Balkinization |
Balkinization
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 Waiting for reform
|
Sunday, May 12, 2019
Waiting for reform
Guest Blogger For the symposium on Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019).
Eric Posner
The most
striking feature of this book is its epistolary structure, which is unusual in
constitutional law books, to say the least. Unlike a monograph, which presents
itself as a final judgment by an impersonal expert about a matter firmly in the
past, a group of letters suggests a process of learning by fallible humans over
time. The structure creates opportunities for presenting ideas in an engaging
way, but also expectations in the reader. First, that the authors will exhibit
candor. They are old friends, and they are writing for each other, not for the
world, even if they know that the world will eventually peak over their
shoulders. Second, the authors will learn over time by testing their ideas
against events as they unfold. And, third, the authors will learn from each
other—perhaps, starting from divergent perspectives but then drawing closer
together, or the opposite. I suspect that Jack and Sandy sought to invoke these
expectations because they realized—even before the election of Trump, and in
this respect they deserve congratulations for their prescience—that the
volatility of American politics threw traditional constitutional assumptions
into doubt. A constitutional treatise at such a time, like a “history of the
present,” is a self-contradiction because finality is impossible in the midst
of flux, and impersonality—never very credible even in the best of times—is unsustainable
when one feels threatened by political developments thought (in some circles)
to herald civil disorder or dictatorship.
But the
book doesn’t always satisfy these expectations. One problem is that Jack and
Sandy don’t disagree about much—much less than one would expect from even
like-minded people when the political system is constantly tossing out
surprises. Yes, each has a theory he flogs, and each politely expresses modest doubts
about the other’s theory. Sandy’s is that the (written) Constitution is undemocratic
and dysfunctional, and too hard to change, while Jack sees virtue in some of
the Constitution’s restrictions, and thinks that constitutional change can take
place in various small-c ways—though courts, legislatures, evolving political
norms, and so on—and can even do so in a way adequate to our political needs.
Other than that, the authors are—as far as the book reveals—virtually identical
in terms of politics, constitutional views, and political and cultural sensibility.
As I read through the letters, I came to think of a single “Balkinson” as the
implied author of the book, a left-of-center constitutional theorist whose internal
dialogue about the current political dysfunction varies between psychological
states rather than theoretical positions—a theorist reasoning his way out of a
panic attack. It would have been nice to read an epistolary constitutional law
book in which Balkinson corresponded with a full-blooded conservative
Trump-supporting constitutional theorist (if there is such a thing). Where is
Naphta to Balkinson’s Settembrini?
Because the
authors don’t disagree much, the reader doesn’t sense that either learns from
the other. Nor do the dramatic political events they witness seem to cause them
to reconsider their views. In Sandy’s last letter, he asks what he has learned
over the previous two years, and what he tells us he learned—that we live in a
constitutional dictatorship of sorts, that the 1787 constitutional structures
have caused our political dysfunction, that the constitution is in crisis, and
that the diversity of the U.S. population portends trouble as well—is not much
different from his claims in earlier writings. Jack’s concluding reform
proposals—all of them sensible—could have been (and were) made long before
Trump was elected. The rise of Trumpism, predicted by neither the authors nor
anyone else, turns out merely to confirm their prior beliefs.
And this deprives the book, for all
its other rewards, of the forward momentum that the reader expects. I suspect
the problem is that constitutional theory floats at such a high level of
generality that even the cataclysm of Trumpism doesn’t disturb it. It turns out
that Trump can be regarded simply as an inevitable false negative in an
otherwise well-calibrated system (Jack), or as the inevitable result of an
unfair system (Sandy). The letters bring to mind a constitutional version of
Waiting for Godot, with the conversational back-and-forth serving to while away
the time and distract the interlocutors so they won’t have to stare into the
horrifying void at the heart of constitutional theory.
But can constitutional theory after
all learn something from the Trump years? Maybe that the electoral system is
(even) more broken than we thought it was, or maybe (contrary to Sandy’s view)
that the Constitution is more democratic than it should be? If nothing else,
Trump’s victory in the primaries might make small-d democrats, as well as big-D
Democrats, reconsider their trust in the People. In the old days, when
professional politicians controlled each party’s selection of a presidential
candidate, a Trump-like politician would have gotten nowhere. Or is the lesson
of Trump that the presidency or the executive branch (the two are not the same,
indeed seem to be coming apart before our eyes) is too powerful? Yet Trump’s
major accomplishments are really accomplishments of the Republicans in
Congress. And are Progressives ready to strip the president of power knowing
that they are more likely to gain control of the presidency in 2020 than of the
entire government, whereupon any liberal reform or even policy will come from
the executive branch alone, late-term Obama-style? Or if the real problem is
polarization, as so many commentators have suggested, isn’t the natural
constitutional response to shift some power back from the national government
to the states, where populations are less polarized and politics less
gridlocked? Possibly the most obvious implication of our present troubles, devolution
gets no mention in the letters, except indirectly by Sandy who (catastrophic-thinking
style) envisions secession.
I wish that
the authors had said more about the by-now obvious sources of Trump’s popularity
among 20-40% of the public: rural misery, stagnating wages, a sense of
falling-behind, the opioid crisis, loss of status, the perceived errors of the
government (the Iraq War, the financial crisis), perceived setbacks in the
culture wars in the area of family and the religion. These were themes that
candidate Trump hit far more effectively than the other Republican candidates,
many of whom avoided them entirely. You could drive Trump’s 757 through this
hole in the book.
My last
point is on candor, or perhaps I should say presentation. To disaggregate
Balkinson not only into two people with different ideas, but two people who are
recognizable as letter-writing humans, Sandy and Jack should have infused the
implied authors with more personality. Of the two, Sandy, to his credit, allows
some personality to shine through; he does not conceal his sense of foreboding,
which darkens his thoughts. Visions of secession and civil war dance in his
head every time Trump tweets an outrage. Jack has some strong words for Trump, but
otherwise adopts an Olympian, bloodless stance, frequently reminding Sandy that
American history has seen worse. Of course, Sandy doesn’t need to be educated
by Jack. He as well as Jack offer thumbnail sketches of our constitutional history,
plus a great deal of constitutional and political theory. The two learned
constitutional law professors are telling each other what they already know,
reinforcing the impression that they aren’t talking to each other at all, but
over each other’s shoulders at future readers, further draining personality
from the book.
The temptation of the monograph
thus overwhelms the epistolary structure of the book: it’s really a series of
lectures—though, to be sure, people who are not already familiar with Jack and
Sandy’s ideas will benefit from reading them here, and many of these ideas are
ingenious and deservedly influential. The authors seem to be less open to
learning from the flux of political events than insistent that those events
conform to their theories. The academic masks are firmly in place. Thus, the
book seems like a missed opportunity. It would have been nice to hear some
irreverence, humor, gossip, personal detail, something about the authors’ long
friendship, their real opinions about their colleagues and other scholars
rather than the formulaic, faculty-lounge praise they supply—the things that
real people put in letters (not that anyone writes letters anymore). What do
our top constitutional law scholars say to each other when the world isn’t
watching? How might their role as constitutional law scholars, as educators and
researchers, affect their views about constitutional politics in which, as
citizens, they participate? There is a tension here, one that that the
letter-writing contrivance hints at and could have illuminated but alas does
not.
Posted 9:30 AM by Guest Blogger [link]
|
Books by Balkinization Bloggers ![]() Linda C. McClain and Aziza Ahmed, The Routledge Companion to Gender and COVID-19 (Routledge, 2024) ![]() David Pozen, The Constitution of the War on Drugs (Oxford University Press, 2024) ![]() Jack M. Balkin, Memory and Authority: The Uses of History in Constitutional Interpretation (Yale University Press, 2024) ![]() Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University of Kansas Press, 2023) ![]() Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision - Revised Edition (NYU Press, 2023) ![]() Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, 2022) ![]() Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022) ![]() Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022) Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021). ![]() Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021). ![]() Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020) ![]() Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020) ![]() Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020) ![]() Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020). ![]() Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020) ![]() Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020) ![]() Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020) ![]() Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019) ![]() Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018) ![]() Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018) ![]() Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018) ![]() Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017) ![]() Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017) ![]() Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016) ![]() Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015) ![]() Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015) ![]() Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015) ![]() Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014) Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution ![]() Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014) ![]() Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013) ![]() John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013) ![]() Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013) ![]() Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013) Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013) ![]() James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013) Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues ![]() Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013) ![]() Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012) ![]() Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012) ![]() Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012) ![]() Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012) ![]() Jack M. Balkin, Living Originalism (Harvard University Press, 2011) ![]() Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011) ![]() Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011) ![]() Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011) ![]() Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011) ![]() Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010) ![]() Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010) Balkinization Symposium on The Decline and Fall of the American Republic ![]() Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010) ![]() Mark Tushnet, Why the Constitution Matters (Yale University Press 2010) Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010) ![]() Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009) ![]() Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009) ![]() Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009) ![]() Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009) Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009) ![]() Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008) ![]() David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007) ![]() Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007) ![]() Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007) ![]() Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006) ![]() Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006) Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006) Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006) Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006) Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005) Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004) Balkin.com homepage Bibliography Conlaw.net Cultural Software Writings Opeds The Information Society Project BrownvBoard.com Useful Links Syllabi and Exams |