an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.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
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto 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 princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Venture capitalist Eric X. Li published a remarkable opinion piece last week, entitled Why China’s Political Model Is Superior. Li starts with a hard-to-dispute premise: America talks a good game about democracy, but its billionaire primaries are embarrassing and its substantive legislation is often corrupt. He then makes some sweeping claims:
In Athens, ever-increasing popular participation in politics led to rule by demagogy. And in today’s America, money is now the great enabler of demagogy. As the Nobel-winning economist A. Michael Spence has put it, America has gone from “one propertied man, one vote; to one man, one vote; to one person, one vote; trending to one dollar, one vote.” By any measure, the United States is a constitutional republic in name only. Elected representatives have no minds of their own and respond only to the whims of public opinion as they seek re-election; special interests manipulate the people into voting for ever-lower taxes and higher government spending, sometimes even supporting self-destructive wars.
For those familiar with the George Mason school of anti-democratic theory, there is little controversial here. But for the democrat, the answer to such problems is a popular movement, however hopeless it can seem among an apathetic populace. Li disagrees. He worries that such movements can get out of hand. Commenting on Tiananmen Square, Li approves of its crushing, arguing that "the alternatives would have been far worse." Li doesn't tell us whether he thinks the state should also use live fire to slaughter rebel villagers in Wukan. Perhaps this group has earned the right to democracy, but Li gives us no hard criteria to judge whether 2012 is the right time for China to experiment with the people's rule. Indeed, the rhetoric in his article suggests that he values China's dynasties anddictatorships nearly as much as today's CCP, and considers them all the unfolding of a wise Confucian respect for authority. But, as Amartya Sen has observed,
The fact that individual liberty may have been championed in Western writings, and even by some Western political leaders, can scarcely compromise the claim to liberty that people in Asia may otherwise possess. . . .[T]he so-called Asian values that are invoked to justify authoritarianism are not especially Asian in any significant sense. Nor is it easy to see how they could be made, by the mere force of rhetoric, into an Asian cause against the West. The people whose rights are being disputed are Asians, and, no matter what the West's guilt may be (there are many skeletons in many closets throughout the world), the rights of Asians can scarcely be compromised on those grounds. The case for liberty and political rights turns ultimately on their basic importance and on their instrumental role. And this case is as strong in Asia as it is elsewhere.
Li would likely respond that he wants to see these rights recognized eventually, when they promote further economic development. According to Li, China's wise and benevolent "leaders are prepared to allow greater popular participation in political decisions if and when it is conducive to economic development and favorable to the country’s national interests." How do we know when that is the case? Well, whatever might be said theoretically on the matter, practically speaking, the leaders decide. They cannot be questioned, voted out of office, or forced from power. The "bad emperor" possibility is the glaring flaw at the heart of Li's model. Ignoring it is "akin to crashing a broken tricycle into a vat of toxic waste going uphill past signs warning you about" it (as Spencer Hallrecently described another NYT author's writing).* He doesn't even contemplate the lived reality for tens of millions of poor Chinese, for whom Li's current, benevolent rulers are far, but exploitative local elites are very near.
This is not surprising, because Li ultimately has at least two allegiances: one to a vast nation of 1.3 billion souls, and another to the cosmopolitan network of global capital. The latter world is exasperated not only by restive Chinese workers, but also by the temerity of Americans and Europeans who presume to demand health care and other bare necessities of living. Chrystia Freedland interviewed one of them for her article on global elites last year:
A gentle, unpretentious man who went from public school to Harvard, he’s nonetheless not terribly sympathetic to the complaints of the American middle class. “We demand a higher paycheck than the rest of the world,” he told me. “So if you’re going to demand 10 times the paycheck, you need to deliver 10 times the value. It sounds harsh, but maybe people in the middle class need to decide to take a pay cut.”
The economic successes of Chinese technocrats are undeniable. They have established institutional arrangements that have lifted more people out of poverty than decades of halfhearted aid programs. But Li fails to address the costs of this economic transformation, and does not contemplate whether it could have been accomplished in a more democratic manner. The human wreckage and environmental devastation left in the wake of China's rise are staggering. Only a sloppy thinker would retort that authoritarianism and development are indissolubly linked. The question for modern political economy is not how to make the world over in China's image; rather, we are obliged to carefully consider what aspects of its politico-economic model actually contribute to human flourishing and what is merely exploitative.
China's model is lacking in many ways. A fusion of state and corporate powerhas led to a "growth model [that] transfers income from households to the corporate sector, mainly in the form of artificially low interest rates." Li may want to take the hard neoliberal line that gross national product is primary; distributional concerns are secondary. But even establishment economists are disturbed by imbalances in China's economy leading to excessive investment and inadequate consumption. As Nick Lardy observes,
The beneficiaries of imbalanced growth — including export- and import-competing industries (which enjoy elevated profits at the expense of firms in the service sector), coastal provinces (which have enjoyed supercharged economic growth at the expense of inland regions), the real estate and construction industries (which have benefitted from interest rate policies that have made residential property a preferred asset class), and China’s banks (which enjoy lofty profits that come with the high spreads between deposit and lending rates set by the central bank) — have acquired disproportionate influence over economic policy.
China needs to rebalance its economy and develop a social safety net that would allow average citizens to spend more confidently. But just as the American elite continually fails to get our house in order by raising taxes on those able to pay, and cutting wasteful spending, the Chinese elite has made only minor steps toward allocating its vast surpluses to address inequality.
The pundit class professes to be befuddled by American and Chinese leaders who fail to take obvious steps necessary to stabilize their economies. What if neither elite is working in the interests of its own citizens? The coastal elites in China who dominate its economic policymaking and the American finance and CEO class that support ours can pile up fortunes while current arrangements persist. As David Rothkopf have observed, the two "superclasses" have far more in common with each other than they share with ancient dynasts or founding fathers. There's a reason memes like Superfusion and Chimerica envision a bright neoliberal future of co-hegemony by the world's largest economies.
Li exaggerates the differences between the two systems. He wants us to believe that only the US suffers from demagoguery and divisiveness. But China's politics are scarcely a model of Confucian harmony. As Cheng Li observes,
In the wake of the era of strongman politics, the CCP leadership has been increasingly structured around two informal coalitions or factions that check and balance each other’s power. The two groups can be labeled the ‘populist coalition,’ led by President Hu Jintao and Premier Wen Jiabao, and the ‘elitist coalition,’ which emerged in the Jiang era and is currently led by Wu Bangguo, chairman of the national legislature, and Jia Qinglin, head of a national political advisory body. . .
Most of the top leaders in the elitist coalition, for instance, come from families of veteran revolutionaries and high-ranking officials (vice minister-level or above for civilians and major general or above for the military). . . . By contrast, most of the populist coalition’s leading figures, such as President Hu Jintao, Premier Wen Jiabao, and Executive Vice Premier Li Keqiang, come from less-privileged families.
Though common goals often unite the factions, they do have disagreements based on values, not just facts and methods. When such disputes arise, democratic politics at its best resolves them with open debate or, in the case of constitutionally fundamental values, publicly reasoned judicial decisions. At its worst, it can devolve into ruthless power plays---like those deployed for and against Bo Xilai, head of Chongqing, over the past few months.
America's Impatient Power Elite
Given that Li's argument has so many flaws, why dwell on it? French parents have recently supplanted Chinese ones in the merry-go-round of elite media idees fixes; we can hope that a milder, Gallic paternalism will eventually displace Li's "Wolf Father" state. But I'm not optimistic, because Li's views are symptoms of a much larger syndrome of America's power elite: a yearning for some deus ex machina to route us away from Weimaresque gridlock and toward a more rational social order.
Charles W. Dunlap's 1992 article The Origins of the American Military Coup of 2012envisioned a country where the declining legitimacy of governmental institutions led to a military take-over. In Dunlap's "darkly imagined excursion into the future," a "senior retired officer of the Unified Armed Forces" describes the origins of a "permanent Military Plenipotentiary" to a friend:
Twenty years before we graduated, the Supreme Court confidently declared in Laird v. Tatum that Americans had a "traditional and strong resistance to any military intrusion into civilian affairs." But Americans were now rethinking the desirability and necessity of that resistance. They compared the military's principled competence with the chicanery and ineptitude of many elected officials, and found the latter wanting. Commentator James Fallows expressed the new thinking in an August 1991 article in Atlantic magazine. Musing on the contributions of the military to American society, Fallows wrote: "I am beginning to think that the only way the national government can do anything worthwhile is to invent a security threat and turn the job over to the military."
Lest that be dismissed as speculative, just read Bruce Ackerman's Decline and Fall of the American Republic, a wise reflection on executive overreach. Post 9/11 (and 9/2008), we have been conditioned to accept expansive claims of presidential authority. Both internal and external checks on that authority are fading away. As Ackerman observes,
A downward cycle threatens: After each successful attack, politicians will come up with a new raft of repressive laws that ease our anxiety by promising greater security--only to find that a different terrorist band manages to strike a few years later. . . . Even if the next half-century sees only three or four attacks on a scale that dwarfs September 11, the pathological political cycle will prove devastating to civil liberties by 2050. (167)
In the book, a published version of Ackerman's Tanner Lectures, a "runaway presidency" has turned the executive into our "most dangerous branch" (178). The presidency itself may turn out to be less a "tribune of the people" than a tool of the ultimate source of governmental power, an increasingly politicized military. Ackerman foresees escalating power struggles between the branches of government, "leaving the military as a potential arbiter" (85).
Given legitimate fears of an anti-democratic turn in American politics, the New York Times does us no favors by publishing pieces like Li's. Bold billionaires have lamented universal suffrage and basic social welfare guarantees, and have the resources to silence critics. Albert Brooks's novel 2030 is a not-so-subtle plea to China to take over and impose some order on American chaos. With the Li piece, the NYT moves the Overton Window in the Brooks/billionaire direction once again.
I don't advance the US constitution as a model for all nations. But recognition of pathologies in American politics scarcely leads one to Li's conclusions.
The Truly Superior Model: Charter '08
I will conclude with the words of Liu Xiaobo and other activists, as much a moral beacon for our time as Vaclav Havel was in the era of Soviet repression. From their Charter '08:
Having experienced a prolonged period of human rights disasters and challenging and tortuous struggles, the awakening Chinese citizens are becoming increasingly aware that freedom, equality, and human rights are universal values shared by all humankind, and that democracy, republicanism, and constitutional government make up the basic institutional framework of modern politics.
A “modernization” bereft of these universal values and this basic political framework is a disastrous process that deprives people of their rights, rots away their humanity, and destroys their dignity. Where is China headed in the 21st century? Will it continue with this “modernization” under authoritarian rule, or will it endorse universal values, join the mainstream civilization, and build a democratic form of government?
I'm haunted by the grave responsibility of being still alive. I do my best to make every word from my pen a cry from the heart for the souls of the dead. I use my memory of their graves to combat the Chinese government's pressure to erase memory. My searing desire to atone for having survived helps me resist the temptations to join the world of lies.
In his euphemistic description of the Tiananmen massacre, Li is little more than an upscale member of the 50 Cent Party, "erasing memory" of those heinous acts. Beijing's history textbooks may consign them to the ash heap of history, as Egypt's SCAF even now produces textbooks that accuse the Arab Spring protesters of ingratitude to Mubarak. But the activists behind Charter '08 should be remembered as far more courageous figures than complacent globalists allegiant to whatever regime makes them rich.
*Li's Christian Science Monitor piece does briefly address the problem, and is more subtle than the NYT piece. But it is hard to square the argument and tone of the latter with the former.