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 Rahmansabeel.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
I am grateful to all who offered views about Democracy and Dysfunction. They all raises serious issues, and I am trying to respond to at least some of the most important points raised. This posting is devoted to Jedediah Britton-Purdy's reflections on "Surplus and Deficit: Resources of Legitimation in the 'Crisis of Democracy.'" Perhaps my strongest current intellectual passion--more even than pointing out the deficiencies of the Constitution or the unfitness of Donald Trump to be President--is reflecting on the notion of "popular sovereignty," which is surely one of the constitutive notions of American political thought. (And, as Jack and I have argued in an essay on the Declaration of Independence, an idea of world-historical importance inasmuch as the claim that "one people" have the right to secede from a polity, in that case the British Empire, should they be dissatisfied has become perhaps the central idea informing politics in the 20th and now-21st centuries.) How exactly do we make sense of the notion of "self-rule" by the "We the People" posited by the very first words of the Constitution? As it happens, Jedediah Britton-Purdy co-authored, with David Grewal, a stunning review essay in the Yale Law Journal on Richard Tuck's important book The Sleeping Sovereign, which examines the complexities attached to the notion of popular sovereignty. Given that essay, and the themes elaborated in "Surplus and Deficit," I very much that the prolific Britton-Purdy will write a full-scale book on the subject.
Is, for example, "the people" defined by the Constitution or is the term a reference to a pre-existing "people" that are envisioned as coming together in a monumental act of truly popular sovereignty? As Britton-Purdy notes, "as Thomas Hobbes," the greatest, most incisive, and most frightening of all English-language political theorists, emphasizes, "a people is a strictly artificial construction, which exists and acts only through the institutions that define its sovereignty." But insurgent movements, almost by definition, must proclaim the existence of a non-artificial people, as illustrated by the Declaration of Independence's insistence at the outset that there is already in the British colonies a singular "one people" who have a right to secede from the British Empire in order to achieve the transcendent good of "government by consent of the governed." Similarly, the Constitution is "ordained" by reference to a "People" who ostensibly exist outside its terms and are, as a constituent power, authorized to call the government into existence. One can understand why no existing government really finds such doctrines attractive.
In any event, a government whose legitimacy is predicated on its instantiating a given "people" must confront the problem of pluralism. Part of the problem is sociological. Most of us recognize that the notion of a unitary "people" is not only a fiction, but is also, much of the time, a highly dangerous fiction inasmuch as it scants the recognition of pluralism and what has come to be called multiculturalism. I have argued elsewhere that there is an unfortunate line that can be drawn from John Jay, writing as Publius in Federalist 2, to Donald Trump. Publics insisted that "Providence" has been good enough to settle in the New World a singular "people" who are basically alike in religion, language, and "manners." This is preposterous, as Jay most certainly knew. (The Constitution, for example, was quickly translated into German and Dutch in order to be accessible, in the latter, to those living about forty miles upstate from what had, after all, originally been New Amsterdam.) But it was thought necessary to making the case for ratification to proclaim the existence of a unitary people who could engage in the "reflection and choice" evoked by Publics/Hamilton in Federalist 1. Jefferson, of course, had made a similar move in the Declaration by referring to "one people" instead of the obvious truth that the people of Massachusetts differed in many important respects--most obviously their toleration of chattel slavery--from his fellow Virginians. James Winthrop, in opposing ratification of the Constitution, altogether sensibly asked why anyone might believe that a single government could in fact encompass the very different socio-cultural-political viewpoints held by people from Massachusetts and Georgia. "Populism," a term much in the news these days, has an unfortunate tendency to proclaim the existence of a singular People. In any event, Donald Trump is only the latest demagogue to proclaim his unique ability first to identify and then to speak for a single "people," with the implication, of course, that those outside the boundaries, even should they happen to live within the territory of the United States, can be ignored and ultimately discredited as engaging in what the House of Representatives used to call "Unamerican Activities."
But the problem with American constitutionalism goes even deeper than the fact of social pluralism. As Britton-Purdy notes, one of the most serious problems with the American system of government is that its basic structures invite genuine, and often hostile, competition as to who exactly speaks for the people. There is nothing (merely) theoretical about this point. Donald Trump is currently trying to marginalize Congress by claiming that as President he has no duty to comply with any requests Congress might make for information about the conduct of his presidency. Again, he can draw on predecessors in American history: It is altogether appropriate that he admires Andrew Jackson, who proclaimed himself the "tribune" of the American people entitled to take all sorts of dubious actions in their name or to exercise his constitutionally authorized veto power to render irrelevant the clear desire of a majority of Congress. But, of course, Congress, elected via a separate track, can also claim to be "the people's branch"; this is especially true with regard to the House of Representatives. How, if at all, do we decide who should prevail when president and Congress square off, each claiming to incarnate the operational meaning of popular sovereignty? One response is to look to the judiciary to resolve such disputes. But this founders not only because most justices are scarcely proficient in the political theory of popular sovereignty, but also because for good reason we now view the federal judiciary itself as simply another spoil of temporary electoral victory and not, for example, truly "above politics" and thus authorized to play the role of the "umpire" as enunciated by John Roberts, sincerely or not, in his confirmation hearings.
It is this sense that Britton-Purdy notes, altogether accurately, that we suffer from a "surplus" of democracy inasmuch as competing leaders can claim to be the unique voices of "we the People" and justify their resistance to anyone gainsaying such claims. Even in 1788, Madison's vision of ambition countering ambition in Federalist 51 offered no genuine way of resolving such conflicts. Steven Levitsky and Daniel Ziblatt, in their recent book on How Democracies Die, suggest that "forbearance" is necessary, but this necessarily requires that one ultimately compromise in the name of an overarching public good. But although separation of powers may require compromise if the system is to work effectively, ought does not entail will. The deaths of 750,000 Americans between 1861-1865 stand as evidence that the system may well break down because of an unwillingness to engage in compromise. Of course, with regard to chattel slavery, we might well agree with Lincoln's unwillingness to give ground on extension of slavery into the territories, though we should also realize that full acceptance of this argument calls into question the validity of the "rotten compromises" made in 1787 with slaveowners in order to get the Constitution in the first place. As many have noted, our own era is not an age where the proclivity to compromise is applauded, and it remains to be seen if a Democratic Congress can figure out a way to "check and balance" a President who has exhibited exemplary skills in bringing his political party to heel and making such figures as Lindsay Graham or Mitch McConnell "useful idiots" for his aggrandizing views of presidential power. (Obviously, this calls into deeper question the continuing relevance of Madison, especially in light of the critique offered several years ago by Richard Pildes and Darryl Levinson of Madison in terms of "separation of parties" rather than of "powers.")
This is not necessarily to argue that parliamentary systems would be better than our continued reliance on the presidentialist system founded on separationism. One can scarcely be encouraged by what is happening across the pond in London these days. Of course, one possible implication is that formal political systems are basically irrelevant, that Jack (and others) are correct in emphasizing the priority of political culture, defined broadly, over the mechanics of government. Still, one can easily agree with Britton-Purdy's observation that our obsession with resisting "majority tyranny" has given us a formal governmental structure that privileges the tyranny of the status quo and makes radical changes nearly impossible. Perhaps "popular sovereignty" should in fact mean that majority coalitions should in fact be allowed to pass their programs, as is the case, incidentally, in most American states, in which one party tends to win during a given electoral cycle and is, therefore, able to pass legislation. Contrast this with the national government, in which it is totally unclear exactly what it means to "win" an election, even if we agree with the banal observation that "elections have consequences." But surely one can empathize, even if not agree with, those Republicans who might have believed that winning the trifecta in 2016 of both White House and both houses of Congress would in fact lead to the repeal of the hated Obamacare.
A central question is under what circumstances we will allow majorities in fact to rule. As Britton-Purdy suggests, we suffer from a naive desire to find a "consensus" that might enable us to claim that "one people" is actually making the decision. (If that is true, than there will really be no "losers" who must grudgingly accept the imposition of policy by winners.) Steve Griffin has emphasized in his own work the degree to which Americans in their own way hate the very idea of politics inasmuch as it is truly conflictual. Thus the recurrent appeal of those who proclaim they are "above politics" and will govern in behalf of all Americans. But it is almost certainly the case that there is no such consensus waiting to be discerned even by someone, say, with the remarkable skills of Barack Obama. Like Bill Clinton, for that matter, Obama seemed to believe that there were no genuine opponents, but only those who had not yet opened themselves up to persuasion. This was, as Britton-Purdy states, a disastrous "conceit" that served neither him nor his political party nor, ultimately, the country very well. He never realized the fundamental importance of Mitch McConnell's declaration that his principal goal as the leader of the GOP in the Senate was to deprive Obama of any accomplishments that might be useful to his re-election. There is nothing at all objectionable about that being the goal of a leader of an opposition party; what is objectionable is that the Constitution gives McConnell, whose Senate "majority" in fact represents a minority of the American population, the power it does. But should Democrats, now a minority within the Senate, behave any differently from McConnell with regard to collaborating with Trump in ways that might ultimately be conducive to his re-election? Surely one can believe the answer is no (or hell, no), that, as Britton-Purdy writes, "the first goal of political action is to win, to defeat your opponents." It is worth noting, though, that this may ultimately generate a Schmittian view of politics, organized around the all-important distinction between friends and enemies. One need not admire the person of Carl Schmitt, though, in order to find his insights all too relevant, and this may be one of them. What should, for example, one think of Joe Biden's repeated invocations of his liking for (some) Republicans and his desire to work with them? Compare this, for example, with FDR's welcoming the "hatred" of those whose political and economic power he was trying to limit.
Probably the most memorable line in John Dos Passos's great novel U.S.A. was the statement "we are two nations," so that one had to choose and not rely any longer on appeals to a non-existent "one people" who could be shown to share what John Rawls would later call an "overlapping consensus" that could in fact bring us together and legitimize the decisions of government. Instead, if we are (at least) "two nations," politics become a fight over which will win and ultimately dominate the other, at least for a while assuming that an election process will in fact allow the outs to throw out the ins and then dominate them in turn. Britton-Purdy expresses some fear about the move toward a more-and-more authoritarian form of populist demagoguery. But it is extremely interesting that he seems even more fearful of what he calls "small secessions," by which various groups will simply withdraw, to whatever extent possible, from participation in trying to achieve a truly common life organized around common conceptions of the good, into their own enclaves, whether gated communities, doctors who will demand annual "retainers" rather than accept any insurance at all, let alone Medicare, the greater withdrawal from the project of what used to be called "common schools" and the retreat into private (or, indeed, "home") schooling, and the like. "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 governing themselves." One might well believe that most people would accept a "benevolent despotism" if the despot were truly the kind of "Patriot King" evoked by Bolingbroke instead of the purported tyrant George III. This has overtones of the argument that Philip Bobbitt, now Britton-Purdy's colleague at Columbia, makes with regard to the ever-growing reality of what Bobbitt calls the "market state," which hollows itself out in important respects by privatizing more-and-more of what used to be viewed as the "essential functions" of government and leaving the citizenry to find the resources to enjoy what a market state (or society) can offer. Of course, if they don't have such resources, what then? What, if anything, will remain of a genuine "welfare state," defined, at least in part, by the willingness of the state to provide a variety of essential goods as well below market prices to those who could not otherwise afford them? Bobbitt writes of the "opportunity state," which has almost nothing to offer those of us in our sunset years who wish to enjoy some kind of dignified retirement (and decent medical care).
It should be clear that Britton-Purdy is concerned less with "constitutional design," in any narrow sense, than with the broad notion of a "constitutional culture." To that extent, perhaps his overall argument is more in line with Jack's concerns than with mine. Still, though, that culture rests on certain foundational myths and symbols, of which the most important one, at least since 1776, has been some notion of popular sovereignty and the ability to take seriously the claim that "here the people rule." Many political theorists and political scientists would gladly dispense with "sovereignty" talk of any kind, especially popular sovereignty. But what would replace it? As noted, I hope that Britton-Purdy expands his challenging remarks into a full-scale book.