Cock-eyed Optimist Meets Chicken Little: Jack Balkin on the American Future

For the Symposium on Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020). 

 Given that we are close friends and the co-authors of some twenty articles and a book, Democracy and Dysfunction, it is not surprising that I think very highly, and agree with much of, Jack Balkin’s new book The Cycles of Constitutional Time.  Perhaps it is relevant that I read it in two sittings; it is a real page-turner, written with brio as Jack presents a remarkably comprehensive overview of what he discerns as various cycles in American politics (importantly including the Supreme Court and the development of constitutional doctrine) from literally the beginning of the new national government in 1789 to the present.  It is a book to be savored, to learn from, and, inevitably, to argue with.

For me, the central question is whether Jack ultimately has a tragic or a comic view of our constitutional saga.  Will there be bodies strewn all over the stage at the end of the play, or will there be whatever the modern equivalent of a “constitutional marriage” with smiles all around and stories as to how the now-happy country surmounted a variety of challenges and travails to achieve their happy ending?  Jack, I believe, has an ultimately comedic view.  He forthrightly states, both at the beginning of the book and then again at the end, that for all of the justified depression we might feel at the present moment about the health of our constitutional order—as I, for example, have posted suggestions that the preferable alternative to the incipient civil war is peaceful dissolution of the United States—it is ultimately only the darkness before a brighter dawn.  It might take quite a while for us to dig our way out of the multiple problems facing us today, including what I regard his most important analytical contribution, the notion of “constitutional rot” (about which more anon), but do not lose hope.  Thus the concluding words of the book:

 

The problems of American democracy will not be cured overnight, or even in a decade.  Constitutional rot is a stubborn condition; emerging from it will be a painful process.  The good news is that the cycles of constitutional time are slowly turning.  Politics is re-forming.  The elements of renewal are available to us, if we have the courage to use them.

 

            I am less optimistic.  Within our partnership, which has been central to my intellectual life for at least three decades, I suppose I have become Chicken Little to his sometimes cockeyed optimist.  So my contribution to this symposium, beyond urging everyone to read and grapple with a really interesting, fully accessible, meditation on the past and current state of American politics, is to cast some doubt on his relative optimism.  Given his time horizon, he is not really trying to reassure me that things will necessarily get better in my lifetime, as I am completing my eighth decade of life, but, rather, that my children, probably, and, most certainly, my grandchildren, may have reason to look forward to sunnier futures (defined, among other ways, by the return to more-or-less hegemonic power, for at least a while, of the Democratic Party).  For obvious reasons, I hope that I am wrong and Jack is right.  However, I am not convinced, even if, as seems probable, Joe Biden becomes #46 in our line of presidents.  Will he lead the “transformation” that the United States desperately needs?  Will he, more particularly, take the lead in suggesting that we need a long-overdue national conversation about constitutional reform if we are serious about curing our “rot”?  The answer to both questions, I am afraid, is no. 

            So let’s talk about “rot.”  What is it?  “It is the decay of the features of a constitutional system that maintain it both as a democracy and as republic.”  A “democracy” presumably is defined by the degree of a political system to the actual preferences of the demos, sometimes with reference to the “median voter.”  To the degree that a system in fact honors the preferences of others, who will invariably be only a minority of the overall public, then it is not a “democracy.”  And Jack presents good reason to believe that we are indeed in such a situation, where we live far more in an “oligarchy” where money not only talks but screams with delight as the wishes of the donor class are translated into concrete political victories.  This is especially notable in Republican administrations, as with the obscenity of the Trump “tax cut,” but also, if truth be known, in the more-or-less “neo-liberal” administrations of both Bill Clinton and Barack Obama, where the well-off became even better off even if there were also some efforts, as with the Earned Income Tax Credit or Obamacare, to pay at least some attention to the plight of those seen by Mitt Romney in 2012 as “the takers” rather than the “makers” who deserved to hoard any economic gains.  Of course, there is the reality that the Constitution was designed by people who were profoundly antagonistic to the notion of “democracy” inasmuch as that required some genuine faith in the capacity of ordinary people to engage in what Federalist 1 described as “reflection and choice” about how we should in fact be governed.  Inasmuch as the Framers did whatever they could to assure that we would live within the confines of a significantly “undemocratic Constitution,” then it’s not clear what it means to say that our present situation represents a “decay” rather than, for some, at least, the realization of their hopes. 

 

            But Jack is also concerned about the health of what the Constitution specifies as our “Republican Form of Government.”  What does this mean?  “A republic,” he writes, “is more than a representative form of government.  It is a joint enterprise by citizens and their representatives to pursue and promote the public good.”  It requires an internal set of dispositions, where people are genuinely willing and able to subordinate their self-interest to pursuit instead of “the public good.”  One is reminded of 17^th-century voters’ oaths where the members of the community pledged to think only of what would be best for the community at large rather than their own particular interests.  (This is the deep meaning of the fact, for example, that four of the American states—Massachusetts, Virginia, Pennsylvania, and Kentucky (originally, of course, part of Virginia)—styled themselves as “commonwealths,” i.e., communities organized around the seeking of a common good.”)  Constitutional rot occurs when “public servants are increasingly diverted into the pursuit of their own wealth, or when they are increasingly diverted into serving the interest of a relatively small number of very powerful individuals,” as against being committed to “the public good.” 

 

            In my book Framed, I delineated what I called the “Madisonian anxiety,” spelled out most clearly in the famed Federalist 10, where Madison acknowledged, as the Protestant he was, that we are all ineluctably selfish and thus prone to prefer our own interests, whether economic gain or the triumph of our own religious sectarianism  over those who are classified as “heretics” or otherwise “ungodly.”  Was there a solution?  Is a “republican” society organized around the quest for a common good that will be sought by suitably socialized citizens destined to become a distinctly more “liberal” order that accepts the priority of individual interests and the psychology associated with self-seeking (ultimately defined so memorably by Oliver Wendell Holmes in terms of his completely egoistic “bad man” concerned only with maximizing individual utilities)?  I read Madison as offering the quite implausible hope that the new Constitution can endure as a “republican” order, basically by limiting the power of “we the people”; he proudly states in Federalist 63 that a central feature of the new constitutional order is that all governance will be done exclusively through “representatives” and none whatsoever by “the people” themselves. 

 

Why should one expect this to alleviate his anxiety?  It is because, for reasons left almost completely unexplained, he believes that voters for, say, the House of Representatives, the one branch of the national government in which “the people” will play any role at all, will vote for enlightened elites who will use their powers not to pursue the interests of their selfish constituents, but rather to achieve the “public good.”  The Senate, of course, was to be selected by state legislatures, and the president by electors who, we were solemnly promised in Federalist 68, would protect us against demagogues by using their discretion to select only truly trustworthy leaders.  (The Supreme Court, of course, paid absolutely no attention to Hamilton’s assurances in deciding in July that electors could actually be turned into mindless minions of whoever voted them into office, the one example at the national level of fully “instructed” delegates instead of at least partial “trustees” for the public good.)

 

            So what’s the problem, even beyond the empirical failure of Madison’s (and Hamilton’s) descriptions of the system they helped to design in Philadelphia to operate as they suggested it would?  The more serious problem, in a way, altogether relevant to Jack’s really fine book, is our difficulty today in supplying any convincing meaning to the term “public good” (save in the economists’ sense of a particular kind of good that cannot in fact be distributed through a market price because there is no way to limit beneficiaries of, say, a dam or a national defense system only to those who pay a relevant fee).  The Democratic Party in particular has been based for at least the past 75 years on what came to be described as “interest-group liberalism,” a collection of groups, sometimes in conflict with one another—the famed “big tent” until the 1960s of white Southern segregationists and urban Black politicians like Adam Clayton Powell—who would, nonetheless, all receive the benefits accruing from various “tax and spend” programs endorsed by the New Deal and Democratic presidents who governed in Roosevelt’s wake.  In his famed Preface to Democratic Theory, the great political scientist Robert Dahl ridiculed the notion of a public interest, replacing it by drawing our attention to the fact that any political party is necessarily an uneasy coalition of groups pursuing their own welfare.  Perhaps if one shares the optimism of Bernard Mandeville’s Fable of the Bees or Adam Smith's notion of “the invisible hand,” then it will turn out, as Mandeville famously asserted, that out of the pursuit of private vice will magically emerge “the public benefit.”  To put it mildly, I doubt that many of Jack’s likely readers, whether democrats or Democrats, are so optimistic. 

 

            A key book at the end of the 1960s was Cornell political scientist Ted Lowi’s The End of Liberalism, where he castigated the shallow political theory underlying interest group liberalism.  And, among other things, he castigated its implementation, so to speak, via open-ended delegation to the executive branch.  Craven legislators could tell their constituents that they had supported programs in their interest while, at the same time, leaving it up to more-or-less unaccountable administrators to make the genuine discretionary decisions that could literally determine, on occasion, who shall live and who shall die.  He suggested that we had transitioned to a distinctly different form of “republic,” and he was not happy about it.  But both mainstream political science and legal academics agreed that almost nothing useful could actually be said about what governance in “the public good” might actually look like.  Or, should we seek guidance, some legal academics suggested, it would be in the wisdom of the Warren Court.  Even Alexander Bickel, after all, before he lost his faith in the judiciary, commended the judiciary as the privileged enunciator of our “fundamental values” and, therefore, what presumably united us as a singular people with certain transcendent commitments. 

 

            An exceptionally interesting chapter, about the cycles of judicial time, draws a clear contrast between the relative “depolarization” that existed in the otherwise disorderly 1960s and the belief, now regarded as near-delusionary, that elite lawyers and judges, especially if trained in the “legal process” school of Henry Hart and Albert Sachs—and exported to Yale by Bickel—could achieve “settlement” of the issues that might otherwise appear to be insoluble, including race relations (see Brown) or what exactly “representative government” might really entail (see Baker v. Carr and then Reynolds v. Sims).  And even the sexual revolution could be handed, as with Griswold and then Roe.  Presumably serious people, two of them trained at Harvard, the third at Stanford, could write in their plurality opinion in Casey (1992) that the function of the Supreme Court was to resolve basic conflicts and the function of the public at large was to accept the Court as, in its own words going back to Cooper v. Aaron (1958) the “ultimate interpreter” of the Constitution.  To adopt the language from my book Constitutional Faith, the Court presented a “catholic” (note the little-c) view of itself as the equivalent of the Vatican so far as the Constitution was concerned.  

              Today, almost no one takes seriously this self-presentation of the Court, not least because its present majority is Catholic—a reality almost literally inconceivable when I was in graduate school many decades ago and had just experienced John Kennedy’s reassuring a Baptist audience in Houston that his religion was irrelevant to understanding him as a person or political leader (which, perhaps, was empirically correct).  And the Catholic identity of certain justices is not deemed a mere factoid, similar to having been born, as Ruth Ginsburg was, in Brooklyn, but, rather, genuinely constitutive of how the judges in question look at the world, especially and most obviously with regard to such “culture-war” issues as abortion and the willingness to include non-heterosexuals as full members of the American constitutional community.  But it would be a mistake to reduce the current majority to their religious identities.  They are also strongly Republican (capital R), fully committed to the general world-view that was associated at least with the pre-Trump Republican Party.  As Jack well notes, every Republican appointee since David Souter—partly as a reaction to the Republican disappointment about Souter’s subsequent career on the Court—has been a strong “movement” conservative Republican, especially, of course, the Federalist- and Heritage-vetted Neil Gorsuch and Brett Kavanaugh.  And it is fair to say that Biden, should he have the opportunity, will be strongly expected to pick, as successors to the retiring Ginsburg and Breyer, strong liberals who might well receive votes in the Senate only from Democrats and the unanimous opposition of Republicans.  Concomitantly, if Biden is faced with a Republican Senate, it is not unthinkable that no one will replace Ginsburg or Breyer.  The ruthless dismissal of Merrick Garland’s nomination by Mitch McConnell will simply become a precedent for Supreme Court appointments in the contemporary political world.

 

The contemporary Court, like the contemporary legal profession and, of course, the country at large, is very much divided into different ideological teams.  This is what “polarization,” a major theme of the book, is all about.  Only devoted partisans of one of the teams believes that their opponents are “heretics,” willfully rejecting the obviously true doctrines, whether of “originalism” or “living constitutionalism,” in favor of trying to impose their narrow “political” objectives.  This is to assume the sharp separation of law and politics that Jack rightly ridicules.  Instead, I think it’s fair to say that, like Mark Tushnet in his own recent book Taking Back the Constitution, Jack does not view Republican judges as “heretics,” but, instead, as skilled professionals who happen to have an unfortunate, albeit plausible, view of what the Constitution (or statutory interpretation) means.  To describe Chief Justice Roberts and his Republican cohort, as I sometimes have done, as “running dogs of the capitalist empire,” is for better or worse, to suggest that they are self-consciously asking what they can do to enhance the powers of capital against, say, consumers injured by corporate malfeasance, but, rather, that they have incorporated into their understanding of what is best for America—and the “true meaning” of the Constitution—Republican nostrums about the glories of the so-called “free market” and concomitant notions of what it means to “secure the blessings of liberty” at the present time.  Neither Justices Roberts nor Ginsburg need be viewed as “insincere” in their beliefs about what fidelity to their constitutional oath entails, and nothing is gained by traducing either of them, as Justice Scalia was sometimes prone to do, as not “behaving like judges” because they come to different conclusions as to what the Constitution requires.  But such “civility” toward one’s opponents scarcely resolves the political and jurisprudential dilemmas that Jack limns. 

 

            In fact, one of the surprising features of the book is his modification of one of the most important of our co-authored essays, a 2001 article in the Virginia Law Review  in which we tried to explain how “constitutional revolutions” operate.  In that essay we proffered the distinction between “high politics” and “low politics.”  We suggested, as had, for example, Felix Frankfurter in an essay in the International Encyclopedia of the Social Sciences in the 1930s, that all judges (and lawyers), without exception, carried in their heads conceptions of what sorts of policies or approaches to law would in fact best serve “the public good.”  They would, not surprisingly, always interpret any ambiguous laws in ways that would best achieve the results dictated by “high politics.”  It would be extraordinarily if they did anything else. On the other hand, “low politics” was concern for what would serve the interests of a judge’s political party or political associates in the next election.  We suggested that “low politics” was rarely present at the level of the Supreme Court, though this probably wasn’t true if one looked at local courts in Chicago, Louisiana, or many other state courts. 

 

Jack now suggests, however, that the distinction might have outlived its use-by date, precisely because it is getting ever more difficult to separate the two realms.  When John Roberts, for example, systematically votes to uphold what Democrats have no trouble defining as “voter suppression” efforts by, say, Alabama (Shelby County) or declares that ruthless partisan gerrymanders are non-justiciable (Rucho), is he manifesting a “high” political vision or instead serving as an agent of the GOP that placed him in office to do whatever he can to maintain them in power through thick and thin?  This doesn’t require that he be consciously thinking of what will serve GOP interests, only that he is, from “our” point of view, recklessly indifferent to the consequences for the American polity of adopting his readings of the Constitution because, overall, they best fit what we formerly would have described as (only) his “high politics.”  But the crucial problem, as Jack spells out, is that an older generation, influenced by footnote four of Carolene Products and culminating in John Hart Ely’s 1980 Democracy and Distrust, accepted wide-ranging decision-making powers on the part of legislatures and even executives in return for a promise that the Court would monitor the procedures by which officials were selected.  One should be expected to be a “good loser” in the ordinary political process if, in fact, the process was demonstrably fair (or at least fair enough) to avoid being described, in contemporary parlance, as “rigged.”  But recent decisions on campaign finance, gerrymandering, and voter suppression have removed any reason to believe that the American electoral system in fact meets standards of “fairness.”  Should Donald Trump be “re-elected” by a narrow electoral vote margin while losing the popular vote by, say, five to ten million votes, as is currently projected, the only proper response is rioting in the streets, not calmly reassuring one another to “wait ‘til next time, in 2024.” 

 

Neither Jack nor devotees of Balkinization will be surprised to read that I wish his diagnosis of our “constitutional rot” had included more attention to the Constitution itself.  Might it be part of the rot, as against the potential cure?  For me, of course, that has become a rhetorical question.  The closest Jack comes to recognizing this possibility is near the very end of the book, when he acknowledges that the United States Senate is organized in such a way that it places what has become the core Democratic constituency at a decided disadvantage.  This means that we may face a future of “only modest, slow change, which will often be frustrating.” “Obstacles” like the Senate “will make it harder to chip away at the causes of constitutional rot.”  Well, yes.  And for me this portends further tragedy and the ever-growing, and fully justified, disillusionment with the political system foisted on us in 1787.  People are literally dying, or faced with the prospect of miserable futures, in part because of the obvious problems with the American political system.  At what point will enough people consider what is happening to them a sufficiently “long train of abuses” that they will not simply wait for the happy ending that Jack wants to promise them/us?  This is most certainly not to say that I can envision a more plausible comedic ending. 

 

As with Four Threats, by Suzanne Mettler and Robert Lieberman, which I recently reviewed on Balkinization, an often brilliant analysis of our current dire situation concludes with some hopeful reassurance that all is not lost.  “We” survived the Black Plague, various depressions, and two world wars in the 20^th century; this, too, will pass.  The sky is not really falling or, even if so at the present moment, it will stop and our descendants will be able to sing “Happy Days are Hear Again.”  I can only say, I hope so, but at this moment I continue to look up at the sky with trepidation.  I am inclined to believe Edgar, from Act IV of King Lear: “The worst is not/ So long as we can say ‘This is the worst.’”