Balkinization: Comparative Labors and Democratic Dysfunction

Comparative Labors and Democratic Dysfunction

Mark Graber

For the symposium on Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019).

Democracy and Dysfunction joins a distinguished list of seminal works on constitutionalism in the United States that have universal titles. The tradition is honorable. Participants include such classics as John Hart Ely’s Democracy and Distrust, Ronald Dworkin’s Taking Rights Seriously, Gerald Gunther’s Constitutional Law, and, for that matter, Sandy Levinson’s Constitutional Faith and Jack Balkin’s Constitutional Redemption. Each work in different ways contributes substantially to better understandings and evaluations of the constitutional experience in the United States. Democracy and Dysfunction does so by insisting we pay more attention to the structures of American constitutional politics, which include state equality in the Senate and notions of political time, than to the latest Supreme Court decisions. The tradition is problematic. Distinguished studies of constitutionalism in the United States with universal titles risk confusions between the constitutional experience and the constitutional experience in the United States. Past works in this tradition imply that the United States is the modal constitutional democracy, that the extent a regime differs from the United States that regime is less of a constitutional democracy. Democracy and Dysfunction highlights severe problems with constitutional democracy in the United States, but the lack of comparative perspective leads Levinson and Balkin to focus on distinctive American explanations and solutions to what may be more global problems, most notably, at least from the perspective of this essay, increases in global economic inequality, decreases in the power of unions across the universe of constitutional democracy and the challenges of putting together progressive coalitions that combine progressive cosmopolitanism and economic populism.

Democracy and Dysfunction in the United States elaborates and applies Levinson and Balkin’s pathbreaking analysis of American constitutionalism to contemporary constitutional politics in the United States. Both go far beyond the standard “did the Supreme Court get the Constitution right” when exploring and elaborating how the contemporary organization of constitutional politics is responsible for a regime that cannot perform such basic functions as budgeting and seems ever more in hock to a smaller group of affluent donors. Levinson explains the textual foundations for the decline of democracy and the increase of dysfunctional constitutional practices in the United States. His letters to Balkin detail how such specific textual mandates as state equality in the Senate and the electoral college undermine both majority rule and promote a government that tends to the needs of white rural farmers at the expense of persons of color in the inner cities. Trump and the Republican Party prosper because the hardwired constitutional structures mandated by the constitutional text permit minorities to control the national government and even further entrench minority rule. Balkin elaborates on how political time and political movements structure constitutional politics in the United States. His letters to Levinson emphasize how political coalitions at the end of their political time became ripe for overthrow as they must resort to increasingly anti-democratic strategies to retain power. Trump and the Republican Party reflect the spent energy of the Reagan Revolution. Their tactics, Balkin suggests with cautious optimism, while concentrating power in an ever more rapacious and bigoted donor class, are inspiring a progressive backlash that is likely to result in constitutional practices that are more democratic and less dysfunctional.

Levinson and Balkin acknowledge the global democracy recession, but nevertheless emphasize the distinctive features of constitutional democracy in the United States that explain and might cure democratic deficiencies in that regime. The plight of constitutional democracy in the United Kingdom, France, Spain, Germany, Italy, Greece, Hungary, Poland, Turkey, Israel, India, South Africa, throughout Latin America and most of Africa is more a not-so-fun fact in Democracy and Dysfunction than an indicator that responsibility for the constitutional ills in the United States may not reside primarily in the admitted flaws of the national constitution or be alleviated as political time in the Unites States continues to cycle. Levinson prefers a more parliamentary system even as the United Kingdom wins the gold medal for dysfunctional government when responding to Brexit. Balkin’s cautious optimism that Trump will inspire a progressive backlash is not tempered in the least by how Trump’s close and as corrupt ally Benjamin Netanyahu has crushed the political left in Israel.

A more comparative perspective on democracy and dysfunction in the United States might start with how globalization and the Great Recession are undermining constitutionalism throughout the world (another starting place might be the rise of executive power in almost all constitutional democracies). General agreement exists among political scientists that a strong, confident middle class provides crucial foundations for constitutional democracy. Globalization and the Great Recession weaken this support by increasing dramatically wealth inequalities throughout the universe of constitutional democracy. Democratic domination is easier than ever before as the super-rich gain monopolies over the tools of democratic influence and as the institutions in civil society that buttress a middle-class constitution fade into oblivion. Constitutional democracy in the United States is becoming dysfunctional, from this perspective, because of the global economic forces that are making constitutional democracy increasingly dysfunctional throughout the world.

The comparative perspective raises questions about the possibility of a moderately comfortable escape from what Balkin accurately depicts as a second Gilded Age. History suggests constitutional democracies do not easily overcome economic domination. A Great Depression and World War Two were necessary for the comprehensive reforms that benefited the working class in the United States. No guarantee exists that future economic or military upheavals will result in more progressive governance. Ask Huey Long. Better yet ask the Germans and Italians about the impact of the Great Depression on their regime.

Balkin draws inspirations from the progressive movement in the earlier twentieth century, but that movement differs in important ways from the progressive movement Balkin hopes may be reviving in the United States. Debate exists over who the progressives were, but few scholars think progressivism was a popular based movement. To the extent progressivism was a revolt against the Gilded Age, the revolt was conducted by a new class of professionals who wanted simultaneously to alleviate the excesses of capitalism and clean up the excesses of the poor. Prohibition was as much a part of the progressive movement as the minimum wage. Progressive constitutionalists solved problems of democratic dysfunction by weakening traditional forms of political participation. Most were enthusiastic about non-partisan elections and other devices that they hoped would circumvent government by the political parties that were and remain the best instruments of working class influence on politics.

The absence of unions from Democracy and Dysfunction and from the rhetoric of numerous aspirations for the Democratic presidential nomination connects the “progressive” spirit at the turn of the twentieth century to the “progressive” spirit at the turn of the twenty-first century. Democracy and Dysfunction painstakingly documents many Republicans sins but ignores the GOP’s largely successful half-century effort to engage in political and legal union-busting. Levinson and Balkin mention Shelby County v. Holder (2013) as an egregious instance when Republican judges helped Republican political fortunes, but not Janus v. AFSCME (2017), which prevents public sector unions from collecting dues from any municipal employee who, while gaining the benefits of collective bargaining, opts not to join the union. Weakening public sector unions, Republicans from Wisconsin and elsewhere remind us, weaken economic populism from the left. Balkin speaks of “the new coalition” of Democrats that will consist of “minorities, millennials, professionals, suburbanites, and women” (192). Labor is notably missing from that coalition as "labor" and "unions" are notably missing" from the index to Democracy and Dysfunction.

The structure of the new progressive coalition reflects developments that once were distinctively American. For much of American history, one political party best served the interests of cultural minorities, the other best served the interests of the white Protestant lower-middle and middle class. Whigs will never be confused with the rainbow coalition, but they offered far more enlightened policies on women, persons of color and Native Americans than Jacksonians, who had far more to offer white workers. The Roosevelt/Johnson coalition was the first in American history that, temporarily, enjoyed substantial support from both labor and persons of color. Unsurprisingly, that coalition fell apart when, as Paul Frymer has documented, Democrats failed to mediate successfully conflicts between labor and persons of color over the integration of labor unions.

The Republican effort to weaken labor, aided and abetted by Democrats more concerned with a coalition of “minorities, millennials, professionals, suburbanites and women,” has both economic and political consequences. The economic consequences, which Levinson and Balkin detail, are a Second Gilded Age, complete with increasing economic inequalities. The political consequences are a sharp decline in the capacity of working people of all sizes and shapes to influence politics. A politics in which participation is largely confined to the internet will privilege millennials, professionals and suburbanites, pushing Democrats to favor the interests of women and minorities who are also millennials, professionals and suburbanites at the expense of those who are working class. During the New Deal and through much of European history in the late nineteenth and twentieth century, unions provided the organization that enabled members of the lower-middle and middle classes to influence elections and politics. As unions have waned. so has working class influence in both the Republican and Democratic parties.

The constitutional experience of labor in the United States is now global. Labor is now in steep decline in almost all constitutional democracy. One cause is globalization, which permits companies to move to places where labor has not yet successfully gained wage and other benefits. Another cause is increased diversity. Immigration in the world of constitutional democracies is now creating the same rifts between working class persons of different races, religions and ethnicities that have always characterized American constitutional politics. As Kim Scheppele's essay in Constitutional Democracy in Crisis? notes, what counts for the left in many countries, including the United States, is increasingly people who regard themselves as cosmopolitan rather than people who regard themselves as middle or working class.

The new realignment of political forces in the United States and throughout the world makes problematic calls for a political movement that combines progressive cosmopolitanism with populist economics. Constitutional experience in the United States and in other constitutional democracies suggest that such political combinations exist harmonious in theoretical zoos but do not thrive in the wild. With rare exception, proponents of progressive cosmopolitanism and proponents of populist economics in constitutional democracies have historically been at loggerheads. After very short alliances during the years immediately after World War Two, they are reverting to their historic antagonisms. How these antagonists can be compromised is as fundamental a question for the political left as designing a more progressive constitutional order. Constitutional governance throughout the world will likely be less dysfunction if progressive cosmopolitans win out, but such a regime will be less constitutional and less democratic unless political entrepreneurs can find ways to unite the aspirations of the populist lower middle class with the cosmopolitan visions of many millennials, professionals and suburbanites.

Posted 9:30 AM by Mark Graber [link]