future generations?" lecture at the University of Leeds last Spring, Professor Rita de la Feria made the point that "survivor bias" plays a big part in all such musings.  We appreciate, say, the pyramids of Egypt as architectural and engineering marvels without thinking about the slaves who died building them, which makes it too easy for us to say: "Worth it!"  Still, that does not mean that something of value does not exist, even though we would have made a different choice at the time.

Again, we actually do not face these tradeoffs.  Trump's disappearance from the scene would make it more likely that we minimize deaths from COVID-19, more likely that we would address climate issues, and more likely that the rule of law would survive (for us and for future generations).  It is not actually true that "curing the coronavirus is Issue 1 through infinity at this moment."  But Trump makes it easy for us to think so.

Trump -- in his bottomless narcissism -- continues to whine that people are not appreciating him, telling us that we should all be thanking him all the time.  And we can thank him for this: He spares us what might actually be a difficult moral tradeoff between what he does badly and what he does well.  By being bad in every way, he makes our choices easy.