Jedediah Britton-Purdy
I admire and enjoy Constitutionalism and Its Discontents. The authors’ careful parsing of exaggerated or one-sided hopes for constitutional salvation is always worth following. I tend to see it as a series of follow-ups to the authors’ important previous book, Power to the People. There they argue that populism is not necessarily anti-democratic but is often an expression of democratic power and aspiration. Constitutional limitations on popular power, and in particular on majority rule, can be anti-democratic (normatively) and can (in fact) inspire exactly the kind of insurgent and system-revising politics that they are often wrongly imagined as tamping down. I largely agree with this overall view and have given my own version of it in various places, including The Nation (on populism), the Times (on majoritarianism), and The Atlantic (on constitutional entrenchment), and at book length. Because neither loud agreement nor minor quibbling is very interesting, I’ll instead approach the book from a few odd angles.
The
first odd angle is to try tendentiously to touch the pulse of the book, its
structure of feeling. The historian Marcus Rediker recently wrote that “almost every book has a
complex and secret emotional life.” This book’s persistent spirit of skepticism
and resistance to grand claims (“One way to construe our argument in part I is
that we believe otherwise” is the authors’ Bartleby-like endorsement of
democratic constitutional creativity) ended up feeling to me like an attitude
of diffidence, if not something chillier, toward a certain version of
professional identity. In the past decade of political discontent, law
professors, especially constitutional law professors, have often been invited
to weigh in with a blend of moral clarity and professional precision on public
matters of the highest moment. Yet in the authors’ eyes, I suspect, accepting
the invitation can be dangerous because intellectual honesty may require us law
professors to conclude that there are severe limits to our helpfulness. As they
show, institutional engineering intended to have one effect will often produce
a very different result, a tremendous amount depends on context, and there is
always temptation to invoke the Constitution, or “constitutionalism,” against
politics one opposes.
As
I moved into the authors’ discussion of democratic decline, I felt even more
that I was in the company of diffidence toward the whole vocation of public and
especially constitutional law—at least in its present role as a first responder
to democratic crisis. As the book proceeds, it emerges that the most
significant drivers of democratic crisis (or decline, to stick with the
authors’ preferred term) are factors that public law qua constitutional
design does not usually address. Foremost is the set of economic disruptions
and dislocations that are sometimes gathered under terms like “globalization”
or “neoliberalism.” Part of the problem with rallying “constitutionalism” to
address the politics that has followed on these disruptions is that—even
setting aside the democratic validity of important forms of populism—the
prescription does not address the cause. By the end, the authors refer to a
pairing of economic and “spiritual” problems to describe the condition of
voters, and emphasize that neither constitutionalism nor they, as (critical)
students of constitutions, can say much to these, the real engines of political
disruption.
What
a student of these institutions can say is that they should not be hastily or
complacently deployed to block democratic ferment. As the authors regularly
emphasize, one of the things a discontented public has every right to do is to
alter the structural principles, the “rules of ruling,” that stand in the way
of their efforts to make their lives better. In particular, it is possible to
point in directions that seem to promise greater empowerment of ordinary
citizens. The authors’ concluding proposal (cautious and heavily qualified
though it is) to make political parties sites of ongoing engagement and
accountability rather than mere episodic “messaging” and voter mobilization
strikes me as promising. But, as I said at the outset, I was more or less with
them at “hello.”
So,
my second odd angle: to say something cursory about the “spiritual” problems
that the book adverts to but, for plenty of good reasons, doesn’t engage. The
book left me wondering whether any move to a more empowered ordinary democracy
is particularly hard in a country whose “spiritual” problems might be said to
include interpersonal and institutional mistrust and intense affective
polarization. Democracy incorrigibly puts us in one another’s hands with
respect to our most basic commitments and interests. It isn’t surprising that
this feels intolerable to many Americans, who are persuaded that their
opponents lack good faith and shared values. What Judge Learned Hand famously
said of a constitution, that (to paraphrase) if it lives in the hearts of
citizens it hardly needs to be written down and if it does not live in the
heart then writing it down is no use, is half-true of democracy. To believe in
it is to believe that you are among others who can do it with you. If you don’t
believe that they can, and neither do they, then democracy is tenuous at best.
It’s especially ill-equipped, in that precarious condition, for the kind of
democratic creativity that attracts the authors, the breaking with old rules of
ruling to clear space for new approaches that can better advance the common
good. If that “common” just doesn’t exist, and doesn’t feel achievable, the
whole sequence of action can blink out of existence. Although Americans have
some tendency to talk about our Constitution in vaulting terms, much of the
basis of its appeal is the idea (which has some basis in reality) that it keeps
our neighbors from messing too aggressively with us or the institutions we take
for granted.
Second
is to take on, in a similarly cursory and presumptuous way, one limb of the
vast elephant of political economy, specifically where it seems to link up with
these theme of political culture. The authors note that “democratic decline”
coincides with a period of intensified economic globalization. One could note
that it also coincides with the general uptake of the internet and the movement
of a lot of the culture to it. As the great Raymond Williams argued, our means
of communication is a material basis of our cultural (one could say spiritual) lives,
which in turn may do a lot to set the affordances of our culture. As I say in a
post at the LPE blog that will roughly contemporaneous with this one,
[T]he
ways we see one another and understand ourselves, the pictures of the world
that we carry, and the “structures of feeling” in which we move and relate all
deeply condition what we can do together, signally including the potentials and
limits of our politics. These elements of culture aren’t autonomous, of course:
They arise in good part from how we physically live and work together and,
especially, how we communicate—how we jointly interpret the world—which in our
time is deeply influenced by technological form and by legal structures of
ownership and control. Think of broadcast networks, media platforms,
attention-gripping algorithms, each a technological fact set within a web of
regulation (or the pseudo non-regulation of laissez-faire). Much of our present
culture of epistemic fragmentation, political animosity, and generalized
mistrust is a side-effect of profit-seeking under these conditions, and of
prior decisions to set profit-seeking as the organizing principle for the
relevant technologies. But for all these aspects of what feels like
determination, the mutual interpretation that makes culture is one of our key
resources of freedom, and a necessary condition of any solidaristic politics.
I
have come to think that a collapse in trust seriously
impedes the prospects of the sorts of legal-political reforms that many readers
of this blog think would make for a more democratic and humane society. I have
also come to think that we should regard the
resources of culture—a shared imaginary, you might say, or a structure of
feeling—in the light of the “false commodities” that Karl Polanyi highlighted.
Polanyi, recall, argued that money, the natural world, and social reproduction
were all necessary conditions of common life which, if they were treated as
commodities and therefore governed by conditions of profit, might break down
and undermine common life generally. Although the specifics of his arguments are
not always satisfactory, he was broadly right about this. We might think of
culture in the same way. Ours is now pervasively commodified, from the
biggest-budget spectacles to the algorithm-driven micro-interactions that have
replaced so much of face-to-face socialization. We are living (or trying to
live) with the results.
This theme touches on one relatively
small-bore textual issue that I’ll raise before closing. I appreciate the
authors’ suggestion that “grifters” as a class of politician pose less systemic
danger than more ideological actors because they just want to take advantage of
the institutions, not destroy them. I’m reminded here of Fred Hirsh’s
observation in Social Limits to Growth that market competition has an
inherent instability based in the incentive to move from competing by
the rules to revising the rules in favor of entrenchment, extra rents,
etc. Corruption and opportunism has the same colonizing logic, so the
willingness to do new and especially destructive things to get especially rich
(plus success in doing so) seems to indicate a species of grifter that is also
an institution-breaker. Or so the headlines suggest to me.
I’m very sympathetic to the book’s
concluding turn to a wish for more responsive parties. I think this, along with
easier constitutional amendment, is the major political-structural path to a
more adequate democracy. The democratic gamble is always that more power in
organized ordinary people is better than the alternatives—intrinsically better
and instrumentally more likely, overall, to result in politics that can address
the state of everyday life. My comments have sketched reasons to worry about
our capacity to persuade one another of this today.
Thanks again to Balkinization for
the chance to respond to this stimulating and incisive book, and thanks as well
to the authors for writing it.
Jedediah
Britton-Purdy
Raphael
Lemkin Distinguish Professor, Duke University School of Law
purdy@law.duke.edu