The following is a transcript of Tom Ginsburg’s keynote address at the 2025 Stigler Center Antitrust and Competition Conference—Economic Concentration and the Marketplace of Ideas.
Luigi Zingales
Please allow me to briefly introduce our speaker. Tom Ginsburg is the Leo Spitz Distinguished Service Professor of International Law, Ludwig and Hilde Wolf Research Scholar, and Professor of Political Science at the University of Chicago. He currently co-directs the Comparative Constitution Project, an effort funded by the NSF to gather and analyze constitutions. He’s also the founding faculty director of the Chicago Forum for Free Inquiry and Expression, which promotes the understanding, practice, and advancement of free and open discourse at the University of Chicago and beyond. Now without further ado, I turn it over to Tom. Thank you.
[applause]
Tom Ginsburg
Thank you, Luigi.
I’m really pleased to be at the conference. I’ve learned a lot already. I hope to continue to learn from you.
My work, as Luigi said, is on constitutions around the world. And I think there are some analogies that will be useful for this discussion. It is true that about 12 years ago I did get some money for one of my constitutional websites from Google Ideas, so that’s a disclosure. My other disclosure is that all my salary comes from the University of Chicago Law School.
There’s a reason we’re having these discussions at the University of Chicago. And there’s a reason that we have a Forum on Free Inquiry and Expression. We are sort of the standard bearer in this area. It’s just really by chance. It’s the fact that we were created in 1890, which is the same era as the Sherman Act. The same era where the First Amendment starts to have bite. It’s the progressive era. Ideas of technocracy. Ideas of knowledge serving society. It’s really part of the DNA there.
It’s actually also the era of the origin of this metaphor, the marketplace of ideas. Most people trace it back to Holmes’s opinion in Abrams’s 1919 case. I think the actual phrase comes from William Douglas a couple of decades later. But the basic idea is that there’s a marketplace of ideas, and we ought to have full contestation in a kind of regulated space, in the same way that we would think you need some antitrust law. So it always had the idea that there’s some background limitations. What Holmes was doing was loosening those limitations and expanding scope to criticize the government, to fight to have an anti-war movement, eventually to protect communists, and things like this.
We’re in a huge moment of crisis in this area. It’s certainly the most repressive era—as was said this morning—since the McCarthy era. Just to throw a few examples.
The administration, for example, said that AP was going to be banned from the White House press pool. They lost that case. But this is a general pattern, which is, do a lot of illegal stuff and some of it might fly. It’s heartening that they did lose the case, but the attempt is very significant.
The disappearance of free speech rights for non-citizens, including green card holders. They’re gone right now. Eventually that will be litigated, and eventually the government will lose. But the chilling effect—which is something we worry about so much in this area—is already present. That’s a major concern. It’s personal for me because I have a friend whose visa was removed on his way back to Princeton, really for nothing, not even for speech, just whatever. There’s no due process if you’re a non-citizen and you’re outside of the country.
Law firms, the attacks on law firms, which are speech related. In other words, if I’m representing X or Y person Trump doesn’t like, they can deny access to—what they tried to do is—any federal building. Now, it turns out that all federal courthouses are federal buildings. So, it’s obviously an attempt to intimidate and deny representation for those who they don’t like. That’s a huge threat to the rule of law.
Academic freedom; we have this weaponization of anti-semitism and such. This has been under attack from many quarters for many years. But now with state power accelerating—as I think was also said this morning—it’s part of a general attack on knowledge institutions. You can’t have democracy without facts, without institutions to produce facts that we can then fight over in the political sphere. Not just universities, but also the media.
The census. Attempts to manipulate that. A report earlier, they were going to change how they calculate GDP. That’s a major change. Government statistics, so much depends on that. Librarians are, right now as we speak, scraping websites to make sure that things don’t get taken down which are necessary for a free society.
Finally, I’d add prosecutors. Traditionally they were protected by a norm of independence. That seems to be gone. We saw in the Eric Adams case an attempt to threaten people with prosecution and then make a deal. It’s all patrimonial, and it’s all an abuse of law to bring civil society to heel. So, it’s a very grave moment in which the public sphere is being degraded and institutions are under direct and serious attack.
This is actually an old problem. In my world of comparative constitutional design, it’s been thought about for 250 years or so, or maybe longer, maybe thousands of years.
The analogy I want to give you is that autocracy is monopoly.
In any kind of political competition, if you can get all the power, then you can abuse it. So, in democratic competition, we always think about ways to prevent that monopoly from being obtained, and to preserve the competitive environment. That’s the theory of democratic constitutional design, and we have a long series of answers to that, which I’d like to go through historically.
Although, I do want to note there’s a slight dis-analogy. When it comes to democratic competition, if you get 51% of the vote, you do get the power. (Maybe 90% of the power would be good, but, you know, stylistically 100% of the power.) So that’s all you need. But of course, it’s limited in time. So, the governance of power over time is actually the critical thing in our area.
Markets are a little bit different. If you have 33% of the market share and then you move to 34%, there’s not… It’s not an all or nothing proposition. So, there is a bit of a dis-analogy.
I think the key thing that we need to be thinking about is rotation in office over time. This goes back to Aristotle. Democracy is ruling and being ruled in turn. And, knowing that that happens within rules—it’s not natural, we need rules—how do we preserve capture of those rules to entrench?
There is one way in which the analogy, I think is, appropriate. And that is the fact that backsliding, democratic backsliding—which is the phenomenon of our era—is something that takes place slowly and in incremental steps, each one of which might be fine, and each one of which might not appear to be a threat to democracy. It’s slow and it builds over time, and then all of a sudden you wake up and—like the boiling frog—the democracy is gone. Death by a thousand cuts is how the ancient Chinese would issue the punishment. What’s the cut that kills you? This is like market competition. We don’t… There is no line in which you’d say, well this is too much. We have tests that do that, but it’s not obvious. And for us, who want to draw the red lines, it’s very hard. It’s very, very hard indeed. So we tend to go back to trying to design systems. And there’s no single right answer. The answers change over time. You have a proposal, a kind of attempt to work out a system; and then that system shows its weaknesses, and we come up with something new. It’s a very dynamic field, in which regulation is always catching up with the new problems that present themselves.
Ultimately, the goal in a constitutional democracy is something like a self-enforcing equilibrium. You could say, “Well, what we need is rights, and we need courts to step in and do this or that,” but that begs the question of why we obey the courts. Why? Where does their power come from? At root, many of us think democracy ends up being protected by the threat of people going to the streets; and yet, that itself is the subject of regulation.
The quest for self-enforcement is really what I would say we’re looking for. Let me go through, briefly, some of the historical attempts to answer the question.
We have to start with James Madison. He was worried about the problem of monopoly; the king of England had all power, in his conception. How do we deal with that? Let ambition confront ambition. Set up different branches of government with different, I would use the term, property rights and decision areas. “You have this right. You have that.” And, by virtue of the different allocations of power, those branches will fight among themselves to make sure that the liberty of the people is preserved and that no one branch can take over them all. They also had this idea that… Remember that they didn’t think of political parties. They thought political parties could be eliminated, or that faction was the grave danger, and yet it was inherent in human behavior. So, faction—little groups that tried to seize power—would always be there. One of Madison’s ideas in that regard is to extend the republic: to expand the framework of competition geographically, as well as institutionally by dividing power in states. It is a solution which relies on divided power. The “separation of powers” is what we know it as. The problem is that he didn’t anticipate parties, and what happens when you’re in a situation—like we’re in today—where you have one party that controls all the branches of government, more or less.
Well, we still see some ability of the courts. I think the courts are extremely important in our moment to stand up. Congress, obviously not.
This is not true just in the United States. It’s true in many, many countries. Legislatures have very low legitimacy and very low ability to do anything, in terms of constraining powers of executive. We now live in an era where government is really two branches—it’s the executive and courts—in many, many countries.
That’s a problem for Madison. Later literature says, “What we really need is a separation of parties, and not powers.” That is, you want a structure in which the parties will be incentivized to compete, regardless of who happens to have the branches. That’s hard to do. It’s hard to do.
The Madison framework certainly doesn’t answer the Elon Musk problem. What if you have a situation where one person can essentially buy all those branches? We have examples of countries like that. Small countries. A little harder in the United States. I might be a little more skeptical that Elon Musk is really going to run us than some of the discussion this morning. We do have countries, the country of Georgia for example, where the Russian billionaire Ivanishvili, his wealth relative to everyone else in Georgia is so great, it would be the equivalent of Elon Musk having six or seven trillion dollars. He completely runs the show. He is turning it into a Russian puppet state, despite the fact that 80% of the people want to align with Europe. That’s a danger. I don’t want to underestimate it. But the question is always, “Where is that person’s wealth, relative to the other sources of wealth that don’t depend on government?” That might be a source of resilience. I’ll come back to that.
So the first answer—separation of powers—doesn’t really work.
Later in the 19th century, people developed in terms of thinking about rotation of power. The idea of term limits, which aren’t in the original United States Constitution. The idea that someone should be in power just for a limited amount of time. That, of course, would ensure rotation. It’s an ancient Greek idea that was brought back. One of its great advocates was Simon Bolivar. He said (and by the way, he completely changed his mind once he was elected; he then gets rid of term limits and becomes president for life), “Nothing is more perilous than to permit one citizen to retain power for an extended period. People become accustomed to obeying the person, and he becomes accustomed to ruling.” There’s this risk that one person could keep running.
If you think about that, it’s… There’s always this question in debates about term limits. Aren’t they undemocratic? After all, if the people want to keep electing someone, and they’re popular, why should they stop? If you look at popularity ratings, Barack Obama might have gotten a third term, for example. If we were a parliamentary system, probably George W. Bush would have been out really early. You could imagine some presidents would be allowed to serve longer, and then eventually go off into the countryside or whatever.
I’ve always thought about this from a competition perspective. Let’s say there’s a situation where you don’t have term limits. Well, someone who takes up so much public space is going to induce potential entrants to stay out of the market. They’re not going to come in. They’re going to be afraid. And, because the stakes of power are so high if you can govern for an extended period, those who do come in… There’s going to be a selection effect towards potential autocrats. If I get to come in, I’m there for life. Towards Xi Jinping kind of types.
Autocracies have these fights all the time. What autocracies also have is that the stakes of power are absolute. In China, every generation has a fight to the death for power. In fact, just a comment on China. We’re actually in a very civilized era because Bo Xilai, who lost the last competition, is still alive in jail. Lost all his wealth and all that stuff, but that’s a rare thing in Chinese transitions for power. It’s a rare thing in autocracies.
In democracies we lower the stakes. We say, if you step out of power, you can still have something. That’s precisely what’s at risk in our moment. I will come back to that point.
The term limit thing is good, but again it’s not a perfect solution. I have some research which I did which shows that, of all fixed-term presidents since 1800, about 25% of them who reach the end of the term that they had when they were in office try to extend it. Twenty-five percent! One out of four. And about 80% of those succeed. So, they can be bypassed. They can have a constitutional amendment. You could have a court—Daniel Ortega recently did this—to say it’s against your human rights to deny you the right to run for office. That’s a mechanism. This is a very interesting thing in discussion in the United States today. The proposal for Donald Trump to run as vice president and then accept the office when it is resigned by JD Vance or whoever decides. They have mechanisms. Putin did this very effectively. Putin stepped down for a term as prime minister, and Medvidev is still in the inner circle, so that was a very effective thing. But Putin has a lot of levers.
In any case, term limits are not foolproof. That’s the big point. It’s a good idea, but like anything in constitutional design, sufficient power and manipulation can find a way to overcome it.
The next set of ideas we have actually came out this morning in Alexandra Geese’s commentary, which is what we call militant democracy rules.
Militant democracy is an idea that develops in the interwar period, but then becomes very famous after World War II because the fascists were elected through democratic means. The idea is, you couldn’t possibly let the undemocratic forces run for office because, what do you do? If they’re in office, they’ll never have another election. So the mechanisms which were used, and are used, one of them is party bans. This was used to great effect early in German history. The Nazi party is banned; the Communist Party is banned. Article 21 of the German constitution. It seems to be a good mechanism if you trust the regulators. If you trust the mechanism to identify parties.
Another such mechanism would be disqualification. Disqualification from office. We’ve just seen Marine Le Pen disqualified from office. We could talk about the particular case. I think that there’s a kind of a paradox with these disqualification regimes, which is, they work most easily against those who are not a real threat. If someone is too powerful… I mean, they’re not banning the AFD, right? If a party is too powerful, or a person’s too powerful, they don’t get disqualified. South Korea banned a very small pro-North Korean party a few years ago. That wasn’t very controversial. But the chance of South Korean voters voting to become North Korea was basically zero. In my view, there’s no reason to do that. It really should be exceptional. Yet, it’s so tempting for power holders to use this against their political enemies.
There’s international versions of this, as well. We’ve just seen that in the Philippines, where Duterte was sent to the international criminal court by the son of Marcos. One dictator’s son sends his other human rights–abusing opponent out of the country. When you have those tools, they’re always available, and always available for abuse.
Hate speech rules are a big part of it. That’s what we did hear about this morning. This is something where there’s just a philosophical difference between Europe and the United States. Europeans tend to think these things are good and necessary. We heard about the example of Holocaust denial.
Americans are more libertarian in our culture. We always ask, “Who is going to be the regulator?” We do this inside our institutions, inside universities. It’s one reason we have our Chicago principles very open. We don’t really trust the administration to get it right, so we just, you know, tolerate a little bad speech because of the risk of abuse. That’s just our particular philosophy. It is true that the First Amendment—because it’s so powerful here and because social media are based here—has had negative externalities towards all those other systems. You can be in Germany and open up Twitter and see all the hate speech that you can’t say aloud in your own country. It’s very easy to get to. In some sense, we’ve undermined many of those regimes. But the fundamental problem is, “Who decides?” That’s our big concern.
A couple other tools that we see.
One is lustration. After a transition from power, you will often see efforts to just ban the whole former party, and also subject it to really difficult calibration questions. Famously in Poland, after the end of communism—much as you see here—the claim is that they didn’t do enough lustration of judges. The old judges, the communist judges, became capitalist judges, if you will. I have no idea if they were able to make that transition in a fair way, but that became fodder for the Law and Justice party. “These judges are all communists; now we’re going to take over that institution.” It provided leverage.
The other way, though, is if you go too far. De-Ba’athification in Iraq was an unmitigated disaster because anyone with any competence had to be in the Ba’ath party. So it’s also a very dangerous tool.
Those tools, they sound good in principle. But are we confident that those able to wield them are going to be in power?
A final interesting doctrine that we see now in our era is something which is called in comparative constitutional law the basic structure doctrine. What is this?
This occurs when you have a regime that is trying to pass a constitutional amendment that would entrench itself in power, or maybe undermine democracy. Very famously, this doctrine emerges in India in the 1970s. When Indira Gandhi says, “We’re going to change how the judges are appointed to make sure they’re loyal to us” (and it’s a very easy constitution to amend; it was not hard to get that constitutional amendment through), the judges said, “Wait a minute! That interferes with fundamental rights. That’s part of the basic structure, so this constitutional amendment—even though it’s been passed in a procedurally correct way—substantively violates our basic structure.” That turns out to be a very popular doctrine. It’s spread all around the world. There’s some very good examples of its use, and some very bad examples of its use.
To get to the punch line, I think it’s what’s called for here in the United States. That is, a jurisprudence that is substantively focused on protecting competition as a value—protecting democracy as a value—and not formalist. That would be how I would frame it.
Just because we’re in an antitrust conference, another famous example of this use, or something like it, was in Kenya about five years ago. Kenya has vicious, very venal politics. Among the most corrupt elite in the world. None of the people running Kenya are ever very nice. But, in one presidential election, after it, the president at the time made a deal with one of his opponents. They decided to basically cartelize the political system. They had a constitutional amendment that they had proposed, that would create all kinds of new offices—which they could appoint—that would have locked up Kenyan politics. This is not the problem of monopoly, but duopoly. But it’s a competition problem nonetheless. In the court case that came out, they said, “No, you can’t do that. You can’t bypass the proper mechanisms. And there’s something substantive about this that just sort of smells bad.” Again, protecting that competition over time. Their opponent William Ruto—another vicious and venal man—is now president of Kenya. So that worked. That did save the principle of rotation in office when they did that.
So, militant democracy raises the question of who guards the guardians, the proverbial question, and we’ve come up with other solutions since then.
Maybe the most recent approach in constitutional design is to set up what we call fourth branch of government. Fourth branch institutions. South Africa’s constitution is maybe the paradigm of this. It has all these institutions whose only purpose is to ensure accountability. It’d be, like, a counter-corruption commission, or a media commission would be in this, to make sure the competition stays there. A public protector, which is kind of an ombudsman-like position.
Those have been very important and very effective in some contexts in South Africa. In particular, when Jacob Zuma was hollowing out the entire political system, it wasn’t the democratic institutions that saved South African democracy. It was the fact that the public protector issues a report. Jacob Zuma says, “Meh, that’s just advisory.” This constitutional court says, “No, that really is legally binding.” He says, “I don’t care.” The constitutional court says, “Parliament, you have to act on this!” And eventually they do. They remove Jacob Zuma as president of the country. He’s still around, but it did at least slow down that country’s descent into corruption.
So, the fourth branch thing can work. It’s like a network of institutions.
When I look around at comparative lessons, when you see a situation of democratic backsliding, what is it that saves democracy? We have many examples where things look like they’re going off the rails, and then something happens. Examples like Colombia, or Sri Lanka, or the South Africa one I just gave.
One of my conclusions in my work on that is that when you have what we call a near miss, where a potential monopolist is about to take over, what is it that saves these situations? It turns out, it is not actually electorally legitimated institutions; it’s not democratically legitimate institutions. In other words, Congress is not going to save us. In all of these cases, what’s common is that it’s institutions whose legitimacy sounds in technocratic and professional norms that save us.
Just to give one example that illustrates a lot of the points.
In Sri Lanka in 2015, Rajapaksa—the kind of family that was taking over the system, very corrupt, lot of relationship with China—wanted to run, was going to run. He was headed for a third term. He had amended the constitution to allow him a third term. Someone in his party decided to run against him, and that person won. Rajapaksa called up the military and said, “Well, come on out. We can’t let this happen.” And the military said no; the general said no (the general is the hero of the defeat of the Tamil Tigers). He called up the Electoral Commission and said the equivalent of the Donald Trump line, “Find me 11,000 votes!” They said no. He went to the courts, and they said no, and so on.
This is true in the United States. In 2020, it was tens of thousands of local vote counters that saved us. And the Capitol police. It was not Congress, really; they were not able to do it. It was not even the subsequent prosecution.
That’s a kind of general theme. We need to reinforce these professional norms if we want to ensure the rotation of power.
Another point I want to make is about the stakes. Democracy requires that the stakes of government be high, but not too high. That the stakes of power be high, but not too high.
If there’s no difference who’s governing, if those in power have nothing to dispense to their favorite people or anything like that, well, it’s not really worth it. No one shows up. No one cares. You might have a boring politics. I’m just going to stereotype and say Scandinavia in the 1970s or something; I guess they had politics, but it wasn’t very interesting and there was so much consensus in the society.
On the other hand, if stakes are too high in democratic competition, then what you have instead is no incentive to ever give up power. The incentive to leave requires lowering stakes. This might be different from markets. You will tell me. In markets, you think of big markets as inviting entrance to the extent you can. In politics, the bigger the market (the more power, the bigger the prize), the more monopolistic the behavior. The greater the disincentive to ever give everything up. And the more vicious the politics.
I also sometimes say that democracy, in this sense, requires bureaucracy. Democracy requires bureaucracy. “Bureaucracy” is like an epithet, you know? Everyone hates bureaucracy! However, the antitrust authorities are bureaucrats, and they’re really important. You can’t have markets without them. You can’t have democracy without bureaucracy, and it’s one of the things that’s under attack right now.
It’s not just because bureaucrats have those professional norms I referred to before, but because, if you don’t have a professional civil service just accepting the orders of whoever happens to be in charge—and I know there’s agency costs, I know it never works perfectly, but if you don’t have that ethos—then why would anyone ever give up power? There are many countries where the incoming president gets to employ their entire tribe, or clan, or faction. If that’s the situation, then even if you’re a president and you want to give up power, you can’t. You have too much pressure from your own community to ever give up power. We see many countries like that.
There’s something about bureaucracy actually lowering the stakes. This is why, among the many things that are concerning us at the moment, the direct attack on the civil service is a very concerning one because it threatens a kind of patronage system. That would be very bad.
Let me say a little bit about our problems here in the United States and why the court has made things worse, and then I’ll open it up.
If you look at our constitution, I often point out that it’s a 240 year old technology. We’re not using any other technology from the late 18th century, right? No one came here in the horse and buggy. No one’s taking notes with the quill pen. We update. That’s a nice thing about constitutional renewal and rotation over time. You can take advantage of new ideas in governance, of which there are very many that are always emerging. There’s always experimentation and trying out new things.
If you’ve got a structure as old as ours, it really does show its age.
It has no provisions for an insulated civil service, to talk about bureaucracy. We happen to have one by statute, but it’s fragile and could be overturned very easily.
It doesn’t say anything about emergency provisions. We’re right now living—last week—the consequence of that. Our emergency regime, as you all know, is a statutory one under the International Emergency Economic Powers Act, which gives the president discretion. Good idea in the 1950s, I guess. Or a good idea if you had a president who really thought about emergency. But there’s no epistemic check on that claim, so that’s a disaster. In a modern constitution, you would have provisions about emergencies including not just war and even economic emergency but also natural disasters and pandemics and things. You would say, “Okay, the president can declare this for a limited period of time, subject to the approval of Congress.” There’s many ways to design those provisions, but they are not leaving something as grave as the power to start a trade war in one person’s hands. By the way, neither does the US Constitution; this is allocated—in Article One—to the Congress, but they’re not doing anything about it.
That absence of emergency law is a big defect.
Probably the worst provision in the US Constitution (and there’s many, many candidates) is the assignment of the time, place, and manner of running elections to who? To partisan state legislators! Remember, Madison didn’t think there would be partisan legislators. He thought they’d be the grandees and the local notables. It turns out they’re partisan bodies, which means they get to draw the lines. The jerrymandering problem is very, very severe.
I’ll just give the example from Wisconsin. Really important state. It’s been in the news. The reason why that Supreme Court seat was so important is because the court is what checks the state legislature in its management of elections. Wisconsin (for people who’ve been paying attention) is a 50/50 state. It’s purple. In fact, I was looking this up, in seven of the last nine presidential elections it went blue; it went for the Democrats. Some change recently, but it’s a perfectly purple state. Out of that same period in those nine presidential elections, 32 years, only two years has the state assembly been Democratic majority. Why? Because it is completely rigged, in some sense, to guarantee one party. It’s entrenched. That’s a big problem.
In our system, state courts can police that. Maybe state referenda and such have made some states much more competitive. But the structural assignment to partisan actors of running elections is the proverbial fox guarding the henhouse. So, that’s a big disaster and a big problem.
We have no fourth branch institutions. We could use one.
We have no rights, really, for opposition parties. Many constitutions would have… Germany, again, has some. Certain committees would be run by the opposition. That’s really valuable because then you can have investigatory power, you can make some public claims, and such. We don’t have anything like that. In fact, all we do have is the filibuster, which is just a norm that they could get rid of any time. It’s been used and misused by both parties, but the point is, it’s not entrenched; it’s a block of legislation. But it doesn’t improve accountability in any sense. It just slows things down. Impeachment is our remedy when we have someone who’s trying to entrench themselves. It’s a useless remedy at the presidential level. It can’t be done because of the two-thirds threshold. It’s only been used against judges.
In addition to all this, our Supreme Court has made things worse. Here, my real call is for, again, a kind of a substantive jurisprudence that would take these things into account.
One topic that came up this morning is so-called unitary executive theory. The theory that—because there’s three branches—all the legislative power is with the legislature, all the judicial power is with the judges, and all the executive power—whatever that is—is with the executive. That’s the theory under which there was a question about Humphrey’s Executor. The independent regulatory agencies might disappear next month. The idea is that anything that is executive is personal to the president. So he can direct to drop the Eric Adams prosecution or to pick it up again, under that theory. It’s a grave concentration of power that—to repeat my theme—raises the stakes of holding power so high, how could anyone ever give that up?
This perspective helps shed some light on the law firm thing that’s been going on. Those of you who know anything about Washington, DC law firms know that that’s where you go when you’re out of power. Right? “I lost the election, but at least I can go become an $800,000 a year partner in a law firm for a while, and cool my heels until the political cycle turns and I can come back.” That’s a huge ecology that promotes the rotation of power in the United States. For the administration to go and say, “No, you’ve got Bob Mueller on your staff? No more federal business,” that’s an attack on the rule of law, but it’s also an attack on the rotation of power, in a subtle way. I think, again, it raises the stakes far too high.
And the final thing I would say is immunity. The great immunity decision last year, Trump v. United States about ex-presidential immunity, essentially makes ex-presidents so immune, it’s something that not even King George would have recognized, I would suggest. For example, under that theory, Donald Trump could say to Putin, “Look, you just buy 10 billion dollars of Trumpcoin…” you say this openly, “buy 10 billion dollars of Trumpcoin, and I’ll grant you Crimea.” That would perfectly acceptable. No prosecution would be allowed of that. No investigation. That’s one of the egregious things; you can’t even look at these things. So it just invites a massive amount of open corruption.
It is true that to have a true coup d’état, there would be underlings that would be subject to criminal prosecution. You can’t really hold on to power alone. Even then, we now have a very expansive power of pardon, and maybe even prospective pardons. So, you know, “All right, Proud Boys, come on down! I’m gonna walk on down to the Capitol…” some of them won’t be feeling very good, “…and by the way, I pardon you in advance for anything that might happen, or might not happen, on the way there.”
It’s really a very dangerous situation. Partly this is to be laid at the feet of the Supreme Court. Yet, given what I said, given our situation, we’re all dependent. And praying for John Roberts’ health. With that, maybe I’ll just stop and open up for questions, on that depressing and positive note.
Please.
Audience member 1
You were discussing these instruments that can save democracy. What do you think is the role of civil society and political rights more broadly?
I think that, in the Polish context, the fact that judges managed to unite against the reforms that were undermining the judiciary was one factor. The fact that people were really on the street was an important factor. I also think that this might connect to the free speech question we are addressing at this conference because people could exchange ideas and actually protest against a government that undermines democracy.
Tom Ginsburg
Okay, excellent. I should have said more about it.
In Poland, there’s a couple things going on. First of all, you mentioned the judges. Also, of course, the ombudsman—our mutual friend, Adam Bodnar—who had a constitutional office; this is the fourth branch idea. He had been appointed under the previous regime. They couldn’t fire him, and he had a very important role in speaking truth while in the government.
But a self-enforcing theory of democracy depends, ultimately, on freedom of assembly. Of course, freedom of speech; we need to be able to critique. It’s the most important human right because, without it, you don’t have any of the other human rights; you can’t bring them to light. But freedom of assembly is something that, I don’t know if it rests on as strong grounds in this country. Remember that reasonable time, place, and manner rules for assemblies are decided by local governments, and those local governments vary quite widely. We have examples of where these things are being abused in some cases by local governments that just don’t want anyone critiquing them and such. It’s not true in big cities; it tends to be more available. But the freedom of assembly is understudied, and there’s not as much case law. And it ultimately may be what things turn on.
On the freedom of speech point, I didn’t say much about what to do about our moment in the tech world. I don’t have an answer. I wish I had a magic answer. But it strikes me that some of the principles from constitutional design might be applicable. You want independent watch guards to be speaking truth to power; you want ProPublica; you want as many sources as possible. I was talking at my table about some possible tech solutions. I was talking about a blockchain-based Twitter equivalent which would make your data portable. You could take your data, and you wouldn’t be locked in to any of these platforms, which just keeps their network effects going forever. We might all hate Elon Musk, but for many people it’s still, “Well, I still have to go to Twitter because that’s the only place there is.” That’s a disaster. We need competition for those things, and there might be tech solutions for that. That’s also something to invest in. The digital freedom of assembly (if I can use the term) is something we probably need to think more about.
Yes, over there?
Audience member 2
I was very struck by your comment that, in near misses where autocracy failed, it was the professional institutions that served as a check, and those professional institutions are now threatened by the unitary theory.
Do you have any ideas about what strategies might be available to protect those professional institutions?
Tom Ginsburg
I think about this a lot in the context of academia, where I’ve been a very big critic internally of universities for years. I sometimes call myself the chief Calvinist at the University of Chicago. A Calvinist preacher? It’ll be a joke apparently no one gets, but Luigi gets.
One of the things that we’ve strayed from is recognizing that our legitimacy, our social legitimacy comes from research and producing knowledge and intensely contesting that. Too many departments, university presidents, disciplines have decided to stray from that to make overtly political statements that are out of touch with the vast majority of the country. Some people say this about the American Bar Association; I don’t have a strong view about that. But there’s a temptation, when you have a big group, to say, “We’ll deploy some of our legitimacy to fight this or that social cause.” I think that’s a grave danger, that staying within our lanes would have been better, and it might have allowed us to be a little more resilient to the attack which is now here.
Given that situation, given where we are, we have to reinforce the idea that professional norms are extremely valuable. Whether the public likes it or not, they actually do appreciate it. When you have your brain surgery, you don’t want someone who was not accredited by the AMA. You want the police to obey their rules. There’s just so many examples in which professional norms—we all know—make our lives possible and better and freer but (as with so many things) have had trouble legitimating themselves.
I think it’s almost up to each profession to figure out how to do that. But it is an important thing to do, and to remember, and to refrain from the temptation to draw down on our collective capital, which is so often there.
Yes, please.
Audience member 3
Thank you for your talk. This is just going to be like a little bit of Madisonian-ness coming out of me. I’d like to run by you the idea that part of what’s going wrong is also the loss of the magic of faction, where the original republic extending the geography to a continental scale could overwhelm, like, the interests of fishermen in Maine, manufacturers in Pennsylvania.
We’re also a lot more socially different. I think both of those… I’m trying to go back to the antitrust theme for the conference. Economic factions, in the form of corporations, are far more concentrated. But also socially, we have, I would say, less factions, and we’re internally far more like each other—including Democrats and Republicans, even as we become more different across the parties. I don’t know what the fix is, but I’d like to run that idea by you. That what we’re really missing is factional differences that splinter us into many tiny shards, both economically and socially.
Tom Ginsburg
It’s so interesting to frame it that way because one of the criticisms of the public sphere is that it’s fragmented into many, many tiny shards.
Madison’s idea was crosscutting cleavages. So, I might be, you know, a Virginian, but I’m also a Lutheran, and I’m also X or Y. Those things would bind people together. And actually, I think our technology allows the possibility of those kind of crosscutting cleavages to come up again.
We are afflicted by what political scientists call effective polarization. “Even though your and my interests might be aligned, because I know you’re a Republican, I hate you and I’m never going to listen to anything you say.” That’s a disease. It undermines everything that we would want in a good society.
We don’t know much about how to overcome that. There are many groups that are working on this. One thing in general about the social media part of this I learned… And I’m not sure I buy it, but this is the opinion of Josh Cohen, the philosopher who I think is at Apple University (talk about conflict of interest!), but he’s a well-known philosopher who works there internally in Apple. His view is that the social media—in terms of its ability to create shared bonds and crosscutting cleavages and truly interactive spaces—is just in its infancy. His analogy is to the printing press. The printing press came along, and no one was doing anything at the beginning. I guess they were doing bibles. But in a hundred years, they started doing pamphlets. And then you got the enlightenment. And then you got the era of democratic revolutions and such. It took a while for people to catch up to the tech.
Now, that’s a very optimistic view. In the long run, of course, we’re all dead. Who knows if that’s how it’s going to play out? But from that point of view, we would be able—if we had a little more control over our online experiences—to find spaces in which we are able to deliberate with each other.
There’s a small lesson in that regard from democratic constitutional design. One of the trends in my field is the creation of what are called citizen assemblies, where you get people together, not just randomly, but curated groups of the public. If it was a group this size, we make sure we had Republicans and Democrats, men and women, black people and white people, in roughly equal proportion. We give them a question and a way to talk about things. Then they deliberate, and they come at the end of the day, and every… First of all, everyone enjoys that more than they think they will. It’s a general finding. People love conversation more than they think they will. But it’s also been the case that that’s been used to overcome what seemed like totally impossible cleavages in society. Ireland used this a few years ago, to legalize abortion. Ireland is a majority Catholic society; they had a very strict abortion ban. Women would die on the way to England. And they had a conversation, and the citizens’ assembly recommended that the parliament repeal the abortion ban. And they did.
You could do that virtually online, too. There’s a lot of possibility there. It’s just that we don’t quite have those things yet. The way we’re using it is not quite right for that kind of positive possibilities that come from those techs.
Audience member 4
As you described this fourth branch, in my mind I was evoking the consumer protection bureau and inspectors general and the like, and then you said, “We don’t have that.”
Help me understand how the US might codify those into a more formal branch. What that pathway might look like. As we’ve seen, a lot of those things have been undermined in the last couple months.
Tom Ginsburg
When I say we don’t have it, I mean we don’t have it at the constitutional level—many other countries do (the Poland example showed that it’s really good to be constitutionalized because then you have this inability to be fired and such)—and so it is only a statutory regime.
We could have greater protections for the inspectors general. This was the real sign of the corruption at work here because inspectors generals’ job is to find corruption and to find violations of law. In a true regime that was committed to anti-corruption, they would have empowered those people instead of firing them. It shows a kind of lawlessness at work. We could pass a statute that would have them on firmer ground. There’s so much going on—as was referred to, I think Jesse said, like, “I can’t even keep track!”—I cannot recall what happened with the case about the firing of the inspectors general, but hopefully they will be retained.
It would be wonderful to see a bipartisan effort at an accountability branch. You would think that’d be utterly popular with the public! People don’t like corruption. They think everyone in Washington is corrupt. Shouldn’t there be an anti-corruption politics that would unite left and right? We don’t see that yet. We don’t see that yet. Maybe it will be what emerges, and then we could have a stronger regime.
Audience member 5
Hi. I think it’s really interesting, this fourth branch of government, this constitutional core. I’m curious to get your thoughts on the role of trust in institutions in democratic backsliding.
We’ve had conversations today where there’s such basic levels of distrust that you can’t trust someone to designate what is truth and what is not. How does a technocratic or judicial institution have legitimacy to preserve democracy in conditions of very low levels of trust?
Tom Ginsburg
I haven’t looked at the latest public opinion polls, but certainly during the last Trump administration the judiciary was still the most respected of the branches, the most highly approved one. Its approval rating has declined in recent years. That’s a grave threat because of decisions like those I described, which seem to sound—in the general public’s eye—in partisanship. They’re not all like that. This Supreme Court’s been very good on First Amendment issues, and they will continue to be, I believe. But there’s this perception, so that’s led to the decline.
It’s still a comparatively ugly contest. Probably when we get the next round of polls, the Supreme Court will be the most trusted branch again because the presidency will have sunk below 40%. Congress has been at 10% for decades. No one trusts them. So trust in institutions is critical.
I think the interesting problem is actually trust in the bureaucracy. Bureaucratic institutions. I’m reading Michael Lewis’s book on this, Who Is Government? I commend it to you. It’s got stories of these, like, little branches. The people who bury the war dead for the veterans department, their approval rating, their customer satisfaction rating is 90% plus. They’re just really good at what they do. There’s lessons to be learned and generalized about what well-performing institutions do. It is unfortunately true that bureaucracy is an epithet for a good reason; many bureaucratic processes do seem to slow things down, and don’t seem to advance things.
Reinventing government, as Al Gore put it in the 1990s, would be a… I think it’s a necessary idea. You can’t do anything without government. You can’t build that wall without government. You need bureaucrats to do stuff for you. It’s just a question of which you’re empowering. I’d like to see an effort in that regard. That’s a very big, ambitious program, many years away.
Eleanor?
Audience member 6
Thanks very much. I’m going to follow up on your conversation with Maczek when you were talking about the people uprising, freedom of association, and freedom of speech.
My question is about the First Amendment versus the antitrust laws. There is a case pending right now, which I’m sure you know, which is X Corp. against the advertisers, alleging that the advertisers dropped X as a conspiracy, alleging an antitrust conspiracy. Our federal government right now, Justice Department Antitrust has declared that they are looking for cases in which there are conspiracies to suppress conservative views.
If there is this clash between antitrust and First Amendment, does First Amendment override antitrust? I understand that there can be interpretations of antitrust that it’s not a violation of antitrust, but I’d like your comments.
Tom Ginsburg
I really have no insight in that. In fact, I want to turn it around to you. Isn’t that collusion to drop the advertiser, wouldn’t that be a violation of antitrust law? What do you think?
Audience member 6
It could be, if there really is collusion. One might suspect that the allegations of collusion are exaggerated. For antitrust conspiracies, it’s not even easy to prove that they were actually conspiring, rather than simply deciding, “This is a media I don’t want to deal with.” If there is collusion, and they are competitors, and they would stand to gain as competitors, there’s at least a very good chance that it’s an antitrust violation.
Tom Ginsburg
Well, yes, and here the Roberts court, as I said, has been very free speech protecting. You could imagine a world in which they would find that the First Amendment is more important than a statutory scheme like antitrust law. It’s constitutional, after all. So that freedom would trump. I have no predictive ability with the court, but that would be a welcome outcome.
Otherwise, you know, we have boycotts all the time. I guess under that world, consumer boycotts are okay, but business boycotts are not. That’s essentially what that theory would say.
Audience member 6
Boycotts where the boycotters stand to gain commercially. And this is a question. Do they really stand to gain commercially? They’re not doing it to gain commercially. They’re doing it for political reasons.
Tom Ginsburg
Right, which is expressive. Well, if you’ve got Citizens United, I think you should allow that kind of expression as well. If corporations have speech rights, that’s a speech right. You could imagine the court going in that way.
Well I want to thank you for your attention. I’ve got to run back and teach my class.
[applause]
Articles represent the opinions of their writers, not necessarily those of the University of Chicago, the Booth School of Business, or its faculty.
