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).

Jedediah Britton-Purdy[*]

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.

[*] I thank David Pozen for incisive comments on an earlier version of this essay.

Jedediah Britton-Purdy is Professor of Law at Columbia Law School. You can reach him by e-mail at jedediah.s.purdy at

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