Balkinization: Brexit Times Ten -- Revolt of the Masses -- The Ultimate Preemptive President

Brexit Times Ten -- Revolt of the Masses -- The Ultimate Preemptive President

Stephen Griffin

As you can see, I’m undecided on the choice of headline. I also seem to recall an old one from the Civil War (maybe about Gettysburg) applicable to the current state of the Democratic party: Waterloo Eclipsed!

A few days ago on the conlawprof listserv, Sandy Levinson asked what we should say to our students on Wednesday morning if Trump won. So I’ve reproduced my reply below, with some alterations. In an attempt to prevent 20-20 hindsight, I will stick to observations about Trump’s victory connected with the evidence presented or arguments already made in my last two books, Long Wars and the Constitution and Broken Trust: Dysfunctional Government and Constitutional Reform.

I'll risk changing Sandy’s question by specifying it as: From a constitutional perspective, what went wrong? That is, to what extent is Trump's victory and its politics connected with deeper problems in our constitutional order? I see two connections. The first is that to be effective over the long term, constitutional institutions must be able to reproduce themselves and generate their own support. Because of a secular decline in political trust – for reasons only partly beyond their control – our governing institutions have not been able to reproduce viable levels of support, leaving them open to various pathologies that become more likely when trust is permanently low. This will go down in history as the ultimate low trust election.

Consider the list sociologist Piotr Sztompka provides of substitutes people employ when social trust is low (I’m changing his order): (1) Submission to a charismatic personality; (2) Excessive reliance on the law; (3) Leaving matters to fate; (4) Vigilantism; (5) Survivalism; (6) Corruption. Nothing uplifting about this list, I’m afraid, but perhaps some insight.

The second connection is more immediately related to current events. There have been some highly consequential policy mistakes made by both parties that have proved destabilizing however one defines the reigning governing order. The parties run the institutions created by the Constitution, for better or worse. Our system does not work well when both parties make the same mistakes or, at least, agree on a problem but cannot agree on the solution, leaving the public nowhere to turn. Both parties agreed on the Iraq War, extending free trade, and the deregulation/lack of regulation that helped produce the 2008 financial crisis. Both parties agreed that immigration was a serious problem (albeit perhaps for different reasons), but then failed to solve it. When both parties fail, it becomes much easier for outsiders to argue the system should be "blown up." Wanting to blow up the system didn't indicate a healthy constitutional order in the late 1960s (back then it was literal!) and it doesn't now. It's not an accident that part of the trouble in both eras lay with a war whose consequences no one (at least no elites) really wanted to acknowledge. This leads to my idea of Trump as the ultimate preemptive president with respect to foreign affairs and the global international order built since 1945. That’s an issue I will save for a future post.

As a side note, I sense there are some additional important parallels with the situation in the 1960s and 1970s. Failed wars tend to push politics to the right, not the left (although the left in both instances thought it would be different). And isn’t race in the background of this election as well?

A feature common to these mistakes is that these projects were really elite initiatives in which no true democratic agreement was sought or obtained from the mass public. A massive democratic deficit is the result. Elites (on both the left and right) have really made a mess of things.

I’m afraid I don't think we've hit the constitutional bottom and we may not for some time. In Michael Lewis's The Big Short, traders express a lack of confidence in an enterprise by saying "I want to short his paper." If American constitutionalism were a stock, I'm afraid I'd be selling it short. I really never thought I would say something like that.

Posted 7:07 AM by Stephen Griffin [link]