Balkinization: Announcing Broken Trust: Why I Wrote a Book on Dysfunctional Government and Constitutional Reform

Announcing Broken Trust: Why I Wrote a Book on Dysfunctional Government and Constitutional Reform

Stephen Griffin

I can’t count the number of book reviews I’ve read of works advocating constitutional and political reform which conclude along these lines: “the author’s suggested remedies are interesting, but unlikely to be enacted.” Well, that’s a downer! In a way, one of my objectives in writing Broken Trust was to deliberately get under the skin of people who write such reviews. I wanted to approach the issue of fundamental constitutional reform from these angles: how would you motivate people toward reform in a country with an old and revered Constitution? How could we make the possibility of reform more persuasive and imaginable? What sort of reforms should we be interested in, especially if we think the political system is clotted and unlikely to change? And, as implied by the title, I put the decline of trust in government at the center of these discussions.

I suggest that in most books of this kind, motivation is supposed to flow from pointing out that our government is dysfunctional, without necessarily considering the reality that some people are always opposed to proposed policy changes. For these people, dysfunction works. “Dysfunction” is often simply another way of pointing out that our system of government has many veto points, perhaps more than most countries. So what sort of justification might appeal to everyone? Perhaps justifications resting on abstract values but, then again, people do disagree about how to implement such values, even if they agree on them in their abstract form. In Broken Trust, I therefore develop an alternative. This is an argument that links “policy disasters” – policy outcomes that are in no one’s interest – to the Constitution and our “constitutional order,” the way the Constitution is implemented in a practical sense in a particular historical period. I discuss how four policy disasters are linked to the Constitution: (1) the terrorist attacks of 9/11; (2) the flooding of New Orleans after Hurricane Katrina ten years ago; (3) the 2008 financial crisis; and (4) the growth of inequality of income and wealth in America. If you want to avoid such disasters in the future, I argue, we need to increase trust in government through fundamental constitutional reform.

How to do this? Again, a tall order! I make this scenario more plausible by consulting history. I explore the reasons political scientists have given for the decline in trust and show how, in our western states, a decline in trust in the progressive period in the early twentieth century indeed led to fundamental reform, the adoption of direct democracy. As far as I can tell, direct democracy has never been very popular with constitutional scholars and although I acknowledge its shortcomings, I build a case that it has been successful to an important degree in responding to the felt need for popular influence in government. The distrust Americans have, particularly toward their own legislatures, is a real phenomenon that goes back decades, and has to be acknowledged more openly and dealt with more successfully if we are to address the problem of dysfunctional government.

So fundamental constitutional reform is more feasible than many suppose because it has already happened on the state level. And it continues to happen, especially now that the Supreme Court has sanctioned redistricting reform by commission (in Arizona State Legislature v. Arizona Independent Redistricting Commission). But the reforms I think we should concentrate on are those that operate like direct democracy. In themselves, they do not necessarily lead in any particular policy direction. But they operate as gridlock-busters, thus creating an opening for reform. California and other western states like Arizona have had that potential and opportunity for decades. They just started exercising that option fairly recently and no, I don’t believe you can show direct democracy has been uniquely harmful to their policies or politics.

There’s one more point I make in the book that I would like you to think about, especially if you have your doubts about the desirability and possibility of fundamental reform. How about that President Trump? Or President Lessig? Or the success Bernie Sanders has enjoyed? Do you feel the genuine populist anger at the current state of our politics? Part of that anger derives from the lack of practical policy accomplishment, to be sure. But another part, I am convinced, derives from the “radical middle” – people who don’t hold extreme policy positions but are understandably frustrated about why nothing is happening and do favor some exploration of constitutional reform. And that's why the argument of this book will only seem more plausible as time goes on. Or so I hope!

Posted 6:34 PM by Stephen Griffin [link]