Liberty, Law, and Democracy: Are There Grounds for Realistic Optimism?

Democracy is stubborn work.

It is an honor to share this important piece by Michael Traynor, one of America’s most respected lawyers. Subscribers to this publication represent a range of opinion, uncommon in our polarized moment. Proposals for guest posts on relevant topics of interest to readers are always welcomed.

The major problem of human society is to combine that degree of liberty without which law is tyranny, with that degree of law without which liberty becomes license. —attributed to Heraclitus of Ephesus over 2500 years ago.

Amid our current political polarization, I believe there are grounds for realistic optimism that Americans as a people will act to protect and restore our liberty, law, and democracy.

Our three branches of government are failing to maintain the balance between liberty and law and are threatening democracy:

• The president and his executive branch are tearing down scientific, medical, environmental, educational, justice, agricultural, regulatory, cultural, emergency, and other programs that have made the United States not only a great and caring democracy but also a powerful engine of creativity and commerce; he is also grabbing power and even threatening the independence of the Federal Reserve.

• Congress is dysfunctional, and legislators in the current majority who should exhibit personal character while safeguarding institutional integrity are instead abetting a lawless president.

• An accommodating Supreme Court majority has curbed the authority of courageous federal judges to hold the president accountable and has immunized him from prosecution for most official acts even when they are felonies.

‘The Challenges of Democracy: And the Rule of Law’

In his acclaimed new book, The Challenges of Democracy: And the Rule of Law (2025), Jonathan Sumption, an English jurist and historian, tackles these issues.

His perspective is acute, his outlook bleak.

Lord Sumption traces democracy’s ailments not to outside threats but to internal weaknesses such as declining trust in institutions, politicians’ excessive promises that generate unrealistic expectations, and moral absolutism and unwillingness to compromise.

He denounces the "new conformity," aggravated by social media, and the redefinition of harm "to cover the discomfort caused by having to endure contradiction." He opposes overreaching whether by courts or by populist strongmen who disregard courts and other democratic checks. He describes the U.S. and other democracies as riven by contradictions they themselves have fostered and their vulnerability to new strains of old diseases—fear, economic insecurity, and intolerance.

He questions whether the U.S can maintain the cultural and institutional restraints that keep power in check.

Reasons for Realistic Optimism

I still have more hope than despair, particularly in individual Americans, our basic decency and sense of fairness, and our collective potential for concentrating on our common good.

I base this hope on our history, the growing concerns that Americans share about our country and the attendant opportunity to convert those concerns into votes, the encouraging actions of many in the legal profession, and the critical bearing that realistic optimism has on leadership to a better outcome.

I believe that change for the better is coming.

We may see signs of it, for example, in state elections later this year and in the general election next year. Whether change sufficient to halt Trump will occur as soon as January 2027 with a possible new House of Representatives and even a new Senate is an open question.

The Supreme Court has left a glimmer of hope that some cases still awaiting decision may actually impose more constitutional limits than it has so far on the executive branch.

Although such fortunate results for our country would be welcome, it may take a while longer. Fuller restoration of liberty, law, and democracy is likely to take even longer. We must stay committed and not yield to defeatism.

Among the reasons for optimism:

History: Our democracy has lasted a long time even though our founders feared that our then-new union would not last, a story well told by Dennis C. Rasmussen in Fears of a Setting Sun: The Disillusionment of America’s Founders (2021).

Despite our failings and domestic strife, we have survived two world wars and other traumas—civil war, corruption, a few bad presidents, Red Scares, mass protests, ill-considered foreign wars, and economic crises.

We created the Marshall Plan, the Peace Corps, and landed astronauts on the moon. Our post-war initiatives enabled us to build strong allies, including Germany and Japan, and oppose the murderous regimes of communism. Our tradition of civic activism and reform includes women’s suffrage, the Civil Rights Movement, and robust protections for freedom of speech.

To announce that there must be no criticism of the President, or that we are to stand by the President, right or wrong, is not only unpatriotic and servile, but is morally treasonable to the American public. Nothing but the truth should be spoken about him or any one else. But it is even more important to tell the truth, pleasant or unpleasant, about him than about any one else. —Theodore Roosevelt, Kansas City Star, 1918

On the other hand, our history also includes slavery, Jim Crow, brutality to American Indians, incarceration of Japanese Americans during WWII, and other evils.

Overall, however, and bearing in mind these and other examples of wrongdoing, we have demonstrated that we are friendly and generous people who value liberty, law, and democracy. Throughout our history, we’ve also been able to laugh at ourselves and our leaders as well as appreciate the power and relief that can accompany a good laugh. The growing boldness of Americans and humorists to treat Trump and his rogues’ gallery as laughingstocks is encouraging, although Paramount’s cancellation of The Late Show with Stephen Colbert is not.

The growing concerns of Americans and the opportunity to convert those concerns into votes: “Trump’s Tariffs and ‘One Big Beautiful Bill’ Face More Opposition Than Support as His Job Rating Slips” is the heading of a recent Pew Research Report. The subheading states that “Far more Americans say Trump is making the way the federal government works worse than better.”

In my view, based on recent accounts I have read and personal observations, many Americans share increasing concerns about job and health care protection, affordability of housing and groceries, neighborhood security, education of their children, prevention of voting, and Trump's crude excesses and cruelty. Many are concerned about permanent environmental damage and having clean air and water.

Apart from varying views about domestic policy, Americans are becoming aware of the risk that Trump presents to our national security.

For example, allies may have intelligence about an impending attack or military maneuver that could harm the U.S. but that if disclosed to and then leaked or otherwise compromised by Trump or his subordinates such as the Secretary of Defense could jeopardize the security and agents of their own countries. Accordingly, wary allies may elect to withhold or limit disclosure, thereby leaving the U.S. less secure than it would have been had such allies been confident that they could trust the president and his subordinates.

In my opinion, given published reports as well as their own investigative resources, they may also have realistic concerns about his capriciousness, vindictiveness, dishonesty, vulnerability to flattery, visible deterioration, and fawning red-carpet treatment of war criminal Putin to whom he might even deliberately, carelessly, or inadvertently disclose such intelligence.

It is also realistic to acknowledge that Trump will continue to have devoted followers and that the economic and other concerns that impelled many voters to vote for him may impel them again to vote for candidates who support him. An increasing number of our 77+ million Americans who elected him, however, seem to be questioning their vote or experiencing buyer’s remorse even if they still support him or some of the actions he has taken.

At the grassroots, many Americans are beginning to prepare for the opportunity to elect at least a responsible House of Representatives and possibly even the Senate to begin repairing and restoring the federal government as early as January 2027. Notwithstanding gerrymandering and other efforts by Trump and his supporters to limit or even prevent voting and fair vote-counting, and their likely disregard of election results they dislike, the turnout and the votes may provide promising early indicators of positive change.

I am heartened by the idealism, energy, and resilience of many young people despite the stresses and uncertainties they face, the questionable information they often get from social media, and the understandable disappointment they and others have with so many politicians about their failures and indifference and the refusal of many elderly ones to step aside for inspiring younger leaders. But I am also saddened by the disillusionment that many young people also seem to have in our institutions and leaders and about their prospects for a brighter future.

The legal profession: Some large law firms capitulated, and others acquiesced or were silent. The Department of Justice has temporarily lost its independence and honor along with many fine lawyers and has become Trump’s obsequious servant.

Michael Traynor | The State of the Lawyer-Statesman Ideal

By contrast, however, the American Bar Association, the National Constitution Center, the American Academy of Arts & Sciences and others are laying the foundations for a restored democracy. The American Law Institute stands up for the rule of law by clarifying, simplifying, and otherwise improving the law in existing and emerging areas. The Society for the Rule of Law has published a “ Statement of Principles to Preserve, Protect, and Defend the Constitution, the Rule of Law, and American Democracy.” The mission of Lawyers Defending American Democracy “is to galvanize lawyers to defend the rule of law in the face of an unprecedented threat to American democracy.”

Judges on the front lines of the law are enforcing constitutional guarantees. A great many small law firms. solo practitioners, other bar associations such as the Bar Association of San Francisco, and a few large law firms are demonstrating leadership as well as courage to take on Trump.

Nonprofit and nonpartisan legal organizations are also engaged in critical missions. They include three with which I have been closely involved for many years: Earthjustice, which wields "the power of law and the strength of partnership to protect people's health, to preserve magnificent places and wildlife, to advance clean energy, and to combat climate change;" the Environmental Law Institute, which "is a distinguished force in environmental law, known for its nonpartisan integrity, cross-sector reach, and emphasis on long-term solutions at the intersection of law, policy, society, technology, and markets;" and The Lawyers Committee for Civil Rights Under Law, which was “formed in 1963 at the request of President John F. Kennedy to mobilize the nation’s leading lawyers as agents for change in the Civil Rights Movement."

The importance of realistic optimism: The above observations, especially about us, the American people, I believe, if shared, indicate that the story isn’t over. I continue at age 90 to be hopeful and guardedly optimistic.

Americans can support and elect realistic and optimistic leaders who inspire confidence, appreciate learning from and working with others, encourage people to keep going in tough times, focus on key issues and avoid fringe causes, and help identify and obtain workable and fair solutions to demanding problems. President Reagan’s 1984 campaign slogan, “It’s morning in America,” and President Obama’s, “Yes, we can,” in 2008 encouraged Americans to vote for them. Gloom and doom are not attributes of positive leadership. Neither are over-optimism and failure to acknowledge real obstacles.

I recognize that there will be varying perspectives about timing and whether realistic optimism, leadership, and actions by Americans will carry the day eventually. Some people, perhaps many, are understandably concerned that conditions will have to get even worse before they get better. Others may think that our situation is so dire that recovery is not realistic to consider.

Luke Nichter | Trump at 6 Months: A Preliminary Assessment

With help from the lens of history, scholars can assess Trump’s presidency objectively, including attention to the question whether he was not merely a singular personality of his time with a zealous following but also symbolized the unraveling of past society and the beginning of a new movement away from democracy. Scholars can also assess Trump’s duality, for example: although he acted constructively to encourage and persuade NATO allies to step up their financial and military contributions and end their free ride on the U.S, he unconstructively intensified uncertainty whether the U.S. would honor its commitments.

Being realistic means that we must heed the warning signs.

Democracy is not self-sustaining. If we neglect it, it will founder. Timidity is complicity. The next few years will be critical. Democracy depends on the consent of the governed. That’s us.

Discharging our individual and collective responsibilities to preserve democracy will require steadiness, intelligence, vigor, determination, a renewed sense of community and country, mutual respect and goodwill, and pragmatic and effective consensus and action.

As J. Michael Luttig, a leader in the Society for the Rule of Law and a former federal judge, states in concluding his important recent essay, “The End of Rule of Law in America,” The Atlantic (May 14, 2025), Trump “will continue his assault on America, its democracy, and rule of law until the American people finally rise up and say, ‘No more.’”

Democracy is Stubborn Work

Here in brief are five concrete steps Americans can take to counter the undermining of democracy and rebuild an informed electorate that is less vulnerable to cynicism, manipulation, and autocratic drift. ¹

• First, starting in elementary school and continuing in life, and in cooperation with, assistance from, and support of teachers, parents, schools, and educational organizations, learn about how American democracy works and how to participate.

• Second, demand transparency, accountability, and ethical behavior from public officials at every level, and demand that the president carry out his oath to "faithfully execute the Office of President of the United States" and "preserve, protect and defend the Constitution of the United States."

• Third, encourage open and spirited debate— especially when it is uncomfortable; democracy depends on listening to each other and addressing difficult ideas respectfully.

• Fourth, vote and help organize for change now and in ensuing years, and get involved, especially where governmental representatives are closest to the people and good, tangible, and timely results may be achievable—school boards, city councils, neighborhood and civic associations, and town halls; and recognize, encourage, and accommodate such civic participation.

• Fifth, be wary of quick fixes and empty promises by vainglorious leaders who never will deliver lasting freedom.

None of these steps are either dramatic or solutions. Indeed, that is the point.

Democracy, properly understood, is stubborn work: incremental, sometimes frustrating, often unfinished. But echoing Heraclitus, maintaining a just society is a never-ending act of balancing liberty and law.

Americans still have the moxie to keep that balance.

When we as vigilant Americans so choose, the spirit of liberty that is in our hearts will also become the voice of liberty in our country.

Copyright © Michael Traynor, 2025. Licensed under CC BY 4.0. https://creativecommons.org/licenses/by/4.0/

1. I provide more details in an earlier essay, “Citizenship in a Time of Repression,” 2005 Wisconsin Law Review 1.