HLS Library Book Talk | Constitutional Democracy in Crisis?
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HLS Library Book Talk | Constitutional Democracy in Crisis?

October 9, 2019


Thank you for joining us today. On behalf of the Harvard
Law School Library, I’d like to welcome
you to today’s book talk in celebration
of the recent release by the Oxford
University Press of– and this is the hard
part because I’m not sure if I should adopt a tone of
humor, a tone of incredulity, or a tone of despair– Constitutional
Democracy In Crisis?, edited by Mark Craver, Sanford
Levinson, and Mark Tushnet. Joining us for today’s book talk
are to my left, Mark Tushnet, who is the William Nelson
Cromwell Professor of Law at Harvard Law School;
Sanford Levinson, who is the W St. John Garwood
and W St. John Garwood Jr. Centennial chair in
law at the University of Texas Law School and visiting
professor of law at Harvard Law School. Also joining us
are Vicki Jackson, who is the Thurgood Marshall
professor of constitutional law at Harvard Law School. And today, our
faculty are joined by Katherine Young, who is the
associate professor of Boston College Law School,
and hopefully, Professor Steven Levitsky
who is a Harvard University professor of government, who
may be looking for our room– OK– who hasn’t arrived yet. So before we get started, I
have just a few announcements. If you haven’t already noticed,
the law school cube coop is here right outside
the door selling copies of Constitutional
Democracy in Crisis. And professors
Tushnet and Levinson will be here after the
talk for signing books. I would also like to thank
the dean’s office today for sponsoring today’s lunch. And finally, I just
would like to remind you that today’s talk
is being recorded and it will be available on the
Law School’s YouTube channel approximately two weeks
after today’s talk. Thank you. And I will now turn
the microphone over to our speakers. Thank you very much. I’m going to sit here
just so that none of us have to go through the logistics
of coming up to the podium unless people want to. So this book is one
of a number dealing with seeming crises in
constitutional democracies around the world. So Professor Sunstein recently
co-edited a book called Can It Happen Here?, which seeks
to draw lessons, if any, from world-wide experience to
compare to the US experience. Professor Levitsky has
coauthored a very important book on democracies in decline. Tom Ginsburg and
Aziz Huq have a book coming out on a similar topic. Obviously there’s
something in the air. What I want to do is
actually raise some questions about the enterprise. And the way of doing
this is to note that we decided to give the
book the title Constitutional Democracies in Crisis? Question mark,
because we thought that this concern in
the air might be valid, but also might be– I don’t know what the right word
is, overstated or projecting some permanence into
a phenomenon that might be only temporary. The idea in the
air is that we’re experiencing a widespread crisis
for constitutional democracy. So I want use my time to raise
a few questions about this, obviously very sketchy
and happy if we have time to talk about it afterwards. First, the asserted
crisis is fairly recent. Or put another way,
the nations that are said to be
experienced a crisis of constitutional
democracy have been in that situation for
no more than a decade and, in many places, for a
shorter period at the moment. If we want to include
the United States in that, less than two years. 10 or even 15 years is not
that long in any nation’s political experience,
although for those living through bad
times things are going to be quite bad for a while. We don’t really know
though whether we’re observing something permanent
about constitutional democracy in these nations or
something like the normal ebb and flow of politics,
where we can’t figure out which way to do
this, so this is divergent. The ebb has perhaps
taken the tide a bit farther out than we’re used to. But for all we know
now, in many places the flow may bring things
back in a few more years. And indeed, the flow might
be even more vigorous than the ebb or whatever. You can work out the
metaphor if you want. So, for me, the experience
of Ecuador is instructive. Articles written
five or six years ago routinely listed Ecuador along
with Venezuela and Bolivia as experienced
democratic retrogression or whatever the author’s
favorite term was. Rafael Correa looked
like populist leaders elsewhere, both in respect
to the economic programs he promoted and the
constitutional changes he sought. But it turned out Correa
may have been a blip. The Ecuadorian constitution was
indeed amended substantially, but Correa was unable to
extend his own term of office. The story here is quite
complicated in detail, but the bottom line is that
Correa had to leave office. He designated his lieutenant,
Lenin Moreno, as his successor. And Moreno turned
on Correa and undid the constitutional changes. We don’t know what’s
going to happen in Ecuador over the next few
years, but for the moment the best characterization
seems to me to be something like Correa
ebb, Moreno flow, not much to notice here. And the fact– and this
is the second point– the fact that accounts
of democratic decline almost always focus
on individual leaders, Correa, Hugo Chavez,
Morales in South America, Trump in the United
States, Orban, Kaczynski, Erdogan in Eurasia,
is suggestive. Most, if not all
of them, are fairly described as charismatic at
least in their natural context. Doesn’t seem to me that Erdogan
is terribly charismatic, but Turks apparently
think that he is. Or Narendra Modi in India. Whether their charisma
can be institutionalized after they leave seems
to me an open question. The current turmoil in Venezuela
suggests the difficulties. Maduro’s inability
to institutionalize Chavez’s charisma
means that it’s no longer helpful to
describe Venezuela as a constitutional
democracy in crisis. To me, failed states
seems more accurate. Again, it may take quite a
while for the current leaders to pass from the scene, and
meanwhile life in their nations may be quite unpleasant
for their opponents, but those interested
in the course of constitutional
developments probably ought to take a
longer perspective and throw a lot of maybes
and perhaps, not yet, buts into their arguments. Third point is, the story of
constitutional democracies in decline probably
has to be supplemented by constitutional
democracies resurgent. So here I haven’t
focused too much detail, but here I think that the
primary recent example is Malaysia, where an
authoritarian government rigged an election and
managed to lose it. This is really extraordinary. If you look at what
they tried to do, they really rigged it
and then lost massively. So that’s an encouraging story. And incidentally, the
new prime minister is somebody who when
he was last in office was regarded as a
potential authoritarian. So who knows. Finally, this one is likely
to be even more controversial. Decline, of course, is in this
context a pejorative term. Maybe what we’re observing is
a proliferation of variants of constitutional democracy. Examples of nations in a
decline from a reasonably robust constitutional democracy to
the contemporary equivalent of Stalinist Russia are rare. Again, the closest
probably is Hungary, and even there there seems
to be a reasonably vigorous civil society of opposition. So maybe what we’re
seeing is a redefinition of many components of
constitutional democracy, freedom of expression,
for example, or some rough equality of
competition in elections. Quite robust definitions
have been replaced by substantially weaker ones. And along many, though
not all, of the dimensions that make up
constitutional democracy. Still, riding one
of my hobby horses, maybe we ought to
try to see Morales’ Bolivia as an
interesting attempt to institutionalize a
different idea of what we mean by constitutional democracy. And frankly, if
Morales’ Bolivia, why not Trump’s United States? And to be even more provocative,
why not get Kaczynski’s Poland or Orban’s Hungary? So just to wrap this
up, there clearly is something happening here. And we don’t know what it is,
to quote a Nobel Prize winning author. But reflecting on what it
is seems to me both useful, but also necessarily– I don’t know– more
qualified than the notion of widespread crisis suggests. Thank you. I’ve had the pleasure
of participating in these events
several times before, usually focusing on what I don’t
like about the United States Constitution, why we need
new constitution convention, and indeed, I wrote a review
of the [INAUDIBLE] book criticizing it. It’s quite a good book,
but criticizing it for not taking into account
the structural costs imposed by the 1787 constitution. But I’m really not going
to dwell on that today because this book really
is a book about countries all over the world. So Mark’s evocation of Malaysia,
Bolivia, Ecuador, Poland, Hungary is altogether
faithful to this book. But it also causes– if one is an editor of this– to think in more, quite
literally, global terms. So my essay in this
book I don’t think even mentions the deficiencies of
the United States Constitution or, indeed, the more
general problems posed by particular
constitutional structures, whether in France, Germany,
or fill in the blank ad infinitum for the 191 or so
countries in the United Nations at the current time. Rather, I focus on
a single big idea that I identify perhaps
because I’m American, there are other identifying
sources of popular sovereignty and self-determination. If one wishes, one
could identify this with Vladimir Lenin, who
wrote a very interesting book on self-determination. There obviously is a
European tradition of Herder, or Mazzini, Kossuth, et cetera. I focus in on Woodrow Wilson not
only because he is an American and won the Nobel Peace
Prize, but because I think that he is in
some ways the leading figure behind the most
important political idea of the 20th and 21st century,
that is popular sovereignty and self-determination. One could push that
back and say it’s the most important idea of the
last three or four centuries since Thomas Hobbes
and others slew the idea of divine
right of kings and had to find a different
basis of legitimacy and that basis is some
mysterious entity called the people, as in
“we the people” who ostensibly
ordain constitutions and provide the
basis of in order. I’ve come to the
conclusion that not only is it the most important
single political idea, but it may be the
most pernicious single political idea, at least
in some of its consequence. Now, it’s very hard for
any American, I think, to say the idea
of we the people, government by the
people, governments getting their legitimacy
from consent of the governed is a pernicious idea. The problem, as the students
enrolled in my reading course this term on popular sovereignty
know, especially with regard to this afternoon’s
class, the devil is in defining who
we the people are. And quite frankly
there is no good answer to defining who we the
people are, whether it’s we the people of the United
States, of Germany, of any of the countries
perhaps other than Iceland. Iceland might claim to be
a genuine nation-state. Quite frankly, I don’t know
of any other country larger than Iceland, especially
if it’s not an island, that can claim to be a nation-state. All states are multinational. That is true of this
country, it’s true of Israel, it’s true of China. Walk through the
world map and you see pluralistic
multinational states in collision with the idea
that they’re supposed to be in some sense nation-states. And not surprisingly, those
national entities that had been used to running things, whether
you define them in terms of race, white supremacy
in the United States, which certainly cannot be
ignored as a factor explaining the current unhappiness
this country. It can be religious. It can be ethnic. But whatever it is, traditional
ruling elites defined by reference to
ascriptive identities, not the universalistic
sort of we’re all just the children of
God and brothers and sisters to one another, a noble
notion that has never gotten full purchase around the world. But the notion of
self-determination, national determination is, I believe,
one of the things that is behind the attack not so much
on constitutional democracy. As Mark suggests,
there are a lot of different notions of what a
constitutional democracy might look like, but liberal
democracy, which is defined I think more or less in
pluralistic, multinational, even universalistic terms. And that’s in collision
with an idea that, no, we the people of
fill-in-the-blank are entitled to control– the other reading course
I’m giving this semester is on public monuments– are entitled to control
whose statues are in front of capitals,
are entitled to control what the
dominant language will be, are entitled to control
ultimately how we present ourselves to the world. And so I think whatever my
unhappiness with the United States Constitution, one can’t
deny the profound, deep– I personally think
unbalance certainly beneficial consequences of
the Immigration Reform Act in, I think it was 1965, that
is– at the same time, not at all coincidentally
as the most important piece of domestic legislation
in my lifetime, which is the Voting
Rights Act of 1965. But also the
Simpson-Mazzoli legislation passed under the
Reagan administration that fundamentally changed the
nature of the United States. And then you look around. It ought not be surprising
that immigration is one of the key issues
all around the world because immigration
does, in fact, change the nature of any so-called
nation-state and ultimately, quite frankly,
destroys the notion, any comfortable
notion, at least, of what we mean
by a nation-state. So I am going to stand
because of my back. It’s a wonderful book. I hope that you will
all get a chance to at least browse through it. My talk is going to focus
not on one big idea, but on what I see as threats to
constitutional democracy coming from– targeted at least three
essential institutions. I’m not saying these
are the only ones, but they are important. And those institutions are law,
representation, and knowledge. And I’ll try to explain a
little bit what I mean by these. I’m going to use examples drawn
mostly from the United States in this talk, but I want to say
that the chapters in the book provide many examples of
attacks on these institutions in a number of the
countries under study. In the world in which we
live, ideas about law, ideas about the
construction of a state, ideas about immigration,
ideas about inclusion or non-inclusion, travel. It is not only good ideas
that migrate from one country in the world to another. Bad ideas can migrate too. And so with that in mind, let
me just elaborate on these three areas of threats. I don’t think you can have a
decent constitutional democracy without law to provide a
framework for governance, to protect competitive
electoral processes, to protect minority rights,
and to prevent abuses of power. Thus, when high political
figures overtly attack judges, call them so-called judges. This is not like firing
2,700 judges in Turkey, but it is a bit worrisome. It is a bit worrisome
when the president issues a pardon of
someone convicted of a criminal contempt
of a federal court. I want to focus on that. The Supreme Court
of the United States has said that the power
to punish contempt is inherent in all courts, is
essential to the preservation of order and
judicial proceedings, and to the due
administration of justice. So not like firing
2,700 judges in Turkey, but may be concerning. Attacks from high places on all
of the institutions of justice in the federal government, the
Justice Department, the FBI, federal prosecutors. And I could go on
and talk about some of the arguable encouragements
to violence that we have seen. Violence is, in my account,
sort of the opposite of law. How do you resolve disputes? There is law, there is violence. I mean, there are other ways. All right. So that’s just a sketch of
the ways in which I see law being under assault.
Let me come now to representation
and its institutions. I’m in the middle
of reading a book. It’s very compelling
reading by Carol Anderson called One Person, No Vote– How Voter Suppression
is Destroying Democracy. And I thought I was following
this area of development fairly closely,
but I was shocked. I’m so old you think I’d lose
the capacity to be shocked, but I was shocked at some of
what is recounted in the book. For example, after some states
enacted very rigorous voter ID requirements, effectively
requiring that the voter have a driver’s license to be able to
be a registered voter, closing driver’s license
bureaus in, you can guess what kinds of counties. I was a little bit shocked
because a foundation for what I’m going to call the
spirit of a decent democracy is to recognize that every
person in it who is an adult should have an
equal right to vote. You want your side to
win, but not at all costs. You don’t want to
permanently suppress either side of these
kinds of disagreements. Professor Issac Roth
has a very good chapter in this book on
populism and democracy in which he argues
that democracy depends on what he calls
temporal aspects of repeat play. My word for that is
reciprocity, an awareness that you may be up now,
but you may be down later, and so you want to adhere
to some basic rules of fair dealing. We are seeing a decline in
that spirit of reciprocity, in voter suppression
efforts, in what John Senator McCain complained of as
the lack of regular order in the Congress, which is
our principal representative institution at the
national level. When you see the encouragement
of criminal prosecution of your opponent– this is a quite scary
phenomenon, I think, because it leads to
the disappearance of the idea of loyal opposition
and to the idea of enmity, from which, if you go
down the road far enough, one has seen civil
wars arise in the past. All of these are
inconsistent with what Jennifer Hochschild in
another chapter in this book called threats to
civic nationalism in the United States. The idea– and
Professor Levinson referred this–
that all Americans are entitled to
respect and toleration no matter their race,
religion, or ethnic heritage. I have many more
examples there, but I’m going to turn to my third– one more point. Millennials, it turns
out, around the world and in the United States,
are becoming less convinced that democratic
governance is a good idea. This is also very concerning. In the United States
in 1995, only 16% of people ages 16 to 24
thought democracy was a bad way to run the country. By 2011, that number
had risen to 24%. And that’s a significant rise. And there have
been similar rises on similar questions in a number
of countries around the world concerning about representative
institutions in a democracy. Last– knowledge
in the institutions that produce and test it. And here I want
to briefly mention three institutions, all of
which have come under attack. First, universities. What do I mean? Sharp partisan divide emerged
after 2015 in the United States on whether universities
and colleges are good for United States. Most Dems think
they’re very good and most Republicans
think they’re not. That’s concerning. That’s concerning. Foreign enrollment. I just read this morning,
graduate enrollments, first time enrollments are
down 4% in the last year– in one year– drop from the
Council of Graduate Education because the United States is
being perceived as unwelcoming to students and faculty
from other countries and has slowed down
the visa processing. Now, if I look at Turkey– and
I don’t mean to pick on Turkey. Ozan Varol had a very good
chapter with numbers in it, and I like numbers. 1,600 university deans
fired by the government. That’s not where we are and
I don’t mean to suggest it. But it is concerning. The tax, very small tax granted
that was imposed on endowments. Some of you may think
this is a good idea. But I kind of think
it’s a good idea to have some economic
power centers that are not in the government and
not in the for-profit sector. So it worries me. And I want to say I don’t think
it’s an accident that some of the people who
in recent decades have been most willing to
testify against nominees have come from academia with
its traditions of protecting dissent and free speech. OK. The second one of
these institutions– do I still have time, Mark? OK. The press. We have heard repeated
attacks on the press. And Professor Hochschild’s
chapter, she says, “Of President Trump’s
post-inaugural tweets, 89 out of 167 were
attacks on the press.” Why is– and, again,
on whether the press is a good or a bad thing
for the country, there’s an intense
partisan divide. The Democrats are kind of
50/50, they’re not so sure. But the Republicans, 85%
think the press is bad. But without a press how do
we find out about wrongdoing? I’m not arguing that what the
press does is always wonderful, but how do we find out? Now, there are real challenges
to the role of the press that have developed today because of
the development of social media outlets that provide
virtually no filtering. And those are challenges
to the knowledge, creating knowledge, checking
role of a free press that I’m hoping the
folks in this room will help think through. But it’s a concern. And, finally, the third
kind of institutional part of the knowledge base that
I’ve been thinking about is what we might think about
as information-generating parts of the government. We might think about
whether we have sort of epistemic integrity
organs or objectivity organs. What am I talking about here? Well, first let me draw a
contrast between the UK cabinet manual, which is
about the principles that all public
officials should live by. I’m going to read it to you. It’s very short. Selflessness,
integrity, objectivity. Objectivity. I’ll stop reading there. I’ve looked at comparable
statements in the US, I haven’t found objectivity. So that may be a broader
cultural question. But there have been
numerous reports, and I don’t really know how
serious this is, of scientists, for example, who work for the
CDC being told there are words they cannot use. Those words include
“evidence-based,” “fetus,” “transgender,” “science-based.” About EPA scientists
who had agreed to speak at conferences
being told you can’t speak, about a proposal coming out
again of EPA saying, EPA, I can’t consider any
scientific papers unless all the data on which
they’re based is made public. Which when you first
hear it I think sounds like a pretty good idea
except, for example, in the field of
public health there are studies done on
promises of confidentiality if people report
medical information. It’s a problem. So how worried am I? I am not without hope. We still have a
very vibrant sector of dissent and disagreement. But I am pretty concerned and I
thought Professor Hochschild’s warnings to be aware
both of false nostalgia, to imagine that there was
some golden age in the past, but also a false sense
of security and hope that we can continue
having events like this and books like
this to try and keep things working better. OK. So I’m going to start my remarks
in congratulating the editors for assembling such a
comprehensive range of topics and countries and perspectives. It’s a real tour
de force, I think, of collaborative and
timely scholarship. All of us accept, I think,
that a language of crisis can be a very dangerous trope
in constitutional observations. Clearly they can
connect to notions of exceptional or
emergency measures that are suddenly justified. But I think here there is an
urgent note of caution that is duly deployed across the
many countries that are observed in this book, which connect the
dots between various declines in constitutional
democracies and present the challenge of how to confront
the fact that this model of constitutional organization
which we are so familiar with may have peaked. So it certainly
roused this reader. I really encourage you
all to read this book. I thought I’d speak to two
issues in particular today, but I think each chapter
deserves its own book panel. There is just so much discussed. I’m going to focus on what I
would describe an egalitarian deficit that we’re observing
in constitutional democracies, as well as some
comments about the tools with which we study
the phenomenon of constitutional crisis. So let me turn first to this
notion of economic egalitarian deficits in our constitutions. Now, as economic data
makes very clear, we are living in an
era of escalating, even galloping economic inequality. This is a phenomenon that
tracks income and, of course, wealth inequality within
and between most countries. And it’s severely
impacting the stable industrialized democracies. And these lines were made
very clear after the 2008 financial crisis. And in many chapters
of this book, we see economic
inequality as a key driver of constitutional crisis, at
least of political instability and on some occasions
constitutional crisis. It’s a driver when the shrinking
and sinking middle and working classes become fed up with their
constitutional institutions and turn to populism and the
idea of burning the house down. And also, wherever
wealthier classes get to influence and control
elites and the policy and legislation
choices they make to further entrench a political
economy that favors them. There are, of
course, other drivers to constitutional decline
or constitutional crisis. The book covers immigration,
globalization, religion, corruption, and climate change. All of these can be seen to
feed into economic arguments, but also they stand alone. I’m just going to foreground
the economic in my remarks. These underlie the much
more easily observed trends of the rise in executive power,
the disarray and dysfunction of legislative power,
the incoherence of political parties, and the
rise and potential capture of courts. OK. So in taking this particular
piece on the egalitarian deficit, we find in this
book various constitutions to be at fault. So
we find the US model which provides no express
pretext under which constitutions should
address economic inequality despite many other
egalitarian commitments. The idea here is that
these kinds of arguments occur in the world of
politics and mainly economics, not of constitutional
domains and that we know that there are
various policy options that are out there that
would favor a more egalitarian economic order,
such as those that favor progressive taxation, labor
and workplace protections, anti-competitive policies
and financial regulation, and of course, public
goods provisioning in areas such as health care
and education and so forth. Now, the US model contains
constitutional, civil, and political liberties. These do much in favor of
status equality between persons. Somewhat they do move towards a
less economically disadvantaged picture, but they don’t
come out explicitly in defense or permitting or even
requiring any forms of greater economic redistribution. The notions that
property and contract are protected and
reliable are kind of the high point of
constitutional political economy. Now, there is a
second model covered in this book, which is the more
contemporary, more expansive, more positive
constitutions which have been the main
architecture and the main trend since at least the
Second World War. So the US in this respect and
its constitution is an outlier. And various other constitutions
now around the world contain various ideas about
addressing economic inequality through express economic
and social rights, to education, to health
care, as main rights but also to housing and
so forth, social security. And also, some of which
contain either explicit policy proposals ratified within
the constitutional text, such as for
progressive taxation. Now, in this book,
these constitutions and the various economic
and social rights that are protected are faltered
for three main reasons. First, they are
seen as tokenistic. So in many of the constitutions,
the economic and social rights provisions have capitulated to
the real engine or structure of power that is set up
under the constitution that ultimately undermines them. And I would recommend
Roberto Gargarella’s work on Latin American constitutions
for this phenomenon. There’s also the problem of
very minimalistic economic and social rights. And these rest on an idea
of poverty alleviation that actually allow
inequalities to continue and may, in fact,
rely on inequalities to sustain themselves. And this is very well
expressed in this book by Ganesh Sitaraman’s work. And there are similar
critiques being made about the human
rights movement and economic and social
rights ideas there. And the third problem with
this constitutional model is that it’s
court-dependent, that if it does work and becomes more
than minimalistic or more than tokenistic it
relies on friendly courts to take over the enforcement
of economic and social rights. And this is a very
fragile reliance given how quickly they can
be captured by the executive. And this comes out
in work on Hungary and South Africa in
this book and chapters by Sujit Choudhury, Wojciech
Sadurski, and Mark Graber. So these are the
three big problems of economic and social rights
of constitutions having anything to say about rising
economic inequality. In short, the
constitutions either fail because they don’t imagine
any redistributive compulsion or, if they require
it, they’re just destined to fail for the
reasons I’ve mentioned. And then we get these two-part
problem of either having oligarchs in control of
a highly unequal society or demagogues on
behalf of the poor. Now, I want to say while there
are very clear cases of each of these phenomena at work– the
tokenistic, the minimalistic, and the court-dependent
economic and social rights– there are cases in which
such rights operate in more transformative ways
when they are understood as structural rather
than individualistic, when they are understood to
be more than ameliorative, and when they’re understood
more complexly in relation to courts. And this, of course,
relies on a departure of certain understandings
of rights that is fed into by comparative experience. So rights as political,
rights as galvanizing social movements,
and as outsourcing and perhaps catalyzing actors
to hold governments to account, to comply with
particular court orders and generally be
more responsive in their institutional capacities. And so there’s an
idea that rights given what we know
of them may hold out some hope in the very hollowed
out institutions of democracy that we’re seeing. Now, this is a very hard
and challenging story to present because, of course,
of the reasons of failure that I mentioned. But I want to say that the other
methods of tackling inequality and the harm that
we know it does to constitutional
democracy are much harder. And historians have told us that
tackling large scale inequality has only happened in the
past through violence or catastrophe. So I kind of see this as
an appropriate warning about the need to rethink how
institutional arrangements somewhat and prevent
further erosions and crisis. And we can talk about the
story of variance, as well. But this leads me to
my second comments, which are about how
we should be thinking about the present moment
and the tools which we’re using to think with. And many of the
chapters in this book really call for new categories
and new tools of analysis to move political
science forward, to move sociology forward. And they are really
excellent chapters dealing with very fine
grained commentaries focusing on choices and choosers in
constitutional decline, moments of choices and choosers taking
place at a critical junctures rather than ideas of economic
and institutional correlates, which are much harder to steer. And I think it’s
really excellent to observe these fine
grained picture occurring. It’s obviously been a
very long understood idea in constitutional theory. And it’s made all
the more critical by comparative analysis that
the domain of constitutional law extends beyond text
to context and that we have to confront notions of
what the underlying norms are, the constitutional culture,
the constitutional conventions are that allow us to adhere
to or depart from previously understood arrangements. But constitutional culture still
remains a somewhat fuzzy term. And this book really
invites us to develop our sociological understanding
of constitutional crisis, of how things happen, and how
we perceive them as implicating the constitution. So two points to end with
in theorizing the boundaries of constitutional law. One is very concrete and
it really follows, I think, Vicki’s remarks. The second is much more broad. The first is that
I think we do need to understand a little
better about how our participants,
the main participants in our driving
constitutional culture and the democratic constituents,
relate to each other. And so I would suggest
an extra chapter in this book on the operation
of the press, the participants in the field of
journalism and the press, as well as the distance
between what the press produces and what is circulated
on social media and what influences people
and their ways of thinking about their democracy there. So that would be one
concrete suggestion. But another much
broader one is to really celebrate the scope
of an undertaking in a work such as
this and to think more sociologically
about the domain of constitutional studies. Thank you. Should I? If you have other remarks. Otherwise, go ahead. Yeah. So, no. Just go to questions. Please raise your hands. So. Hi. Thank you for a great talk. I have a question
for Professor Young. I really enjoyed the talk. I really enjoyed the
analysis of the problems with socioeconomic
rights, but I’m wondering if the alternatives
that you’ve sketched out would really be sufficient
to make them effective tools of socioeconomic change. And I’m thinking here of
the work of Versteeg, who says that really these rights– if you’re choosing between
rights of association, rights that are going to empower
social factors, so rights that make unions possible,
for instance, versus individual rights,
that you should really choose the latter. I mean, I know you said
that rights might galvanize social movements,
but I would think that what’s much
more important is that you have those
social movements there in the first place. And so that the places
where constitutions might help with
socioeconomic redistribution is not mandating it even in more
complex ways that you suggest or even in ways that are more
genuine than are happening now, but the constitution
should really empower social actors
themselves to have the heft and weight to make sure
that these changes happen in the first place. OK. Great question. So there is a kind of
chicken and egg idea about behind economic
and social rights because they are reliant,
they’re most effective on various civil and
political protections, freedom of association. Social and economic
rights are going to be effective if people
can associate together. So I wouldn’t necessarily put
them as a either/or choice, but I do think economic and
social rights add something more than simply
freedom of association. So what happens is
private catastrophes– we know the understanding
of crisis and catastrophe is a driver of social
change, but with rights, private catastrophes become
articulated as something wrong with the political system. And they obviously can misfire
and they can be argued about. But it is this transformation
of a private catastrophe, a private perception
of misfortune into a right that makes an
individual or group demand something from the state. That, I think,
differentiates these rights. And when they are successful,
clearly an individual is not articulating a
private catastrophe alone. It will be when
individuals experiencing the same catastrophe leverage
together their social movement power. Hi. Sorry. Hi. Thank you for the great talk. I’m looking forward to
looking at the book. I do have a question maybe for
Professor Tushnet about the way how it seems to be– that the idea of the
constitutional democracy in crisis may seem like
a global idea, and I do have some skepticism
about when the crises reach every part of the world. Because if we talk
about populism, for example, in Latin
America, since you used the example of
Bolivia and Ecuador– yeah, I mean, there’s
a different wave of populism in the past
decade, but the region itself has a very complicated
history of authoritarianism and populism. So where are the
boundaries drawn to think about this as a very
specific moment of crisis considering the
regional problems that each country
faces, and in this case, each region faces to talk about
this kind of global approach to a constitutional
democratic crisis? Thank you. So I think that the
caution that you suggest is clearly well-placed. That is, we have to be
careful about isolating the current events from
histories of particular nations and, as you suggest, regions. At the same time, there
may be some quasi-new phenomena associated with– just to use the jargon–
globalization and flows of people and capital
that have reduced– this is tied to Sandy’s
observation– that have reduced the ability
of national populations to determine policy
for their nations. And I think quasi-new
because now there’s a lot of studies
showing that there was an era of globalization
before World War I that was roughly equivalent in terms
of capital flows and population flows to what we’re
experiencing now. So there may be something
new in connection with self-governing ability
that may be generating anxieties in a more widespread way that
singles out these moments, more about current moment
in various places from similar moments in the
same places in the past. I think the caution by the
question mark, I guess, is more widespread
than I suggested in my initial comments. Hello. My name is Deeya. Thank you for presentation. You speak of the Latin American
examples of populism and East European ones, but Latin America
is experiencing the hangover from left wing populism,
while it’s the right wing populism that is a concern
in Europe and in this country at the moment. Now, different things have
brought about those things. It was true democratization in
Latin America in the last 30 years in Latin America. It was the concern with
immigration in Europe. So the causes of those populist
regimes were different too. Now, my question
is, do we accept– I mean, what is called
as populism today, when, say, the opinion of the
experts and the elite are being disregarded
and are considered to be no longer authoritative,
and people go and vote for populists. Is it not democracy? I mean, what’s the difference
between, say, populism and true democracy ultimately? And should we accept that
populist as a phenomena and as a deficiency, as
an inherent deficiency of a democracy, or
should, do you think, as constitutional
scholars, constitutions provide for safeguards
against populism? Say, like the electoral
college that was envisaged in that way, which
ironically actually brought about a populist
in this country. Thank you. So just two quick observations. One is that my
chapter in the book is about the distinction
between left wing and right wing populism. And I think that is a
serious distinction. Second, I would have to
do some more work on. The second is, again, about
populism and democracy. What I argue in my
chapter roughly speaking is that sort of from the
post-World War Two period or maybe from the
post-1989 period, elites offered a deal to the
public generally, which was, well, we’ll run the economy
and we’ll get a lot out of it, but we’ll distribute some of
the benefits of that to you. And that sort of worked until
the elites reneged on the deal. And now people are
annoyed, you know? Elites have taken over
the money and have not been concerned about reducing
inequality or the rising tide lifts all boats. It’s just– and under
those circumstances, populist resentment seems,
in your terms, democratic. Now, that’s obviously a
very condensed version of the argument. But there is
something to the idea that there was consent to a
certain arrangement, which arrangement was
violated by one side and how people aren’t
consenting to it anymore. If I can jump in for
a moment, and it’s another reason for
[INAUDIBLE] couldn’t make it. I think the discussion
of democracy outside of certain esoteric
political theorists is dismal, so that the
title of their book is How Democracies Die. And, again, I want
to repeat this. It’s a quite good
book worth reading, but there is never any
systematic definition of what’s meant by democracy. There is no recognition
that the notion of democracy is what political theorists
call an essentially contested concept. And so Yascha Mounk
from the Kennedy School has also written a
book adverting to, I think what Vicki
mentioned, the decline of faith or belief in democracy
particularly by younger people. Well, my first book
in what’s come out, which turned out to be
by now a trilogy of books attacking US Constitution, is
our undemocratic constitution. So I don’t think it expresses
a loss of belief in democracy to say that you don’t have any
particular faith in the very peculiar American form
of so-called democracy. And this links with
Professor Young’s comment. I’ve become much more
Madisonian in terms of treating a lot
of the Constitution as parchment barriers,
as not really being all that significant
at the end of the day. That’s why I’ve
turned my interest much more to structures. So let’s assume that we had
kind of your favorite set of economic and social rights
that almost by definition would require redistribution
of income to urban states. Well, you look at the
map of the Senate– you look, first of all,
at population maps. A majority of the population
in the United States now live in nine of the states. You can do the math. They get 18 senators. Less than a majority
of the population live in the remaining 41 states. They get 82 senators. There used to be a
discussion that it really didn’t matter that small
states were indefensively represented in terms
of allocation voting power in the Senate. That’s just false in a
whole variety of areas. They’re not going to vote
to redistribute funds to New York, California,
even Texas and the like. We have this ridiculous
subsidization of farmers in Iowa because
of the consequences of Trump’s tariff policies. Nobody talks about
subsidization of other losers from American policy. And so I really do think– and the Supreme
Court, god knows, is of no help
whatsoever in coming up with any coherent
notion of what’s meant by democracy because
it’s assumed we just got one and it’s terrific. So it does seem to me that
we need a much, much more systematic discussion of
variations of democracy and then why one would
prefer option A to option B to option C. OK. I think we have time for one
more question if there is one. No. OK. Well, thank you. [APPLAUSE]

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