Julia Azari
Since
Trump won the 2016 Republican nomination, limits, along with their metaphorical
cousin, guardrails, have dominated the discourse among a certain set of Trump
critics. First, observers asked how Trump had won the nomination in the first
place, in light of Republican elite opposition to his candidacy. Once Trump was
elected, questions emerged about the power of institutions, formal and
informal, to hold off the worst tendencies of the new administration. The past
three years have been instructive, teaching us about the ability of our system
to thwart different kinds of attempts to disrupt it, the limits of those
limits, and about the ways in which our language for understanding politics
fails to adequately grasp the situation at hand. The epistolary format of Jack
Balkin and Sanford Levinson’s Democracy
and Dysfunction allows for the exploration of each of these ideas as they
are turned over in the heads of two leading law and politics scholars. Reading
their analysis allows us to contemplate three limits that have conceptual,
intellectual, and practical significance.
The limits of history
Some of
Balkin’s portions of the text attempt to place Trump in Stephen Skowronek’s political
time framework, identifying him (as I and others have also done) as a disjunctive president
whose election signals the close of the Reagan era. Understanding Trump this
way helps to make sense of his relationship with the Republican Party. It also suggests
some ways in which the Trump presidency might give rise to a different era in
politics. Perhaps some of the popularity of this thesis as a way to understand
Trump is that it provides something of a clear roadmap for how the country will
emerge. But the “constitutional rot” that the authors identify has challenged
the ability of would-be reconstructive actors to coalesce around key issues and
constituencies. On page 74, Balkin describes how the fragmented Constitutional
structure features institutions that “protect republicanism by continuously
generating a cadre of opponents to contest the dominant regime, and by giving
these opponents a stake in engaging in politics from within the system rather
than outside of it.”
This
statement helps to describe how reconstructive politics takes place. A new
regime does not automatically begin because a disjunctive administration
discredits the old one. Rather, building a new regime requires party building, development
of a governing vision and social movements. These elements are in place in 2019
to some extent. But the current era has some features that call into question
whether the reconstruction process will unfold as it has in the past. Weak parties exist alongside partisan polarization, which means that partisan
opposition to the Trump administration is vehement and angry, but the linkages between social movements
and the Democratic Party are more tenuous. Distrust of political parties remains an obstacle for the
development of a vibrant and organized electoral and governing coalition. Partisan divisions are also driven by attitudes
about race and immigration, and Democracy and Dysfunction also points out the ways in which the
current era breaks from the past in this regard. The authors point out Trump’s demagoguery and reliance on xenophobic appeals.
Racism and xenophobia are, unfortunately, better characterized as the historical norm, but the authors are correct
that they are deployed uniquely in contemporary politics, combined with both
negative partisanship and the current president’s periodic disregard for the rule of law and the values of democracy. We have both a president who is
distinct in history and an era in political time that differs from previous
ones in important structural ways. This combination points to the limits of
history as a clear set of instructions for what might happen next.
The limits of institutions
A major
theme that that the authors contend with in their exchanges is the ways in
which American institutions are not serving the ends of democracy or the
interests of society. However, the exchanges highlight the difficulty of coming
up with objective criteria for institutional performance. Early in their conversations,
as the 2016 election was still in the future, Balkin asks Levinson how to
distinguish between a genuine crisis and a set of policy outcomes that his
interlocutor does not favor. At times, both scholars lament the shortcomings of
the Constitution as a document that ensures representation and responsiveness. Their
diagnoses traverse both institutional and substantive ground; by the end of the
book “income inequality, corruption, and racial animosity” have become central
in the analysis of what ails American democracy. A central contradiction arises
from this evolving description of the problem. Institutional solutions – new
laws governing campaign finance, restructuring political representation – are low-hanging
fruit for scholars of law and institutions, of course. But how much do
Constitutional structures actually shape politics, and how much is the current political
situation primarily a reflection of changes and problems in society. Certainly,
its structures have helped to create the problems we face. The Electoral College and the Senate have elevated some voices at the
expense of others, for example. However, another read on the situation is that
while the Constitution’s text hasn’t changed very much, society and political
conflict have changed a great deal. Powerful actors have engaged in different
political strategies in order to consolidate power, whether these actions were
through party patronage networks or modern lobbying and campaign finance. It
may be heresy to say this in some political science and law circles, but
perhaps the institutions are not the central problem.
Balkin
refers to the constitution as what “make politics possible.” This is
undoubtedly true in an important sense. Stable rules are a critical part of a
functional democracy, and it matters how those rules work. Nevertheless, rules
do not necessarily force political leaders to confront challenges head on; it
may not be that the Constitution is an impediment to addressing inequality,
racism, and corruption, but that these problems require substantive as well as
institutional thinking and change.
The limits of the media
environment
An additional tension in the text
surrounds the role of the press. The authors identify the news media as part of
the initial problem; media certainly played a role in Trump’s rise to
prominence; violations of norms about campaign language and behavior are bad
for democracy, but tailor-made for the novelty rewarded by a commercial news
cycle. Traditional and newer forms of media alike are susceptible to these
incentives. Despite the critique of the media’s role in Trump’s candidacy, the authors
also conclude that the 45th president’s election constituted a
moment of change for this industry. Trump’s attacks – and the need for
transparency and investigation – renewed the purpose of journalism. While various
forms of media have responded to this new imperative with eagerness and new
slogans, language has proven to be more of a problem. Recently, the New
York Times came
under some fire for referring in a headline to an “inaccurate refrain” used by
Trump at a rally. The country’s paper of record, in particular, has drawn
criticism for relying on euphemisms and weak language to describe the administration’s
actions. News media is up against several challenges in the age of Trump. In
addition to generally low public trust, deep partisan differences exist, with a majority of Republicans reporting very low confidence in
the press as an institution. Added to these pressures are, of course, financial
constraints as well as journalistic norms about remaining above the political
fray.
But as
the Trump administration departs further from accepted practices – the
president’s tweets, the vacancies in the executive branch, the response to the
Mueller investigation – the limits of history and the limits of institutions culminate
in the limits of language. Masha Gessen wrote in The New Yorker on April 30, 2019, after observing an event with a
member of the Trump State Department, Kiron Skinner, that “the language we use to
construct political reality is crumbling.” Of one of Skinner’s statements,
Gessen wrote, “It was like saying that
someone who has carpet-bombed your city has turned your fellow-citizens into
builders again: technically it’s true, but morally and intellectually it is a
lie.”
In the current political
moment, using language that feels honest – that correctly identifies racism,
sexism, and affronts to other democratic values – requires an upfront
ideological and political commitment in a way that was not the case a decade
ago. Fights over language, with real stakes, have always existed, of course.
But the current president has changed the landscape of political language, stymied
the usual practices of reporting news and holding politicians accountable, and deepened
the partisan wedge around these questions. This is a challenge to democracy
that goes beyond institutions and cuts at the very meaning of a shared political
community. The past is a guide, but we are entering uncharted territory.
Prof. Julia Azari is Associate Professor and Assistant Chair in the Department of Political Science at Marquette University. You can reach her by e-mail at julia.azari at marquette.edu