With the confirmation of Brett Kavanaugh as a Supreme Court Justice, the US joins the list failed democracies, not by revolution or coup d’état, but by the slow decay and corruption of its democratic institutions and norms. In their book, How Democracies Die,[i] the authors wrote,
Democracies may die at the hands . . . of elected leaders . . . who subvert the very process that brought them to power. . .. More often, though, democracies erode slowly, in barely visible steps.
Elected autocrats [and parties who] subvert democracy – packing and ‘weaponizing’ the courts and other neutral agencies, buying off the media and the private sector (or bullying them into silence), and rewriting the rules of politics to tilt the playing field against opponents. Democracy’s assassins use the very institutions of democracy — gradually, subtly, and even legally – to kill it.
And this is just what happened with the Kavanaugh vote. Not being in the majority, the Democrats could do nothing but hope several Republicans broke rank and voted no. This did not happen.
Would you want Kavanaugh to be the deciding vote on your life-death case that involved controversial political positions?
In my January 2018 post, HOA-Land: the product of the decline in democratic institutions in America, I argued that HOA-Land was the result of this slow death of democracy. Deborah Goonan makes a strong case for the trickle down effect of the death of democracy on HOA due process. Her lengthy and highly informative post, Does an HOA respect your due process rights? Don’t count on it., goes into a detailed analysis of the Hearing and relates it to HOA due process. She writes,
It’s sad to say that America’s association-governed communities operate under the same dysfunctional and divisive politics — with the exception of occurring at the local level rather than the national level.
The common boiler plate in CC&Rs shortens the requirements for due process to simply, “an opportunity to be heard.” But, Deborah writes,
But due process, as understood in the context of the U.S. Constitution and centuries of law going back to 16th Century England, is intended to offer greater protections for the accused, ensuring a fair hearing of the issues before a disinterested third party, and, preferably, a jury of one’s peers.
She quotes from LegalDictionary.net, constitutional due process means
The right to an unbiased trial
The right to be given notice of the proposed trial and the reason for it
The right of the individual to be aware of evidence against him
The right to cross-examine witnesses for the opposition
The right to present evidence and call witnesses
The right to be represented by counsel
The effect on HOA due process, and on other issues of private rights, is to signal to rogue HOA boards that they can do as they please so long as it supports HOA-Land according to the CAI School of HOA Governance. It says to the HOA boards, the government is behind you and will ignore the Constitutional and Bill of Rights as it pleases.
Who can stop it? No one but a strong turnout by the people, who still believe in America as a democracy, in the upcoming elections.
[i] How Democracies Die, Steven Levitsky & Daniel Ziblatt, Crown Publishing, 2018. Based on their research into democracies, internationally and historically, the authors make the case that the long-term decline in democratic norms and institutions has given rise to demagogic leadership.