Democracy and Dysfunction joins a distinguished list of seminal works on constitutionalism in the United States that have universal titles. The tradition is honorable. Participants include such classics as John Hart Ely’s Democracy and Distrust, Ronald Dworkin’s Taking Rights Seriously, Gerald Gunther’s Constitutional Law, and, for that matter, Sandy Levinson’s Constitutional Faith and Jack Balkin’s Constitutional Redemption. Each work in different ways contributes substantially to better understandings and evaluations of the constitutional experience in the United States. Democracy and Dysfunction does so by insisting we pay more attention to the structures of American constitutional politics, which include state equality in the Senate and notions of political time, than to the latest Supreme Court decisions. The tradition is problematic. Distinguished studies of constitutionalism in the United States with universal titles risk confusions between the constitutional experience and the constitutional experience in the United States. Past works in this tradition imply that the United States is the modal constitutional democracy, that the extent a regime differs from the United States that regime is less of a constitutional democracy. Democracy and Dysfunction highlights severe problems with constitutional democracy in the United States, but the lack of comparative perspective leads Levinson and Balkin to focus on distinctive American explanations and solutions to what may be more global problems, most notably, at least from the perspective of this essay, increases in global economic inequality, decreases in the power of unions across the universe of constitutional democracy and the challenges of putting together progressive coalitions that combine progressive cosmopolitanism and economic populism.
Democracy and Dysfunction in the United
States elaborates
and applies Levinson and Balkin’s pathbreaking analysis of American
constitutionalism to contemporary constitutional politics in the United
States. Both go far beyond the standard
“did the Supreme Court get the Constitution right” when exploring and elaborating how the contemporary
organization of constitutional politics is responsible for a regime that cannot
perform such basic functions as budgeting and seems ever more in hock to a
smaller group of affluent donors. Levinson
explains the textual foundations for the decline of democracy and the
increase of dysfunctional constitutional practices in the United States. His
letters to Balkin detail how such specific textual mandates as state
equality in the Senate and the electoral college undermine both majority rule
and promote a government that tends to the needs of white rural farmers at the
expense of persons of color in the inner cities. Trump and the Republican Party prosper because the hardwired constitutional structures mandated by the constitutional text permit minorities to control the national
government and even further entrench minority rule. Balkin elaborates on how political time and
political movements structure constitutional politics in the United
States. His letters to Levinson emphasize
how political coalitions at the end of their political time became ripe for
overthrow as they must resort to increasingly anti-democratic strategies to
retain power. Trump and the Republican
Party reflect the spent energy of the Reagan Revolution. Their tactics, Balkin
suggests with cautious optimism, while concentrating power in an ever more rapacious and bigoted donor class, are inspiring a progressive backlash that is
likely to result in constitutional practices that are more democratic and less
dysfunctional.
Levinson
and Balkin acknowledge the global democracy recession, but nevertheless
emphasize the distinctive features of constitutional democracy in the United States
that explain and might cure democratic deficiencies in that regime. The plight of constitutional democracy in the
United Kingdom, France, Spain, Germany, Italy, Greece, Hungary, Poland, Turkey,
Israel, India, South Africa, throughout Latin America and most of Africa is
more a not-so-fun fact in Democracy and
Dysfunction than an indicator that responsibility for the constitutional ills in the United States
may not reside primarily in the admitted flaws of the national constitution or be
alleviated as political time in the Unites States continues to cycle. Levinson prefers a more parliamentary system
even as the United Kingdom wins the gold medal for dysfunctional government
when responding to Brexit. Balkin’s
cautious optimism that Trump will inspire a progressive backlash is not
tempered in the least by how Trump’s close and as corrupt ally Benjamin Netanyahu
has crushed the political left in Israel.
A
more comparative perspective on democracy and dysfunction in the United States
might start with how globalization and the Great Recession are
undermining constitutionalism throughout the world (another starting place
might be the rise of executive power in almost all constitutional democracies). General agreement exists among political
scientists that a strong, confident middle class provides crucial foundations
for constitutional democracy. Globalization and the Great Recession weaken this
support by increasing dramatically wealth inequalities throughout the universe
of constitutional democracy. Democratic
domination is easier than ever before as the super-rich gain monopolies over
the tools of democratic influence and as the institutions in civil society that
buttress a middle-class constitution fade into oblivion. Constitutional democracy in the United States
is becoming dysfunctional, from this perspective, because of the global
economic forces that are making constitutional democracy increasingly
dysfunctional throughout the world.
The comparative perspective raises questions about the possibility of a moderately comfortable escape from
what Balkin accurately depicts as a second Gilded Age. History suggests constitutional democracies
do not easily overcome economic domination.
A Great Depression and World War Two were necessary for the comprehensive
reforms that benefited the working class in the United States. No guarantee exists that future economic or military
upheavals will result in more progressive governance. Ask Huey Long. Better yet ask the Germans and Italians about the impact of the Great Depression on their regime.
Balkin
draws inspirations from the progressive movement in the earlier twentieth century,
but that movement differs in important ways from the progressive movement
Balkin hopes may be reviving in the United States. Debate exists over who the progressives were,
but few scholars think progressivism was a popular based movement. To the extent progressivism was a revolt
against the Gilded Age, the revolt was conducted by a new class of professionals
who wanted simultaneously to alleviate the excesses of capitalism and clean up
the excesses of the poor. Prohibition
was as much a part of the progressive movement as the minimum wage. Progressive constitutionalists solved
problems of democratic dysfunction by weakening traditional forms of political
participation. Most were enthusiastic about non-partisan elections and other
devices that they hoped would circumvent government by the political parties that
were and remain the best instruments of working class influence on politics.
The
absence of unions from Democracy and
Dysfunction and from the rhetoric of numerous aspirations for the
Democratic presidential nomination connects the “progressive” spirit at the
turn of the twentieth century to the “progressive” spirit at the turn of the
twenty-first century. Democracy and Dysfunction painstakingly documents
many Republicans sins but ignores the GOP’s largely successful half-century
effort to engage in political and legal union-busting. Levinson and Balkin mention Shelby County v. Holder (2013) as an
egregious instance when Republican judges helped Republican political fortunes,
but not Janus v. AFSCME (2017), which
prevents public sector unions from collecting dues from any municipal employee
who, while gaining the benefits of collective bargaining, opts not to join the
union. Weakening public sector unions,
Republicans from Wisconsin and elsewhere remind us, weaken economic populism
from the left. Balkin speaks of “the new
coalition” of Democrats that will consist of “minorities, millennials,
professionals, suburbanites, and women” (192). Labor is notably missing from
that coalition as "labor" and "unions" are notably missing" from the index to Democracy and Dysfunction.
The structure of the new progressive coalition reflects
developments that once were distinctively American. For much of American history, one political
party best served the interests of cultural minorities, the other best served
the interests of the white Protestant lower-middle and middle class. Whigs will never be confused with the rainbow
coalition, but they offered far more enlightened policies on women, persons of
color and Native Americans than Jacksonians, who had far more to offer white
workers. The Roosevelt/Johnson coalition was the first
in American history that, temporarily, enjoyed substantial support from both
labor and persons of color.
Unsurprisingly, that coalition fell apart when, as Paul Frymer has documented, Democrats failed to mediate successfully conflicts between labor
and persons of color over the integration of labor unions.
The
Republican effort to weaken labor, aided and abetted by Democrats more
concerned with a coalition of “minorities, millennials, professionals,
suburbanites and women,” has both economic and political consequences. The economic consequences, which Levinson and
Balkin detail, are a Second Gilded Age, complete with increasing economic
inequalities. The political consequences
are a sharp decline in the capacity of working people of all sizes and shapes
to influence politics. A politics in
which participation is largely confined to the internet will privilege
millennials, professionals and suburbanites, pushing Democrats to favor the
interests of women and minorities who are also millennials, professionals and
suburbanites at the expense of those who are working class. During the New Deal and through much of
European history in the late nineteenth and twentieth century, unions provided
the organization that enabled members of the lower-middle and middle classes to
influence elections and politics. As
unions have waned. so has working class influence in both the Republican and
Democratic parties.
The constitutional
experience of labor in the United States is now global. Labor is now in steep decline in almost all
constitutional democracy. One cause is
globalization, which permits companies to move to places where labor has not
yet successfully gained wage and other benefits. Another cause is increased diversity. Immigration in the world of constitutional
democracies is now creating the same rifts between working class persons of
different races, religions and ethnicities that have always characterized American
constitutional politics. As Kim
Scheppele's essay in Constitutional Democracy in Crisis? notes, what counts for the left in many countries, including the
United States, is increasingly people who regard themselves as cosmopolitan
rather than people who regard themselves as middle or working class.
The
new realignment of political forces in the United States and throughout the
world makes problematic calls for a political movement that combines
progressive cosmopolitanism with populist economics. Constitutional experience in the United
States and in other constitutional democracies suggest that such political
combinations exist harmonious in theoretical zoos but do not thrive in the wild.
With rare exception, proponents of progressive cosmopolitanism and proponents of
populist economics in constitutional democracies have historically been at
loggerheads. After very short alliances
during the years immediately after World War Two, they are reverting to their
historic antagonisms. How these antagonists
can be compromised is as fundamental a question for the political left as designing
a more progressive constitutional order.
Constitutional governance throughout the world will likely be less dysfunction
if progressive cosmopolitans win out, but such a regime will be less
constitutional and less democratic unless political entrepreneurs can find ways
to unite the aspirations of the populist lower middle class with the cosmopolitan
visions of many millennials, professionals and suburbanites.