For the symposium on Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019).
I
should say first that I am deeply grateful to Sandy and Jack for finding my
work on war powers and the constitutional role of trust in government relevant
and discussing it in such detail. One
point of connection between the fascinating joint discussion they have in Democracy and Dysfunction and my own
work is that I was trying to imagine how people on both sides of the political
divide could be convinced to step back and consider that they are prisoners of
a dysfunctional constitutional order. In
many ways the American people are still experiencing the effects of policy
disasters such as the 2008 financial crisis and the Iraq War, disasters that
are the responsibility of both political parties. When both political parties are at fault, it
is not obvious where the American people should turn. My thinking was perhaps they would be more
open to an argument that these policy disasters were not random events but are
themselves the products of constitutional dysfunction.
In
so arguing, I was trying to find a way to put issues of political and
constitutional reform on the table. As
David Pozen helpfully describes in his post, these issues now are on the table, although it is doubtful
that they are equally attractive across the partisan/tribal divide. Some mainstream Democrats seem to have
finally seen the light, perhaps even including the light Sandy wants to shed on
the parts of our hard-wired Constitution that are undemocratic.
I
thus agree with the authors that the subject matter of Democracy and Dysfunction is one all Americans should be engaging
with at the moment in our nation’s history.
For various reasons a door has been opened that wasn’t before. Fundamental political and constitutional
reform is now a realistic possibility. It
does matter for its prospects if that discussion is identified only with the
Democrats. But the situation is much
improved from the one that existed in the Clinton-Bush-Obama administrations
when reform proposals were regarded as idle talk.
The
discussion Sandy and Jack conducted over nearly three years plays to their
strengths. The best feature of the book
is that their exchanges get deeper and more interesting as they progress. We acquire a theory of “constitutional rot”
and a list of proposed reforms. This
gives me a lot to chew on. In what
follows, I pick a few of the points that bother or intrigue me the most.
I am
puzzled by Sandy’s frequent recourse to eighteenth-century republicanism as the
normative standard to evaluate our present political and constitutional order. After all, that order underwent significant
change in the nineteenth and twentieth centuries, including the addition of
political parties. This leads to a tension
in Sandy’s contributions between the hope that such standards will still prove
at least rhetorically effective in curbing abuses of power against the
knowledge that political parties are, to borrow David Mayhew’s argument,
running the constitutional order to their liking. It is certainly possible to argue that republican
standards have persisted as an inspiration for how public officials should
behave, especially judges. But there is
still a substantial gap between the republican virtues that had some members of
the founding generation wearing togas and how the contemporary constitutional
order works.
At
the same time, I think there is an important respect in which Sandy’s argument is
that the hard-wired Constitution is to blame for our current dysfunction is
underestimated. It is often not appreciated
that many of us who worry about dysfunctional government believe that there is
at any given time an implicit policy agenda on which the national government should
act. Dysfunction and gridlock make it
difficult to act at all and not acting tends to unjustifiably privilege the
status quo, creates pathological policy states (a current example is
immigration policy) and makes it difficult to address new issues like climate
change. Sandy does not explore the
content of this agenda, perhaps because it is subject to partisan disputation just
as much as any single issue, thus making it more problematic that it could
serve as a consensus point in an argument for fundamental reform.
Notwithstanding
this difficulty, let me push the idea of an implicit policy agenda a little
further. On the left, the agenda for
change might seem obvious. In some
respects, it resembles a “green” Rawlsian agenda – to guarantee the “fair
value” of the political liberties through voting rights and campaign finance
reform, provide truly equal opportunity for all and, to achieve both, address the
massive inequalities in income and wealth that have come to pervade American
society.
For
the right, of course, there is a much different agenda. But in many respects, is it not already being
implemented? One possible problem with
Sandy’s approach is that you can make a reasonable right of center case that
things are lining up pretty well. It is
simply a question of what you care about.
The American economy is strong, tax cuts have been enacted, a reasonable start has been made on
border security (aside from the pesky asylum problem), Christianity is being
restored to its proper place in American life and, perhaps most important, the
groundwork has been laid for a restoration of the rule of law, including the
rolling back of abortion rights. I don’t
get much of a sense from this book of the centrality of control of the
judiciary to conservatives and libertarians.
Living as I do deep inside red-state America (where Sandy also lives), I
also don’t get a sense that the Republican regime is exhausted as Jack argues. I think we have to consider the relevance of
negative partisanship. Even if the Republican
regime is exhausted in a sense, it can justify itself as necessary to hold back
regime change. Jack refers to stocking
up on judges as a sign of a dying regime, but in this case I think it is
central commitment of a long effort to turn the federal judiciary in a more
favorable direction. That commitment
will remain regardless of what happens to the Republican coalition.
It
would be a mistake, however, to conclude that the parties are so far apart
ideologically that they no longer can agree even on what issues are
relevant. In particular, the highly
relevant, cross-cutting and deeply difficult issues of trade and immigration
don’t come up much in the book (although both are presumably included when Jack
refers to globalization). It is unlikely
we can address these issues by means of political reform. To some extent, we need to decide simply what
we want and that is difficult for both parties right now for different
reasons. I read the Republicans as being
united for many years in opposition to illegal immigration, but not having
thought through questions of refugees/asylum or legal immigration. Meanwhile,
Democrats have roughly the opposite pattern, being united on the value of legal
immigration and at sea as to what to do about the undocumented immigrants
already here. To some extent, both
parties have lost their way and in such circumstances tend to simply mark time
until the next election. This may be to
their political advantage, but it is not conducive to policy development.
With
respect to our current President, is Trump simply a “huckster” as Balkin
says? Because of the salience of trade
and immigration not only to our current politics but also Trump’s longstanding
world view, I would have to answer in the negative. Both authors seem to ignore that Trump does
indeed have a policy agenda. And the
particular issues he cares about – trade and immigration – have also long been
identified as troublesome for our two-party system. I suggest tentatively that these issues also
help explain why our future cannot be “progressive,” at least in the same sense
as the progressive era. I’m happy to
hear contrary views, but I don’t believe the progressive era (let’s call it
1890-1920) was characterized by a national commitment to free trade and easy acceptance
of the massive immigration that occurred around the turn of the twentieth
century. Today we have a very different
economy that is globalized in a way that is not analogous in any strong sense
to the economy that prevailed in that era.
As illustrated by a recent column by E.J. Dionne, one key question for
both political parties is: what is our stance toward the world? I don’t see either party as being in a position
to offer much of an answer. If this is
true and these issues have the importance Trump thinks, that tends to cut
against the establishment of any new political or constitutional regime.
My
final thought is one I had as I tried to teach students this past semester
about the structure of American government.
I hope one of the outcomes of the Trump presidency is greater awareness
of the stewardship or trusteeship function of government. This function maintains the endowments established
by past Congresses and administrations for the benefit of the United States. Successful programs are examples of such
endowments, but probably of most long-lasting importance are the institutions
themselves, the departments and agencies of government that the branches have
built up over time. Such a Burkean
reflection may seem inapposite to the idea of reform, but what most needs
reform are the central constitutional and political structures needed to maintain
current agencies and create new ones as needed.