HLS Library Book Talk | Democracy and Dysfunction
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HLS Library Book Talk | Democracy and Dysfunction

October 14, 2019

afternoon, everyone. We’re at the noon
hour, so I’m going to begin the introductions
for today’s book talk. Hello, my name is
June Casey, and I would like to welcome you
on behalf of the Harvard Law School Library for today’s
book talk and celebration of the recent publication by
the University of Chicago Press of Democracy and Dysfunction. SPEAKER 1: [INAUDIBLE] JUNE CASEY: Yes. And just to let you know in
advance, if you haven’t already seen, the law school’s Coop
is right outside the door with copies for sale. And our authors will be
here for a few minutes after the talk to be
available to sign for books. So to introduce
today’s speakers, we have, right to my
right, Professor Levinson, who is the Visiting Professor
of Law at Harvard Law School and the W. St. John Garwood
and W. St. John Garwood, Jr. Centennial Chair in Law
at the University of Texas Law School. We are also very fortunate
today to have Professor Jack Balkin, who is the Knight
Professor of Constitutional Law and the First Amendment
at Yale Law School. They are joined today by two
outstanding commentators– Professor Jennifer Hochschild,
who is Harvard University’s HL Jayne Professor of
Government, Professor of African American Studies,
and Harvard College Professor. And also, we have
Professor Steven Levitsky, who has joined us today. And he is a Harvard University
Professor of Government. And just a few
more announcements before the panelists
begin to speak. I’ve told you about the Coop. But I would also like to
thank the dean’s office today for supporting
our lunch service. And finally, I’d like
to remind you today that the book talk will
be recorded on YouTube and will be available on the
Harvard Law School YouTube site within two weeks
after today’s talk. Thank you. And now I will turn
the microphone over to Professor Levinson. SANFORD LEVINSON:
Well, first, let me express my tremendous
gratitude to the Harvard Law School Library. I think this is my fifth or
so appearance at such events. And I’ve enjoyed
every one of them. And I’m very grateful to
June for organizing this, to those who finance the
lunches, which certainly help, and gratitude to all
of you for showing up. Just looking at
the calendar, this is an unusually busy day
of too much happening at the Harvard Law School. So I am really personally
grateful to those of you who chose us over many
of the competing events. I just want to supplement one
aspect of the introduction, that is, about
Professor Levitsky, who is the co-author of a very
interesting and important book, How Democracies Die. And that, of course, really
is the basic question that Jack and I are
debating in our book on Democracy and
Dysfunction, though we focus almost exclusively
on the United States. Steve and Dan Ziblatt’s book
is much more comparative. I just want to take
literally about five minutes to begin first with a
factoid that I learned only in the last couple
of weeks, certainly after we prepared our book. That is, The Economist has a
intelligence survey every year in which they rate the countries
of the world with regard to their place on
a democracy index. Maybe not surprisingly,
Finland, Finland and Norway, is currently the world’s
most successful democracy. And that’s fairly
easy to explain in terms of a number of
variables– small, homogeneous, in the case of
Norway especially, wealthy because of the oil. And that’s no big surprise. What is truly shocking is
that the United States now ranks as a flawed democracy. It’s number 25 on
The Economist’s list. And what’s even more
shocking in certain ways is that we’re behind Chile. And this is not meant
as a dig at Chile. Rather, most of us
in this room probably think of Chile most vividly
in terms of Salvador Allende, General Pinochet, a ruthless and
savage dictatorship supported in part by the United
States, especially during the
Nixon-Kissinger years. And now they rank ahead
of the United States. So the good news– and this, I think, is
an important question that we’ll be discussing– is whether faltering
democracies can come back. The much darker question is,
can they necessarily come back? Or when is the tipping
point where they, in fact, start the comeback? But is the United States–
or pick any other country you might want to focus on– Poland, Hungary, Brazil,
Israel, Italy, possibly Germany, the UK. Do they have worse times ahead
before one might optimistically think of a comeback? Now, this is an odd
book in one way. I describe it as an epistolary
exchange between one of my oldest friends, both
personally and professionally. I think Jack and I might hold
a certain record right now insofar as we’ve collaborated, I
think, on 20 articles together, and a casebook,
and now this book. But it is an exchange
begun in the fall of 2015 for a conference on how’s
American democracy functioning in Indiana. And then we continued
it, unexpectedly, until New Year’s 2018. And the University
of Chicago Press was kind enough to publish this. And the reason it’s an exchange
rather than written in one voice– as our 20 or so
articles together are, in which any differences
between the two of us will be negotiated out,
and it will be Balkin and Levinson’s take on
constitutional crises or whatever– is that although
both of us agree that the American
version of democracy has fallen on hard
times, we disagree in one important respect with
regard to the explanation. Jack focuses,
altogether correctly– we don’t really have a
difference of opinion on this. He focuses on certain
cultural, economic aspects of the society. He focuses– he’s the Knight
Professor of the First Amendment, directs a social
media center at Yale. He focuses on the
implications of Facebook, et cetera, et cetera. All this is correct. I don’t really dispute that. Where I stand out, for
better and maybe for worse, is that I continue to insist
that the formal structure of American constitutionalism
is part of the crisis rather than the
cure to the crisis, that the set of 1787
institutions which has been very, very limitedly
amended since 1787– that is, bicameralism, the
dreadful United States Senate, fixed-term presidencies, the
unworkable impeachment clause, and things like that– play some genuine role in
explaining the fix we’re in. And I do think, again, for
better or worse, that’s a minority position. The greatest critique
of that position– and I’m really looking forward
not only to Jack’s comments, but also to Steve’s and
Jennifer’s comments– is that if one looks around
the world these days, as particularly Professor
Levitsky has done, one cannot say, as some
political scientists used to say, well, the
problem with America is that we’re presidentialist. And as Juan Linz
argued, presidentialism has certain flaws in it
that parliamentary systems don’t have. All you have to do is
look across the pond at what’s going on
in London right now and many other countries. And it’s somewhat
hard to say, well, if only we had gone the
parliamentary route, if only we had in this
country what I wish we had, was the possibility of a vote
of no confidence rather than the unworkable and overly
legalized impeachment system, then everything would be all
right, because it wouldn’t. But still, I do
persist in believing that we should pay at least
some attention to the importance of formal structures. I don’t think Jack is opposed
to paying some attention, but he would pay less attention. And I will turn it
over to Jack now. JACK BALKIN: Hello, everyone. How are you today? It is nice to see you. Thank you so much for coming. It’s wonderful. I think you’ll like this book. There’s an advertisement
for the book. It’s a series of letters. It’s written in a
relatively relaxed tone. It’s conversational. And in the process,
I think you’ll learn a great deal about
constitutional design, and also about
American politics, and about sort of
deep-structured problems in American politics and how
we might get out of them. That’s the advertisement
for the book. Let me talk to you a little
bit about my differences from Sandy’s approach. Sandy is focused on
what we might call the hardwired Constitution. That’s the Constitution that’s
created by the 1787 Convention and then by amendment
and can only be, basically, changed
through amendment or through a new
constitutional convention. And Sandy’s view is,
I think we probably need a new constitutional
convention– that’s his view– or at least a series
of amendments. This is not my view. My view is that the
real problem comes from what we might call
the constitutional order, or the Constitution in practice. What’s that? That is all of the various
statutes, conventions, practices, judicial
decisions, lots of things that basically get baked onto or
built onto the basic structure of the Constitution. And these things together
produce a politics. They produce a kind of
constitutional politics. And it’s this order that’s
basically run into a ditch. Now, it also is true that if
you want to engage in reform, there are two ways you
can engage in reform. One way to engage in reform
is to amend the Constitution and to have a convention. And I have no problem with
either of these ideas. Many of my colleagues are
frightened of new amendments or a new convention. That’s not my view. My view, rather, is that most
of the reforms we need right now can be done through
ordinary legislation, through replacing existing
judges with new judges, and producing new doctrines,
and through various workarounds that don’t require
constitutional amendment. And since you know the
United States Constitution is very difficult to amend, it
probably makes more sense to try to do these various kinds
of workarounds, many of which are detailed in the book, than
to simply think that amendment is the best solution. But this is a political
dispute about what’s the best political strategy. There’s more than one
way, in other words, to reform American politics. So what are the causes of
American dysfunction today? And what I would
say in the book, and what I would
tell you here, is that there are three basic
problems that we’re facing. First of all, we are at the
end of a political regime. American politics
has been divided into about six or so political
regimes in which one party tends to dominate,
even though it doesn’t win all the elections. And it sets the
agenda for politics. So you guys all know about
the New Deal civil rights regime that runs basically
from Roosevelt’s election till about Reagan’s
election in 1980. Well, the regime we happen
to be living in today is the regime that gets
started in about 1980 with Reagan’s election and
in which the Republican Party is the dominant party. And it is the agenda of what
is now called neoliberalism. And it has basically shaped
the politics of this era. And what’s seen as even
possible, what can even be achieved in
politics in this era, has been shaped by the
assumptions of this regime. Well, what’s happening is
that this regime is now grinding slowly to an end. And transitions between
regimes in American history tend to be periods of great
confusion and difficulty. And so it is with this one. But many of these
transitions, in fact, are not so fraught and
difficult as this one is. And that has to do with
a second basic problem. We happen to be
what I can only hope is at the peak of a period
of political polarization. By polarization, I
don’t mean partisanship. That is, people like their
party or not their party. I mean polarization, the
idea that people can’t seem to agree on anything
and that if I don’t agree with you on this
question, I don’t agree with you on that question,
and I don’t agree with you on that question. Everything gets lined up
in a highly divisive form, and people are very far apart. This goes in cycles too. There are cycles of
high polarization and low polarization. We happen to be at what I
hope is the peak of very high polarization. That makes the transition
very difficult, because when your party
is no longer dominant, you’re likely to
lose everything. There’s very little
agreement between the two political parties, so when
you lose, you lose big. And so your tendency
is to try to hold onto power as long as possible. Desperate times call
for desperate measures. And so the dominant
party, which is losing its dominance,
the Republican Party, is now trying everything it
can think of to hold onto power and to entrench itself. And I don’t have to tell you. It’s in the news every day. But that’s really
what’s going on. And that leads to the
third concern I have. This is the concern I call
rot, constitutional rot. There are also cycles
of constitutional rot and constitutional renewal
in American history. The basic idea is that at
certain points in history, a republic is a
very delicate thing. Republics are difficult
to keep going. And they generally, over
time, tend to corrupt. They tend to become less
democratic, that is, less representative or
responsive to popular will. And they become less republican. That is, people are less
interested in pursuing the public good as opposed to
their own private interests. People lose trust in each other. They no longer trust that the
other person or their opponent will, in fact, be interested
in the public good. And so what happens is
all sorts of institutions and all sorts of conventions
and understandings break down in these periods
of constitutional rot. And the result is a
dysfunctional system where nobody trusts
anybody else, and nobody believes
anybody else. It’s also a period in which
demagogues tend to rise. It’s a period in
which propaganda tends to be very effective,
because propaganda preys on people’s lack
of trust for each other. It preys on people’s
inability to believe that their political opponents
are people that can be trusted and are fellow citizens, and
instead are seen as enemies who must be destroyed. So we are now, unfortunately, in
a period of constitutional rot. This constitutional rot has
been ongoing for some time. It didn’t just arrive
for the 2016 election. Indeed, one could say
the 2016 election was a symptom of a very long-term
form of constitutional rot that had been produced by a
number of different policy decisions of the American
government over time. One of the most important
of them, not the only, was the decision
to pursue a series of economic and fiscal
policies that shifted risk downward toward most
Americans and shifted wealth upward toward a relatively
small number of Americans. So it’s a downward shift
of risk and a shifting of wealth upwards. And the problem is this. You cannot have an effective
republic with a political economy organized this way. What will happen
is that when you effect a structure of inequality
in this way, what will happen is people who are most empowered
in this system will basically grab for more power. And what they’ll do
is it will become less representative,
less democratic, and less republican, in both ways. And what you get is rot. And this fact, this feature
of our political economy, didn’t happen overnight. It is the product of, I’d
say, about 35 to 40 years of really mistaken economic
and fiscal policies that produced the particular
political economy we live in now. I don’t, in fact, think that
the internet or the digital age is the central cause of
our current problems. I think it is one feature of
a larger political economy that has led to these problems. So we have these problems. We have a transition
between regimes. We have high polarization. We have increasing
constitutional rot. How do we get out of it? There are two models. And I don’t think, actually,
the way out is either of them exactly. One model– there was a period
of high polarization, rot, in the 1850s. Guess what? It produces the Civil War. Well, I don’t think that’s
the best way of thinking about our particular situation. The other one, though,
which is more hopeful, is not exactly
like our situation, but is similar to it. And that’s the period right
around the turn of the century. It’s the period that marks
the transition between what is called the Gilded Age, in
which government is effectively for sale, politics
is deeply corrupt, the country has been undergoing
huge waves of immigration– stop me if this sounds familiar. And there are huge
technological advances that create incredibly
large fortunes overnight, creating enormous inequalities
of wealth and a sense that democracy has failed. That’s the first
Gilded Age, folks. And then the transition
between that and what follows, which is the
Progressive Era, which is an era in which
Americans of both parties begin to engage in serious
attempts at reform. It’s not a happy time. Progressive Era is not
an entirely happy time. It’s also a very difficult time. But it’s a period that produces
the gradual depolarization of politics and the gradual
renewal of American politics. Our best hope, it
seems to me, is that we are nearing the end
of the second Gilded Age, a period of incredible
inequality of wealth, corruption, huge
concerns about what it means to be an American– also in the first Gilded Age. And we are slowly transitioning
into what we can only hope is a second Progressive
Era, in which there will be gradual depolarization
of American politics, the creation of reform wings
in both political parties, and attempts, at many
different levels– at the federal level and at
the state and local levels– for various forms of reform. And if that’s the best
story about where we are and where we’re going, you
shouldn’t expect that things will change overnight. Maybe your favorite
candidate will win. Maybe your favorite
candidate won’t win in the upcoming election. But when the United States
gets into these periods of rot, constitutional rot, it
takes a long time to get out. It took a long time
to get into this mess. It will take some time
for us to get out. But believe me, we have gotten
out of these messes before. I believe we will get
out of them again. Thank you. [APPLAUSE] SPEAKER 1: You’re up. JENNIFER HOCHSCHILD: I’m up? OK. I want to say, first of all,
thank you all for coming. Thank you for inviting me. Thank you guys for
writing this book. You should all rush
right out and buy or at least read the book. It’s really interesting,
partly because you have two very, very, very vivid
personalities who obviously have a longstanding,
committed, engaged relationship with each other, and who
have serious disagreements. And they’re perfectly willing to
concede both the points that– concede may be the wrong word– to agree on what they agree
on and to be a little bit pointed with each other in a
very polite and friendly way where they disagree. So it just gives us a lot
of vividness in this book. It’s beautifully written. It’s erudite. It combines political
philosophy, and law, and American history,
and slightly snarky political comments, and all
of those things in a just very seamless kind of fashion. It’s just really fun. And the arguments are
probably about as important as one can imagine. Are we in a
constitutional crisis? Do we need a
constitutional reinvention? Can ordinary politics get us
out of the mess that we’re in? What’s the nature
of the mess, anyway? It tries, in certain
sense, to be nonpartisan. I mean, they’re
clearly partisans. There’s no real secret there. But it tries to be fair,
both authors to each other and to sort of the world
out there in general. And so it’s not a screed,
although there are very strong commitments on both sides. So you should go read the book. So I want to make two
more substantive comments. One is about sort of the
interesting quality, the logic of the argument
that the two authors are having with each other. And the other set
is two questions for each of them about
follow-up, or what next, or clarify, or
something like that. So the core argument, to put
it at its way too reductive phrase, is, roughly speaking,
structure versus agency. And again, I want
to say immediately that that’s too reductive. But I think that’s kind
of the starting– one of my dissertation
advisors said, start with the absolute
simplest building block you can, because you’ll understand
that, and so will your readers. And then build up from it
as much as you need to. The simplest building
block is structure versus agency, which is, of
course, a traditional debate within, roughly
speaking, economics and political science on
one side versus history, journalism, probably
public policy on the other, who
are more focused on agency, and contingency,
and idiosyncrasy. I think law probably
equally covers both. I’m not quite sure how
to think about that. But I’m not an
expert in the law. So it’s an old
traditional division which we all know a lot about. So Levinson basically
says we have to change the constitutional
structure in order to avert a constitutional
crisis and in order to have the agency that
we need in order to have the politics that we want. So the structure’s
not all we need, but structural
transformation’s essential. Balkin says, no, not
only is there not really quite a
constitutional crisis, although we’re tiptoeing
toward the edge of it, but in fact, the underlying
analytic argument’s that we do have
sufficient agency within the existing
constitutional structure to address what the real problem
is, that of constitutional rot, polarization, and so on
that he’s just talked about. So roughly, Levinson
says, we have to have a new structure
in order to have agency. Balkin says we have
sufficiently malleable structure that if we just get our act
together and exert our agency, we can address the
problems we have. So it’s a slightly more subtle
way, I think, of putting it and which I think is true to
what they’re saying, which is, I think, the way I frame it. I teach a course on power
in American society. So it’s kind of the power
dynamics here, right? Does the structure within
which one necessarily thinks and acts– we live within a
constitutional structure. It’s several hundred years old. It’s the frame
within which we think and we take political action. Does it not only constrain
what we can do politically, but also, in a kind
of deeper sense, does it shape what people even
conceive of as being possible in the realm of agency? And that, I think, is the
core of what Levinson’s worried about, that we can
do an amendment, maybe, or we could do this,
or we could do that. But the constitutional
structure is so deeply embedded in the American psyche,
mentality, whatever, that it’s just very
difficult for us to even think about
alternative ways of engaging in democratic decision-making. The structure is
constraining of our agency. I guess that would be our
conceptual agency as much as our physical,
active behavior. Balkin, I think,
is making, again, an equally subtle but
somewhat opposite argument. Not only can agency be
effective within the structure– we have had constitutional
transformation. He references
Ackerman, and I think that’s exactly what
I was thinking about as I was reading much of this. But again, at a
deeper level, we’re able to conceive of
alternative ways of thinking about taking political
action within the constitutional structure. The structure does
not necessarily constrain our concepts of
what’s available to us. It makes it hard. Are we going to eliminate
the Electoral College? We’ve been talking about that
for several hundred years, and we haven’t quite
gotten around to doing it. So it’s hard to think
about fundamental change within the existing structure. But it’s possible. We have done it
occasionally in the past. We can do it in the future. So the structure doesn’t
constrain the concepts, the language, the
mental processes within which our agency can act. So those are really
big questions. And of course, the two
are equally balanced. The other general
comment I want to make about the way in which the
arguments develop, and then I’ll make a couple comments
of my own, my reactions– Levinson is sort of
Tom Paine, right? We need a transformational
political revolution, in effect, a
constitutional convention. It doesn’t need to be and
shouldn’t be, presumably, a violent revolution,
but a revolution. Change the system
of representation. Change the courts. Change the scope
of the presidency. Change the process of amendment,
sort everything all at once. Again, I’m caricaturing here
a little bit, but maybe not– SANFORD LEVINSON: Not much. JENNIFER HOCHSCHILD: –totally. Less radical changes can
make marginal improvements. It’s not a bad idea
to try to do that. But serious change
will be stymied. So it’s, roughly speaking, sort
of Paine-esque all-or-nothing transformation. Behead the king. Balkin is– I don’t know
whether he’s going to buy this– sort of a leftist Burkean
conservative with a question mark there. JACK BALKIN: Oh my goodness. JENNIFER HOCHSCHILD:
There’s a lot of Burkean conservatism
in the service of what I see as sort of the left. Cautious about what a
constitutional convention might yield. The Constitution provides
an essential, or at least existing, structure
within which to take somewhat smaller moves– not small, but
smaller than sort of revolutionary transformation,
everything all at once. We can make major
effective changes. What we need is
the will to do so. The fact that the Constitution
has been in existence for a very long time, and our
country has grown up around it, is itself something
like a virtue, is something like an
accumulated wisdom in the constitutional structure. Again, I’m pushing the
Burkean logic here maybe a little bit too hard. But I think there’s a tinge
of kind of Thomas Paine versus Edmund Burke here,
which is really very cool, without being sort
of a liberal-conservative distinction. It’s like, how do we
think about what’s appropriate ways of
engaging in, but both agree is absolutely necessary change? The other point I
want to make about– and Balkin’s already
made this point, and I think it’s
one that I wanted to hear both them
say more about, so I’ll say something about
that in just a minute– is this notion of kind
of political time. If you’ve read Steve Skowronek,
the political scientist, it’s where the
argument comes from, that there are political regimes
that essentially function in a cyclical fashion
over a 30 to 40 or 50-year period
in American history. A different language has been
that of political realignment. I think the
Skowronek-Balkin logic is a more flexible
and more interesting one than the simple story
about political realignment. But the notion that,
in effect, the country is changing out from
under us more or less independently of what– not independently of
what we want to do, but that there’s a political,
historical, temporal dynamic that’s sort of
acting independently of whatever anybody in this
room would choose or would want to have happen. Again, I’m maybe exaggerating
and caricaturing a little bit, but I want to hear
more about that. Which do I find more persuasive? I think I turn out to be
slightly more of a Balkinian than a Levinsonian, if those
are the right terms, which makes me think of myself as
more as a Burkean conservative, which is not always how I’ve
thought of myself historically. Again, it’s a very
interesting book because it makes you think
about all this stuff. I think my core
intuition is that I’m a scholar of American
racial politics and American
immigration politics. Mostly, I’ve studied
race in the United States for the last several decades
and immigration almost as much. I don’t trust
unfiltered democracy. It seems to me
anybody who studies American racial or immigration
politics has a hard time with majoritarian democracy. Majoritarian democracy generates
deep, deep, deep structural– not in the sense of
constitutional, but deeply embedded– hierarchies that
are just extraordinarily difficult to overcome
and maybe can’t be overcome absent
a transformation of the nature of the
demographic majority itself. So I start out– this is from
my own research background– nervous about
majoritarian democracy. I can say more about that. But that’s probably,
A, self-evident; B, I want to turn to what
Steve has to say anyway. Alternatively, I worry– this
is the opposite kind of worry about democracy, and maybe
you can’t hold both of them simultaneously, but
I think maybe I do– that intense minorities can kind
of create institutional change. If you open the system up to
a constitutional convention, I’m a little worried about
what’s going to happen. Who’s going to run away with it? So one is that we end up with
a majoritarian democracy that makes me very nervous, racial
reasons being the most obvious, but maybe not the only ones. The other possibility
is intense minorities. Prohibition– I’m
listening at the moment to Daniel Okrent’s new
book about Prohibition. You might think about
orthodox religious groups. You might think
about the gun lobby. You might think about– pick your own villain. Liberal, elite, eastern,
effete academic snobs– they’re a different kind
of intense minority. It doesn’t have to be a
right-wing intense minority to be nervous. But I think in that
sense, I am something of a Burkean conservative. I don’t trust
open-ended democratic majoritarian transformation. And I’m even not sure I’m
happy to have said that. But anyway, that’s
the kind of issue that this book makes
you think about. So I will just leave it at that. I have four questions, two
for each of the two authors. One of Levinson’s
deep concerns, which he’s expressed in a lot
of different places, including in this
book, is the Senate, which is, of course,
profoundly non-majoritarian, maybe anti-majoritarian. Made a little bit
more sense in 1780, ’90, whenever, but doesn’t
make a whole lot of sense now. Wyoming compared to
California and so on– you’ve heard him on
this, and he’s been very eloquent and persuasive on it. It turns out that there’s
at least one article on political science, which I
spent a little bit time doing some research on,
that shows that through most of the last
half of the 20th century– I don’t think this is
historical in perpetuity– the Senate has been
consistently much more liberal than the House has been. So there’s a kind of
weird political inversion. We would expect by the
Levinson logic, which is a perfectly persuasive
logic, that the Senate would be the more conservative body. It’s a disproportionate
share of relatively rural, disproportionately white,
disproportionately non-coastal urban representatives. But in fact, the
Senate as a body has been more liberal than
the House of Representatives. And in this article,
if you compare senators with representatives
in their own states– there’s some fancy
footwork here, which I’ll spare you the details of– the senators turn out to be more
liberal than representatives, controlling for party,
controlling for demography, controlling for a
whole bunch of things. Turns out the
Senate, on balance, at least for much
of the 20th century, is a more liberal
body than the House. So question mark– how
do we make sense of that? Does that suggest that the
structural transformation that Levinson thinks is
essential isn’t? Does it suggest that the last
few decades of the 20th century are just weird, and that they– anyway. Or does it suggest that the
political science doesn’t have it right, that
there’s something problematic about this argument? So that’s question number one. Question number
two for Levinson is sort of a bigger and
perhaps more interesting, less parochial question. And it’s about what
he wants to come out of the constitutional
convention, not so much the nature of the
Constitution itself, but the underlying goal. So one logic– and you may have
answered this in other places, and I just missed it– is that what we want
is a more majoritarian, a more democratic
constitutional structure in political practice. By definition, democracy
is a good thing. Majoritarian
preferences– again, with some constraint; this
is not a naive argument– but that that’s
intrinsically the purpose of a constitutional
reformation or revolution, and that the problem with
our current constitutional structure is it inhibits
democratic outcomes independently of what
those outcomes would be. That’s the problem with
the Senate and so on. A second logic is that
he has sufficient faith in, I don’t know, both the
virtue and quality of his ideas and the American
public, that he believes that a more democratic
constitutional structure would, in fact, produce better outcomes
than the one that we have– less inequality, more
racial justice, whatever. So the democracy is a vehicle
for getting to better outcomes. Or democracy is
the end in itself, even if it turns out to be
relatively conservative, relatively white supremacist,
relatively nationalistic, relatively warmongering,
whatever bad things you might think about. So that’s question number two. What do we mean by a more
democratic constitutional structure? What’s the purpose? What would the outcome be? Two questions for Jack
Balkin, and then I’ll stop. One, I’m not sure about this. Particularly, the
comments that you were making when
you were standing up may suggest that
my question here is just a little misguided. There’s a lot of
discussion, again, of democratic responsiveness,
which he, of course, also endorses, and particularly
republican, small r, regard for civic virtue
and the common good. He talked about
that a little bit, and there’s a lot of
the book about it. I didn’t hear anything
about liberalism– liberalism, understood again,
not as a political stance, but as rights,
dignity, autonomy, tolerance for difference. A liberal polity is
one in which people act as though they share norms,
what Steve Levitsky calls forbearance, engagement with
people whom you fundamentally disagree with. That kind of
liberalism– again, not European economic
liberalism, but kind of traditional
liberalism, which is not quite the same as republicanism
and not the same as democracy. And I think the logic
of constitutional rot goes part of the
way toward saying, part of what we’re
losing is liberal values of rights, tolerance,
forbearance, engagement, recognition of the autonomy
and dignity of each individual, and so on. But I didn’t hear
that discussion. So I was kind of curious
about whether my understanding of liberalism is subsumed
within what you’re saying, or whether, in fact, that’s
a different argument that needs to be brought
in– in my view, at least– needs to be
brought into the conversation. And the final
question is, I just want to hear more about
what’s the next regime. I have my own speculation
about how everything might get shifted around,
and turned upside down, and started over again. But we’re not here
to hear my argument. So do you have hints? Do you have ideas
about if there are going to be kind of two big
forces, some big dimension, some continuum along which
American politics is going to look different from
both neoliberalism, previous civil rights and
social justice era, and so on? What would it look like? So I’ll stop there. [APPLAUSE] STEVEN LEVITSKY: Is it
possible to close this, or– I can close this, right? Nobody knows. OK. Thanks for the invitation. This was a real pleasure. It’s a wonderful book. I learned a tremendous
amount from it. Not only did I find
myself agreeing with the bulk of the
arguments, but even when I disagreed, in many
cases, I was persuaded by the end of the book. I’m going to pretty
briefly discuss one disagreement I
have with each author, just for the sake of
generating some debate. As you’ll see, my instincts
are generally closer to Jack’s. But as I wrote up my conclusion
late last night after dinner and let my darkest
fears come out, I ended up closer to Sandy. So as Sandy himself
put it, he centers his argument on formal
constitutional design, or at least the bulk of it. He argues that key elements
of the US Constitution limit both our democracy and
leave it highly dysfunctional. And his views, as
he noted briefly, converge with some of
those of the great Spanish political scientist Juan Linz. Linz viewed US-style
presidentialism as, one, prone to the election
of autocratic outsiders, two, prone to debilitating
executive legislative conflict, and three, prone to crises
generated by the rigidity of fixed presidential terms. Now, this was 30 years
ago, 40 years ago. He was writing
about Latin America. And he always treated the
United States as an exception. But today his ideas
seem especially relevant in the United States. And Sandy makes a
pretty compelling case, and it’s not hard
to do these days, that US democracy is, in fact,
becoming pretty dysfunctional. Divided government basically no
longer works in this country. Every time we have
divided government, we fall into permanent
obstructionism, government shutdowns, stolen
Supreme Court seats, et cetera. One senator told me last
year that he believes that we are now at a moment
where never again will a president who
doesn’t have a Senate majority get one of his nominees
or her nominees approved. In other words,
Merrick Garland is about to become the
rule, not the exception. There are other
signs of dysfunction. Twice since 2000 we’ve handed
the presidency to the candidate who lost the popular vote. In 2016, of course, we
elected a demagogue who basically everybody
agrees at this point is unambiguously unfit for
the office of the presidency. So I find Sandy’s critique
of the Constitution pretty compelling. But like Jack, I don’t think
it’s the main culprit here. Sandy offered one
argument already, which is that we see not
necessarily similar crises, but pretty serious
crises occurring in democracies with
very, very different constitutional designs. But secondly, the Constitution
is not what gave us Trump. As Jack points out,
what gave us Trump was extreme partisan polarization. It was also a pretty
dramatically changing media landscape. And I would add primaries. Had our parties not
adopted the system of binding primaries
in the 1970s, Donald Trump wouldn’t
have ever gotten anywhere near the White House. What’s fueling our crisis
today, despite its flaws, is not the Constitution. Ultimately, it is intense
partisan polarization. It’s extreme polarization that’s
eroded our democratic norms, that’s generated the
constitutional rot that Jack so eloquently writes
about, and that’s made our system of checks and
balances utterly dysfunctional. It’s also– and this is related,
but not the same thing– it’s the sorting of the
electorate into parties that represent, on the one
hand, metropolitan voters, and on the other hand,
sparsely-territories. It’s the sorting of our
electorate into these two parties that has
transformed the Electoral College and the Senate
from merely undemocratic institutions into
institutions that are both undemocratic
and dangerously biased in favor of one party. I’ll get back to that. But so like Jack, I would, in
explaining the crises that we face, I would focus less
on the Constitution itself and more on the underlying
sociopolitical context that is making this constitutional
system dysfunctional now. Now, I also agree with Jack that
things could be a lot worse. Trump is not and has
not become Mussolini. And I think Jack’s right
that much of this outcome can be attributed
to our institutions. Now, not all of our
institutional failsafes have worked well. The Electoral College
has never worked. At least, it hasn’t worked
in a couple of centuries. Congressional oversight was
pretty poor in 2017, 2018. But other failsafes have,
in fact, worked pretty well. Courts have worked OK. I guess we can argue about that. Federalism, I think,
has been very important. And most importantly,
elections– the midterm elections put a huge
role in restoring congressional oversight. But I want to add, first of all,
that not all of our failsafes or our most important
failsafes are institutional. The media, civil society,
have played a crucial role in pushing back
against Trump, as have professional civil
servants working within the state bureaucracy. And it’s also important,
though, to note that we’ve gotten pretty
lucky in a couple of senses. We’ve gotten lucky that Trump
is an extraordinarily inept politician. If Trump had even a fraction
of the skill and the discipline of an Orbán, of an Erdogan, we’d
be in a lot more trouble than we are. And we’ve gotten
lucky that we’ve not experienced a major war
or terrorist attack yet– [KNOCKING ON WOOD] –under Trump’s watch. Had we suffered a
9/11-like attack, Trump’s approval rating very
likely would have soared, not to where it went under Bush,
90%, but quite plausibly 60%, 70%. And a president with 60%
or 70% approval rating can do a lot more damage
than one stuck at around 40% So I’d say we’ve
benefited to the extent that we’ve not become
Mussolini’s Italy. We’ve benefited
from a combination of constitutional failsafes,
societal pushback, and some pretty good
fortune thus far. Now, my main
disagreement with Jack lies in this cyclical regime
theory of the presidency. He explained it a bit, and
Jennifer mentioned it as well. The basic idea is that
American politics goes through these roughly
50-year cycles, or what he and Skowronek
call presidential regimes. And the idea is that we’re at
the end of one of these regimes now. The end of the cycle is said to
be characterized by, usually, a failed, crisis-ridden
presidency, what Skowronek calls a disjunctive presidency. This is Buchanan in the 1850s. That’s right, disjunctive? JACK BALKIN: Disjunctive, yeah. STEVEN LEVITSKY: Herbert
Hoover during the Depression. Jimmy Carter is another example. And Jack tells us that Trump is
another disjunctive president, presiding over the final
throes of the Reagan regime. And the takeaway, or
a takeaway, for me is that what we’re
experiencing, what we’re living with or under right now,
is not so new or unprecedented. It’s just the end
of another cycle. We’ve been here
before, so to speak. If that’s right,
then maybe there’s no need for people
like me and Sandy to get hysterical
and write books about the death of democracy. Democracy’s not dying. The only thing that’s
dying is the Reagan regime. And the transition from
one regime to another, as Jack mentioned,
can get a bit bumpy. But if history is any
guide, our democracy ought to muddle through. So if Jack’s right, we should
be able to sleep a bit better at night. Trump is not Erdogan. He’s not Orbán. He’s just Jimmy Carter. [LAUGHTER] I’m skeptical. I’m skeptical mostly– I know that’s not fair. JACK BALKIN: Yeah. STEVEN LEVITSKY: I’m
skeptical because I don’t think politics works in cycles. As occurs, you can have a
cycle of crisis and recovery, which is sort of
the theme of Jack’s talk and his intervention. But you could also
have crises that get worse, and worse, and worse,
and that lead to breakdown, that hurl you over the cliff. And which one, which
path you follow, depends on exogenous factors. It depends on the
broader context. And I want to just
briefly highlight three contextual
factors that worry me, that I think may make it harder
for us to have a soft landing, for us to go from– to just be Jimmy Carter. First of all, Jack mentioned
partisan polarization. And that partisan polarization
is fueled, in my view, by the decline of the dominant
white Christian majority in this country. White Christians are losing not
only their electoral majority but their social dominance. And that has created a
sense of existential threat, particularly among
white Christian men. Many Republican voters today,
many Trumpist voters today, feel like the country
that they grew up in is being taken away from them. That’s triggered an
intense reaction. And that’s left us as a society,
as a polity, more polarized than at any time since
the end of Reconstruction. A second contextual
factor is this growing urban-rural divide. To my knowledge, for
the first time ever, we have a party, one party,
that’s overwhelmingly based in urban centers
and another party that’s overwhelmingly based on
sparsely populated territories. And that’s a problem
because, as Sandy reminds us, some of our most
important institutions are biased towards sparsely
populated territories. The Electoral
College, the Senate, and thanks to the
Senate, the Supreme Court are now becoming pretty
systematically biased towards Republicans. That can create a severe
legitimacy crisis. And it’s not clear to me
how we get out of that. Third contextual factor–
not mentioned in the book, sort of a recent
shtick of mine– is the weakening of
political establishments. By political establishment,
I mean the set of organizations and
actors that control the resources that politicians
need to get elected. That includes political
parties, which control access to candidacies. It includes business,
labor, other interest groups that control the
resources that politicians need to run campaigns. And of course, it includes
major media outlets, which provide access to voters. So parties, interest
groups, media institutions. Historically, the
political establishment in the United States
and in all democracies impose certain behavioral
and policy boundaries on politicians. Politicians who exceeded
those boundaries, either in their behavior or their
policy ideas, tended to be shunned by the establishment. Party leaders would
not nominate them. Union leaders,
business associations wouldn’t back them. Mainstream media
wouldn’t cover them or would be biased against them. That used to matter a lot
because 50, 60, 70 years ago, the establishment
enjoyed a monopoly over the resources politicians
needed to get elected. Party leaders controlled the
candidate selection process. Powerful interest groups
provided the vast bulk of campaign resources. And a limited number
of media outlets dominated the news cycle. So 50, 60 years ago,
politicians basically had to be on good terms
with the establishment if they wanted to have
a political career. That meant that
politicians could not just respond to voters. They had to strike a
balance, some balance, between appealing to voters and
appealing to the establishment. That arrangement was
not terribly democratic. But it had a pretty
powerful moderating effect. It limited polarization, and
it helped keep demagogues out. Why am I saying all this? Because the establishment,
over the last few decades, has quite quickly
lost its monopoly over political resources. Parties have lost their monopoly
over candidacies, thanks, in good part, to primaries. Interest groups have lost their
monopoly over campaign finance because candidates can
raise money on the internet. Bernie freaking Sanders
raised as much money as Hillary Clinton in 2016. So that monopoly’s done. And social media obviously
has eroded the influence of CBS News, and The Wall Street
Journal, and The Washington Post. Now, with Twitter,
candidates can reach voters even
if they’re shunned by the mainstream media. So politicians no longer
need the establishment to get elected. That is profoundly
democratizing. Politicians today can
respond directly to voters, to voter concerns,
without worrying so much about what the elite thinks. They can give voters
what they want. But that leaves us
much more vulnerable to populist demagogues. So arguably, we’ve
entered, in some respects, uncharted territory. We’ve begun a transition
that, to my knowledge, no democracy has ever
successfully undergone, one in which a previously
dominant ethnic group loses its majority status. That has given rise to dangerous
levels of polarization. We’ve sorted ourselves into
urban and rural parties in a way that seriously
distorts the effects of key institutions. And the establishment
has weakened to the point where
populist demagogues who are shunned by the entire
elite can nevertheless get elected president. Given that terrain,
given these changes, I’m skeptical that the
end of the Reagan regime will even remotely
resemble earlier crises. So I think the if
and the when of recovery is very much
an open question. So to conclude,
how does this end? I sympathize a lot with
Jack’s more optimistic ending. Jack suggested the
Republicans’ polarizing strategy may well have sown the
seeds of its own destruction. The strategy in the United
States in 2019 of appealing exclusively to
white Christians– a basically white
Christian bunker strategy– cannot remain
electorally viable. It will eventually wreck
the Republican Party, which, paradoxically, could help
make American democracy great again by ushering in the kind
of Democratic majority needed to cure constitutional rot. That’s straight out of
one of Jack’s letters. That scenario, I think,
is entirely plausible. That’s the one I hope for
every night when I go to sleep. But we don’t know how long
that will take to play out. And we don’t know
how much damage can be done in the meantime. So let me just end on a
less happy scenario, one that brings me back
to Sandy’s critique of the hardwired Constitution. We may be in for a pretty
nasty spell of minority rule. The decline of the
white Christian majority in this country
has created a sense of profound existential threat
among many Republican voters. That has radicalized Republicans
and led them to be quite desperate to hold on to power. Unfortunately, the
Constitution, I think, is almost uniquely
designed to assist them in clinging to power. Because Republican voters
are so concentrated in sparsely-populated
areas, they’ve got an advantage in
the Electoral College. They have an advantage
in the Senate– therefore, thanks to the Senate,
an advantage in federal courts and the Supreme Court. A committed conservative
majority in the Supreme Court can use the many
counter-majoritarian elements of the Constitution to further
entrench minority rule. In fact, it already has– Citizens United,
Shelby versus Holder, the recent gerrymandering cases. So in a worst-case scenario,
state legislatures, blessed by the
Court, could continue to make it harder and
harder for citizens to vote, which would help
Republicans stave off defeat in places like North Carolina,
Georgia, Texas, Arizona, Missouri, elsewhere. None of that
provides Republicans with a long-term solution. But it could buy them a
decade, couple of decades, of minority rule. And I worry what a decade
or two of minority rule would do to the legitimacy
of our constitutional system. Let me end there. Thanks. [APPLAUSE] SANFORD LEVINSON:
I’m really torn. I suspect Jack is. I felt both of these
were absolutely superb. And I’d certainly
like to take literally two and a half minutes to
respond because I think most of you have to go at 1:00. On the other hand,
I would really love to hear what
you had to say, not so much by way of questions,
which you can ask afterward, but any comments or
your own takes on this. So let me try even
to take one minute. With regard to Jennifer’s
point about the Senate, I do think that– and Steve
brought this up as well. I’m very much of a history buff. And if you’re a
history buff, one does tend to believe that
there’s something to learn from the early republic. Larry Lessig and I are giving a
seminar together this semester on Reconstruction. And one of the continuing
motifs in that seminar is whether there are aspects
of Reconstruction politics that apply today. On the other hand,
one always has to remember that history
really doesn’t repeat itself. Sometimes it rhymes. But there are
important differences. And so take David
Mayhew, who argues very vigorously that divided
government really is all right. We get all sorts of legislation. Even he, when
pressed, will today agree that maybe the
Congress he’s writing about, that is, of the ’80s and ’90s,
isn’t the Congress today. The other complaint
I have with Mayhew– and this touches on your
Burkean description– is I think he’s just too
complacent about what counts as first-rate legislation. I don’t deny that Congress
passed legislation in the ’80s. What I do deny is that it
was an adequate response to the challenge that it faces. And quite frankly,
political scientists are often reluctant to
evaluate what comes out of the political process. I think we say
that’s not our job unless we’re card-carrying
normative political theorists. But otherwise, our job
is really to describe. I’m not sure I identify
with Thomas Payne. I probably do identify with
Lin Manuel Miranda’s version of Alexander Hamilton,
who described the existing constitutional
order as imbecilic. And the motif of the play is
the importance of rising up. Now, you can talk
about what I call the secession from the
British Empire, which was decidedly violent. It was not a pleasant
time in America, as I think more and more
historians are elaborating. Or you can talk more
happily about the overthrow of the Articles of Confederation
in a Constitutional Convention that was– Mike Klarman calls
it a coup, but it was one of the world’s
most peaceful coups. The military played no role
in that transformation. But it is true that
I’m more attracted to the less Burkean aspects. JENNIFER HOCHSCHILD:
Thomas Paine’s solution. SANFORD LEVINSON: But
everything all of you said, I basically agree with,
except that I think it’s really a mistake to deny
some explanatory role to the formal institutions. If there were lots
of agreement with me, if I represented some
kind of consensus, then the contrarian
in me would say, look, formal institutions are less
important than you think. Let’s talk about Thomas
Piketty or whatever. But I view myself as part of
a very, very small minority, both in political science
and the legal academy. And so I often define myself
as a mixture of either Paul Revere or Cassandra. And most of the time,
I think it’s Cassandra. That is, I think my
analysis is correct, but nobody believes that. JACK BALKIN: The
British are coming, but you’re not going to
believe me when I tell you. SANFORD LEVINSON:
Right, exactly. Jack? JACK BALKIN: Oh. I want to take questions,
but let me just do three points really quickly. So on the philosophy
of liberalism, if you had asked
me 30 years ago, when there was the republican
revival in political theory and law, what side
I was on, I would say I’m a liberal pluralist. JENNIFER HOCHSCHILD: Yes. JACK BALKIN: And
that is my view. But what happened
over the last 30 years is coming to realize that
liberal pluralism requires something underneath it to
support it and make it work. And the best way of
understanding those supports for liberal pluralism
is something like a republican tradition. So I’m not a republican in the
sense of a person supporting hierarchy and all that. I would say I’m more of a
liberal republican in that there’s a sense in which the
kinds of virtues that you’re describing and associating with
liberalism are the substrate. That is, they’re
the supports that make the kind of give and
take, and pull and push, of liberal pluralism possible. So I didn’t mean to suggest
that I was abandoning these liberal virtues. I think they’re very important. As to what the next regime
is going to look like, well, I have a book on that
that’s going to come out– [LAUGHTER] –I hope, either right
around the election or right after,
which talks about it. And happy to talk to
you about it at length. And the last thing
is to say that you should take everything
that Steve said with the utmost seriousness. Despite my sunny optimism
about the possibility of a second Progressive Era, we
really are on a knife’s edge. I’m telling you the story in
which it could come out well, and he’s telling you
the story in which it doesn’t come out well. And that tells you that you live
in a crucial historical time and that your efforts
in the next four years may prove absolutely
central to the fate of this amazing republic. SANFORD LEVINSON: June, do
we have time for at least a few questions or comments? Good. SPEAKER 2: We have
two microphones here. Is everything unplugged? AUDIENCE: Hi. Thank you, all of
you, for being here. I took a constitutional crises
class in undergrad where both of y’all’s work
featured very heavily. So I appreciate it. Forgive me if I misattribute. I read the book
a few months ago. I believe, Professor Levinson,
you mentioned at one point the vulnerabilities
and dangerousness of the growing diversity
in the body politic for democracy surviving. And that, combined with
Professor Balkin’s points on economic stratification
and centralization of wealth at the top– both of those vulnerabilities
I’ve seen most centralized in the rhetoric of somebody
like Tucker Carlson, who is very much railing against
like economic elitism but also has a nationalist bent. So do you think the
democratic norms can survive some kind
of threat from someone like him gunning for
political supremacy based on those two poles of
railing against diversity, but also railing against
economic elitism? Or do you think that
vulnerability’s kind of overstated? SANFORD LEVINSON: Let
me flack another book that I presented here a
couple of years ago on, The Federalist, An
Argument Open to All. And one of the essays– I think it might be– I have my own essays on
each of the 85 Federalists, and I think maybe the longest
one is on Federalist 2, which nobody ever reads. And in that essay,
Publius, or John Jay, makes the completely
fallacious argument that we’re one people,
that Providence settled us with people of a common
language, common religion, common manners,
and that is why we ought to ratify
the Constitution, why we’ll be a republic. Now, Jay knew this
was false at the time. So what I find
interesting is, why did he feel it necessary
to proclaim that singular identity? And you could also make the
same argument with regard to the Declaration
of Independence. We weren’t one people in 1776. But it’s very, very
important to manufacture that sort of identity. And that particular
chapter in my book segues into a discussion of Sam
Huntington and his final book, which was, I think
it’s fair to say, a somewhat hysterical
attack on particularly Latin American
migration and the fact that in some areas of the
country, Miami, south Texas, et cetera, we weren’t united
in the common language. Now, I disagree with
Huntington and certainly with his particular
politics in that book. That being said, it does
seem to me fallacious simply to dismiss him
and say, well, you can have what Madison called an
indefinitely extended republic, where 320 million people, or
340 million people now instead of 4 million people, wildly
more diverse than in 1787, and very importantly– and this, I think,
is an important point with regard to being nostalgic
about even 50 or 60 years ago. The fact is that the
establishment that Steve rightly focused on was a
largely white male establishment prior to the Voting
Rights Act of 1965. Lyndon Johnson
correctly said when he signed it that this will kill
the Democratic Party that he grew up in. And it also transformed
the country, as did the Immigration
Act of 1965 that I’m sure that Jennifer
has written and thought about. And so I think one has to
ask some of the questions that Huntington
asked, even if you end up radically differing with
him, whether you’re taught– this is the whole
politics of immigration, which is one of
the things that’s challenging so-called democratic
systems around the world. And I don’t know what the sound
answer is, other than just hoping that we can
all work it out and realizing we’re all
God’s children, et cetera. That’s not the way politics
actually seems to operate. JACK BALKIN: I wanted
to say something about Carlson, who I tend
to view with a hermeneutics of suspicion. But he’s an interesting
symbol of two trends that may prove important– I don’t guarantee
they’ll prove important– that may prove important. The first is that from
the New Deal coalition to the Reagan
coalition, we moved from a partisan split organized
around issues of class to a partisan split organized
around issues of identity. And Carlson symbolizes,
on the right-hand side, the right-hand
politics of identity. But what’s also
interesting about Carlson, which you mentioned,
is that he seems to show us how the
coalitions of the two parties will eventually crack. That is, he is suggesting
the possibility of an identity-based
coalition on the right which has a plutocratic wing
and a populist wing so that the class issues are
submerged over the agreement on identity politics. But this distinction between
plutocratic and populist is going to become
increasingly important as enterprising politicians
find ways to make use of it in order to gain power within
the Republican coalition. Similarly, if we
were to flip and look at the Democratic Party,
the Democratic Party now seems more united than
ever on issues that would be seen as issues of identity. I think of them as issues like
race, gay rights, sex equality, and so on. But what you also see
forming is a distinction between a neoliberal wing and a
kind of economic populist wing. And you probably know well
who all the players are. And here too, although right
now the Democratic Party seems momentarily
united because everybody in the Democratic
Party is pretty far to the left of everybody
in the Republican Party, you see how these
cracks and fissures are beginning to form
in the coalitions that are being structured,
between those who think that Obama wasn’t
so bad on economic policy and Clinton wasn’t so
bad on economic policy, and the people who
say, no, no, no. That was then. This is now. We really need to
move forward on this. Again, enterprising
politicians will see these fissures
and cracks and attempt to try to increase their
size in order to improve their political positions. If this happens– and I’m
just suggesting it’s one possibility– it shows
you a path, unwittingly, toward the gradual
depolarization of American politics as
the two parties’ coalitions start to become cross-cutting. And that is a sign of a
depolarizing politics– not necessarily the
politics you like, but in some ways, a politics
that’s more manageable. AUDIENCE: Thank you very
much for a fascinating talk. This might be just
slightly disconnected. But I wonder what your take is
on Mike Lofgren’s or Peter Dale Scott’s concept
of the deep state and whether you
think we can think of it in constitutional terms. Does it have
constitutional foundations? And if yes, do you
think it’s part of American
democracy functioning or dysfunctioning, especially
in the time of Trump? Thank you. JACK BALKIN: Do you want to
talk about the deep state? STEVEN LEVITSKY: Sure. JACK BALKIN: Yeah, I
thought this would be something right up your alley. STEVEN LEVITSKY: I can’t
speak to the Constitution. JACK BALKIN: No, but about the
formation in American politics. STEVEN LEVITSKY: Deep state,
in effect, in my view, is, in democracies like
the United States– and the United States has one
of the shallowest states around. The first widespread use
of deep state that I saw was in Turkey, where there
really was a deep state, where secular forces in the
military, and where you had an institutionalization
of both military power and secularism that was making
it very difficult for the AKP to govern. Deep state is civil service. In any modern,
effective state, there need to be public officials
who are free of partisan reach and who are not easily
influenced by elected officers, who do their job. And what populists
of all stripes, whether they use the
term “deep state” or not, they react very negatively
to state institutions that they can’t control. And the idea that I
was elected president, and I still can’t control
what this flipping judge says or what these mid-level
employees in the National Security Agency or the
State Department do, is unfathomable
to many populists, including Donald Trump. And so what
deep-state rhetoric– I cannot speak to
constitutionality at all. I can speak to the
politics of it. Invariably, the use of
deep-state discourse is a justification for
purging and packing the state, for purging and
politicizing the state. That’s exactly what
happened in Turkey. It’s exactly what
happened in Venezuela. It’s exactly what
happened in Hungary. And it’s what the
Trumpistas would like to do in the United States. Luckily, they haven’t
had much success. SANFORD LEVINSON: Yeah. I’m going to add one
constitutional point on this, that as any of the law
students here will know, the notion of the
unitary executive has become a primary
talking point among American conservatives
and is certainly represented in the
Supreme Court right now, most notably
by Neil Gorsuch. The whole idea of
the unitary executive really does suggest
that everybody in the executive branch
should be at the beck and call of the maximum leader. If you push the argument
to its logical extent, it would suggest that the
Civil Service Act of 1886 is unconstitutional
inasmuch as it gives tenure, basically, to public servants. But one of my hobbyhorses,
one of my many hobbyhorses, is that when we talk about
the American constitutional tradition, especially
at elite schools, and especially at places
like Harvard and Yale, you would think that
there’s only one constitution in the
United States, which is the US Constitution. One of the things that’s
really, really interesting about almost all of the
state constitutions– as well as other
national constitutions, but we have a
culture that is often suspicious of
invoking constitutions from outside our shores. But if you look at
Massachusetts, for example, you don’t have a
unitary executive. The governor is Republican. The attorney general
is Democratic. This is, I think, something
like 46, 47 of the states have what Jacob Gersen has
called the unbundled executive. So in terms of the
Constitution getting really deep into our
minds and structuring the sense of
possibilities, I simply know from experience in
talking to my colleagues in the legal academy that
they find it unthinkable that the attorney
general should be unbundled from the president. Right now, the whole
Robert Mueller thing just wouldn’t arise in
Massachusetts, California, Texas, or something like
46 of the 50 states. Now, there are no
perfect systems. There’s something to be said
against unbundling the attorney general and the governor. But the fact is that the
enacted American constitutional tradition, once you look at
something other than the US Constitution, has rejected
the unitary executive. And this is, I
think, particularly important with regard to
control of the legal apparatus and the notion that
AGs really function as arms of the president. From my point of view, the
single most objectionable appointment of AG
in the 20th century was John Kennedy’s
appointment of Robert Kennedy. That’s what happens
in a banana republic. It turns out that you can
argue that Robert Kennedy was a pretty good attorney general. But his appointment
was indefensible, and he was appointed
so that Jack would have an ally in Justice. So here, I think, is where
the design issue touches. But I do think that the debates
about the unitary executive, that’s where the
Supreme Court could just raise all sorts of
hell with regard to disrupting a whole bunch
of established American institutions, including,
for that matter, the Federal Reserve Board. JACK BALKIN: Sandy, in
most of those states, the attorney general is elected. It’s an elected office. SANFORD LEVINSON:
Mm-hmm, as are judges. JACK BALKIN: Right, as in Texas. So would you support an elected
attorney general nationally? Or do you think you’d
prefer something more like the ICC or
the FCC or nonpartisan boards of governors? What would you prefer? SANFORD LEVINSON: I don’t
have a quick answer to that. Jennifer asked, what
I want to come out of a constitutional convention. I don’t have a copy
of the Levinson Constitution in my pocket. What has turned me into
a crank on this issue is that we simply don’t
discuss these issues of constitutional design
at all because they’re just thought to be off the
table, either because we love our Constitution and
don’t imagine alternatives, or because even
people who aren’t particular fans of
the Constitution will say, altogether correctly,
it’s basically unamendable. So as Donald Rumsfeld
put it, we carry on politics with the
Constitution we have, not the Constitution
we wish we had. And there’s a profound
truth to that. What I want is a long national
conversation really addressing your question. I don’t know where I’d come out. But we’re not even
having the beginnings of that conversation
except 15 seconds ago, when you raised the question. JACK BALKIN: This is
a good place to end. JENNIFER HOCHSCHILD: I apologize
to you and everybody else. I have to catch a plane. So I’m leaving. SANFORD LEVINSON: Thank you. JENNIFER HOCHSCHILD: We will
continue this conversation, I hope. JACK BALKIN: I hope. I hope. JENNIFER HOCHSCHILD: Sorry. JACK BALKIN: You want to
take some more questions, or you want to stop right here? JUNE CASEY: [INAUDIBLE] I’ll
grab questions at the table, and we’ll sign in. SANFORD LEVINSON: Sure, sure. JACK BALKAN: Very
good, thank you. SANFORD LEVINSON: Thank
you so much for coming. [APPLAUSE]

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  1. Multiple speakers pointed to polarization as a cause of federal dysfunction. However, despite the importance of polarization, the speakers spent little time addressing the phenomenon itself; they don't provide a framework for understanding either its causes or its potential solutions. Are shifts in ethnic distribution at fault? Migratory trends? The changing technological landscape? Wealth disparity? The enfeebling of political parties' leadership? America's electoral system? The evolution of marketing tactics? The decline in religious observance and participation in civic organizations? Perhaps even federalism itself (as a principle of division)? None of the speakers tenders an opinion.

    (My own view, for what its worth, is that recent polarization has four main factors: 1. demographic changes due to immigration and divergent birth rates; 2. FPTP, which amplifies discord; 3. parallel trends of media concentration and sensationalism; and 4. general anger at perceived loss of financial and social stability. Possible solutions to which might include, in whatever sensible fashion, at any level of governance, reform of policies regarding family inhibition/promotion, immigration, electoral methods, civic participation, and discouragement of exorbitant media consumption. Also, although geographical sorting may either be a symptom of polarization or a cause depending on your viewpoint, policies that address or mitigate the harms of assortment would be helpful.)

    One of the speakers attributes polarization to the decline of the relative population of white Christians and, in particular, white Christian men. He also mentions that the rural-urban divide has increasing prominence; however, at least without a more detailed explanatory model, this should probably be taken as an indicator of polarization (albeit one of outsize importance because of Constitutional effects), not a cause of polarization.

  2. Well. . . I don't know I would want to mention clinging to power if my party were led by a dozen septua- and octogenarians. Additionally, the polarization may be between people who hate their jobs and hope someday to retire and do things like golf, and others who love being in power and intend to die in office.

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