Balkinization: On Democracy and Dysfunction

On Democracy and Dysfunction

Stephen Griffin

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

I should say first that I am deeply grateful to Sandy and Jack for finding my work on war powers and the constitutional role of trust in government relevant and discussing it in such detail. One point of connection between the fascinating joint discussion they have in Democracy and Dysfunction and my own work is that I was trying to imagine how people on both sides of the political divide could be convinced to step back and consider that they are prisoners of a dysfunctional constitutional order. In many ways the American people are still experiencing the effects of policy disasters such as the 2008 financial crisis and the Iraq War, disasters that are the responsibility of both political parties. When both political parties are at fault, it is not obvious where the American people should turn. My thinking was perhaps they would be more open to an argument that these policy disasters were not random events but are themselves the products of constitutional dysfunction.

In so arguing, I was trying to find a way to put issues of political and constitutional reform on the table. As David Pozen helpfully describes in his post, these issues now are on the table, although it is doubtful that they are equally attractive across the partisan/tribal divide. Some mainstream Democrats seem to have finally seen the light, perhaps even including the light Sandy wants to shed on the parts of our hard-wired Constitution that are undemocratic.

I thus agree with the authors that the subject matter of Democracy and Dysfunction is one all Americans should be engaging with at the moment in our nation’s history. For various reasons a door has been opened that wasn’t before. Fundamental political and constitutional reform is now a realistic possibility. It does matter for its prospects if that discussion is identified only with the Democrats. But the situation is much improved from the one that existed in the Clinton-Bush-Obama administrations when reform proposals were regarded as idle talk.

The discussion Sandy and Jack conducted over nearly three years plays to their strengths. The best feature of the book is that their exchanges get deeper and more interesting as they progress. We acquire a theory of “constitutional rot” and a list of proposed reforms. This gives me a lot to chew on. In what follows, I pick a few of the points that bother or intrigue me the most.

I am puzzled by Sandy’s frequent recourse to eighteenth-century republicanism as the normative standard to evaluate our present political and constitutional order. After all, that order underwent significant change in the nineteenth and twentieth centuries, including the addition of political parties. This leads to a tension in Sandy’s contributions between the hope that such standards will still prove at least rhetorically effective in curbing abuses of power against the knowledge that political parties are, to borrow David Mayhew’s argument, running the constitutional order to their liking. It is certainly possible to argue that republican standards have persisted as an inspiration for how public officials should behave, especially judges. But there is still a substantial gap between the republican virtues that had some members of the founding generation wearing togas and how the contemporary constitutional order works.

At the same time, I think there is an important respect in which Sandy’s argument is that the hard-wired Constitution is to blame for our current dysfunction is underestimated. It is often not appreciated that many of us who worry about dysfunctional government believe that there is at any given time an implicit policy agenda on which the national government should act. Dysfunction and gridlock make it difficult to act at all and not acting tends to unjustifiably privilege the status quo, creates pathological policy states (a current example is immigration policy) and makes it difficult to address new issues like climate change. Sandy does not explore the content of this agenda, perhaps because it is subject to partisan disputation just as much as any single issue, thus making it more problematic that it could serve as a consensus point in an argument for fundamental reform.

Notwithstanding this difficulty, let me push the idea of an implicit policy agenda a little further. On the left, the agenda for change might seem obvious. In some respects, it resembles a “green” Rawlsian agenda – to guarantee the “fair value” of the political liberties through voting rights and campaign finance reform, provide truly equal opportunity for all and, to achieve both, address the massive inequalities in income and wealth that have come to pervade American society.

For the right, of course, there is a much different agenda. But in many respects, is it not already being implemented? One possible problem with Sandy’s approach is that you can make a reasonable right of center case that things are lining up pretty well. It is simply a question of what you care about. The American economy is strong, tax cuts have been enacted, a reasonable start has been made on border security (aside from the pesky asylum problem), Christianity is being restored to its proper place in American life and, perhaps most important, the groundwork has been laid for a restoration of the rule of law, including the rolling back of abortion rights. I don’t get much of a sense from this book of the centrality of control of the judiciary to conservatives and libertarians. Living as I do deep inside red-state America (where Sandy also lives), I also don’t get a sense that the Republican regime is exhausted as Jack argues. I think we have to consider the relevance of negative partisanship. Even if the Republican regime is exhausted in a sense, it can justify itself as necessary to hold back regime change. Jack refers to stocking up on judges as a sign of a dying regime, but in this case I think it is central commitment of a long effort to turn the federal judiciary in a more favorable direction. That commitment will remain regardless of what happens to the Republican coalition.

It would be a mistake, however, to conclude that the parties are so far apart ideologically that they no longer can agree even on what issues are relevant. In particular, the highly relevant, cross-cutting and deeply difficult issues of trade and immigration don’t come up much in the book (although both are presumably included when Jack refers to globalization). It is unlikely we can address these issues by means of political reform. To some extent, we need to decide simply what we want and that is difficult for both parties right now for different reasons. I read the Republicans as being united for many years in opposition to illegal immigration, but not having thought through questions of refugees/asylum or legal immigration. Meanwhile, Democrats have roughly the opposite pattern, being united on the value of legal immigration and at sea as to what to do about the undocumented immigrants already here. To some extent, both parties have lost their way and in such circumstances tend to simply mark time until the next election. This may be to their political advantage, but it is not conducive to policy development.

With respect to our current President, is Trump simply a “huckster” as Balkin says? Because of the salience of trade and immigration not only to our current politics but also Trump’s longstanding world view, I would have to answer in the negative. Both authors seem to ignore that Trump does indeed have a policy agenda. And the particular issues he cares about – trade and immigration – have also long been identified as troublesome for our two-party system. I suggest tentatively that these issues also help explain why our future cannot be “progressive,” at least in the same sense as the progressive era. I’m happy to hear contrary views, but I don’t believe the progressive era (let’s call it 1890-1920) was characterized by a national commitment to free trade and easy acceptance of the massive immigration that occurred around the turn of the twentieth century. Today we have a very different economy that is globalized in a way that is not analogous in any strong sense to the economy that prevailed in that era. As illustrated by a recent column by E.J. Dionne, one key question for both political parties is: what is our stance toward the world? I don’t see either party as being in a position to offer much of an answer. If this is true and these issues have the importance Trump thinks, that tends to cut against the establishment of any new political or constitutional regime.

My final thought is one I had as I tried to teach students this past semester about the structure of American government. I hope one of the outcomes of the Trump presidency is greater awareness of the stewardship or trusteeship function of government. This function maintains the endowments established by past Congresses and administrations for the benefit of the United States. Successful programs are examples of such endowments, but probably of most long-lasting importance are the institutions themselves, the departments and agencies of government that the branches have built up over time. Such a Burkean reflection may seem inapposite to the idea of reform, but what most needs reform are the central constitutional and political structures needed to maintain current agencies and create new ones as needed.

Posted 9:30 AM by Stephen Griffin [link]