Balkinization: How Constitutional Rot Ends

How Constitutional Rot Ends

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

In my last post, I argued that the emerging Democratic Party, which is a cosmopolitan party organized around issues of identity and divided on issues of class, will have problems achieving genuine reforms with only Democratic votes.

Right now the parties are bitterly polarized on almost every question. But history suggests that polarization does not continue forever. If the country is to renew itself and move past its current case of constitutional rot, politics will have to depolarize. In this final installment, I discuss how depolarization might come about.

History suggests two possible paths for getting past constitutional rot and reforming American politics. These correspond, roughly speaking, to the era of the Civil War and Reconstruction and to the Progressive Era.

Under the first path, one of the two major political parties becomes so dominant that it can push through its reform program without much resistance. This might happen because the other party is discredited, so that it falls apart or loses most of its influence. There are two examples in American history. The first is the period of the 1810s, when the Federalist Party collapsed, in part due to the ill-fated Hartford Convention that flirted with secession. Former Federalists who had not already done so left politics or flocked to the Jeffersonian Republican Party. The Jeffersonians became the only effective political party in the country, leading to the Era of Good Feelings. The second example is the period between 1865 and 1873, when the Democratic Party, whose stronghold was in the South, was effectively shut out of governance by the Reconstruction Republicans. Republicans prevented southern Senators and Representatives from sitting in Congress until southern States created new state constitutions and ratified the Fourteenth Amendment.

I don’t think that this model of reform makes much sense today. The two major political parties are both strongly competitive, and will probably be so for some time. It is possible that Donald Trump will so discredit the Republican Party that it will hemorrhage supporters and become a small regional party. But I don’t think that’s the most likely scenario. First, in many parts of the country, the two parties are evenly matched and competitive. Second, the party’s base of support in rural America, the South and Mountain West is not going anywhere, and Republicans look likely to dominate state and local governments there for some time. Third, the Republican Party retains a powerful influence in conservative media. Fourth, as long as the party continues to cater to its donor class of wealthy businesses and individuals, it will retain powerful sources of financial support.

In any case, even if Trump did manage to thoroughly discredit the Republican Party, periods of one party rule in the United States tend to be fleeting. The Era of Good Feelings was short-lived, and intra-party disagreements soon broke Jefferson’s party apart. After the Civil War, Republicans eventually tired of suppressing violent resistance by Southern whites, and the country faced an economic recession. Democrats retook the House in 1874, leading to the end of Republican hegemony.

There is a second model of reform that seems more analogous to the present. In this model, constitutional rot so disgusts Americans that reform movements develop in both parties. The party coalitions shift slowly, the most salient issues before the country change, and depolarization begins. Depolarization, in turn, creates the possibility of new policy initiatives that cross-cut the two party coalitions, as well as opportunities for good-government reforms.

The best historical example of this model is the end of the Gilded Age and the beginning of the Progressive Era. At the end of Democracy and Dysfunction, I predict that we are moving into a second Progressive Era, so I think that this is the most likely scenario.

The 1896 election is generally regarded as the turning point. Since the Civil War, national politics had been organized around responsibility for the Civil War, race, and Reconstruction. By 1896, near the close of the First Gilded Age, huge waves of immigration, the creation of a large urban working class, technological innovation, and the rise of powerful business monopolies led the two major political parties to realign around a new set of controversies and issues. Although a populist insurgency failed, movements for reform sprung up in both political parties. Gradually, the parties depolarized, leading to the Progressive Era and ultimately to the New Deal. In a space of twenty years, a strongly divided America had transformed into what Mark Graber calls the long state of courts and parties.

The transition was hardly smooth. The first two decades of the 20th century were a period of deep social unrest, capped by America’s entry into World War I. The nation’s huge inequalities of wealth did not disappear until the Great Depression, which, in turn was followed by a Second World War.

The movement from the First Gilded Age to the Progressive Era is the most likely analogy to our present circumstances. We are currently living through a Second Gilded Age. For the past forty years our politics has been organized increasingly around race and the culture wars. Two parties have emerged from that contest. Each party is an unwieldy coalition. Republicans have shed large numbers of educated professionals and suburbanites and are now a coalition of wealthy business interests and the white working class, especially in the Mountain West and South. The Democrats have become a coalition of educated professionals, white women, African-Americans, Latinos, Asians, and other minorities, especially on the coasts. Organized labor, once a central component of the old New Deal coalition, remains mostly aligned with the Democrats, but it has been transformed from manufacturing to service and public sector work, and it is only a shell of its former self.

Because the dividing line between the parties is now identity rather than class, each party’s coalition cross-cuts class lines. Each party now represents business and professional interests, which we might call its cosmopolitian/neo-liberal wing. And each party represents working class interests, which we might call its populist/working-class wing. Although the media tends to identify the working class with white cultural conservatives, especially in the South and West, much of the Democrats’ base is also working class, consisting of both whites and racial and ethnic minorities.

One might think that given the bitterness of status politics, the propaganda efforts of conservative media, and the relentless demagoguery of the Trump Presidency, polarization in America will never recede. But ironically, the very forces that led to a politics organized around identity rather than class have produced incoherent party coalitions that will eventually drive the country away from its current zero-sum politics.

The 2016 election—in which Donald Trump incongruously promised to lead a plutocratic party to rescue working class voters, and Bernie Sanders and Hillary Clinton fought over the soul of the Democratic Party—made it possible to see how the current party system will eventually depolarize. For many years, the two parties will probably continue to disagree vehemently about culture war issues of religion, sexuality, and race. But the populist/working class wings of both parties have overlapping interests, as do each party’s cosmopolitan/neo-liberal wings. Just as happened in the early years of the twentieth century, new issues are likely to displace older ones, diluting the power of grievance-based politics.

In particular, issues concerning globalization, the fate of the social safety net, the power of technology companies and monopolies, immigration, and trade, may cross-cut party coalitions. Even environmental issues may offer the possibility for cross-party alliances. Although the Republican Party has become the party of climate-change denialism, the actual effects of climate change are real. They will draw the focus of enterprising politicians in both parties, even if Republican must call the issue by a different name.

The Reagan regime reorganized party coalitions around questions of identity—which enabled plutocracy, and led to ever increasing polarization and corruption. My prediction is that the next regime, in which the Democrats are most likely the dominant party, will expose the incoherent features of both parties. Neither party can resist these developments, and activists in both parties will likely contribute to them.

Issues of class, mostly submerged as Democrats and Republicans formed their Reagan-era coalitions, have already begun to resurface, much to the chagrin of the Republican Party’s business wing. The only question is which politicians in which parties will be able to take advantage of the incoherence and drive the parties’ further evolution. Although it seems as if populist Democrats will take the lead, they are likely to be hobbled by the party’s neo-liberal wing. The populists in the Democratic Party may have to form alliances across party lines to make any progress at all. If they do not, the future of American politics will be dominated by the two parties' neo-liberal wings. If that happens, reform will be limited.

A Bumpy Ride

In the last chapter of Democracy and Dysfunction, I held out the promise of political renewal. But political renewal is not the same thing as quietude. In fact, it is the opposite. If we are moving out of the Second Gilded Age into a Second Progressive Era, we should not expect a smooth transition. The Progressive Era was a time of social upheaval and racial tensions. The country's profound economic inequality was only remedied by a series of catastrophes: two world wars separated by a Great Depression. These disasters destroyed old fortunes and economic structures and created the opportunity for new arrangements.

We should hope that reform is possible on less drastic terms. But we should also recognize that it took us almost half a century to get into our current mess. The problems of American democracy will not be cured overnight, or even in a decade. Constitutional rot is a stubborn condition; emerging from it will be a painful process.

Posts in this series:

1. Escaping Dysfunction
2. Cycle of Presidents or Cycle of Regimes?
3. How Polarization Leads to Disjunction-- There Must be Fifty Ways to Leave Your Party
4. The New Party Configuration
5. The Limits of a Cosmopolitan Party
6. How Constitutional Rot Ends

Posted 9:30 AM by JB [link]