Balkinization: Waiting for reform

Waiting for reform

Guest Blogger

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

Eric Posner

The most striking feature of this book is its epistolary structure, which is unusual in constitutional law books, to say the least. Unlike a monograph, which presents itself as a final judgment by an impersonal expert about a matter firmly in the past, a group of letters suggests a process of learning by fallible humans over time. The structure creates opportunities for presenting ideas in an engaging way, but also expectations in the reader. First, that the authors will exhibit candor. They are old friends, and they are writing for each other, not for the world, even if they know that the world will eventually peak over their shoulders. Second, the authors will learn over time by testing their ideas against events as they unfold. And, third, the authors will learn from each other—perhaps, starting from divergent perspectives but then drawing closer together, or the opposite. I suspect that Jack and Sandy sought to invoke these expectations because they realized—even before the election of Trump, and in this respect they deserve congratulations for their prescience—that the volatility of American politics threw traditional constitutional assumptions into doubt. A constitutional treatise at such a time, like a “history of the present,” is a self-contradiction because finality is impossible in the midst of flux, and impersonality—never very credible even in the best of times—is unsustainable when one feels threatened by political developments thought (in some circles) to herald civil disorder or dictatorship.

But the book doesn’t always satisfy these expectations. One problem is that Jack and Sandy don’t disagree about much—much less than one would expect from even like-minded people when the political system is constantly tossing out surprises. Yes, each has a theory he flogs, and each politely expresses modest doubts about the other’s theory. Sandy’s is that the (written) Constitution is undemocratic and dysfunctional, and too hard to change, while Jack sees virtue in some of the Constitution’s restrictions, and thinks that constitutional change can take place in various small-c ways—though courts, legislatures, evolving political norms, and so on—and can even do so in a way adequate to our political needs. Other than that, the authors are—as far as the book reveals—virtually identical in terms of politics, constitutional views, and political and cultural sensibility. As I read through the letters, I came to think of a single “Balkinson” as the implied author of the book, a left-of-center constitutional theorist whose internal dialogue about the current political dysfunction varies between psychological states rather than theoretical positions—a theorist reasoning his way out of a panic attack. It would have been nice to read an epistolary constitutional law book in which Balkinson corresponded with a full-blooded conservative Trump-supporting constitutional theorist (if there is such a thing). Where is Naphta to Balkinson’s Settembrini?

Because the authors don’t disagree much, the reader doesn’t sense that either learns from the other. Nor do the dramatic political events they witness seem to cause them to reconsider their views. In Sandy’s last letter, he asks what he has learned over the previous two years, and what he tells us he learned—that we live in a constitutional dictatorship of sorts, that the 1787 constitutional structures have caused our political dysfunction, that the constitution is in crisis, and that the diversity of the U.S. population portends trouble as well—is not much different from his claims in earlier writings. Jack’s concluding reform proposals—all of them sensible—could have been (and were) made long before Trump was elected. The rise of Trumpism, predicted by neither the authors nor anyone else, turns out merely to confirm their prior beliefs.

And this deprives the book, for all its other rewards, of the forward momentum that the reader expects. I suspect the problem is that constitutional theory floats at such a high level of generality that even the cataclysm of Trumpism doesn’t disturb it. It turns out that Trump can be regarded simply as an inevitable false negative in an otherwise well-calibrated system (Jack), or as the inevitable result of an unfair system (Sandy). The letters bring to mind a constitutional version of Waiting for Godot, with the conversational back-and-forth serving to while away the time and distract the interlocutors so they won’t have to stare into the horrifying void at the heart of constitutional theory.

But can constitutional theory after all learn something from the Trump years? Maybe that the electoral system is (even) more broken than we thought it was, or maybe (contrary to Sandy’s view) that the Constitution is more democratic than it should be? If nothing else, Trump’s victory in the primaries might make small-d democrats, as well as big-D Democrats, reconsider their trust in the People. In the old days, when professional politicians controlled each party’s selection of a presidential candidate, a Trump-like politician would have gotten nowhere. Or is the lesson of Trump that the presidency or the executive branch (the two are not the same, indeed seem to be coming apart before our eyes) is too powerful? Yet Trump’s major accomplishments are really accomplishments of the Republicans in Congress. And are Progressives ready to strip the president of power knowing that they are more likely to gain control of the presidency in 2020 than of the entire government, whereupon any liberal reform or even policy will come from the executive branch alone, late-term Obama-style? Or if the real problem is polarization, as so many commentators have suggested, isn’t the natural constitutional response to shift some power back from the national government to the states, where populations are less polarized and politics less gridlocked? Possibly the most obvious implication of our present troubles, devolution gets no mention in the letters, except indirectly by Sandy who (catastrophic-thinking style) envisions secession.

I wish that the authors had said more about the by-now obvious sources of Trump’s popularity among 20-40% of the public: rural misery, stagnating wages, a sense of falling-behind, the opioid crisis, loss of status, the perceived errors of the government (the Iraq War, the financial crisis), perceived setbacks in the culture wars in the area of family and the religion. These were themes that candidate Trump hit far more effectively than the other Republican candidates, many of whom avoided them entirely. You could drive Trump’s 757 through this hole in the book.

My last point is on candor, or perhaps I should say presentation. To disaggregate Balkinson not only into two people with different ideas, but two people who are recognizable as letter-writing humans, Sandy and Jack should have infused the implied authors with more personality. Of the two, Sandy, to his credit, allows some personality to shine through; he does not conceal his sense of foreboding, which darkens his thoughts. Visions of secession and civil war dance in his head every time Trump tweets an outrage. Jack has some strong words for Trump, but otherwise adopts an Olympian, bloodless stance, frequently reminding Sandy that American history has seen worse. Of course, Sandy doesn’t need to be educated by Jack. He as well as Jack offer thumbnail sketches of our constitutional history, plus a great deal of constitutional and political theory. The two learned constitutional law professors are telling each other what they already know, reinforcing the impression that they aren’t talking to each other at all, but over each other’s shoulders at future readers, further draining personality from the book.

The temptation of the monograph thus overwhelms the epistolary structure of the book: it’s really a series of lectures—though, to be sure, people who are not already familiar with Jack and Sandy’s ideas will benefit from reading them here, and many of these ideas are ingenious and deservedly influential. The authors seem to be less open to learning from the flux of political events than insistent that those events conform to their theories. The academic masks are firmly in place. Thus, the book seems like a missed opportunity. It would have been nice to hear some irreverence, humor, gossip, personal detail, something about the authors’ long friendship, their real opinions about their colleagues and other scholars rather than the formulaic, faculty-lounge praise they supply—the things that real people put in letters (not that anyone writes letters anymore). What do our top constitutional law scholars say to each other when the world isn’t watching? How might their role as constitutional law scholars, as educators and researchers, affect their views about constitutional politics in which, as citizens, they participate? There is a tension here, one that that the letter-writing contrivance hints at and could have illuminated but alas does not.

Eric Posner is Kirkland & Ellis Distinguished Service Professor of Law at the University of Chicago Law School. You can reach him by e-mail at eposner at uchicago.edu

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