Tuesday, May 07, 2019

Another Rendezvous with Destiny

Gerard N. Magliocca

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

Dear Jack and Sandy,

In the spirit of.your lively new book, which consists of a series of letters exchanged between you from 2015 to 2018, I decided to write my symposium contribution as a letter to each of you. I think you both downplay a key part of our dismal politics and each make an important point that explains why we are so stuck.

One impression from reading your letters is that only the United States is suffering from political paralysis and dysfunction. This is, of course, not true. There is Brexit, the Yellow Vest protests in France, the rise of the far right in Germany, and much more. Overall, we are witnessing a global decline in constitutional democracy from the high tide of the 1990s. (In retrospect, the failure of the Arab Spring in 2011 was a turning point that new gave to hope to autocrats everywhere.)

If the United States is just one of many dysfunctional democracies, then that suggests that Sandy's focus on the hard-wired provisions of our Constitution as the source of our problems is incorrect. Other national constitutions with very different provisions are faring no better. Indeed, the most flexible constitution in the world--Britain's--is now producing dysfunction on an almost daily basis. Perhaps each of these constitutions suffers from independent stupidities. I would be curious to know Sandy's view on which country has the best constitution. Whom exactly should we be emulating?

The global scope of the problem, though, also poses a problem for Jack's argument that our dysfunction is a symptom of the transition between party systems that will work itself out. How probable is it that this same transition is going on in Europe at the same time? One point in Jack's favor is that Thatcherism arose in Britain at about the same time that the Reagan Revolution came to the United States. Couldn't Brexit and President Trump be connected in a similar way? Perhaps. But  extending that trend to the rest of Europe (or to the world) is more of a stretch. Surely other countries are at different stages of their respective party systems and not all running on fumes.

That said, I think that Jack's diagnosis is largely correct. In part, that is because of my respect for Stephen Skowronek's work and my own scholarship on party system transitions in the United States. (In the 1820, the 1850s, and the 1890s.) They were all ugly in one way or another. Why should this one be different?

One reason it could be different, though, is Sandy's argument about some particular features of the Constitution that are prolonging the life of the Reagan coalition. The Electoral College is a major impediment to the rise of a new party system. It is quite possible that Donald Trump will be the first two-term president to never win the popular vote. Likewise, the Senate's rejection of one-person, one vote representation may (though not as clearly) give Republicans a significant structural advantage that is proving crucial with respect to judicial confirmations. I wonder, therefore, if Jack may be too optimistic that a new party system can overcome these obstacles in time to avert a more substantial crisis of legitimacy.

Your obedient servant,


P.S. In this age every successful project becomes a saga. I hope this book is the first of a trilogy.



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