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.