California Law Review
We live in an anxious era, particularly about the possibility of multiethnic democracy. The polarization of American democracy in general, accelerated by Trumpism in particular, has challenged narratives of race as gradually declining in significance. Instead, conventional wisdom suggests that Trumpism results directly from rising racial resentment of a White population that fears losing its relative power.2 “Dog Whistle Politics” have been discarded in favor of openly nativist appeals, including by media figures such as Tucker Carlson.3
We are not alone. In France, the theory of the Grand Remplacement (Great Replacement) has spread from the fringes to the open world of presidential politics through candidate Eric Zeymour who placed fourth in first-round voting in 2022.4 And other European countries have seen an uptick in racial anxiety. All this lends a sense of urgency to the project of establishing a multiracial coalition committed to democracy as an ongoing concern. Otherwise, we risk succumbing to the “authoritarian backlash” identified in Professor Levitsky’s Jorde Symposium Lecture. Racialized politics tend toward the winner-take-all variety, and they do not allow for the fluid coalition shifting that has been celebrated by analysts from James Madison to Robert Dahl.5
In this Response, I make three points, drawing on the scholarship about constitutional mechanisms for mitigating ethnic conflict. First, multiethnic democracy is not as rare as has been suggested. Indeed, it is increasingly the normal state of affairs in rich countries, fueled by patterns of global migration.
But I will argue there are some multiethnic countries whose particular histories lend themselves to authoritarian backlash and democratic backsliding. These are countries with a history of mass slavery, of which the United States and Brazil are the most prominent examples. Slave-legacy societies are especially prone to existential racial appeals as an instrument of political mobilization, and the perception of high stakes can lead to attacks on institutions.
Second, the traditional mechanisms of “managing” ethnic conflict are in some flux and do not suggest an easy way out of the current crisis, even if we could redesign constitutional arrangements from scratch. The large literature coalesces around two main constitutional approaches: consociationalism and centripetalism.6 Consociationalism involves peak-level bargains among leaders who represent relatively homogenous ethnic groups; centripetalism emphasizes institutions that encourage cross-ethnic cooperation. Whatever the merits of these approaches in theory, the debate has not operated at a fine enough level of detail to suggest many plausible solutions for the United States. Centripetalism would operate here mainly through the design of multiracial electoral districts and perhaps the adoption of ranked-choice voting, which is emerging in mainstream discourse as a lynchpin institutional reform. But because elections management is constitutionally decentralized in the United States, this is unlikely to be a magic bullet for the country as a whole. I predict increasing divergence in democratic practices, as well as the resulting policies, across the United States.
Third, society—rather than law or politics—may provide the best pathway to address the challenges of multiracial democracy in the United States. We are feeling our way to a multiracial culture, which I designate using the term mestizaje, and in which fluidity and mixing also extend to demographic understandings. But the success of that project will hinge on whether our institutions can withstand the assault on democracy President Trump and his allies have unleashed. The future of our multiracial democracy hinges on whether the Republican Party returns to democratic competition, and there are signs this could occur. Nothing, of course, is guaranteed. Subnational autocracy remains a very real option for parts of the United States, even as others end up being bellwethers of multiracial democracy.
Each of these points intersects with Professor Levitsky’s lecture. The first point, that multiracial democracy is rather common, undercuts the claim that this would be an “unparalleled achievement.”7 While this is true for the United States, it is not unknown elsewhere, and so directs us to ask why the United States is somewhat exceptional in its democratic trajectory. The second point, that conventional approaches to constitutional design do not provide off-the shelf solutions, is consistent with Levitsky’s argument that we may be in real trouble. The third point about the growing complexity of racial categories suggests that more optimism may be warranted, at least for the middle term and beyond. There are surely signs of difficulties for the next election cycles, but the future of the United States is likely to be both multiracial and democratic.
Tom Ginsburg, "Democratic Backsliding and Multiracial Democracy. A Response to the 2021 Jorde Symposium Lecture by Steven Levitsky," 110 California Law Review 2035 (2022).