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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 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 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 The Era of Democratic Dissatisfaction
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Tuesday, March 31, 2026
The Era of Democratic Dissatisfaction
Guest Blogger
For the Balkinization symposium on Stephen Skowronek, The Adaptability Paradox: Political Inclusion and Constitutional Resilience (University of Chicago Press, 2025). Richard H.
Pildes We live in an Era of Democratic
Dissatisfaction. Over the last 10-15
years, large numbers of citizens have been continuously expressing discontent,
distrust, alienation, anger and worse with governments across nearly all
Western democracies, no matter which parties or coalitions are in power. One expression of this dissatisfaction is
that democratic governments have become more fragile and unstable. In just the past couple years, the
governments in Germany, France, Portugal, the Netherlands, and Canada have
collapsed prematurely, forcing those countries to hold snap elections. Spain has been forced to hold five general
elections in the last ten years, in the search for a stable governing majority;
for the same reason, the U.K. held four national elections from 2015-2024 and
might well be careening to another one, long before the presumptive five-year
term for the current government comes to an end. Across nearly all Western
democracies, many citizens have come to feel their systems are no longer
delivering for them on the issues they care most urgently about. Four aspects of the way political competition
and governance is being transformed as a result illustrate the turbulence of
democracy in this era. First, the
traditional center-left and center-right parties that had dominated politics in
nearly all these countries since World War II have been collapsing. When these parties were strong, they were
able to form governing majorities either on their own or with one junior
partner; as a result, government could more readily deliver on the preferences
of electoral majorities. Second, the
voters these parties have been hemorrhaging have moved to insurgent and more
extreme parties of the left, right, or more difficult to characterize
ideologies. But it is the new right
parties, in particular, that have emerged most significantly as an alternative
to the traditional parties and political leaders (the Reform Party in the U.K.,
the National Rally in France, the AfD in Germany, the Brothers of Italy, the
Chega in Portugal, the Party for Freedom in the Netherlands, the Finns Party in
Finland, the Progress Party in Norway, the Sweden Democrats, and others). Across 27 European countries, these new right
parties barely registered in 2010, but remarkably now in the aggregate attract
the same vote share as the traditional center-left and center-right parties. Third, young voters are particularly
dissatisfied with democratic governments across nearly all these
countries. In many countries, these new
right parties are the most popular among younger voters; where they are the
second most popular, it is more extreme parties of the left that draw the most
support among younger voters. Fourth, party
politics throughout the West had undergone the greatest realignment since World
War II, as issues of what we might call national identity have become as
important or even more so than economic ones, with working-class voters becoming
the base of parties on the right, while the parties of the left have become the
province of more highly educated, wealthier voters. I have chronicled these developments in The Decline of Political
Authority: Legal and Political
Challenges in Western Democracies, 2015-2025 and Political Fragmentation in the Democracies
of the West. Steve Skowronek’s intriguing and masterful
book, The Adaptability Paradox, focuses on the challenges to American democracy
in this era. He doesn’t spend a lot of
time defining those challenges but nods to factors such as extreme polarization,
the breakdown of long-standing norms of governance, and a general sense of
broad dissatisfaction with government’s seeming inability to deliver effective
responses on the major economic and cultural issues roiling the nation. In his “historical-structural” approach, he argues that the challenge
American government has faced perennially is the need to adapt to the ever
increasing demands of an expanding electorate, in the face of a rigid
Constitution whose formal institutional structures of governance have not
changed and cannot easily be changed. In
the past, he argues, that challenge has been met through extra-constitutional
adaptations: in the 19th
century, the rise of mass political parties that integrated voter demands into a
responsive government, and in the 20th century, the emergence of the
administrative state, which Steve argues did the same. His animating concern is that, in the era of
full democratic inclusion that began with the 1965 Voting Rights Act and the
rights revolution of that era more generally, we might no longer have the ability
to innovate new structures – absent a new Constitution altogether -- to enable
effective government that can also elicit broad consensus. Steve’s book fundamentally raises
the question of the relationship between institutional structures and political
culture. How much is our unique
institutional architecture of governance, which the Constitution birthed, a
major cause of the democratic dissatisfaction that exists today; if we could
just change those structures or invent some new mode of organizing the
effective expression of today’s democratic demands, would we find the consensus
Steve seeks? Or does our toxic,
tribalistic politics and dysfunctional political process reflect profound cultural
and political divisions and conflict that makes illusory the hope that there is
some mode of “adapting” governance that would overcome these divisions. Steve’s conditions for successful adaptation
are stringent: (1) adaption must satisfy
the policy demands of our vast, heterogenous society; (2) maintain fidelity
with the underlying “principles” of the Constitution; (3) generate widespread
social buy-in. Yet America politics over this past
10-15 years strongly resembles politics across most Western democracies. The same constant turbulence and
dissatisfaction has been stirring our politics.
Since 2000, in every election but two, partisan control of the House,
the Senate, or the White House has changed hands, with significant likelihood this
fall will continue that pattern. We have
never had such an extended period of partisan churn. That pattern also expresses how sharply and
closely divided the country has been over at least the past decade. Support for the major parties has plummeted;
the combined approval rating for the two parties is the lowest ever recorded,
while Gallup Polls calls this “The Independent Era” as self-identified
independents now constitute over 40% of citizens. In our two-party system, this dissatisfaction
gets expressed through the appeal of outsider candidates, whether Donald Trump
or Bernie Sanders (an Independent who nearly unseated the Democratic Party’s
most establishment candidate in 2016). The
issues driving the new right parties in Europe have been channeled within the
Republican Party, given our two-party system.
The same income and education-based realignment of the parties of the
left and right has taken place here. As
in Europe, young voters are particularly attracted to more extreme options,
whether the Democratic Socialists of America on the left or the post-liberal
visions rising on the right. I’m of two minds about the
institutions v. culture question Steve’s book raises. At heart, I’m a scholar of institutions and
an institutional designer. During this
period of democratic dissatisfaction in the U.S., I’ve proposed a number of
institutional reforms, ranging from the more practical to the less realistic,
that I’ve suggested might play a role in Combatting Extremism:
changing the structure of primaries, voting rules, the way we design
election districts, campaign finance, or changes to the presidential
nominations process. Others will take Steve’s
book as support for more radical structural and institutional changes, such as
abandoning the electoral college, changing the structure of the Senate,
reducing the role of the Supreme Court, or other proposals. On the other hand, I believe democratic
dissatisfaction in the U.S. in this era has to be understood in the context of
the pervasive dissatisfaction across nearly all Western democracies –
regardless of their institutional structure.
The U.K. has about as pure a majoritarian parliamentary system as any
major country. No written constitution, no
separation of powers, no meaningful bicameralism. Yet political alienation there is profound. Widespread disaffection with the
Conservatives led to a Labour landslide in 2024, yet in little time, voters
turned so strongly against Labour that its current leader, Prime Minister Keir
Starmer, polls as the least popular British Prime Minister on record. The current Fifth French Republic was specifically designed
to empower a strong, independently elected President and a strong government. Its system of two-round elections was chosen to
empower electoral majorities, as a rebuke of the Fourth Republic’s
proportional-representation system, which was thought to have paralyzed French
government. Yet France is close to
ungovernable. In another variation,
Germany uses a mixed-member parliamentary system that ensures proportional
representation, with significant power residing in the individual states (the Länder). The prior, completely dysfunctional
government was replaced in 2025; yet since then the Chancellor who had been elected,
Friedrich Merz, has suffered the steepest decline in popularity, with his current
“favorability” rating plummeting to -48%. Most democratic governments in the West have been unable during
this period to deliver significant economic growth and are riven with conflicts
over the rise of national identity issues, including immigration. The technological revolution constantly disrupts
democratic politics and weakens political authority.
Steve Skowronek’s new book teems with arresting insights, but the
question whether our current democratic struggles lie in our institutions, or
our deeper political culture, remains open.
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Books by Balkinization Bloggers
Gerard N. Magliocca, The Actual Art of Governing: Justice Robert H. Jackson's Concurring Opinion in the Steel Seizure Case (Oxford University Press, 2025)
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 |