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The second thing that must be done is to secure the land for settlers. This can be accomplished by imposing a modernist property regime that transforms land and resources (sometimes including people) into “things” that can be owned. This regime consists of such elements as mapping and marking boundaries to delimit an object that is to be owned, a system for recording ownership, and legal rules for ownership and sale of objects defined as property. Indigenous people generally understand the land and their relationship to it very differently, viewing themselves as being provided for by the land and in turn as living in harmony with the land and having a sense of responsibility for its welfare. Settler society does not recognize indigenous conceptions and from their own perspective of land as property, views indigenes as failing to make productive use of it.

THE LOGIC AND PRACTICES OF U.S. SETTLER COLONIALISM

Over the last forty years, the self-determination efforts and objectives of Indigenous peoples in Canada have increasingly been cast in the language of “recognition.”1 Consider, for example, the formative declaration issued by my people in 1975:

We the Dene of the NWT [Northwest Territories] insist on the right to be regarded by ourselves and the world as a nation.

Instead, we begin our analysis by looking at the broader global system in which knowledge and information operate: a settler-colonial system that extracts wealth, knowledge, and culture from economically marginalised communities and inequitably redistributes their economic fruits to the wealthiest and most powerful. This approach is in line with critiques that activists and critical scholars have long made of open-access movements: that the central focus on liberty values ignores concerns about equality; that a romantic notion of the ‘public domain’ as a neutral landscape where every person can reap its riches ignores its real role in exploiting the labour and bodies of people of colour, women, people from the Global South, and the impoverished. We now know that the ‘public domaining’ of Indigenous knowledge about local flora and fauna, traditional medicines, folklore, or traditional cultural expressions has enabled Big Pharma to take Indigenous knowledge, transform it into IP, and become the exclusive owner of that knowledge: a phenomenon known as biopiracy.

Abolitionist creativity also disagrees with an ideological belief that runs through some prominent segments of the open-access movements, namely that the system once worked well, but that ‘unfortunately, our IP regimes have strayed far from their original purposes’. For the colonised, for Indigenous Peoples whose collective knowledge has been ransacked, for communities forced into oppressive trade agreements (e.g. TRIPS), for the rising number of modern slaves working in global supply chains powered by intangibles, it is hard to see how the IP system ever worked for them – or what decades of reformist attempts inside IP law in the US have accomplished. For abolitionists, the system is not broken and in need of reform, tweaking, and tinkering. It is working as it was designed to work, as a settler-colonial legal and economic structure. And we are running out of time and of magical thinking waiting for public policy to somehow turn favourable in a corporate-dominated oligarchy.

In writing this book I set out to problematize the increasingly commonplace assumption that the colonial relationship between Indigenous peoples and the Canadian state can be reconciled via a liberal “politics of recognition.” I characterized the “politics of recognition” as a recognition-based approach to reconciling Indigenous peoples’ assertions of nationhood with settler-state sovereignty via the accommodation of Indigenous identity-related claims through the negotiation of settlements over issues such as land, economic development, and self-government. I argued that this orientation to the reconciliation of Indigenous nationhood with state sovereignty is still colonial insofar as it remains structurally committed to the dispossession of Indigenous peoples of our lands and self-determining authority.

My conceptualization of settler-colonialism as a structure of domination predicated on the dispossession of Indigenous peoples’ lands and political authority drew significantly from two theoretical resources: Karl Marx’s writings on the “primitive accumulation” of capital and Frantz Fanon’s anticolonial critique of Hegel’s master/slave parable when applied to colonial situations. With respect to Marx, I argued that three issues must be addressed within his work to make his writings on colonialism relevant for analyzing the relationship between Indigenous peoples and liberal settler polities like Canada. First, I argued that Marx’s thesis on primitive accumulation must be stripped of its rigidly temporal character; that is, rather than positing primitive accumulation as some historically situated, inaugural set of events that set the stage for the development of the capitalist mode of production through colonial expansion, we should see it as an ongoing practice of dispossession that never ceases to structure capitalist and colonial social relations in the present. Settler- colonialism is territorially acquisitive in perpetuity. Second, I argued that Marx’s theory of primitive accumulation must be stripped of its early normative developmentalist character. While it is correct to view primitive accumulation as the condition of possibility for the development and ongoing reproduction of the capitalist mode of production, it is incorrect to view it as a necessary condition for developing the forms of critical consciousness and associated modes of life that ought to inform the construction of alternatives to capitalism in settler- colonial contexts. I also suggested that Marx himself came to acknowledge the problematic character of this early formulation of his thesis and worked to correct it in the last decade of his life. And finally, I argued that the forms of colonial power associated with primitive accumulation need not be understood as strictly coercive, repressive, or explicitly violent in nature; rather, the practices of dispossession central to the maintenance of settler-colonialism in liberal democratic contexts like Canada rely as much on the productive character of colonial power as it does on the coercive authority of the settler state. Seen from this angle, settler-colonialism should not be seen as deriving its reproductive force solely from its strictly repressive or violent features, but rather from its ability to produce forms of life that make settler-colonialism’s constitutive hierarchies seem natural.

In Canada, the Indigenous domain continues to be part of the supreme law of the land. 41 Canada’s constitution recognizes and affirms Aboriginal and treaty rights. 42 The SCC has affirmed that Aboriginal peoples’ constitutional rights are collective, communal, or group rights. 43 The constitutional rights generate the Indigenous domain, a metaphor for a holistic source of these rights. The Indigenous domain reveals the interrelated manifestations of the spiritual realm that generates diverse Indigenous lifeworlds. 44 These spiritual forces of nature have inspired and guided Indigenous peoples’ knowledge. 45 The Indigenous domain’s creativity and expressive modes have generated Aboriginal sovereignty, inherent powers, rooted constitutionalism, persuasive laws, and consensual treaties. 46 The Indigenous domain, which in Latin is called ex proprio vigore or sui generis, was vested in the Indigenous nations by the law of nations at the critical date when the British sovereign asserted jurisdiction over Indigenous territories. 47

The Indigenous domain has always been grounded in the ecologies that operate as the Indigenous peoples’ education system, just as nature is the Eurocentric public domain’s source. Their experiences with biotic and abiotic forces shaped their knowledge systems. The Indigenous domains have many Indigenous keepers and generators of knowledge, so that families continually generate distinctive heritages, identities, and landscapes. 48 The oral traditions and symbolic literacy of Indigenous peoples reveal the continent’s embodied and teaching ecologies, investing their ancestors’ knowledge, imagination, and experiences. This enduring spiritual process of generating knowledge, stories, and artistic media that makes people live right has never ceased; they have been a method of “survivance.” 49 It has survived the linguistic violence of colonialism and forced assimilation.

Instead, we begin our analysis by looking at the broader global system in which knowledge and information operate: a settler-colonial system that extracts wealth, knowledge, and culture from economically marginalised communities and inequitably redistributes their economic fruits to the wealthiest and most powerful. This approach is in line with critiques that activists and critical scholars have long made of open-access movements: that the central focus on liberty values ignores concerns about equality; that a romantic notion of the ‘public domain’ as a neutral landscape where every person can reap its riches ignores its real role in exploiting the labour and bodies of people of colour, women, people from the Global South, and the impoverished. We now know that the ‘public domaining’ of Indigenous knowledge about local flora and fauna, traditional medicines, folklore, or traditional cultural expressions has enabled Big Pharma to take Indigenous knowledge, transform it into IP, and become the exclusive owner of that knowledge: a phenomenon known as biopiracy.

Abolitionist creativity also disagrees with an ideological belief that runs through some prominent segments of the open-access movements, namely that the system once worked well, but that ‘unfortunately, our IP regimes have strayed far from their original purposes’. For the colonised, for Indigenous Peoples whose collective knowledge has been ransacked, for communities forced into oppressive trade agreements (e.g. TRIPS), for the rising number of modern slaves working in global supply chains powered by intangibles, it is hard to see how the IP system ever worked for them – or what decades of reformist attempts inside IP law in the US have accomplished. For abolitionists, the system is not broken and in need of reform, tweaking, and tinkering. It is working as it was designed to work, as a settler-colonial legal and economic structure. And we are running out of time and of magical thinking waiting for public policy to somehow turn favourable in a corporate-dominated oligarchy.

In writing this book I set out to problematize the increasingly commonplace assumption that the colonial relationship between Indigenous peoples and the Canadian state can be reconciled via a liberal “politics of recognition.” I characterized the “politics of recognition” as a recognition-based approach to reconciling Indigenous peoples’ assertions of nationhood with settler-state sovereignty via the accommodation of Indigenous identity-related claims through the negotiation of settlements over issues such as land, economic development, and self-government. I argued that this orientation to the reconciliation of Indigenous nationhood with state sovereignty is still colonial insofar as it remains structurally committed to the dispossession of Indigenous peoples of our lands and self-determining authority.

My conceptualization of settler-colonialism as a structure of domination predicated on the dispossession of Indigenous peoples’ lands and political authority drew significantly from two theoretical resources: Karl Marx’s writings on the “primitive accumulation” of capital and Frantz Fanon’s anticolonial critique of Hegel’s master/slave parable when applied to colonial situations. With respect to Marx, I argued that three issues must be addressed within his work to make his writings on colonialism relevant for analyzing the relationship between Indigenous peoples and liberal settler polities like Canada. First, I argued that Marx’s thesis on primitive accumulation must be stripped of its rigidly temporal character; that is, rather than positing primitive accumulation as some historically situated, inaugural set of events that set the stage for the development of the capitalist mode of production through colonial expansion, we should see it as an ongoing practice of dispossession that never ceases to structure capitalist and colonial social relations in the present. Settler- colonialism is territorially acquisitive in perpetuity. Second, I argued that Marx’s theory of primitive accumulation must be stripped of its early normative developmentalist character. While it is correct to view primitive accumulation as the condition of possibility for the development and ongoing reproduction of the capitalist mode of production, it is incorrect to view it as a necessary condition for developing the forms of critical consciousness and associated modes of life that ought to inform the construction of alternatives to capitalism in settler- colonial contexts. I also suggested that Marx himself came to acknowledge the problematic character of this early formulation of his thesis and worked to correct it in the last decade of his life. And finally, I argued that the forms of colonial power associated with primitive accumulation need not be understood as strictly coercive, repressive, or explicitly violent in nature; rather, the practices of dispossession central to the maintenance of settler-colonialism in liberal democratic contexts like Canada rely as much on the productive character of colonial power as it does on the coercive authority of the settler state. Seen from this angle, settler-colonialism should not be seen as deriving its reproductive force solely from its strictly repressive or violent features, but rather from its ability to produce forms of life that make settler-colonialism’s constitutive hierarchies seem natural.

The term “domestic policy” refers to the plans and actions taken by a national government to deal with issues and needs present within the country itself. Domestic policy is generally developed by the federal government, often in consultation with state and local governments. The process of dealing with U.S. relations and issues with other nations is known as "foreign policy." In the United States, domestic policy can be divided into several different categories, each concentrated on a different aspect of life in the U.S. Regulatory Policy: Focuses on maintaining social order by outlawing behaviors and actions that endanger the public. This is typically accomplished by enacting laws and policies banning individuals, companies, and other parties from taking actions that might endanger social order. Such regulatory laws and policies might range from mundane issues like local traffic laws to laws protecting the right to vote, preventing racial and gender discrimination, stopping human trafficking and fighting illegal drug trade and use. Other important regulatory policy laws protect the public from abusive business and financial practices, protect the environment, and ensure safety in the workplace. Distributive Policy: Focuses on ensuring the fair provisions of taxpayer-supported government benefits, goods, and services to all individuals, groups, and corporations. Such goods and services funded by citizens’ taxes include items like public education, public safety, roads and bridges, and welfare programs. Tax-supported government benefits include programs such as farm subsidies and tax write-offs to promote home ownership, energy savings, and economic development. Redistributive Policy: Focuses on one of the most difficult and controversial aspects of domestic policy: the equitable sharing of the nation’s wealth. The goal of the redistributive policy is to fairly transfer funds raised through taxation from one group or program to another. The aim of such redistribution of wealth is often to end or alleviate social problems like poverty or homelessness. However, since the discretionary expenditure of tax dollars is controlled by Congress, lawmakers sometimes abuse this power by diverting funds from programs that address social problems to programs that do not. Constituent Policy: Focuses on creating government agencies to help provide services to the public. Over the years, for example, new agencies and departments have been created to deal with taxes, to administer programs like Social Security and Medicare, to protect consumers, and to ensure clean air and water, just to name a few.

Intellectual property (IP) law is a complex and ever-evolving field, with different rules and regulations governing different countries. It is essential to comprehend the distinction between domestic and international IP law to guarantee that your IP rights are secured. Domestic IP law is the set of laws that control intellectual property inside a particular nation. These laws are typically set up by the legislature of that nation and are intended to secure the privileges of people and organizations to their intellectual property.

This incorporates patents, trademarks, copyrights, trade secrets, and other forms of IP. Domestic IP law is usually enforced by the courts of that country, although some countries may have international agreements in place that allow for enforcement of IP rights in other countries as well. International IP law, then again, is a set of laws that control intellectual property across multiple countries. These laws are typically established through international treaties or agreements between countries.

Supreme Court Justices—along with legal advocates—need to conceptualize and prioritize big theoretical matters of institutional design and form and function in the American national security tripartite constitutional system. By way of an excellent introduction to these vital issues of legal theory, the Justices should pull down from the library shelf of the sumptuous Supreme Court Library in Washington, D.C. (or more likely have a clerk do this chore) the old chestnut, The Legal Process: Basic Problems in the Making and Application of Law by the late Harvard University law professors Henry M. Hart and Albert M. Sacks.7 Among the rich insights on institutional design coupled with form and function in the American legal system that are germane to the Court’s interpretation of national security law-making and decision-making by the President are several pertinent points. First, “Hart and Sacks’ intellectual starting point was the interconnectedness of human beings, and the usefulness of law in helping us coexist peacefully together.”8 By implication, therefore, the Court should be mindful of the unique constitutional role played by the POTUS [president of the United States] in preserving peace and should prevent imprudent judicial actions that would undermine American national security. Second, Hart and Sacks, continuing their broad insights of social theory, noted that legal communities establish “institutionalized[] procedures for the settlement of questions of group concern”9 and regularize “different procedures and personnel of different qualifications . . . appropriate for deciding different kinds of questions”10 because “every modern society differentiates among social questions, accepting one mode of decision for one kind and other modes for others—e.g., courts for ‘judicial’ decisions and legislatures for ‘legislative’ decisions”11 and, extending their conceptualization, an executive for “executive” decisions.12 Third, Professors Hart and Sacks made seminal theoretical distinctions between rules, standards, principles, and policies.13 While all four are part of “legal arrangements in an organized society,”14 and all four of these arrangements are potentially relevant in judicial review of presidential national security decisions, principles and policies15 are of special concern because of the sprawling, inchoate, and rapidly changing nature of national security threats and the imperative of hyper-energy in the Executive branch in responding to these threats.16 The Justices should also consult Professor Robert S. Summers’s masterful elaboration and amplification of the Hart and Sacks project on enhancing a flourishing legal system: the 2006 opus, Form and Function in a Legal System: A General Study. 17 The most important points that Summers makes that are relevant to judicial review of American national security presiprudence are three key considerations. First, a "conception of the overall form of the whole of a functional [legal] unit is needed to serve the founding purpose of defining, specifying, and organizing the makeup of such a unit so that it can be brought into being and can fulfill its own distinctive role"18 in synergy with other legal units to serve overarching sovereign purposes for a polity. The American constitutional system of national security law and policy should be appreciated for its genius in making the POTUS the national security sentinel with vast, but not unlimited, powers to protect the Nation from hostile, potentially catastrophic, threats. Second, "a conception of the overall form of the whole is needed for the purpose of organizing the internal unify of relations between various formal features of a functional [legal] unit and between each formal feature and the complementary components of the whole unit."19 Thus, Supreme Court Justices should have a thick understanding of the form of national security decision- making conceived by the Founders to center in the POTUS; the ways the POTUS and Congress historically organized the processing of national security through institutions like the National Security Council and the House and Senate intelligence committees; and the ways the POTUS has structured national security process through such specific legal forms as Presidential Directives, National Security Decision Directives, National Security Presidential Decision Directives, Presidential Decision Directives, and National Security Policy Directives in classified, secret documents along with typically public Executive Orders.20 Third, according to Summers, "a conception of the overall form of the whole functional (legal] unit is needed to organize further the mode of operation and the instrumental capacity of the [legal] unit."21 So, the Supreme Court should be aware that tinkering with national security decisions of the POTUS [president of the United States] —unless clearly necessary to counterbalance an indubitable violation of the text of the Constitution—may lead to unforeseen negative second-order consequences in the ability of the POTUS (with or without the help of Congress) to preserve, protect, and defend the Nation.22 [*886] B. Geopolitical Strategic Considerations Bearing on Judicial Interpretation Before the United States Supreme Court Justices form an opinion on the legality of national security decisions by the POTUS, they should immerse themselves in judicially-noticeable facts concerning what national security expert, Bruce Berkowitz, in the subtitle of his recent book, calls the "challengers, competitors, and threats to America's future." n23 Not that the Justices need to become experts in national security affairs, n24 but every Supreme Court Justice should be aware of the following five basic national security facts and conceptions before sitting in judgment on presiprudential national security determinations. (1) "National security policy . . . is harder today because the issues that are involved are more numerous and varied. The problem of the day can change at a moment's notice." n25 While "[y]esterday, it might have been proliferation; today, terrorism; tomorrow, hostile regional powers" n26, the twenty-first century reality is that "[t]hreats are also more likely to be intertwined--proliferators use the same networks as narco-traffickers, narco-traffickers support terrorists, and terrorists align themselves with regional powers." n27 (2) "Yet, as worrisome as these immediate concerns may be, the long-term challenges are even harder to deal with, and the stakes are higher. Whereas the main Cold War threat--the Soviet Union--was brittle, most of the potential adversaries and challengers America now faces are resilient." n28 (3) "The most important task for U.S. national security today is simply to retain the strategic advantage. This term, from the world of military doctrine, refers to the overall ability of a nation to control, or at least influence, the course of events." n29 Importantly, "[w]hen you hold [*887] the strategic advantage, situations unfold in your favor, and each round ends so that you are in an advantageous position for the next. When you do not hold the strategic advantage, they do not." n30 (4) While "keeping the strategic advantage may not have the idealistic ring of making the world safe for democracy and does not sound as decisively macho as maintaining American hegemony," n31 maintaining the American "strategic advantage is critical, because it is essential for just about everything else America hopes to achieve--promoting freedom, protecting the homeland, defending its values, preserving peace, and so on." n32 (5) The United States requires national security "agility." n33 It not only needs "to refocus its resources repeatedly; it needs to do this faster than an adversary can focus its own resources." n34 [*888] As further serious preparation for engaging in the jurisprudence of American national security presiprudence in hotly contested cases and controversies that may end up on their docket, our Supreme Court Justices should understand that, as Walter Russell Mead pointed out in an important essay a few years ago, n35 the average American can be understood as a Jacksonian pragmatist on national security issues. n36 "Americans are determined to keep the world at a distance, while not isolating ourselves from it completely. If we need to take action abroad, we want to do it on our terms." n37 Thus, recent social science survey data paints "a picture of a country whose practical people take a practical approach to knowledge about national security. Americans do not bother with the details most of the time because, for most Americans, the details do not matter most the time." n38 Indeed, since the American people "do know the outlines of the big picture and what we need to worry about [in national security affairs] so we know when we need to pay greater attention and what is at stake. This is the kind of knowledge suited to a Jacksonian." n39 Turning to how the Supreme Court should view and interpret American presidential measures to oversee national security law and policy, our Justices should consider a number of important points. First, given the robust text, tradition, intellectual history, and evolution of the institution of the POTUS as the American national security sentinel, n40 and the unprecedented dangers to the United States national security after 9/11, n41 national security presiprudence should be accorded wide latitude by the Court in the adjustment (and tradeoffs) of trading liberty and security. n42 Second, Justices should be aware that different presidents [*889] institute changes in national security presiprudence given their unique perspective and knowledge of threats to the Nation. n43 Third, Justices should be restrained in second-guessing the POTUS [president of the United States] and his subordinate national security experts concerning both the existence and duration of national security emergencies and necessary measures to rectify them. "During emergencies, the institutional advantages of the executive are enhanced", n44 moreover, "[b]ecause of the importance of secrecy, speed, and flexibility, courts, which are slow, open, and rigid, have less to contribute to the formulation of national policy than they do during normal times." n45 Fourth, Supreme Court Justices, of course, should not give the POTUS a blank check--even during times of claimed national emergency; but, how much deference to be accorded by the Court is "always a hard question" and should be a function of "the scale and type of the emergency." n46 Fifth, the Court should be extraordinarily deferential to the POTUS and his executive subordinates regarding questions of executive determinations of the international laws of war and military tactics. As cogently explained by Professors Eric Posner and Adrian Vermeule, n47 "the United States should comply with the laws of war in its battle against Al Qaeda"--and I would argue, other lawless terrorist groups like the Taliban--"only to the extent these laws are beneficial to the United States, taking into account the likely response of [*890] other states and of al Qaeda and other terrorist organizations," n48 as determined by the POTUS and his national security executive subordinates.

Everyone in the world, and not just the US, has a legitimate interest in whether we have any way to approach general questions about resilience such as the following: How much beating can institutions that support the ideals of the rule of law take before they get seriously degraded, so the next time an issue comes up they’re no longer in the fight? Or how quickly might they spring back and contribute to the rule of law? What will encourage and what will blunt the force of the various extra-legal sources of support for the rule of law, that sometimes work to crucial effect in its favour, while at other times are nowhere to be seen, or oppose it? In the last chapter of Law’s Wars, ‘the resilience of the rule of law’, Rick discusses various potential but variable – often Janus-faced - sources of resilience: NGOs, law itself, ‘sunshine’, the executive, military justice, the bureaucracy, congress, civil society, ‘interposing bodies’, and others. This gives us key ingredients for an answer to such questions, all the more topical after the POTUS’s pardon of war criminals last Memorial Day, but–perhaps because any general answers are beyond us – no summative answers to questions of this sort are offered.

But they trouble me. In my day job one thing I’m exploring is the implications of the rise of populist authoritarianism in countries like Poland and Hungary, and in one recent piece7 I asked what I thought was a good question, though I’m not sure of my answer to it. My question was roughly: why has it been so easy for populist subversion of constitutionalist and rule of law values and institutions to occur where, only thirty years ago, they seemed to have been welcomed as indispensable ingredients of the ‘normality’ so many citizens of the region professed to admire? Another way of asking the question is: why have Kaczyński and Orbán found so apparently easy what Donald Trump, whose power is not small and whose motivations and ambitions appear to tend in similar directions, finds so hard: to overwhelm and take over ostensibly (and relatively) independent institutions that were intended to temper power? In what circumstances and for what reasons will institutions resist, when will they fight back, when will they fold, and perhaps fundamental to all this, when will they receive adequate support from all those extra-legal agencies whose support the rule of law might require in times of challenge?

The value of democracy has been taken for granted until recently, but this assumption seems to be under threat now more than ever before. As was explained in Chapter 1, democracy’s claim to be valuable does not rest on just one particular merit, and scholars tend to distinguish three different types of values (Sen 1999). This book focused on the instrumental value of democracy (and hence not on the intrinsic and constructive value), and investigated the value of democracy for peace (Chapters 3 and 4), control of corruption (Chapter 5) and economic development (Chapter 6). This study was based on a search of an enormous academic database for certain keywords,6 then pruned the thousands of articles down to a few hundred articles (see Appendix) which statistically analysed the connection between the democracy and the four expected outcomes. The frst fiding is that a reverse wave away from democracy has not happened (see Chapter 2). Not yet, at least. Democracy is not doing worse than before, at least not in comparative perspective. While it is true that there is a dramatic decline in democracy in some countries,7 a general trend downwards cannot yet be detected. It would be better to talk about ‘stagnation’, as not many dictatorships have democratized recently, while democracies have not yet collapsed. Another fnding is that the instrumental value of democracy is very questionable. The feld has been deeply polarized between researchers who endorse a link between democracy and positive outcomes, and those who reject this optimistic idea and instead emphasize the negative effects of democracy. There has been ‘no consensus’ in the quantitative literature on whether democracy has instrumental value which leads some beneficial general outcomes. Some scholars claim there is a consensus, but they only do so by ignoring a huge amount of literature which rejects their own point of view. After undertaking a large-scale analysis of carefully selected articles published on the topic (see Appendix), this book can conclude that the connections between democracy and expected benefts are not as strong as they seem. Hence, we should not overstate the links between the phenomena. The overall evidence is weak. Take the expected impact of democracy on peace for example. As Chapter 3 showed, the study of democracy and interstate war has been a fourishing theme in political science, particularly since the 1970s. However, there are four reasons why democracy does not cause peace between countries, and why the empirical support for the popular idea of democratic peace is quite weak. Most statistical studies have not found a strong correlation between democracy and interstate war at the dyadic level. They show that there are other—more powerful—explanations for war and peace, and even that the impact of democracy is a spurious one (caveat 1). Moreover, the theoretical foundation of the democratic peace hypothesis is weak, and the causal mechanisms are unclear (caveat 2). In addition, democracies are not necessarily more peaceful in general, and the evidence for the democratic peace hypothesis at the monadic level is inconclusive (caveat 3). Finally, the process of democratization is dangerous. Living in a democratizing country means living in a less peaceful country (caveat 4). With regard to peace between countries, we cannot defend the idea that democracy has instrumental value. Can the (instrumental) value of democracy be found in the prevention of civil war? Or is the evidence for the opposite idea more convincing, and does democracy have a ‘dark side’ which makes civil war more likely? The findings are confusing, which is exacerbated by the fact that different aspects of civil war (prevalence, onset, duration and severity) are mixed up in some civil war studies. Moreover, defining civil war is a delicate, politically sensitive issue. Determining whether there is a civil war in a particular country is incredibly diffcult, while measurements suffer from many weaknesses (caveat 1). Moreover, there is no linear link: civil wars are just as unlikely in democracies as in dictatorships (caveat 2). Civil war is most likely in times of political change. Democratization is a very unpredictable, dangerous process, increasing the chance of civil war significantly. Hybrid systems are at risk as well: the chance of civil war is much higher compared to other political systems (caveat 3). More specifcally, both the strength and type of political institutions matter when explaining civil war. However, the type of political system (e.g. democracy or dictatorship) is not the decisive factor at all (caveat 4). Finally, democracy has only limited explanatory power (caveat 5). Economic factors are far more significant than political factors (such as having a democratic system) when explaining the onset, duration and severity of civil war. To prevent civil war, it would make more sense to make poorer countries richer, instead of promoting democracy. Helping countries to democratize would even be a very dangerous idea, as countries with changing levels of democracy are most vulnerable, making civil wars most likely. It is true that there is evidence that the chance of civil war decreases when the extent of democracy increases considerably. The problem however is that most countries do not go through big political changes but through small changes instead; those small steps—away or towards more democracy—are dangerous. Not only is the onset of civil war likely under such circumstances, but civil wars also tend to be longer, and the confict is more cruel leading to more victims, destruction and killings (see Chapter 4). A more encouraging story can be told around the value for democracy to control corruption in a country (see Chapter 5). Fighting corruption has been high on the agenda of international organizations such as the World Bank and the IMF. Moreover, the theme of corruption has been studied thoroughly in many different academic disciplines—mainly in economics, but also in sociology, political science and law. Democracy has often been suggested as one of the remedies when fghting against high levels of continuous corruption. So far, the statistical evidence has strongly supported this idea. As Chapter 5 showed, dozens of studies with broad quantitative, cross-national and comparative research have found statistically signifcant associations between (less) democracy and (more) corruption. However, there are vast problems around conceptualization (caveat 1) and measurement (caveat 2) of ‘corruption’. Another caveat is that democratizing countries are the poorest performers with regard to controlling corruption (caveat 3). Moreover, it is not democracy in general, but particular political institutions which have an impact on the control of corruption; and a free press also helps a lot in order to limit corruptive practices in a country (caveat 4). In addition, democracies seem to be less affected by corruption than dictatorships, but at the same time, there is clear evidence that economic factors have more explanatory power (caveat 5). In conclusion, more democracy means less corruption, but we need to be modest (as other factors matter more) and cautious (as there are many caveats). The perceived impact of democracy on development has been highly contested as well (see Chapter 6). Some scholars argue that democratic systems have a positive impact, while others argue that high levels of democracy actually reduce the levels of economic growth and development. Particularly since the 1990s, statistical studies have focused on this debate, and the empirical evidence is clear: there is no direct impact of democracy on development. Hence, both approaches cannot be supported (see caveat 1). The indirect impact via other factors is also questionable (caveat 2). Moreover, there is too much variation in levels of economic growth and development among the dictatorial systems, and there are huge regional differences (caveat 3). Adopting a one-size-ftsall approach would not be wise at all. In addition, in order to increase development, it would be better to focus on alternative factors such as improving institutional quality and good governance (caveat 4). There is not suffcient evidence to state that democracy has instrumental value, at least not with regard to economic growth. However, future research needs to include broader concepts and measurements of development in their models, as so far studies have mainly focused on explaining cross-national differences in growth of GDP (caveat 5). Overall, the instrumental value of democracy is—at best—tentative, or—if being less mild—simply non-existent. Democracy is not necessarily better than any alternative form of government. With regard to many of the expected benefts—such as less war, less corruption and more economic development—democracy does deliver, but so do nondemocratic systems. High or low levels of democracy do not make a distinctive difference. Mid-range democracy levels do matter though. Hybrid systems can be associated with many negative outcomes, while this is also the case for democratizing countries. Moreover, other explanations—typically certain favourable economic factors in a country—are much more powerful to explain the expected benefts, at least compared to the single fact that a country is a democracy or not. The impact of democracy fades away in the powerful shadows of the economic factors.8

Successful democratic systems are not designed for governments composed of ethical men and women who are only interested in the public good. If leaders were always virtuous there would be no need for checks and balances. The Founding Fathers understood this. They designed a system to protect minority points of view and to protect us from leaders inclined to lie, cheat and steal. Fortunately, we haven’t had many of those in our 200-plus years of history, which is why the Trump presidency sent such shock waves through a large part of the body politic.

Those who bemoan Trump’s effect on democracy complain that he did not adhere to the established norms of the presidency. That is correct; he is, at heart, a dictator. But let’s start by distinguishing between norms and institutions. Norms are different from laws; they are not enforceable and they evolve. In contrast, democratic institutions are based in law and entail real consequences. Changes in norms can in fact lead to changes in law and in democratic institutions—this has happened in many of the countries in eastern Europe and Latin America that have slipped into pseudo-democracy or autocracy. [1] But in spite of Donald Trump’s best efforts it has not happened here. At least not yet.

The most famous example of attempted court-packing is, of course, FDR’s maneuver in 1937. The president was fresh from a massive reelection—the famous “as goes Maine, so goes Vermont” year, when Roosevelt won all but those states—but he was unhappy about a series of rulings against his New Deal programs. He proposed adding a new justice for every sitting justice older than 70½, up to a maximum bench of 15. The plan met heavy bipartisan resistance in Congress and faced public opposition by the justices, including ur-progressive Louis Brandeis and FDR’s own vice president, John Nance Garner. The move led to huge Democratic losses in the 1938 midterm elections, with Republicans gaining 81 seats in the House and eight in the Senate.

Until recently, no real attempts at court-packing had been made since the 1930s, though calls to “Impeach Earl Warren” were heard in the Jim Crow South. As with most such proposals in our history, the partisan appeal is both evident and heavy-handed. But if Democrats think they’d be “rebalancing” an “out of whack” Court, then they deserve the political losses that such ends-justify-the-means radicalism would inevitably cause. And if they think that packing the Court would restore “norms”—accepting their premise that either Senate Republicans or the Court itself broke those norms—then they really don’t understand the nature of governance.

These plans to add seats to the court are appealing for several reasons. First, these plans are much simpler than other proposals. 148While other initiatives may require a constitutional amendment or broader coalition building, this plan would only require that Democrats take control of the legislative and executive branches long enough to implement it. 149Second, this plan directly responds to the political tactics that Republicans have used over the past decade. Republicans have packed the federal courts. 150Playing a game of constitutional hardball, Democrats could respond by packing the Court. 151Finally, this plan will foster positive outcomes for its supporters. If Democrats do not change the composition of the Supreme Court, the Republican-controlled Court may be able to overturn key pieces of legislation meant to expand democracy, 152even if Democrats regain control of legislative and executive branches. 153

However, this plan does have flaws. First, it is a temporary fix to what may be a more pervasive problem of a judiciary too vulnerable to the political tides of the President and Congress. Moreover, this plan is criticized for just being another move in the game of constitutional hardball that Republicans will counter as soon as they gain power again. 154

That the recent decisions by the conservative majority court may not be in tune with average Americans is backed up by recent polling and surveys. But those rulings also signal a newly unapologetic and muscular court, willing to buck the national mood.

"They're using their conservatism in a powerful way and they're acting like they're in a hurry," said Stephen Wermiel, a constitutional law professor at American University Washington College of Law.

This works in theory. My concern is that the Supreme Court will simply ignore attempts to limit its power, and all the time and effort spent convincing politicians that jurisdiction stripping is the answer will leave us exactly where we started: with a high court untroubled by the desires of the American people. Congress will pass a law and include a stipulation saying, “This law is not open for Supreme Court interpretation.” Then the Supreme Court will say, “No. In fact, this law passed by Congress is unconstitutional.” The Supreme Court can, and likely will, use judicial review to reject congressional attempts to get around judicial review.

What happens next depends a lot on what kind of law Congress attempts to shield from the Supreme Court’s interpretation of the Constitution. If it’s the kind of law that requires the states to do, or not do, something, the states that agree with Congress will go along with Congress, while the states that agree with the Supreme Court will refuse to follow the “unconstitutional” congressional mandate. Think about jurisdiction stripping in the abortion context: Congress can pass a law that protects a woman’s right to choose and prohibits the Supreme Court from reviewing it. The religious fundamentalists will ask the Supreme Court to review the law anyway. It’s likely the forced-birth caucus on the Supreme Court will decide that Congress cannot strip its power and then determine, again, that Congress doesn’t have the power to protect women’s rights. Texas will listen to the court and outlaw abortions; California will listen to Congress and allow them. Nothing will have been solved.

That the recent decisions by the conservative majority court may not be in tune with average Americans is backed up by recent polling and surveys. But those rulings also signal a newly unapologetic and muscular court, willing to buck the national mood.

"They're using their conservatism in a powerful way and they're acting like they're in a hurry," said Stephen Wermiel, a constitutional law professor at American University Washington College of Law.

Recent work has provided many insights on the role of policy primacy in shaping the Court’s strategic behavior in the separation of powers context. Yet, in our view, the literature’s focus on Pareto-optima predictions has largely pushed aside the Court’s concern for defending and/or promoting its institutional legitimacy. Models of judicial decision making should move beyond the role of policy preferences and legal factors to probe more deeply into strategic rationales explaining the Court’s behavior. Segal, Westerland, and Lindquist (2011) make a notable contribution in this regard by examining the ways in which Congress may constrain the Court’s decision making in constitutional cases. Assessing those instances where the Court exercises judicial review over federal legislation, these authors find that, while the Court is not affected by the likelihood of a given decision being legislatively overridden, its general propensity to invalidate legislation when it is ideologically distant from Congress. Moreover, their analysis finds very limited evidence that Court-curbing actions influence the Court’s propensity to invalidate federal laws. They conclude that the Court responds to general political conditions rather than specific policy outcomes because the driving motivation for decisions in constitutional cases hinges on the Court’s concern for what they term “institutional maintenance.” Similarly, Clark (2009) demonstrates that the effect of Court-curbing actions on constitutional decisions is conditional. In particular, he shows the effects of Court-curbing attacks on the Court’s decisions are attenuated when the public is more supportive of the Court and also when ideological dissimilarity is greatest between Congress and the Court. Accordingly, Clark argues that the conditional effects of political attacks reflect the Court’s concern with institutional legitimacy over any concern for specific policy enactment. Certainly, these studies make major contributions toward understanding the full scope of the Court’s strategic behavior. However, both analyses leave out potentially valuable comparative evidence from statutory cases. This is important because of the expectation that for statutory decisions, the Court’s motivation is driven by policy costs—the concern for specific policies being overridden. Here, we consider the possibility that congressional Court-curbing efforts and other theoretically key factors may have implications for statutory cases as well. By comparing the Court’s decisions in both constitutional and statutory contexts, we are able to gain leverage on whether institutional maintenance is unique to the former as well as a more complete view of the Court’s motivation(s) in the strategic context of the separation of powers. Our analysis also differs from previous work in that we seek to explain ideological variation in the Court’s decision making as opposed to whether (Segal, Westerland, and Lindquist 2011) or to what extent (Clark 2009) the Court invalidates federal legislation. Because we restrict ourselves to jurisdictional measures in operationalizing Court-curbing action, our analysis can test directional predictions concerning the influence of such congressional efforts in shaping the ideological tenor of the Court’s decisions. This also permits us to examine all the Court’s constitutional decisions, including highly polarizing cases such as Mapp v. Ohio (1961), Miranda v. Arizona (1966), and Roe v. Wade (1973), as opposed to the subset of constitutional instances that involve judicial review of federal law.

Constitutional norms are the informal, unwritten, and habitual rules of political contestation that ensure stability and fair play.1 83 They protect values like limited government, judicial independence, and the separation of powers.

One classic example was the long-standing norm, set by George Washington, against a President serving more than two terms.184 After Franklin Roosevelt violated this norm by serving as President for four terms, Congress passed, and the state legislatures ratified, the Twenty-Second Amendment, constitutionalizing the norm that "[n]o person shall be elected to the office of the President more than twice."185 Breaking a constitutional norm may technically be legal, but the common understanding is that such a breach violates the spirit of the Constitution. The violation is not "unconstitutional," but because the norm undergirds the foundational principles of our constitutional system, it is nonetheless "anticonstitutional."1 86