Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.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
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler 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 yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.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
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The Balkin-Levinson dialogue is a model of academic conversation: two learned scholars of constitutional law, reasoning together on some of the deepest problems the topic poses. But it is also a debate, intended to shape ongoing public debates with the highest stakes. This debate pivots on dueling metaphors for contemporary crises of American constitutional legitimacy. Levinson, self-describedly “semi-apocalyptic” at one point, suggests the US is in or near a constitutional crisis. Balkin instead diagnoses “constitutional rot.”
In an earlier article, both Balkin and Levinson defined crisis as:
[A] potentially decisive turning point in the direction of the constitutional order, a moment at which the order threatens to break down, just as the body does in a medical crisis. It may lead back to a slightly altered status quo, that is, a crisis averted. The fever provoking a medical crisis breaks, and the patient returns to her prior condition little the worse for wear. On the other hand, the conclusion of a crisis may indeed be an important transformation in the forms and practices of power or, in the most extreme cases, the dissolution of the existing constitutional order and the creation of a new order in its place. The ultimate medical crisis, after all, is death, as demonstrated most spectacularly in our lifetime by the demise of the Union of Soviet Socialist Republics or the dissolution of Yugoslavia....
They go on to distinguish emergencies (“perceptions of urgency caused by facts on the ground or by the way that people perceive those facts”) from constitutional crises (“conflicts about the legitimate uses of power by persons or institutions”).
I just want to think a bit about how the diagnoses of crisis and rot work, by comparing them to other notable metaphors in social theory. What is the work that “rot” is doing here? What work could other metaphors do? Balkin's Wager
An earlier Balkin project, Constitutional Redemption, used metaphors of religious faith and storytelling to explain (and encourage) American constitutionalism. According to Balkin, “The legitimacy of our Constitution depends...on our faith in the constitutional project and its future trajectory.” The crisis metaphor is a threat to such faith. It implies that either things change dramatically, soon, or it’s all over. Levinson has taken the medical metaphor in that direction, most memorably a few years ago on this blog, in a post he wrote a couple weeks after the 2016 election:
Imagine two soldiers in Iraq (or anywhere else). One is killed, then other incurs traumatic brain injury. We would say of the second that he/she "survived" the war in a way the first did not, but we would also go on to say that "he/she will never be the same again. It is as if we're dealing with a very different person; I feel so sorry for the spouse...." We would go on to speak of the living envying the dead.
So in that sense the U.S. will survive, but anyone who believes we are the same country today as two weeks ago is deluded. Indeed, we are only beginning to get a glimpse of how truly terrible it may turn out to be....The United States is, I believe, in the most precarious position since 1860...."
The rot metaphor is much less apocalyptic. It suggests that some warning sign may shock us into action. Perhaps some roof beams will collapse in from termites, and alert neglectful homeowners to take action. In the same way, perhaps some partisan gerrymanders will be so egregious, they’ll provoke the Supreme Court to intervene.
What are the precipitants of rot? Balkin blames the intersection of nadirs of three cycles in U.S. history: 1) Skowronekian political time (ala Gramsci: "the old is dying and the new cannot be born"); 2) polarization (it is hard to remember when the visions of the two major parties were this incompatible), and 3) corruption (most obvious in the Trump scandals, but in legal and illegal varieties undermining confidence in all levels of government). "Put these three cycles together, and it is no wonder that people despair for American democracy," Balkin says near the end of the book. But he still manages to be optimistic, reasoning that, in the Skowronekian cycle, we are near the beginning of a new era of politics. (Stephen Skowronek himself, in a recent LSE lecture, largely agrees with that, but has not ruled out the possibility that Trump himself can consolidate hegemony even more dramatically than Reagan, by stacking the courts with his appointees and hollowing out the administrative state.)
Balkin's optimism reminds me of Pascal's wager. We have no idea what the future will bring, but we may as well believe in an optimistic version of it (that we can play some small role in bringing about), rather than resign ourselves to the inevitability of disaster, oblivion, or irremediable decay. Within the cycle of American political time, that does make sense. But Skowronek has noted that secular time also matters--and that its influence can overwhelm that of political time.
What we cannot ignore, in secular time, is the rise of far-right and authoritarian leadership around the world, and its consolidation of power in country after country. Kim Lane Scheppele has offered brilliant analyses of Hungary, which offer numerous lessons for the U.S. The rise of Lega in Italy shows how easy it is to fuse the lazy anti-politics of "throw the bums out" with the vicious rhetoric of "drive the immigrants out." Brazil's Bolsonaro allied with evangelicals and oligarchs to vault past other candidates in a confusing, crowded first round of presidential elections. Putin's plebiscitarian reign continues, and underwrites his efforts globally to push right-wing populist candidates abroad. Duterte's summary executions of alleged drug dealers and addicts go on unabated, reminiscent of Indonesian paramilitaries' slaughter of "communists" in the 20th century. Paul Mason has argued that, as the current model of capitalism is being stripped "of all meaning and justification . . . the vacuum is being filled by an ideology hostile to human rights, to universalism, to gender and racial equality; an ideology that worships power, sees democracy as a sham, and wishes for a catastrophic reset of the entire global order."
I mention these dimensions of the present conjuncture for three reasons. First, to vindicate Balkin's intuition that, yes, things could get much, much worse in the U.S., and that any advocate of constitutional hardball here should squarely consider that possibility. Second, that there is a relatively simple route to electoral success (demonizing minorities and other vulnerable groups to appeal to a base of disaffected voters who doubt politics can ever grant them real material gains, while delivering those gains to plutocrats, who in turn help fund those campaigns of demonization). And third, that a global political economy with rules set to grant ever-more wealth and power to capital, while denying that to labor, only increases the public sense that politics can do little to nothing to improve the welfare of citizens. That sense of political futility is the ultimate self-fulfilling prophecy. Meanwhile, new social media make symbolic appeals far more effective and viral, helping demagogues to narrowcast resonant, simple narratives to micropublics ideally suited to be influenced by them.
Tipping Points, Slippery Slopes, and Boiling Frogs
With those thoughts in mind, I just want to mention three other metaphors that might inform political thought at this time.
The first is the “tipping point,” or point of no return. Levinson’s sense of urgency and crisis becomes much more compelling if we think we’re about to pass a tipping point: when small changes aggregate to the point where they create a much larger and more important change. For example: any particular intervention in the post-2010 Project Redmap may have been insignificant in political time, but a critical mass of them (combined with their sequelae) may have ensured that Democrats can never take power again in certain states. What’s the point at which that happens at the federal level? It’s very likely that, by 2040, “half the country will have 16 senators, and half will have 84.” Every incremental step the US takes toward such an imbalance makes it harder to cure the imbalance, given predictably homophilic mechanisms of social sorting.
The second is the slippery slope. We often hear that if Democrats were to push back too hard against gerrymanders and voting restrictions, and to act as aggressively in constitutional ways (to expand the Supreme Court, say, or add states to the Union) to build their own power, that would put us on a slippery slope to constitutional crisis. But it seems like we’re already on another slippery slope, going in the opposite direction. As Eugene Volokh has observed of “political power slippery slopes,” “Decisions to change the voting rules (such as rules related to voter eligibility, ease of registration, apportionment, or supermajority requirements) may lead to more changes in the future.” That accumulation of power has tilted the playing field in very close elections in North Carolina, Georgia, and Florida, and is now unraveling Florida voters’ resounding decision to give the franchise back to over a million persons.
The third is the boiling frog—-an evocative (if apocryphal) model of how a blasé amphibian may end up cooked if it gradually accommodates increasingly uncomfortable surroundings. The House Speaker’s stark warning to Democrats—to stay in the center lest the President contest a close election—exemplifies boiled frog dynamics. Think of how much it accommodates: an erratic leader who’s already claimed that there millions of illegal votes in an election he won; a partisan Supreme Court capable of reprising Bush v. Gore; etc. If one side is disproportionately willing to risk a slippery slope, and the other does nothing, the noble liberal statesmen of moderation and civility are all too likely to end up as boiled frogs.
I bring up these temporal metaphors of disaster or decay because I think all of them could be useful in describing or narrating the predicaments Balkin and Levinson confront. Some scientifically minded thinkers dismiss metaphor as inexact or speculative. But when it comes to thinking about social change as abstract and complex as democratic politics, they can be quite useful—-and influential. Metaphors can be performative, activating the very attitudes and dynamics they claim merely to model. The science fiction writer Cixin Liu’s metaphor of the “dark forest” could, for example, fuel a turn toward a more realist and aggressive foreign policy. Sadly, metaphors of conflict are probably easier to grasp (and thus more viral) than metaphors of cooperation. If a renewed political public sphere is possible, it may depend on a common capacity to imagine new and decentralized forms of cooperation and respect.
Compared with the diagnosis of crisis (and its metaphors of tipping points, fault lines, boiling frogs, and slippery slopes), the diagnosis of rot could evoke both virtuous, patient statesmanship (recalling Weber’s characterization of politics as the “strong and slow boring of hard boards”), and a Titanic complacency. A sense of Skowronekian political time counsels in favor of patient attention to rot; awareness of the global rise of authoritarian regimes seizing power permanently counsels in favor of the urgency of crisis. It is becoming increasingly impossible to hold both ideas in one’s head as equally correct. Democracy and Dysfunction’s genius is to feature two eminent scholars' perspectives on either side of this divide, preserving the vitality of ideas that would be irreparably diluted if ostensibly reconciled. Posted
by Frank Pasquale [link]