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Balkinization Symposiums: A Continuing List E-mail: 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 Rahman sabeel.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 Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Surplus and Deficit: Resources of Legitimation in the “Crisis of Democracy”
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Wednesday, May 15, 2019
Surplus and Deficit: Resources of Legitimation in the “Crisis of Democracy”
Guest Blogger For the symposium on Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019).
This
long post sketches two thoughts prompted by time with the wide-ranging,
provocative, and fecund letters that make up Democracy and Dysfunction. The first thought is that U.S. politics
exhibits a surplus of claims to
political authority--the right to rule. I suggest that this surplus is both a
worse thing than many constitutional commentators have supposed and a specific
detriment to majoritarian democracy, which may itself be a better thing than is
often supposed. The second thought is that U.S. politics may also be developing
a deficit of the resources of
legitimacy that any program of democratic reform needs—particularly progressive
and egalitarian reform. The two thoughts are deliberately set in tension with
each other. The first is, generally speaking, my view. The second is the
trouble that haunts it. I have tried to stay with that trouble, at least for
the length of this post.
1.
Surplus
It’s
familiar ground that political action in the U.S. is hobbled by veto points:
bicameralism, the president’s veto, judicial review, and other (less famous,
potentially more malleable) chances for someone to say a decisive “no,” such as
the committee system and other internal rules of Congress. Less familiar is a
problem that is perhaps the obverse: plural and incompatible ways of generating
claims to say “yes,” to give the final word on who shall rule and what the
state shall do.
For example, the non-majoritarian
features of electoral politics, which Sandy Levinson has hammered on
productively and even indispensably, create a perennial potential that the
winners of elections will not be those who get more votes and represent more
people. Trump is the second Republican president since 2000 to win the White
House while losing the popular vote—and, unlike George W. Bush, he lost by a
clear margin: nearly three million votes. The senators who voted to confirm
Brett Kavanaugh represented about 44 percent of the country. In the 2018
midterms, about 12 million more people voted for Democratic senate candidates
than for Republicans, and the GOP gained seats. These kinds of
discrepancies—legacies of a system that, among its other advertised
anti-political virtues, deliberately excluded popular majorities from a direct
role in governing—are fairly easy to ignore when they don’t line up with
partisan control, and when partisan control isn’t experienced as a matter of
existential importance. But today the situation is the opposite. This system is
fermenting a legitimacy crisis.
It’s
very natural, in a country that describes itself as a democracy, for persistent
majorities to say, “We are the
people.” But, as Thomas Hobbes always insisted, a people is a strictly
artificial construction, which exists and acts only through the institutions
that define its sovereignty. So in that sense the Congress plus the President
is “the people” for purposes of passing laws, and the President plus the Senate
is “the people” for purposes of appointing a Supreme Court justice. When it
comes to confirming the next judicial nominee, a majority of the public, or
even the House of Representatives, is just a mob. (I’m obviously putting this in
provocative language to underscore the point. It’s also specifically Hobbesian
language: “multitude” was his term for people not politically organized into a people.)
And then there is the Court, with
its special relation to the Constitution. In ways that Jack Balkin has parsed
as well as anyone (along with his Yale colleagues Reva Siegel and Robert Post),
the Constitution stands for political legitimacy, the possible unity of law and
justice, and a normative national identity. It has become the symbol of the
country’s capacity to hold itself to elevating standards, to vault over its
present biases and inherited inequalities. It is the register in which
dissident citizens and, indeed, majorities of the Supreme Court appeal to the
people against themselves, as Thoreau put it in his essay on civil
disobedience. In all of these dimensions it is subject to, even substantially constituted
by, competing claims—as to what it means and requires and thus, in a sense, who
“we” are. In recent decades, particularly in what I think of as the Yale school
of constitutional theory, this has tended to appear as a virtue. The surplus of
constitutional meaning means that new claims can enter the center from the
margins (think of marriage equality, though also of gun rights). It means that
overlapping and clashing claims can entangle opponents in loyalty to a common
set of high-level principles that unite Americans in their disagreement—a more
agonistic version of John Rawls’s famous image of citizens achieving an
“overlapping consensus” on public principles from many incompatible worldviews.
But a plurality of incompatible “we
the people” claims clears the way for irresolvable conflict. The Constitution
stands for the idea of a normative and ultimately authoritative American
sovereignty or identity. (The two amount to the same thing—what “We the People”
once adopted and who We the People are.) The precise meaning of this normative
America is somehow hidden beneath the surface of politics, encoded in a message
from the past. We often tell one another, in the world of “popular” and
“democratic” constitutionalism, that this peculiar idea has its strength in
inviting competing claimants to put themselves forward as speaking for America.
But this is also a vulnerability: if they really
mean it, and they don’t win, then the seeming winner is a usurper, not the real
people. To see what this can look like in practice, look at militias,
“sovereign citizens,” nationalist terrorists, and so forth. It’s conventional
to associate the Constitution with liberal pluralism, but it can also foster
the opposite—what Jan-Werner Mueller calls the vicious core of populism, the
anti-pluralist claim that some fraction of the population is the real people, and the rest don’t really
count. There is a profound affinity between “constitutional faith”—that this
document, its institutions, and the “conversation” around it give us the
materials to hang together, survive crises, and get to a better place—and its
shadow, what David Pozen calls constitutional bad faith: denying the validity of
disagreement and the prospect of political loss by loading up the Constitution
with dogma that a lucid and candid mind might recognize as such but zealotry
can conveniently obscure.
Jack describes a constitution as
making politics possible. Our constitution may fail to do this precisely by
making too much politics possible in
the register of putatively authoritative moral claim-making, and too little in the form of clear
decisions, victories and losses, and both for the same reason: the surplus of
meaning that attaches to an old document, hard to update, that is
controversially interpreted by an elite and only semi-accountable body. Did
your side lose the election? Perhaps, measured in a different way, you have the
numbers, you are the people. Or
perhaps you can conjure a vision of the Constitution being on your side, even
if the electoral process beat you. There are too many possible stories about
how you are the people, and the other people are usurpers or mobs.
If there’s anything to all of this,
it points to a reason to support Sandy’s calls for a more majoritarian Constitution:
such reform would align the criteria of legitimate political power, bringing
actual majorities into line with constitutional procedures. That would leave
the Court as a redoubt of anti-majoritarian “last words” in the name of “the
people,” with all the hazards of doubled-edged constitutional faith, but at
least it would be less likely to entrench minority politics over time without
the anti-majoritarian electoral college and senate. All of this also suggests
to me that there be less cause for hope than one would wish in the posture of
“constitutional faith” that Jack movingly returns to in the latter part of Democracy and Dysfunction. Does the
Constitution really make possible a politics that can make politics more
democratic and public-interested, and the social world safer and more sane?
This leads me to two further thoughts.
One is that this conversation may be burdened by a conception of “democracy”
that puts too much emphasis on the general idea of government responsiveness to
public opinion, too little on the simple idea that in politics majorities get
to decide. There are, of course, many significant objections to the coherence
and desirability of rule by “popular will,” but the comparison among
institutional arrangements is always relative, and a movement toward simple
majoritarianism has some strengths compared to the blend of rural-white
minority rule and consultative oligarchy that characterizes our present
arrangements. I give one small example that is close to the ground. Since his
failure to win a plurality of the popular vote, Donald Trump has never enjoyed
the support of a majority of the public. As Jack reminds us at several points
in this book, there are demagogues who love straight majoritarianism as a means
to build power. But Trump has never been one. Straight majoritarianism would
have been the death of his ambitions, in November 2016 and at every time since,
despite a historical economic expansion that is even pushing up wages. It is,
of course, seriously troubling that Trump could win the Republican nomination
and an electoral college majority; but in a country nearer a simple democracy,
his candidacy would be a mere warning, like a comet that passes within a few
million miles of the earth.
It’s important, of course, to
remember the dangers of majority tyranny, which can in principle produce
illiberal and ultimately anti-democratic results. But it’s also possible to
over-emphasize these dangers in a country whose professional constitutionalists
and political rhetoricians are constantly drawn toward rationalizing its
anti-majoritarian institutions. As Richard Tuck notes in The Sleeping Sovereign, his important study of the origins of
constitutionalism, any kind of government can hurt us, and once we have that
point firmly in view, the record of democracies looks pretty good compared with
other systems. In the U.S. today, as in much of world history, the problem that
bulks larger is control by various numeric minorities—to wit, Trump voters, the
wealthy, the constituents of Republican senators, and, except in July, August,
and September, any five justices of the Supreme Court. Before we take too many
lessons from democracy’s critics, I am inclined to say we give the thing itself
a try.
2. Deficit
The other thought is more
pessimistic. It picks up on Julia Azari’s reflections on the limits of
institutions. It’s also meant in the spirit of Corey Robin’s admirable decision
to focus his post on the biggest problems for the position he has taken (along
with Jack) since 2016, that Trump is a “disjunctive” figure whose presidency a
sign of the breakdown of the long Reagan regime. I’ve generally argued that the
best response to the Trumpist “crisis of democracy” is more democracy: reducing
the role of counter-majoritarian institutions such as the electoral college,
the senate, and judicial review, and deepening democracy by putting questions
of economic power and security and social provision squarely on the table of
politics. (The “deepening” part is, incidentally, exactly what the Bernie
Sanders and Elizabeth Warren campaigns have been doing in talking about
universal health care, free college, debt relief, antitrust, and a workers’
role in corporate governance.) I’ve been skeptical of all responses that see
the current crisis as vindicating conservative (or just elite) skepticism of
democracy by showing that “the people” are too irrational, ignorant, bigoted,
or selfish to rule themselves. I’ve also been skeptical of the recourse to
trans-partisan elite norms as the fortress where we should defend a
self-restrained mode of governance by representatives. I’ve argued that before
we draw condescending lessons about democracy, we should take seriously that
the country has seldom been even formally democratic (you can’t plausibly date
real universal suffrage to earlier than the Voting Rights Act of 1965), and has
always had powerful elements of plutocracy. (Eleven years after the VRA, in
1976, the Supreme Court ruled in Buckley
v. Valeo that unlimited personal spending on election advocacy was
protected First Amendment speech—the root of Citizens United and other less famous opinions that have shredded
even our weak campaign finance laws.)
So here is the worry that haunts me.
Like any other political order, democracy has to draw on, and ideally to help generate,
resources of legitimation. People need reasons—or at least motives—to accept
the results of political contests even when they lose, and even when they
believe the stakes of loss to be very high. This is why, of all the complaints
about norm erosion, I’ve found most straightforwardly apt the alarm at Trump’s
efforts to undermine the authority of elections, from falsely claiming that
“millions” of people vote illegally to hinting that he might not accept the
results of a vote that he loses. As I said a little earlier in this post, a
constitution does its most important work in generating authoritative
resolution to conflicts. Without that you have only what Locke called the
“appeal to Heaven”—trial by combat, or, if you take it in a different sense,
non-falsifiable and clashing assertions of rightness and authority. (This point
harks back to the argument of the first part of this essay, the worry about
surplus constitutional meaning joined to the demotion of simple majorities.)
The last seventy years of American
political thought have tended to find the resources of legitimation in
consensus. Tocqueville was revived and canonized after World War Two in part
for his argument that American democracy worked because its conflicts were
organically contained by a deep, pre-existing moral consensus around social
morality, individual rights, religion, and white supremacy. (The last doesn’t
need to be ferreted out. Tocqueville is quite clear that he is writing about
the people he calls “the Anglo-Americans.”) Robert Dahl, the influential
theorist of democracy (who became quite a trenchant critic of the undemocratic
features of the U.S. Constitution over the course of a very long career), wrote
in his 1968 Pluralist Democracy in the
United States that Americans had mostly agreed on most important issues,
and that times of basic conflict were rare. Louis Hartz famously argued in The Liberal Tradition in America that a
“Lockean consensus” had mostly prevailed here, suppressing sharp ideological
conflict. As Katrina Forrester points out in her brilliant book on
twentieth-century liberal political thought (out this fall from Princeton UP),
the idea of a deep moral consensus was foundational to John Rawls’s work. And the
tropes of American political rhetoric have returned faithfully to the idea of a
common set of principles being worked pure over time, what Aziz Rana calls the
“creedal” tradition.
I’ll stop piling up examples. Like
Rana and other partisans of stronger democracy, I’ve tended to see the creedal
consensus school as an anti-politics, a way of enforcing centrism by
presupposing it as a kind of transcendental condition of US democracy. (I’ve
also tended to see much norms talk as a late, elite-focused iteration of the
same impulse—hence the double, and rather too flip, sense in which I gave it
the name “normcore.”)
BUT.
There are surely psychological and cultural, as well as institutional,
prerequisites to politics’ being able to resolve disputes. And this must be
true a fortiori of a politics that
can achieve significant redistribution of resources of power. The revival of
left politics in recent years has eclipsed the liberal conceit of the Long
1990s that the first goal of political action is to seek consensus—a conceit
that Barack Obama turned into civic poetry, but which arguably did not serve him well. It has revived a different
emphasis, an utterly elementary one which the Right had never forgotten: that
the first goal of political action is to win, to defeat your opponents. (It may
seem simple-minded to state this, but I do not think I am alone in noticing
that it has come as a surprise to aficionados of consensus-seeking and “the
middle ground” to realize how central victory is in politics, and how squarely
it implies the corollary of defeat. It is inane not to see this; but that does
not mean it has been apparent.)
Yet
the consensus-emphasizing strand of political attitude is right that you need
the defeated to cleave to you afterward, to participate in your institutions
and distributive arrangements, to pay their taxes. The coercive power of the
state is necessary to making victory stick, but it is not sufficient,
practically or morally. Some kind of civic adhesion is especially essential, I
am sorry to say, when your opponents include many people with some resources
and power, who deeply believe that they deserve what they have and that the
country, on some deep level, is theirs.
There’s an offensive paradox here: often, those who most deserve to be taken
down a peg by democratic means have the most power to resist complying, and the
strongest disposition to do so. To see this is only to be realistic about the
balance of political forces. (I suppose part of the appeal of constitutional
principle to many progressives has been the thought that its putative
universality, combined with its susceptibility to reinterpretation, promises at
least fragments of a way around this difficulty: “You are already committed to
the values I am advancing. If you do not come with me, you are not who you say
you are.”)
Put differently: Democrats need
their democracy to be able to turn conflict into new forms of legitimacy,
adhesion, even solidarity. So I worry that the following is happening in the
present crisis of democracy: Trump’s rancid attacks on elections, his nativism
and other undermining of his enemies, might
be preparing the way to minority-rule authoritarianism. But it seems more
likely to do something else that’s also very bad, but subtler: plant the seeds
of a million small secessions. Persuade enough people that universal suffrage
is voter fraud, the Senate is the real (ethno-national) American majority, the
Supreme Court and the Constitution rightly block innovations such as (say) a
Green New Deal or Medicare for all, etc. Carve out constitutional exemptions
for right-wing states (on voting rights, on abortion) and institutions (on
LGBTQ rights, on contraceptive benefits) and basically claim to your
conservative constituents that this diverse democracy that they are yoked to
has no claim on them. By “small secessions,” I don’t mean just individual or
emotional checking-out from politics, but something more socially coherent and
institutional, like the migration of some white parents in the South to
segregated private schools during integration, or even constitutional, like the
notion, glimpsed in four conservative justices’ concurrence in NFIB v. Sebelius (severely weakening the
Obamacare Medicaid expansion) that federalism principles might prohibit
Congress from using the power to tax and spend to impose a national program of
social provision and redistribution. (I am taking some liberty with the
technical aspects of the opinion, but on my reading this is the spirit that
animates it, and the entire Obamacare litigation highlights how much spirit
matters than technique in right-wing federalism.
Polarization isn’t bad per se, but
it’s good only if it defines alternatives in a way that makes possible a
resolution and a move toward a future on new terms. In a country where powerful
and/or morally (constitutionally?) self-assured political losers respond with
further fragmentation and withdrawal, and the resources of legitimation ebb
with each new conflict, polarization implies fragmentation rather than renewal.
Under such circumstances, a disjunctive period in political eras might itself
become a kind of new normal. The very idea of a national renewal of shared
political commitments might seem increasingly fantastical. Raising the stakes
of majoritarian politics would seem naïve—because no nominal victory can
produce real change—and maybe dangerous—because it would tend to spur more
fragmentation. In such a country, democracy would have exhausted its potential
to change the terms of common life, to make shared existence fairer and less
frightened. Sensible people would prefer simply to be well-governed, and would
forget about the conceit of ruling themselves.
I don’t think, at least on most
days, that we’re there yet. I’m making my contributions to the Sanders and
Warren campaigns. I’m banking on the progressive democrat’s answer to my worry,
which has always been that the politics of radical reform can create new kinds
of majoritarian solidarity, sources of adhesion and legitimacy that don’t
depend on mythic consensus or excessive deference to the sensitivities of those
who already hold power. But I’m haunted. A politics characterized by paranoia,
visceral enmity, and mutual alienation—the politics Trumpism both feeds on and
propagates, and not only in its adherents—may not be able to do renewing work.
Adam Smith remarked that we care more about whether others share our
resentments than whether they share our attachments. That negative conception
of solidarity is surely does not always hold true. But our present politics may
be producing conditions in which it does.
Posted 9:00 AM by Guest Blogger [link]
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