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Balkinization Symposiums: A Continuing List 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 Rahman sabeel.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 Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Institutional Vandalism
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Tuesday, February 11, 2025
Institutional Vandalism
Guest Blogger
Jonathan Chausovsky The vast uprising of critiques of the current effort to dismantle the institutions of the United States Government is pervasive and important. Here, I suggest that to do so we ought to take institutional theory into our account of these events. In his groundbreaking book from 1982, Building a New American State, Stephen Skowronek argued that the governing challenges of that day were linked to the reform solutions of the past.[1] He configured politics as a set of entrenched interests seeking to preserve their institutional structures, contesting with a rising set of reformers that sought to displace them. His study of the Gilded Age and Progressive Era depicted contests in three areas: civil service, army organization, and railroad regulation. The outcome of these contests was not what any one side sought. Rather, pathologies of the old were embedded within the reform solutions that emerged. We can likewise place our current challenges in the context of realignment theory. Walter Dean Burnham built on V.O. Key Jr.’s seminal work on critical elements to examine ongoing efforts at party composition and decomposition.[2] Burnham recognized that parties are coalitions, and that catastrophic events contributed to the restructuring of the party coalitions within the broader political universe. The shifts could be gradual, but were periodically punctuated by rapid disruption in response to catastrophe. Burnham was wedded to these upheavals occurring at fairly regular intervals of 32 to 36 years; but his mechanism of generational change was always somewhat inadequate for the massive disruptions he sought to explain. However, a focus on partisan composition and recomposition within our peculiar two-party system remains. With hindsight of 50 years since the end of the Great Society, we can easily identify the recomposition of the two political parties in the wake of the Civil Rights movement. This is evident in the abortion battle, the reemergence of the religious right, along with massive inequality and concentration of wealth aided by the corporate device. The Reagan era was a disjuncture from the New Deal Great Society. It did not follow the Burnhamesque clock (which had been set for 1968). The reordering of the party structures, and sorting of conservatives to the Republican Party, and liberals to the Democratic Party saw significant shifts in the 1980 election, and again with the Gingrich-led revolt of 1994, where Republicans took control of both houses of Congress for the first time since 1954. The full sorting took a generation, and much of it was gradual. Reagan conservatives sought to deconstruct. They viewed the government as the problem, not the solution. They succeeded in some areas, such as Aid to Families with Dependent Children (AFDC). George W. Bush can be accurately characterized within the Reagan paradigm, but he was the last to be elected as President. But on the whole, most of the New Deal and Great Society structure remained, and in some areas has deepened: they did not succeed in dismantling the state that had been built up. Once an agency or office is created, it develops a constituency and logic of continuation. While much of the Reagan agenda has now been left behind, the crass anti-governmentalism remains. The failure to dismantle the state has been a thorn in the side of those driven by libertarian ideology. The new billionaire class has funded an institutional ecosystem of its own, documented by scholars such as Steven Teles and Kenneth I Kersh.[3] It has been buttressed in law schools by the dominant Law and Economics approach, led by such luminaries as Guido Calabresi, Gary Becker, and Richard Posner.[4] It seeks to evaluate the law according to the principles of increasing social wealth. In their view the state distorts markets, and tends to reduce social wealth as a result. In the process, they often dismiss fundamental elements of the role of the state evident in the Keynesian scholars they largely displaced. James Galbraith, in The Predator State argues that much corporate wealth comes from government structures.[5] Consider insurance. Most Americans get their health insurance through their employers. But the employers get a tax break for providing it. Thus the state taxpayers are actually underwriting the insurance companies income streams. The evisceration of Antitrust since 1980 is another aspect contributing to inequality; it has sanctioned oligopoly and monopoly rents. These are part of the Submerged State, or the Government Out of Sight.[6] The resulting disparate economic outcome has been explained by Jacob Hacker and Paul Pierson.[7] Law and Economics contributes to ignoring this, as, of course, has the Chicago school of economics exemplified by Milton Friedman. Corporations know what government regulations and structures support their income streams. This will likely be a key limitation on the institutional destruction we see going on: but only for those who pay tribute to this administration. The income streams of core supporters will also likely be preserved: thus Social Security yes; but Medicaid, perhaps not. There are of course two other strands of activism, interconnected in part: religious nationalism and white supremacy. Those displaced by the success of the liberal state have taken to bad faith (yes, I am purposely juxtaposing bad faith with religion). Even before Trump many were quite willing to make arguments in bad faith, as opposed to those "minds as pure and intelligent as the country can boast" that John Marshall used to depict in the debate over the Bank of the United States in 1791 (by luminaries such as Alexander Hamilton and James Madison).[8] Bad faith and deception have taken a quantum leap in the Trump era: January 6 to Trump supporters now resembles Tiananmen Square for the Chinese government: they seek to wipe them from the historical record. Oliver Wendell Holmes famously developed the “bad man” theory of the law. Holmes argued that we can define “the law” as that which altered the behavior of a person without morals. The reason why a judge’s ruling could do so effectively was because the whole force of the state could be employed to enforce that ruling. But as Holmes notes at the outset of this essay, “in societies like ours the command of the public force is intrusted to the judges in certain cases, and the whole power of the state will be put forth, if necessary, to carry out their judgments and decrees.”[9] It is not just judges who have the power of the law, but public officials with authority. Holmes offered a reason why a “person without morals, a “bad man,” would obey the command of the law. But he did not contemplate in that essay a circumstance where the “bad man” directed state power. Yet here we are. From this, we are experiencing a type of institutional vandalism. Unable to destroy the New Deal/Great Society in the Reagan era, Project 2025 as implemented by Trump seeks to do so by undermining the very notion of law. The libertarian dream is being implemented by a revanchist interest seeking to displace the existing set of structures. It is different from Skowronek's depiction of statebuilding in that it is an attempt at state deconstruction, by a set of interests that (a) is not a majority, depending on constitutionalized Senate malapportionment and judicially endorsed gerrymandering in a two party system where voting is often suppressed; (b) seeks to reform in the interests of an oligarchy rather than in the interest of progressive reformers; (c) is willing to deceive in order to achieve its ends; and (d) also recognizes that in a fair election system they will lose - thus the need to capture the state and end popular government. The people in charge do not understand the economic damage they are in the process of causing (leaving aside for the moment the damage to international aid, U.S. soft power, and alliances encompassing economic, diplomatic, and military institutional structures). At the same time, media and popular narratives presume Chicago economics - even when demonstrated to be inadequate in financial crises such as 2008, and the COVID crisis of 2020. There are few voices that seek to explain this - Paul Krugman is probably the most prominent. A constitutional convention may result from the oncoming disaster; but there is no guarantee that in the midst of a crisis a rational solution may be forthcoming. We could have a period of failure at adopting an organic document characterized by popular rule. Here, the literature cataloging comparative constitution making is instructive, evident in work by Tom Ginsberg and Aziz Huq, and many others.[10] Again, what we are seeing is institutional vandalism, in a moment of a revanchist minority that has managed to grasp power - partly by deception. It is in a contest with entrenched interests that are being displaced. Since Trump is lawless (although he uses the law as a weapon when it suits him), that destruction threatens the very foundation of law, and invites a coming autocracy. Whether it will succeed is another question. Poland reversed its descent into autocracy due to civil society institutions, including judges who refused to leave on illegal orders, popular support protecting them, and of course a European Union with the capacity to sanction the most extreme efforts at judicial capture.[11] The civil society elements contesting this administration have a far longer tradition, and are more deeply embedded than Poland's. They include some Federal judges, many state governments (including their judges), many media outlets, theater and popular performers, musicians, and civil society organizations. As conditions deteriorate, the persuasive power of the critique gains. In this sense, we have to hope for something akin to the 1932 election. Then, in the third year of the Great Depression, an historic landslide swept the existing party from power. Public opinion had decisively shifted. But we will have to endure substantial destruction to get there. And we will have to preserve of civil society institutions as possible, with an emphasis on preservation of the electoral system in particular. And we will have to promote a theory of law and economics that recognizes a positive role for the government, beyond the night watchman state. Jonathan Chausovsky is Associate Professor of Politics and International Affairs at SUNY-Fredonia. You can reach him by e-mail at jchaus@gmail.com. [1] Stephen
Skowronek, Building A New American State: The Transformation of National
Administrative Capacities, 1877-1920 (1982). [2] V.O. Key, Jr., A Theory of Critical Elections,
17 Journal of Politics no.
1,(1955), 3. Walter Dean Burnham, The Changing Shape of the American
Political Universe, 59 American
Political Science Review no. 1 (1965), 7. Walter Dean Burnham, Critical Elections and the Mainsprings of
American Politics (1971). [3] Steven M.
Teles. The Rise of the Conservative Legal Movement: The Battle for Control of
the Law (2009). Ken I. Kersh,
Conservatives and the Constitution: Imagining Constitutional Restoration in the
Heyday of American Liberalism (2019). [4] A brief review is in Gary Becker and Richard Posner, The
Future of Law and Economics, in The
Oxford Handbook of Law and Economics, Vol 1: Methodology and Concepts (Francesco
Parisi, ed., 2017), 1. The three volume set indicates the breadth of the field. [5] James K.
Galbraith, The Predator State: How Conservatives Abandoned the Free Market and
Why Liberals Should Too (2009). [6] Suzanne Mettler, The Submerged State: How
Invisible Government Policies Undermine American Democracy (2011); Brian Balough, A Government Out of Sight: The
Mystery of National Authority in Nineteenth-Century America (2009). [7] Jacob S. Hacker and Paul Pierson,
Winner-Take-All Politics: How Washington Made the Rich Richer--and Turned Its
Back on the Middle Class (2011). [8] McCulloch v. Maryland, 17 U.S. 316, 402 (1819). [9] Oliver Wendell Holmes, Jr., The Path of the Law,
10 Harvard Law Review, 457 (1897). [10] In particular see Justin Blount, Zachary Elkins, and
Tom Ginsburg, Does the Process of
Constitution-Making Matter? in Comparative
Constitutional Design (Tom Ginsburg, ed. 2012), 31. Tom Ginsburg and Aziz Z. Huq, Defining and Tracking the Trajectory of Liberal Constitutional
Democracy, in Constitutional
Democracy in Crisis? (Mark A.
Graber, Sanford Levinson, and Mark Tushnet, ed. 2018), 29. See also essays in David Landau and Hanna Lerner, ed., Comparative
Constitution Making (2019). [11] Maria Skóra,
Restoring the Rule of Law: Politics in the Service of Democracy, Verfassungsblog
(18 December 202). https://verfassungsblog.de/restoring-the-rule-of-law/ Posted 9:30 AM by Guest Blogger [link]
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Books by Balkinization Bloggers ![]() Linda C. McClain and Aziza Ahmed, The Routledge Companion to Gender and COVID-19 (Routledge, 2024) ![]() David Pozen, The Constitution of the War on Drugs (Oxford University Press, 2024) ![]() Jack M. Balkin, Memory and Authority: The Uses of History in Constitutional Interpretation (Yale University Press, 2024) ![]() Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University of Kansas Press, 2023) ![]() Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision - Revised Edition (NYU Press, 2023) ![]() Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, 2022) ![]() Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022) ![]() Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022) Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021). ![]() Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021). ![]() Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020) ![]() Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020) ![]() Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020) ![]() Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020). ![]() Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020) ![]() Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020) ![]() Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020) ![]() Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019) ![]() Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018) ![]() Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018) ![]() Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018) ![]() Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017) ![]() Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017) ![]() Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016) ![]() Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015) ![]() Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015) ![]() Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015) ![]() Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014) Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution ![]() Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014) ![]() Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013) ![]() John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013) ![]() Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013) ![]() Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013) Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013) ![]() James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013) Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues ![]() Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013) ![]() Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012) ![]() Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012) ![]() Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012) ![]() Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012) ![]() Jack M. 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Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009) ![]() Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008) ![]() David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007) ![]() Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007) ![]() Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007) ![]() Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006) ![]() Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006) Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006) Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006) Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006) Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005) Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004) Balkin.com homepage Bibliography Conlaw.net Cultural Software Writings Opeds The Information Society Project BrownvBoard.com Useful Links Syllabi and Exams |