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Balkinization Symposiums: A Continuing List E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahman sabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Empire Rises
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Saturday, October 16, 2010
Empire Rises
Guest Blogger For the symposium on Bruce Ackerman, The Decline and Fall of the American Republic Stephen Gardbaum Bruce Ackerman’s The Decline and Fall of the American Republic is a profoundly important constitutional wake-up call. It presents a powerful, multi-layered, yet highly accessible argument that the body politic faces the serious and unprecedented structural risk of presidential extremism and lawlessness -- and a series of new checks and balances that offer the rare combination of pragmatism and originality. One hopes that the book will receive its just deserts by provoking a vigorous new constitutional debate not only among fellow academics but also, more importantly, among We the People. My reactions to the book mostly supplement rather than question Bruce’s argument, suggesting a few additional explanations, concerns, or proposals. To the extent that some of the pathologies he identifies seem to me to be equal opportunity ones that have already spread beyond the presidency to other parts of the polity, this perhaps adds another twist to the narrative. At the very beginning of the first chapter, Bruce argues that “where the Framers went wrong was in guessing the identity of our most dangerous branch,” which has “turned out to be the presidency” and not the legislature. But since the forces that proved them wrong were supervening ones they could not have predicted – the dominance of political parties, direct popular election, primaries, the role of consultants and opinion polls, superpower status, the decline of serious journalism, the internet – he doesn’t want to be too tough on them. I want to be a little tougher. I think the Framers’ error went beyond this wrong guess to the governmental structure that they established. This structure was inherently and latently flawed at the outset in the way that has come to pass, not precisely of course but generally – and the knowledge to have avoided this was available to them at the time. For the republican revolution that they wrought was not entirely without precedent. The first took place in 510 B.C. when Rome expelled its last king and established the republic. The new republican constitution split both the executive and legislative branches of government into two or more. It replaced the king with two magistrates, the consuls, who were jointly endowed with full executive power, and separated/divided legislative power among several citizen assemblies. The Roman Republic, which became a superpower along the way, lasted for just under five hundred years before it fell when a concentration of power in just one person – Augustus – effectively returned the state to a monarchy under the Empire. In deliberately rejecting the plural executive of the Roman Republic, a far larger version of which was tried and failed during the Articles of Confederation, the Framers hewed too closely to the monarchical structure of government they were nominally rejecting. They effectively replaced the king with a president, and the distinctive British conception of separation of powers between King and Parliament with the analogous one between President and Congress. Hamilton’s Federalist 69 on the differences between the powers of King George and (likely) President George – including an absolute versus a qualified veto of legislation – is arresting in its strained, almost scholastic reasoning and “methinks he protests too much” quality. What is more, the Framers’ conception of the British structure of government was out of date at the time in exaggerating the personal powers of the hated monarch, who is repeatedly referred to in the Federalist as “the sole executive magistrate.” Accordingly, in adopting this model of the single executive they overlooked the changes that were already beginning to transform the British system into what would soon become the collective executive of Cabinet government with the prime minister as “first among equals.” The Framers did not so much reject parliamentarism as fail to recognize it. There is not a single mention of the office of prime minister in the Federalist. While they adopted a rigid version of Britain’s separation of powers between King and Parliament, in constitutionally flexible England the king’s powers were starting to be transferred to the parliamentary leadership in his name. As a result, the Framers bequeathed the new country the functional equivalent of an entrenched, albeit indirectly elected and fixed-term, ruling monarchy at a time when the British system was evolving in the direction of a ceremonial one. Within two generations, for example, the king’s veto of legislation – the Royal Assent – was understood to have disappeared entirely except as a pure formality, while the president’s “qualified” one remains. Even if Hamilton was right in 1787, he was wrong within fifty years – whether the object of comparison is monarch or prime minister. It was only first the general “enlightened” spirit of the founding generation, and then federalism and American anti-governmentalism that delayed the full-flowering of the latent concentration of power in the quasi-monarchical structure that they locked us into. Once the shackles of federalism were mostly thrown off with the demands of activist government during the New Deal, the conditions were finally ripe for the imperial presidency. The claim of the inherent powers of the president has become the new divine right of kings. No doubt the factors that Bruce cites are important contingent and unpredictable ones in a total account of the heights that presidential power has now reached, but the seeds were sown at the outset. And since the U.S. established the model not only of judicial review but also of presidential government, many of the pathologies of that system have since been exported elsewhere – although the kingly veto power is sometimes withheld. On its face, Bruce’s warning about the dangers of presidential charismatic extremism and bureaucratic lawlessness is both timely (given the continuing claims to power asserted and acted upon since 9/11) and untimely. For the very same forces of primaries, political consultants, opinion polls, sound bites, death of serious journalism, and the internet that Bruce compellingly argues have created the politics of unreason and the risk of extremism at the presidential level also operate at the congressional level, and on November 2 may result in an extremist Republican majority in both House and Senate. Indeed, with the ouster of moderates, the growing influence of demagogic media commentators, and the rise of the Tea Party, the potential for extremism appears to have been realized within Congress. And this more equal opportunity picture of structural pathologies both problematizes and helps to confirm Bruce’s concerns. For although the depth of such a stalemate would, on the one hand, epitomize the classic inter-institutional checking function of separation of power/party within presidential systems and the key difference from parliamentary ones, on the other its very depth would make the usual pathologies more risky by substantially increasing presidential incentives for extra-congressional, executive modes of governance and new acts of lawlessness that these forces have made possible. This is the recipe for the U.S. version of what Bruce has previously called the “Linzian nightmare.” Of course, many of these same forces operate not only in American presidential and congressional elections, but everywhere and in all systems. Executives are now almost universally the most powerful/dangerous branch of government (perhaps Iran and China aside), and concentration of power in the chief executive is the norm. Nineteenth century collective cabinet government in Britain has given way to an increasingly concentrated, presidential style of prime ministerial government, with far more open methods of selecting party leaders by rank and file party members that approximates the primary system, great emphasis on personality and broader media skills rather than traditional parliamentary debating chops, and most recently televised debates for the first time. Israel’s parliamentary system has managed to incorporate direct election of the prime minister. Extremist parties, mostly of the right, are bursting through the “constrained parliamentarianism” barriers of minimum threshold popular support for the first time in one European country after another, most recently in Sweden. The French presidential system has defied the standard separation of legislative and executive powers by allocating residual, non-enumerated lawmaking powers to the executive via decree – and has been the model, at least in terms of broad decree powers, for several more recent systems in central and Eastern Europe. Nonetheless, despite these developments, both parliamentary and semi-presidential systems inherently have more plural executives than presidential ones and in this important (I’m tempted to say republican) way provide less concentration of power. Not that Bruce would necessarily deny any of this, as an avowed constrained parliamentarian in ideal or comparative terms. Decline and Fall focuses on the American Republic, or what is left of it. Turning to Bruce’s invitation to augment his set of new checks and balances on the presidency, it is probably too late in the day to correct the Framers’ error and revive the ancient republican technique of splitting executive power into two. As an attempt to counter extremism and the politics of unreason, Deliberation Day is a splendid idea but perhaps needs to be supplemented. As Bruce suggests, by the time the general election arrives these forces have already had their impact. To the extent that low primary turnouts work in favor of more extreme, highly motivated activists and their favored candidates, creating new incentives to vote – perhaps tax credits or reduced jury service—might help to counter this trend. Of course, the very system of voter-initiated registration favors relatively motivated citizens in the first place, and the shockingly high rate of administrative disfranchisement (by comparative standards) that this system creates ought to be sufficient reason to replace it. One critical reason that ordinary voters have abandoned much of the terrain of democratic politics to more highly motivated activists is the apathy bred by the perception that politics has become the private property of the wealthy – either directly as instantly viable candidates or indirectly through the perceived corrupting effect of privately funded reelection campaigns: one dollar, one vote. To help counter this, Bruce and Ian Ayres have previously proposed a novel system of federal democracy vouchers to try and return the apparent priority to voters from contributors. And it is possible that the Supreme Court will change its mind and view the concern with independent expenditures as a compelling one. More radically, though probably less pragmatically, prohibiting reelection altogether by congressional imposition of single-term limits for its members (Roman consuls could serve for only one term) would cut to the heart of the problem. Finally, as Bruce argues, along with the modern development of a hugely powerful White House staff of superloyalists, one of the key factors that has enhanced the concentration of presidential power and the politics of unreason is the politicization of administration brought about by replacing high-level permanent civil servants with political appointees. This has occurred in all parts of the bureaucracy including those providing legal advice to the president. There are two general ways to try and remedy this problem: establishing input or output controls. Bruce’s highly original suggestion of a new Supreme Executive Tribunal to review the legality/constitutionality of executive action on an earlier and more regular basis than is structurally possible within the ordinary federal court system strikes me as an excellent output control. But politically, and perhaps constitutionally, it may be prudent to have an input control on the table as well. The fact that presidents will want to replace professional administrators – whose interests might lead them to try and play off congressional and White House leadership against each other -- with political loyalists at every opportunity does not mean that this desire must or should be accommodated. Other presidential systems have professional civil servants in charge of administration and permanent government lawyers rendering legal advice before action, with far fewer political appointees. The modern spoils system is hardly as entrenched or longstanding as other “untouchable” factors, and is almost certainly of extra-constitutional status: permissible but not required. Accordingly, Congress should be able – and should – limit the scope of political appointments throughout the bureaucracy, thereby enhancing the role of expertise over partisanship, and ensure the presence of permanent government lawyers in elite corps such as OLC in particular. Conceivably, like the Conseil d’Etat in France in its multiple capacities, a version of the executive tribunal could act as both ex ante expert legal advisor to the executive and ex-post reviewer of its actions. Once again, Bruce has rendered sterling service to the Republic as well as to Yale. Stephen Gardbaum is the MacArthur Foundation Professor of International Justice & Human Rights at UCLA School of Law. You can reach him by e-mail at gardbaum at law.ucla.edu. Posted 10:26 AM by Guest Blogger [link]
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Books by Balkinization Bloggers ![]() Linda C. McClain and Aziza Ahmed, The Routledge Companion to Gender and COVID-19 (Routledge, 2024) ![]() David Pozen, The Constitution of the War on Drugs (Oxford University Press, 2024) ![]() Jack M. Balkin, Memory and Authority: The Uses of History in Constitutional Interpretation (Yale University Press, 2024) ![]() Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University of Kansas Press, 2023) ![]() Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision - Revised Edition (NYU Press, 2023) ![]() Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, 2022) ![]() Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022) ![]() Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022) Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021). ![]() Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021). ![]() Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020) ![]() Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020) ![]() Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020) ![]() Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020). ![]() Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020) ![]() Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020) ![]() Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020) ![]() Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019) ![]() Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018) ![]() Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018) ![]() Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018) ![]() Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017) ![]() Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017) ![]() Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016) ![]() Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015) ![]() Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015) ![]() Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015) ![]() Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014) Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution ![]() Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014) ![]() Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013) ![]() John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013) ![]() Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013) ![]() Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013) Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013) ![]() James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013) Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues ![]() Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013) ![]() Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012) ![]() Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012) ![]() Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012) ![]() Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012) ![]() Jack M. Balkin, Living Originalism (Harvard University Press, 2011) ![]() Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011) ![]() Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011) ![]() Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011) ![]() Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011) ![]() Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010) ![]() Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010) Balkinization Symposium on The Decline and Fall of the American Republic ![]() Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010) ![]() Mark Tushnet, Why the Constitution Matters (Yale University Press 2010) Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010) ![]() Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009) ![]() Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009) ![]() Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009) ![]() Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009) Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009) ![]() Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008) ![]() David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007) ![]() Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007) ![]() Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007) ![]() Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006) ![]() Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006) Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006) Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006) Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006) Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005) Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004) Balkin.com homepage Bibliography Conlaw.net Cultural Software Writings Opeds The Information Society Project BrownvBoard.com Useful Links Syllabi and Exams |