An American writer wants stronger courts to protect democracy from authoritarian presidents. Pakistan’s history shows why the people guarding a constitution need watching too.

I was reading an American writer’s proposal for a new democracy when one sentence caught my attention. He wanted the judiciary, rather than the president, to control America’s armed law enforcement agencies.

From Karachi, I found that proposal troubling.

I have spent much of my life watching Pakistan’s courts struggle with political power. Our judges have sometimes resisted governments. At other moments, they have given legal cover to rulers who seized power outside the Constitution.

An independent judiciary can protect democracy. Pakistan’s experience also shows that judges can help weaken the constitutional order they are supposed to defend.

That was the thought I could not shake while reading David W. Dugas.

An American Writer Wants Democracy With Claws

On October 6, 2025, David W. Dugas published his US Democracy 3 Manifesto on Medium.

He believes America’s constitutional system has become vulnerable to politicians who use democratic institutions to undermine democracy itself. Donald Trump’s return to the presidency gives his argument an immediate political setting, although Dugas’s concerns extend beyond one administration.

He wants a new constitutional order.

Dugas calls the government under the Articles of Confederation Democracy 1. The system established under the Constitution of 1787, which took effect in 1789, becomes Democracy 2. Democracy 3 is his proposed replacement.

The numbering is his own framework. It does not mean the United States has had only two constitutional periods or that its Constitution has remained unchanged.

His most striking idea is a democracy with what he calls “claws.”

He wants constitutional institutions capable of stopping officials who abuse their authority, even when their political allies refuse to intervene.

I can understand the attraction. A president who breaks the law should not escape accountability because Congress happens to support him. Nor should a political party be able to protect its members simply by controlling the institutions responsible for investigating misconduct.

Dugas believes American courts need much greater independence to make such accountability possible.

In his essay I Want My Judges Safe and Apolitical, he proposes ending presidential and congressional involvement in selecting judges.

Existing judges would assess candidates and choose their colleagues on merit. He also proposes term limits and upper age limits.

His plans go further. The judiciary would control much of the federal law enforcement machinery now associated with the executive branch. Special oversight bodies would have authority to act against officials who violate their duties.

Dugas is trying to remove the political obstacles that prevent courts from holding powerful people accountable.

But I kept returning to another question. What happens when judges themselves become the problem?

Pakistan’s First Constitutional Crisis Offers a Warning

Pakistan encountered that problem long before its first military coup.

In October 1954, Governor-General Ghulam Muhammad dissolved the country’s Constituent Assembly. The assembly had been working on a constitution for the new state. Its president, Maulvi Tamizuddin Khan, challenged the dissolution before the Sindh Chief Court.

The court ruled in his favour. The federal government appealed, and the case reached Pakistan’s Federal Court under Chief Justice Muhammad Munir.

In 1955, the Federal Court overturned the lower court’s ruling. Its reasoning concerned the governor-general’s assent to constitutional legislation, including the provision under which Tamizuddin had sought judicial relief. The majority concluded that the relevant legal provision lacked the required assent.

That decision effectively left the dissolution standing. Justice A. R. Cornelius dissented.

I mention the legal reasoning because the familiar story is often reduced to a simple claim that judges approved the dismissal of an elected assembly. The court’s actual decision turned on a technical constitutional argument.

Its political effect, however, was substantial. The governor-general had dissolved the institution responsible for framing Pakistan’s constitution. The country’s highest court then interpreted the law in a way that prevented the assembly’s president from obtaining the relief he sought.

The constitutional process suffered a serious setback.

The detailed history appears in Federation of Pakistan v. Maulvi Tamizuddin Khan, PLD 1955 FC 240. Constitutional scholar Paula Newberg also examines the dispute in Judging the State: Courts and Constitutional Politics in Pakistan.

The importance of the case extends beyond its immediate result. Pakistan’s judges were already shaping the boundaries of political authority before the military became the country’s dominant political institution.

How Judges Gave Military Rule a Legal Foundation

In October 1958, Pakistan entered its first period of nationwide martial law. The Supreme Court soon considered the legality of the new arrangement in State v. Dosso.

Chief Justice Munir’s judgment relied on the legal theory of Hans Kelsen, particularly the proposition that a successful revolution could establish a new legal order. The reasoning helped legitimise the change of government.

Pakistan’s Supreme Court later rejected that approach in Asma Jilani v. Government of Punjab in 1972. But the relationship between judicial reasoning and military power did not end there.

On July 5, 1977, General Muhammad Zia-ul-Haq overthrew Prime Minister Zulfikar Ali Bhutto’s government. The coup followed disputed elections and a prolonged confrontation between the government and opposition parties.

Begum Nusrat Bhutto challenged the military takeover. Her petition reached the Supreme Court, then headed by Chief Justice Sheikh Anwarul Haq.

In November 1977, the court upheld the intervention under the doctrine of state necessity. The judges reasoned that Pakistan faced an exceptional political crisis and that military action had become necessary to restore order.

They placed conditions on the military government’s authority. They also maintained that the superior courts could review actions taken under martial law.

These qualifications matter. The judges did not openly grant the military unlimited authority. Yet the decision validated an intervention that had displaced an elected government.

Readers can examine the judgment in Begum Nusrat Bhutto v. Chief of Army Staff, PLD 1977 SC 657.

I find the language of necessity especially revealing. The judges believed extraordinary circumstances justified an otherwise unlawful departure from constitutional government.

But who had the authority to decide whether those circumstances were extraordinary enough? The military had already seized power. The court then supplied a legal justification for allowing the arrangement to continue.

Pakistan did not lose constitutional government because judges had too much independence. Military power and political instability were central to what happened.

Still, the judges exercised a decisive choice. They could have rejected the takeover’s legality, even if the military might have ignored their ruling. Instead, they validated it.

That distinction matters when we examine Dugas’s proposal.

Dugas Has an Answer to Judicial Misconduct

It would be unfair to suggest that Dugas has ignored the possibility of judges abusing their authority. I examined his supporting essays more closely.

He proposes an Office of Judicial Conduct with authority to discipline judges and remove them from office when necessary. He also envisages other oversight bodies, including an Office of Executive Conduct, to deal with serious misconduct across government.

Members of these councils would be nominated by their peers but authorised through public approval in years without presidential elections. Dugas therefore does not propose a judiciary entirely beyond public control.

He is trying to create a system in which misconduct can produce consequences without depending on the goodwill of the official’s political supporters.

His Trust and Accountability essay develops another proposal. He wants oaths of office to become enforceable obligations, with clearly defined consequences for violations.

I think his emphasis on timely accountability deserves attention. Political institutions can take years to respond to misconduct. By then, the damage may be difficult to reverse.

But his proposed oversight structure raises further questions.

Suppose the Office of Judicial Conduct removes a judge for a controversial ruling. Who decides whether the removal reflects genuine misconduct or disagreement with the judgment? Can the judge appeal to an institution outside the same judicial hierarchy?

And if voters are asked to approve candidates chosen through a professional nomination process, how much independent choice would they really have?

Dugas has addressed the need for judicial accountability. I do not think he has yet shown that his proposed safeguards would prevent the judiciary’s senior institutions from developing political interests of their own.

Professional merit cannot settle every constitutional dispute. Judges may understand the law and still disagree profoundly about its meaning. Pakistan’s constitutional history contains several examples.

Who Should Control America’s Law Enforcement Agencies?

The American president currently heads the executive branch, which includes the Department of Justice and major federal law enforcement agencies.

Federal judges exercise judicial authority, while Congress controls important aspects of federal law through legislation and appropriations.

Under Article II of the Constitution, the president nominates federal judges, subject to Senate confirmation. The United States Courts explain the existing appointment system.

Dugas wants to change that relationship. He argues that presidential control over federal law enforcement creates opportunities for political interference. An administration could use investigative authority to harass opponents or shield its own officials.

Those concerns are legitimate subjects for constitutional debate. Yet moving enforcement authority into the judiciary would create a different institutional arrangement.

Courts ordinarily determine whether government actions comply with the law. Enforcement agencies carry out investigations and exercise powers granted by legislation.

Dugas would place much more of that work under judicial administration. Consider a dispute involving the president.

A judicial oversight body could determine that an executive official violated the law. Under Dugas’s system, judicially controlled enforcement personnel might then carry out the resulting action.

His intention is to prevent an unlawful president from obstructing enforcement. But imagine that the oversight body itself exceeds its authority.

Would Congress be able to investigate its conduct effectively? Could an independent institution examine the enforcement officers carrying out its orders?

These questions matter because control over armed personnel is different from the authority to issue a judgment. A court can declare an arrest unlawful.

An institution that can direct the officers making arrests exercises another kind of power. I would want to understand precisely how Dugas intends to separate those functions within his new constitutional structure.

Pakistan Is Still Struggling With Judicial Independence

The warning from Pakistan becomes more complicated when I consider recent events.

In October 2024, Pakistan adopted its 26th Constitutional Amendment. The amendment changed the process for selecting the Chief Justice of Pakistan and altered arrangements for handling constitutional cases.

In November 2025, the 27th Amendment created a separate Federal Constitutional Court, transferring major constitutional jurisdiction away from the Supreme Court.

The changes have become a serious subject of debate among legal experts.

The International Commission of Jurists criticised the 27th Amendment on November 13, 2025, warning that it could weaken judicial independence and the courts’ ability to hold the executive accountable.

Pakistan’s government has presented constitutional restructuring as a way to improve the country’s judicial framework. The disagreement deserves examination on its own terms.

Our recent history does not support the simple conclusion that judges possess too much power. It shows something more difficult.

Courts can face pressure from governments while also exercising considerable political influence. Attempts to make them more accountable may themselves give elected politicians greater control over judicial decisions.

I have explored related questions about constitutional authority in my article on Governor’s Rule and provincial autonomy in Pakistan.

In another article, Pakistan Does Not Need Western Values to Demand Western Standards of Governance, I examined the distance between formal constitutional rights and institutional practice.

Dugas would place greater authority in an independent judiciary. Pakistan’s recent amendments have raised concerns about political influence over judicial institutions.

The situations are different. They reveal why constitutional design cannot be reduced to a contest over whether judges or politicians deserve greater trust.

Neither group is immune to institutional self-interest.

America Has Reasons to Be Cautious Too

American constitutional history contains its own warnings.

In 1857, the Supreme Court decided Dred Scott v. Sandford, denying federal citizenship to Black Americans and rejecting congressional authority to prohibit slavery in federal territories.

The US National Archives preserves the judgment and explains its historical significance.

The decision illustrates how judicial authority can reinforce a deeply unjust political order. It did not arise from the same circumstances as Pakistan’s military coups.

American judges acted within an established constitutional system, while Pakistan’s courts confronted governments that had displaced existing constitutional institutions.

Yet both histories challenge the belief that judicial authority automatically protects democratic rights. Courts can correct unlawful actions by governments. Their own judgments can also produce serious harm.

American political scientist Thomas M. Keck examines this broader problem in The U.S. Supreme Court and Democratic Backsliding.

The judiciary’s role in democracy depends on how its members exercise their authority, not simply on how effectively the Constitution protects them from political interference.

Dugas recognises the danger of presidential abuse. I would like to see his constitutional design examined with equal attention to the possibility of judicial abuse.

Can Democracy Protect Itself Without Creating Another Centre of Unchecked Power?

I do not dismiss Dugas’s argument. His concern about political parties protecting their own leaders deserves a serious response.

A constitutional system cannot assume that every elected official will respect legal limits. Americans have good reasons to examine whether existing institutions can respond quickly enough when those limits are crossed.

Dugas is also right to look beyond individual politicians. Changing the president does not necessarily correct weaknesses in the institutions surrounding the presidency.

My disagreement concerns the authority he wants to transfer to judges.

Pakistan’s experience makes me reluctant to assume that a professionally selected judiciary will always exercise political power responsibly.

We have seen judges interpret constitutional rules in ways that strengthened unelected rulers. We have also seen courts resist powerful governments.

Their record is neither uniformly disgraceful nor reliably heroic. It is a record of human institutions making decisions under political pressure.

Dugas wants a judiciary that can act when elected leaders violate their obligations. He proposes oversight bodies to restrain judges who misuse their own authority.

I would examine the relationship between those bodies before accepting the design.

Who would resolve a conflict between two powerful judicial offices? What protection would an accused official have against a mistaken finding of misconduct?

How would the public reverse a harmful institutional decision without waiting for the people who made it to correct themselves?

These are questions about the actual workings of power.

I return to the sentence that caught my attention when I first read Dugas’s manifesto. He wants judges to control armed enforcement agents so that presidents cannot obstruct the law.

In Pakistan, our constitutional history has taught me to examine what an institution can do when it holds power, not merely what its supporters promise it will do.

Dugas calls his proposal a democracy with claws. I want to know who can make those claws release their grip.