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.