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 Rahmansabeel.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
Levinson and Balkin on Democracy and Dysfunction: Some Notes
Stephen Griffin
I am
of course quite grateful to Jack and Sandy that they mention my book Broken
Trust in their valuable exchange on political dysfunction and constitutional
reform (referenced by Jack below). In
response, I will make some perhaps disconnected observations which I hope are
at least somewhat comprehensible. As far
as trying to push the discussion forward in some way, these issues seem most relevant
to me:
1.Will
there be a new political regime? Jack
leans heavily on the idea that political or policy dysfunction is the byproduct
of an era of regime change. We are
seeing the birth pangs perhaps of Democratic dominance, a new founding moment
for the Republican Party (or both).
Although this possibility has to be taken seriously, one way to extend
Sandy’s argument and challenge Jack’s perspective is to raise the question of whether
both the hard-wired Constitution and the constitutional order are blocking
necessary and desirable regime change.
Federalism, after all, is pretty hard wired into the Constitution, yet I
suggest it is difficult to find states in which, say, Republicans are dominant
yet are genuinely questioning the direction of their party. Sandy can say better than most because he
lives in Texas, ground zero for relentless opposition to President Obama and what
is seen as a runaway central government.
I suggest that many “movement conservatives” like Ryan and Cruz are waiting
Trump out and then hoping for a return to normalcy, albeit with a few policy
tweaks to satisfy the base. In other
words, states and congressional districts that are deep red, where movement
conservatives have a real base, show no signs of incipient regime change. The structure of federalism and (in the
South) the legacy of what political scientist Rob Mickey calls “authoritarian
enclaves” protects these Republican politicians and their voters from national
trends in public opinion. But if this is
right, then we might regard fundamental political and constitutional reform as
a way to nationalize politics, unblock the channels of political change and
speed up the transition to a new regime to lessen the policy harms of a lengthy
interregnum. What harms? This leads me to my second point.
2.How
bad is the current political/policy dysfunction? The literature on political dysfunction is
pretty much in agreement that while our politics might be dysfunctional in
varied ways, there is one branch in
particular that is the source of the trouble and that is Congress. To my knowledge,
no one argues that all the branches are equally dysfunctional. And, by the way, no one argues that each
branch is regarded by the public as equally
untrustworthy. Any deep inquiry into
dysfunction and trust in the national government will inevitably lead us back
to our most numerous branch – Congress, Congress, and more Congress. Now Jack says our system can’t be all bad, we
came through the Great Recession fairly well.
He’s contrasting our presidential system to parliamentary ones, I
believe. I’m not at all sure about this
comparison because if you think Europe did worse that’s partly because, given
the relevance of the EU, they don’t have a parliamentary or presidential
government, they have a hybrid supranational structure that I’m not sure
European voters even understand. The
fair comparison is with the UK and I believe scholars have noted the UK did
better because its regulatory agencies mostly avoided the enormous run-up in
home prices and related mortgage-shadow banking-financialization problems. The fault in our system is still Congress,
because it’s generally agreed that the executive branch rode to the rescue. Congress did not exactly cover itself with
glory, either before or after the Great Recession. To be sure, the basic case for dysfunction
and possible reform involves a contestable value judgment that we have
important policy agenda items that are languishing while Congress fiddles. As Jack argues, if you’re happy with the
government doing nothing, the current system cannot be described as
dysfunctional. I just think very few
voters are actually happy with nothing.
Trump’s voters, for example, want action on undocumented workers and
ISIS. But you can’t get there without
Congress doing something.
3.Is
the problem the hard-wired Constitution or the constitutional order? Suppose the new president puts forward a
package of comprehensive reform of Congress, along the lines any number of commentators
and scholars have proposed – redistricting reform, overhauling congressional
committee jurisdictions, ending the filibuster, terminating senatorial “absolute”
vetoes that stifle the appointment process (not just judicial nominations), and
in general making it easier for bills to reach the floor and have up or down
votes. As Jack points out, all of this
can be done without going through Article V or having a constitutional
convention, as Sandy seems to want. But would
such a package be evaluated solely along policy lines? Of course it would be criticized as, if
anything, a bid to increase executive power (especially with respect to
appointments – nominees would actually receive votes!) and, as such, have
implications for hard-wired constitutional realities such as separation of
powers. To me, what is important about Sandy’s
perspective is getting people (especially reluctant elites) used to the notion
that fundamental reform is required. If
someone wants to argue later that we don’t need Article V, so much the
better! But first we need to get reform
on the table in a way that it isn’t yet.
Candidate Clinton could do that fairly easily, but unless I’m missing
something, she has shown no interest.
Hence Sandy’s complaints about a relative lack of attention to the
causal connections between the Constitution and our present troubles are
largely justified.
4.What
about low trust? Jack is of course right that
trust in the federal government has been low for decades, not just lately. Does this mean that our political system has
always been dysfunctional? In danger of
dysfunction perhaps, but I would say no.
Bear in mind that trust in the President and the Supreme Court has not
always been low (or even declining). Trust did go up under Reagan and Clinton. It’s
levels of trust in Congress that go dangerously low. And it’s a source of instability in our
system. Were Trump to prevail, given his
authoritarian leadership tendencies, congressional checks wouldn’t amount to
much. Given Congress’s extremely low
standing, Trump could refine Congress if he wanted to. Congress has needed an overhaul for some
time. Partisanship and polarization make things worse, to be sure. But in my opinion (and I think in Sandy’s)
there is no avoiding the necessity of structural reform. In an environment where it is often hard for
defenders of status quo mechanisms like the filibuster to distinguish between
what the hard-wired Constitution requires and what the “small-c” constitutional
order allows, shaking the tree as Sandy does and pointing out the need for “fundamental”
reform is the right approach. Although
putting it that way, I’m not sure Jack would disagree.