Balkin on the Current State of the American Political System

Jack Balkin, a professor at Yale Law School, recently posted a new article that dovetails with some of this blog’s recent posts on the current state of the American political system. The abstract:

Today, America’s political system seems remarkably dysfunctional. Many people believe that our 225-year-old Constitution is the problem. But what looks like constitutional dysfunction is actually constitutional transition, a slow and often frustrating movement from an older constitutional regime to a new one.

Americans last experienced this sense of dysfunction during the late 1970s and early 1980s – the “last days of disco.” The New Deal/Civil Rights regime had gradually fallen apart and was replaced by a new constitutional order – the conservative regime in which we have been living for the past three decades. By 1984, few people argued that the country was ungovernable, even if they didn’t like President Reagan’s policies.

In the same way, our current dysfunction marks the end of the existing constitutional regime and the beginning of a new one. This new regime may be dominated by the ascendant Democratic coalition of young people, minorities, women, city dwellers and professionals that elected Barack Obama in 2008 and 2012. Or insurgent populists associated with the Tea Party may revive the decaying Republican coalition and give it a second wind. As of yet, neither side has been able to achieve a successful transition, leading to the current sense of frustration.

There’s an interesting asymmetry between the two possible political futures that Balkin highlights. One is defined by demographics (Obama’s coalition), the other by ideology (Tea Party-style populism). This fits with my sense, articulated in previous posts, that Obama has failed to articulate an ideology that could displace the “small government” vision of the Reagan era. Obama is not a transformative president in that sense. He has a newly coalescing electoral coalition, but no vision of government to coalesce around—other than opposition to the Reagan era vision. And nothing new has come from the right to displace the Reagan era vision either: the Tea Party continues to rally around the idea of small government as the source of freedom.

All of this is why I would like to see the American left move beyond the Reagan era and come up with a new vision of government backed by concrete projects—whether like this one, and backed by projects like this, or based on some other set of guiding principles. The demographic soil for a new era in American politics has been tilled, but no one seems to have ideological seeds on hand.

The rest of Balkin’s abstract after the jump…

Balkin’s abstract continues:

Nevertheless, the transition to a new constitutional regime will be far more difficult than those effected in 1932 and 1980. First, the growth of the modern state and changes in the role of the presidency mean that even the most politically adept and fortunate presidents face greater obstacles to implementing transformative change than they once did; they are less able than past reconstructive leaders to disrupt existing institutions and clear the ground for a new politics. This, by itself, does not prevent the emergence of a new constitutional regime. But second, and perhaps more important, the current transition will be especially difficult because we are near the peak of a long cycle of increasing polarization between the nation’s two major political parties. That polarization greatly raises the stakes of a transition to a new constitutional regime. The defenders of the old order have every incentive to resist the emergence of a new regime until the bitter end.

A long and frustrating transition will have important side effects. First, a dysfunctional Congress tempts the Executive to act unilaterally, by asserting inherent executive authority or by creatively interpreting previous Congressional authorizations. Future presidents may use these new sources of power even when the period of dysfunction has passed.

Second, a period of sustained political dysfunction also tends to empower the judiciary vis-à-vis Congress. Courts will feel freer to assert themselves and will show Congress less deference. Moreover, judges appointed by the older dominant party, late in the regime, are less likely to engage in judicial restraint and more likely to push the jurisprudential envelope. This helps explain some of the Roberts Court’s recent work. Assisted by conservatives in the lower courts, and by energetic litigation campaigns by conservative civil society groups, the Roberts Court appears to be solidifying and extending the old regime’s ideological and constitutional commitments while it still can.

Our current political dysfunction will end, and a new constitutional regime will emerge. Yet injuries to our politics caused by years of political difficulty will remain. The coming constitutional order will offer new possibilities for political reform, but it will also bear the scars of previous struggles.

Two more thoughts:

First, Tea Party populism is an ideology, but it is an ideology with a clear history of differing levels of appeal among different demographic groups. Based on the demographics, if nothing else, it is hard to see how Tea Party populism could give much of a second wind to the Republican coalition. If the paradigmatic Tea Party voter remains a white, Southern, male, evangelical Christian senior citizen with traditional values, the Tea Party is likely to continue its decline from the peak of its electoral power in 2010. (Of course, the decline will ebb and flow with the level of turnout, leaving the Tea Party stronger in mid-term election years.)

Second, it sometimes seems strange to me that the Tea Party is called “populist.” It has all the resentful sound and fury of populism, but what is the power against which it defines itself? As I understand it, populism has usually been used as a label for a certain kind of angry political movement that sides with “the people” and “the common man” against some powerful enemy. Populism is for the interests of the many, somehow defined, and against the interests of the few, somehow defined—as opposed to non-populist political movements that might aim to reconcile and promote the interests of all parts of society, without demonization. So: what is the enemy of the Tea Party? It’s not the wealthiest of the wealthy, or corporate interests. These are the creators and funders of the movement.

If the Tea Party’s enemy is “the government,” or “the liberal elite,” then Tea Party-style populism belongs to a different category of populism than anything that came before it. I guess this is the point that Thomas Frank has been making since the financial crisis.


2 thoughts on “Balkin on the Current State of the American Political System

  1. “Courts will feel freer to assert themselves and will show Congress less deference.”

    I think that it has already happened, first with RFRA and later on in Windsor.

    Scalia, of course, takes the majority’s opinion as a personal affront of some sort. I’ll quote him rather extensively if you’ll allow it.

    “The majority concludes that the only motive for this Act was the “bare . . . desire to harm a politically unpopular group.” Bear in mind that the object of this condemnation is not the legislature of some once-Confederate Southern state (familiar objects of the Court’s scorn, see, e.g., Edwards v. Aguillard…) but our respected coordinate branches, the Congress and Presidency of the United States. Laying such a charge against them should require the most extraordinary evidence, and I would have thought that every attempt would be made to indulge a more anodyne explanation for the statute. The majority does the opposite — affirmatively concealing from the reader the arguments that exist in justification.”

    But one idea that Scalia does not seem to breach (perhaps because he agrees with it?) is that this contempt is not for the other two branches’ views (though there is that) but the other branches as they’re defined? I’m not surprised it was not mentioned because accepting one of Justice Scalia’s points is tantamount to, well, something unpleasant in Balkin’s circles. But the paragraph gives credence to the steady beat of court disdain for aspects of the democratic process.

    Something else to consider is how the Court took one, hard look at the arguments presented by the White House in Sebelius and simply said ‘No, you are just wrong.’ But then they gave the Administration a winning argument because the Court seemed to realize that they could not extricate themselves from the political promise not to raise taxes.

    What I would have liked to see is the hard work at historical contextualizing. Balkin seems to take it as a matter of fact that the Court will view the coordinate branches with more disdain, but is that necessarily something unique? Is Court deference to the other branches the exception rather than the general rule–why and why not? I fear for the social lives of the graduate peons Balkin no doubt has at his beck and call. But nevertheless I think it would make for some interesting reading.

    “It has all the resentful sound and fury of populism, but what is the power against which it defines itself?”

    In my mind, and perhaps this is wildly off base, the enemy of any populist movement is big but not necessarily few. The Curse of Bigness, the paper collection of Louis D. Brandeis, is an oddly prescient document and perhaps rightfully so because it takes, on one hand, a sort of boundless optimism mixed in with a deep skepticism of (you can judge this book by its cover) ‘Big.’ Anything that happens to prevent the real mover and shaker of the political spirit, responsibility, is wrong. And this generation’s big is the modern administrative state. For all the reasons Brandeis disliked large corporations and warned against large government reactions we have those positions more or less regurgitated in our time.

    Which is why I’m personally a skeptic of Thomas Frank’s view on national politics even if I’m generally on board with what he chats about when the topic is our university system. To him every election is ‘new’ and ‘exciting’ and will really ‘change’ things, somehow. The Tea Party is different, Obama is different (until he wasn’t) and this year is all about change. This year. This year. Okay, this year. But it all sounds so eerily similar to (his?) rhetoric around Clinton’s new majority in 1992, or the new Democratic majority during Bush’s second midterms or Obama’s first election, or his second election. Every election is new and different and exciting and we should see a new permanent majority, until we don’t.

    In reality, I think, the Tea Party is just a fun spin on something perhaps as old as the New Deal and at least as old as the 90s.

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