Economics, Law, Philosophy, Politics, Religion, Science

Max Weber and Political Ethics

Free Photo: Constructing the Manhattan Bridge

I hadn’t read anything by Max Weber until very recently, but finally made my way through “Politics as a Vocation,” his late lecture delivered shortly after the end of the First World War and the start of the German Revolution.

Weber seems to be primarily known today for several largely logically independent ideas scattered across the social sciences and humanities — especially: the idea that a Protestant work ethic played a role in the rise of capitalism, the importance of charisma to politics, the centrality of bureaucracy in the modern state, and the definition of the state as “a human community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory” (where “legitimate” only means “accepted as legitimate,” to the apparent consternation of many normative political theorists).

I had heard that “Politics as a Vocation,” where this definition of the state appears, was one of the places where Weber approached political theorizing, and I was predisposed to sympathize with the lecture by some positive remarks that the legal scholar Duncan Kennedy had made about Weber and the “ethic of responsibility.” I’ve also always believed that political theorists tend to pay too little attention to empirical knowledge from history and political science, so I was hopeful that a broadly historically and empirically informed social scientist like Weber might offer a valuable perspective.

To my surprise, however, the lecture as a whole turns out to be remarkably parochial, and in parts, dangerously misguided.

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Economics, Politics, Religion

Constitutional Rot: A Thought Experiment

Free Photo: Dead Casualties, Russo-Japanese War

As more than three in four Republicans continue to support our dangerously unfit president, despite the daily accumulation of evidence that his unprecedented mental and emotional unwellness and incompetence threaten the security of our country, I find myself wondering: how much further can our democracy decline before it collapses? How much more steady constitutional rot can we sustain before there is a true constitutional crisis?

The greatest threat to the future of American democracy, I continue to believe, is the risk that there will be an attack on the United States or other mass-casualty catastrophe, such as an epidemic or cyberattack on critical infrastructure, during the Trump presidency. Whether or not Trump bears responsibility for the catastrophe, through his unfathomable incompetence or otherwise, it seems virtually inevitable that he will respond, as he characteristically does, by blaming his usual enemies—the press, the courts, immigrants, Muslims, and opposition political forces that may now include not only Democrats, women, and scientists, but apparently the FBI and the American intelligence community.

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Law, Politics

Negotiation Theory Argues for Constitutional Hardball Against Trump

Free Photo: Home Being Moved

In a 2004 article, the constitutional law scholar Mark Tushnet described the rise of what he called “constitutional hardball.” The article draws attention to a phenomenon that has become even more prominent in the United States over the ensuing thirteen years: the use of “political claims and practices … that are … within the bounds of existing constitutional doctrine” but that nevertheless conflict with prior assumptions about how things are supposed to work–the assumptions that “go without saying” in a working system of constitutional government.

A historical example would be Roosevelt’s court-packing plan. Already in 2004, Tushnet described a number of more recent examples of constitutional hardball by both Democrats and Republicans, but primarily by the latter–the Democratic filibuster against Bush’s judicial nominees in 2002-2003 and the Republican response, moves in Colorado and Texas to revisit districting decisions after the 2000 census, and the impeachment of President Clinton.

Many Republicans would argue that President Obama engaged in constitutional hardball by circumventing Congress through executive actions. Even if this is granted for the sake of argument, it would be hard to deny that the radicalized Republican Party of recent years has engaged in an escalation of constitutional hardball with no modern precedent. These hardball tactics include the transformation of the Senate filibuster into a hurdle for routine legislation, the Republican decision to hold hostage the nation’s credit by threatening to default on the debt, the unprecedented refusal to hold a vote on Merrick Garland’s nomination to the Supreme Court, and the North Carolina legislature’s recent attempt to rewrite the powers of their Governor after a Democrat won the office. The list could go on.

The most important example, I would argue, was the general Republican refusal to engage in ordinary legislative negotiation with Obama throughout the course of his presidency. As Mitch McConnell famously stated in 2010: “The single most important thing we want to achieve is for President Obama to be a one-term president.” Republicans carried out this strategy for the next six years by vocally opposing virtually every initiative supported by the President, even those policies that Republicans had supported before Obama and now support again under President Trump, such as infrastructure investments.

McConnell understood a central fact of contemporary American politics, one backed by social science studies and now confirmed by the success of McConnell’s strategy. This fact is arguably the central fact of contemporary American politics, along with the phenomenon of partisan polarization grounded in antipathy for the opponent’s party. As Jonathan Chait has repeatedly, persuasively reminded us:

The truth is that voters pay little attention to legislative details, or even to Congress at all. They make decisions on the basis of how they feel about the president, not how they feel about Congress. And a major factor in their evaluation of the president is the presence or absence of partisan conflict. If a president has support from the opposition party, it tells voters he’s doing well, and they then choose to reward the president’s party down-ballot.

In fact, voters “are so single-minded in their focus on the president that voters actually base their vote for state legislature on their assessment of the president.”

Welcome or not, this is a fact of contemporary American political life. Voters will reward Democrats in 2018 and 2020 for opposing everything that Trump and the Republican Party attempt to do between now and then–and punish Democrats for any perceived Republican legislative or executive victories. Despite what voters sometimes say in surveys, they will not reward Democrats for cooperating to get things done. No one is actually paying attention to that.

In addition, there are only so many seats in the Senate and the House: a win for Republicans is a loss for Democrats and vice versa. Partisan representation is a zero-sum game, with no possibilities for mutual advantage through negotiation.

As a result, Democrats have an obvious self-interest in opposing congressional Republicans and Trump on every possible front, including the forms of constitutional hardball that Republicans used throughout the Obama presidency. The most obvious and important example is Democratic refusal to vote for Republican legislation, including legislation that Democrats might support based on its substance alone.

Another example would be Trump’s nominee to fill the vacant seat on the Supreme Court. Democrats have an interest in obstructing the nominating process through every means possible, using whatever flimsy justification comes to mind. The justification would certainly be no less flimsy than the one used by Republicans to obstruct Garland’s nomination.

But sensitive, fair-minded, principled Democrats may hesitate to embrace such a flatly oppositional approach–as Senator Schumer and no doubt many other moderate Democrats appear, very much, to be hesitating. If Democrats begin to play routine constitutional hardball just like the radicalized contemporary GOP, descending to their low game rather than rising above the fray, what will become of our constitutional system?

Once the unwritten norms of fair play and settled tradition are routinely, unapologetically violated, will the Constitution not cease to “make politics possible,” leading to a serious constitutional crisis?

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Politics

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…

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