Democracy and Dysfunction

Democracy and Dysfunction

by Sanford Levinson, Jack M. Balkin

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Overview

It is no longer controversial that the American political system has become deeply dysfunctional. Today, only slightly more than a quarter of Americans believe the country is heading in the right direction, while sixty-three percent believe we are on a downward slope. The top twenty words used to describe the past year include “chaotic,” “turbulent,” and “disastrous.” Donald Trump’s improbable rise to power and his 2016 Electoral College victory placed America’s political dysfunction in an especially troubling light, but given the extreme polarization of contemporary politics, the outlook would have been grim even if Hillary Clinton had won. The greatest upset in American presidential history is only a symptom of deeper problems of political culture and constitutional design.      

Democracy and Dysfunction brings together two of the leading constitutional law scholars of our time, Sanford Levinson and Jack M. Balkin, in an urgently needed conversation that seeks to uncover the underlying causes of our current crisis and their meaning for American democracy. In a series of letters exchanged over a period of two years, Levinson and Balkin travel—along with the rest of the country—through the convulsions of the 2016 election and Trump’s first year in office. They disagree about the scope of the crisis and the remedy required. Levinson believes that our Constitution is fundamentally defective and argues for a new constitutional convention, while Balkin, who believes we are suffering from constitutional rot, argues that there are less radical solutions. As it becomes dangerously clear that Americans—and the world—will be living with the consequences of this pivotal period for many years to come, it is imperative that we understand how we got here—and how we might forestall the next demagogue who will seek to beguile the American public.
 

Product Details

ISBN-13: 9780226612041
Publisher: University of Chicago Press
Publication date: 04/16/2019
Edition description: First Edition
Pages: 208
Sales rank: 318,658
Product dimensions: 5.90(w) x 8.90(h) x 0.60(d)

About the Author

Sanford Levinson is the W. St. John Garwood and W. St. John Garwood Jr. Centennial Chair in Law at the University of Texas Law School and professor of government at the University of Texas at Austin. He is the author of several books and coauthor, with Cynthia Levinson, of Fault Lines in the Constitution.Jack M. Balkin is the Knight Professor of Constitutional Law and the First Amendment at Yale Law School, where he also directs its Information Society Project. He founded and edits the Balkinization blog and is the author of several books, including Constitutional Redemption and Living Originalism.

Read an Excerpt

CHAPTER 1

SEPTEMBER 29, 2015

Dear Jack,

It is obviously no longer controversial that the American political system, especially at the national level, is seriously dysfunctional. In a recent essay, "Anxieties of Democracy," the distinguished Columbia political scientist and historian Ira Katznelson has remarked on the ironic contrast between recent repairs to the United States Capitol building and the continuing decay of the political institutions inside that same building: Physical "restoration is underway, its conclusion in sight. Inside, however, repair seems a long way off, if it is even possible." Katznelson continues:

The House and Senate are presently shackled. Paralyzed by party divisions, influenced excessively by moneyed interests, and perverted by the disappearance of civic virtue, representative institutions appear unable to identify and address our most consequential public problems, including the politics of redistribution, racial equity, immigration, and the proper balance between liberty and national security. Like the dome, American democracy badly needs reconstruction.

Depending on one's place along the political spectrum, one might identify different examples of the particular failings of Congress, the presidency, and the judiciary. Those on the right are presumably less upset than those on the left that Congress's only apparent interest in redistribution has been to take from the less well-off and give to the wealthy via tax cuts and subsidies. As I write this opening missive, on September 28, 2015, RealClearPolitics, aggregating a number of recent polls, indicates that while approximately 15 percent of the public "approve" of Congress, 75 percent do not. The "direction of country" data indicates that only very slightly more than a quarter of polled Americans believe the country is heading in the right direction, while 63 percent (including yours truly) believe we continue on a downward slope.

Katznelson offers a fairly familiar litany of examples of what "shackle[s]" our present system, including political polarization, the obscene role played by money in the overall electoral process, and, interestingly enough, "the disappearance of civic virtue." With regard to the last of these, one can well wonder exactly when a sufficient supply of such virtue in fact graced our political order.

One can scarcely understand the Publian argument for adoption of the Constitution as resting on a robust confidence in the virtue of the populace at large. Were that the case, one might have expected something other than the exclusive reliance on representatives and the absolute shackling of the public with regard to any direct participation in governance. There is a reason, after all, that in Federalist No. 63 Publius takes great pride in, and indeed emphasizes, what he regards as one of the strongest features of the new constitutional order: "THE TOTAL EXCLUSION OF THE PEOPLE, IN THEIRCOLLECTIVE CAPACIT Y" from any share in actual governance. Decisions are to be made only by those deemed, with whatever empirical accuracy, the "representatives" of the people.

Publius assumed that these representatives would in fact be markedly "better" than their constituents. They not only would be more sophisticated about the ways of the world, but also, and more importantly, more disposed to tame the inevitable and ineradicable urges of self-interest, delineated most sharply in Federalist No. 10, and to be guided instead by the demands of the public good.

That vision of "enlightened" representation seems far in the past; the only serious debates today are whether the Publian vision ever made much sense and when it collapsed, perhaps with the emergence of the first party system around 1796, the rise of mass political parties during the Jacksonian era, or the rise of the modern mass — and then social — media society in the twentieth and twenty-first centuries. (You certainly know far more about this last than I do, and, of course, much of your previous work also emphasized the crucial role of social movements in understanding the actualities of American constitutional development.)

As you no doubt can predict, given our many conversations (and joint seminars) on the general subject of the state of American politics, what upsets me about Katznelson's analysis — and, for that matter, the responses offered by a variety of talented academics and social activists — is that none of them, save perhaps for Hélène Landemore, comes close to addressing the possibility that among the cause of our present discontents is the institutional order created in 1787 and left remarkably unchanged since then.

It is especially telling that this failure of imagination is found in a symposium that is dominated by people on the left. They are, after all, fully aware of the deficiencies of our present political system and believe that reform — generally of the kind that I presume both of us would favor — is necessary. There was a time, however, when leftish critics were also at the same time critics of the Constitution itself. Perhaps they accepted, rightly or wrongly, historian Charles Beard's understanding that our Constitution was intended to — and did — serve the economic interests of the wealthy and powerful, rather than the working class (or, even more certainly, that subset of the working class called slaves). But those criticisms were not limited to particular judicial decisions — they also concerned constitutional design.

Take, for example, the totally unjustifiable power given small, usually rural, states in the Senate. It is surely no coincidence that Socialist Representative Victor Berger, representing Milwaukee early in the twentieth century, believed that the best reform of the Senate was not the popular election of senators, achieved via the Seventeenth Amendment in 1913, but rather the out-and-out abolition of that egregious institution. And in 1912 Teddy Roosevelt campaigned for the right of the American electorate to overturn offensive judicial decisions by popular referendum. (This was, of course, the historical period during which many western states, including, most notably, California, chose to supplement "representative democracy" with the "direct democracy" of the initiative and referendum.)

My point is that the agenda of political reformers once included "constitutional reform" in a sense far different from supplicating judges for attractive decisions. That approach to constitutional reform has been lost, save, interestingly enough, for certain members of the Tea Party who, for example, would like to repeal the Seventeenth Amendment (not to mention the Sixteenth Amendment's authorization of the federal income tax).

That spirit of constitutional reformism seems completely absent in the contemporary left, including that portion of the left represented (or, some would say, over-represented) in the legal academy. In 2009, for example, you and our mutual friend Reva Siegel coedited a book on constitutional reform for the American Constitution Society (ACS) (which I am glad to support), entitled The Constitution in 2020. My principal objection to the book was that it was devoted exclusively to judicially managed reform. It had no discussion at all about whether the members of the ACS should seek something that judges cannot in fact provide — fundamental institutional change.

As you know, I have written a series of books explaining the many defects in our Constitution. I believe that law professors spend too much time debating changes in constitutional doctrines — what I call the "Constitution of Conversation." The real problems, I believe, rest in the parts of the Constitution that few people — including law professors — ever talk about. These are the structural features that I call the "Constitution of Settlement."

My third book on the defects of our Constitution — coauthored with my wife, Cynthia, and directed primarily at teenagers — is entitled Fault Lines in the Constitution. So let me set out some of the primary fault lines or hidden dangers in the Constitution of Settlement.

First, we have no way to get rid of an unfit or dangerously incompetent president except through the unwieldy method of impeachment and removal or, even more unlikely, the Twenty-Fifth Amendment. We would be far better served if Congress could remove the president by a vote of no confidence — a procedure available in many parliamentary systems. As it is, the fixed presidential term of four years, coupled with our obviously ineffective procedures for impeachment or the Twenty-Fifth Amendment, condemns us to the continued rule of individuals who lack the capacity to handle fundamental issues of war and peace — and of life and death.

Second, it is far too difficult to pass necessary reforms through Congress. Our legislative process is effectively "tricameral" because of the president's veto power. Add to this a wide range of other veto points in our legislative system that make it extremely difficult for the national government to pass legislation that is, in the language of the Constitution, "necessary and proper" to achieve the great aims set out by the Preamble, including "establishing justice" and "providing for the general welfare."

Third, perhaps the worst feature of our legislative process is the organization of the Senate, in which each state receives two votes. This arrangement is almost self-evidently illegitimate under the constitutional principle of "one person, one vote." Each American deserves equal representation in our government. As Justice John Marshall Harlan put it in his famous dissent in Plessy v. Ferguson, there is no special class or caste of citizens in the United States. But our malapportioned Senate makes a mockery of that worthy goal, giving people in tiny states like Wyoming and North Dakota many times the voting power and influence of people living in states like Texas or California. To give you a sense of the severe imbalance: Nine states together now contain more than a majority of Americans, yet they are represented by only eighteen senators. By contrast, less than one-half of the population — who live in forty-one states — receive a grand total of eighty-two senators. This severe malapportionment has wide-ranging effects in the kinds of interests that Congress serves and the kinds of reforms that Congress is able to pass, causing immense frustration and a sense that government is unaccountable to the public.

Fourth, our constitutional system for choosing presidents, the Electoral College, is nothing short of a scandal. It puts people in the Oval Office who do not even come in first in the popular vote. [This has now happened twice in sixteen years — in 2000 and 2016, giving us George W. Bush and Donald Trump.] Moreover, even when a candidate receives a plurality, like Richard Nixon in 1968 and Bill Clinton in 1992, the "first past the post" winners may fall far short of a majority. Both Nixon and Clinton received only 43 percent of the popular vote and could scarcely claim a genuine "mandate" for their policies.

Fifth, our process of constitutional amendment is extraordinarily difficult. This makes it nearly impossible to engage in serious constitutional reform — the most important episode of such reform required a war that killed 750,000 Americans — and it also serves to discourage any serious discussion of such reform precisely because it appears to be futile. As I've written elsewhere, the operative mantra is not "If it isn't broken, it doesn't need fixing," but, instead, "Because it cannot, as a practical matter, be fixed, let's pretend it isn't broken."

All of these features of the Constitution, and others as well, taken together, form the basis of what my first book called "our undemocratic Constitution." Perhaps more important, these defects of our constitutional system help to explain what the subtitle of my second book, Framed, called our "crisis of governance." An important symptom of that crisis of governance is the loss of public esteem not only for Congress (which is well deserved), but for all national institutions other than the military.

Let me stop now. I trust I have said enough to initiate this epistolary exchange. With regard to grasping the causes for our dysfunctionality, there is much to be said for the importance of American political culture; as Mark Graber has sometimes suggested, we may need new kinds of citizens rather than a new Constitution. Similarly, partisan conflict of the kind analyzed by, say, Norman Ornstein and Thomas Mann is surely worth a great deal of emphasis. But I hope that "political structure" does not get lost in the conversation. Are we well served by the set of structures created in 1787, and could we do better? I believe that the answer to the first question is clearly no, and I am agnostic about the possibility of doing better. But we will never know unless we begin a full-scale conversation about what institutional transformation might actually involve. The absence of that conversation is one of the glaring deficiencies in our collective discussions of the health of the American polity. I do not think it is the only thing we need to talk about, but I do strongly believe that any approach that denies its potential importance is doomed to failure.

I look forward to reading your reply.

Sandy

CHAPTER 2

OCTOBER 12, 2015

Dear Sandy,

It might be useful to organize the issues raised by your initial comments into three sets of questions.

First, is the United States presently in a period of political dysfunction? What features or aspects of the political system evidence this dysfunction or are themselves dysfunctional?

Second, is there a better way to describe our current set of problems than political dysfunction?

Third, are our present problems caused by hard-wired features of the American Constitution, or are they caused by other features of the constitutional system? Is a constitutional amendment or a new constitutional convention the appropriate remedy for these problems, or would other kinds of remedies prove more effective or appropriate?

Is the Problem Dysfunction?

You begin by asserting that no one seriously doubts that the United States is currently in a period of political dysfunction. But I think the question is far more difficult. That is because the term "dysfunction" is quite ambiguous.

If dysfunction means that politicians are unable to perform the ordinary tasks of governance, it is by no means clear that the national government is dysfunctional. It all depends on whose perspective you are taking. The Debt Ceiling Crisis of 2011 caused enormous anxiety. Yet it led to the Budget Control Act of 2011, which, if you are a Republican, was an enormous policy success because it slowed the growth of federal spending. Again, if you are a Republican, you might well rejoice in the fact that the percentage of the workforce employed by federal, state, and local governments has significantly decreased during Barack Obama's presidency, although, as a Republican, you might be loath to give Obama credit for this.

If by dysfunction you mean that the president and Congress do not seem to agree on anything these days, the upcoming 2016 election would seem to provide an easy cure. Simply elect a Republican to the White House, end the legislative filibuster, and the problem is solved. Then the national government would be like many state governments with one-party rule. These governments are able to pass a great deal of legislation. Many of these reforms are ill-advised, but that does not mean that these state governments are dysfunctional. It means only that democratic governments sometimes produce very unwise policies.

Now if the thought of a Republican Congress working with President Trump, Rubio, or Jeb Bush disturbs you far more than the status quo, it is not clear to me that what you really are worried about is dysfunction. That is because you are presumably delighted that President Obama (and forty-six Democrats and independents in the Senate) stand ready to prevent Republicans from dismantling not only Obamacare, but large chunks of the New Deal and the modern welfare state. Rather, your real objection is to policies that you dislike. Your problem is that a substantial percentage of the American public disagrees with you about public policy and does not want the same things that you want. Your problem is not dysfunction — it is control (or blocking) by your political opponents.

Perhaps the problem boils down to the concern that the U.S. government is dysfunctional because (pending the results of the 2016 election) it is easier to push policies in a direction Republicans like, and it is harder to push them in a direction that many Democrats like. That may not in fact be true, but even if it were true, one would then have to couple this claim with the (contestable) assertion that the Democrats, for all their faults, are closer to the real or genuine interests of the public and of democracy generally, regardless of what the opinion polls say. But I am not sure that the best way to describe this state of affairs is political dysfunction.

(Continues…)


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Table of Contents

Introduction,
1 Do We Have a Dysfunctional Constitution?,
September 29, 2015,
October 12, 2015,
October 12, 2015,
November 1, 2015,
2 Dysfunction and the Rise of Donald Trump,
August 1, 2016,
August 7, 2016,
November 26, 2016,
December 3, 2016,
3 Constitutional Crisis,
February 21, 2017,
April 14, 2017,
4 Constitutional Rot,
June 18, 2017,
June 24, 2017,
August 29, 2017,
5 Executive Power and Constitutional Dictatorship,
October 7, 2017,
November 6, 2017,
6 Conclusions,
January 1, 2018,
January 5, 2018,
Acknowledgments,
Bibliography,
Index,

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