Closing keynote address: The last days of disco: Why the American political system is dysfunctional

Boston University Law Review

Volumn 94, Issue 3, 2014, Pages 1159-1199

  Balkin, Jack M ^a  

^a YALE UNIVERSITY   (United States)

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EID: 84903696452     PISSN: 00068047     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (75)

1. THE LAST DAYS OF DISCO (Castle Rock Entertainment 1998).
2. See STEVEN F. HAYWARD, THE AGE OF REAGAN: THE FALL OF THE OLD LIBERAL ORDER: 1964-1980, at xiv (2001) (observing dire predictions in the late 1970s that America was "ungovernable," that "the presidency was an inherently impossible office in our modem complex world," and that constitutional reforms were necessary to enable Presidents to be more effective).
3. See James W. Ceaser, The Theory of Governance of the Reagan Administration, in THE REAGAN PRESIDENCY AND THE GOVERNING OF AMERICA 67 (Lester M. Salamon & Michael S. Lund eds., 1984) ("During Reagan's first year, by contrast, there was a remarkable shift in perceptions about the capacity of the system to act, even if many did not agree with how it was acting. Virtually all talk about a crisis of ungovernability and the demise of presidential leadership ceased.").
4. LARRY J. SABATO, A MORE PERFECT CONSTITUTION: IDEAS TO INSPIRE A NEW GENERATION (2007) (arguing for a new Constitution)
5. Sanford Levinson, So Much to Rewrite, So Little Time⋯ 27 CONST. COMMENT. 515, 515 (2011)
6. Lawrence Lessig, A Conference on the Constitutional Convention, HUFFINGTON POST (Aug. 10, 2011, 12:11 PM), http://www.huffingtonpost.com/ lawrence-lessig/a-conference-on-the-const-b-923249.html, archived at http://perma.cc/T22V-873H (explaining the purpose behind organizing a conference to discuss a new constitutional convention)
7. Matthew Yglesias, Juan Linz's Bad News for America, SLATE (Oct. 2, 2013, 12:08 PM), http://www.slate.com/articles/business/moneybox/2013/10/juan-linz- dies-yale-political-scientist-explains-why-government-by-crisis.html, archived at http://perma.cc/7V6J-G5CR ("The current atmosphere of political crisis isn't a passing fad and⋯ it's very likely to get worse. Much worse. And lead to a complete breakdown of constitutional government and the democratic order.").
8. It is worth noting that not all commentators share these dire assessments. See, e.g., Richard L. Hasen, Political Dysfunction and Constitutional Change, 61 DRAKE L. REV. 989 (2013) (arguing that the degree of political dysfunction is exaggerated and, in any case, may be cured by subconstitutional changes)
9. R. Shep Melnick, The Conventional Misdiagnosis: Why "Gridlock" Is Not Our Central Problem and Constitutional Revision Is Not the Solution, 94 B.U. L. REV. 767, 775-81 (2014) (arguing that claims of dysfunction are exaggerated).
10. See SANFORD LEVINSON, FRAMED: AMERICA'S 51 CONSTITUTIONS AND THE CRISIS OF GOVERNANCE (2012) [hereinafter LEVINSON, FRAMED]
11. SANFORD LEVINSON, OUR UNDEMOCRATIC CONSTITUTION: WHERE THE CONSTITUTION GOES WRONG (AND HOW WE THE PEOPLE CAN CORRECT IT) (2006) [hereinafter LEVINSON, OUR UNDEMOCRATIC CONSTITUTION].
12. Sanford Levinson, What Are We to Do About Dysfunction? Reflections on Structural Constitutional Change and the Irrelevance of Clever Lawyering, 94 B.U. L. REV. 1127, 1129-30 (2014) (arguing that structural elements contribute to dysfunction when combined with other features like polarization).
13. Sanford Levinson, "Reflection and Choice": A One-Time Experience?, 92 NEB. L. REV. 239, 255 (2013) (explaining that aspects of the Constitution like the Equal Protection Clause constitute "the Constitution of Conversation" because they are "subject to endless conversation and, more to the point, litigation about what exactly they mean at any given time" (internal quotation marks omitted)).
14. Sanford Levinson, The United States and Political Dysfunction: "What Are Elections for?," 61 DRAKE L. REV. 959, 981 (2012) ("I have come to believe that the most important aspects of any constitution are the hard-wired structures within which politics takes place.").
15. JACK M. BALKIN, LIVING ORIGINALEM 4-6, 35, 69-70 (2011).
16. 531 U.S. 98, 104 (2000) ("[T]he state legislature's power to select the manner for appointing electors is plenary⋯." (citing McPherson v. Blacker, 146 U.S. 1, 35 (1892))).
17. The Electoral College is a rare example of a provision of the Hard-Wired Constitution whose application is also sometimes litigated and is the subject of much controversy. The practical operation of the Electoral College is part of the Constitution of Construction. For example, states can route around certain features of the Electoral College through a state compact. See AKHIL. REED AMAR, AMERICA'S UNWRITTEN CONSTITUTION: THE PRECEDENTS AND PRINCIPLES WE LIVE BY 457-61 (2012)
18. Vikram David Amar, Response: The Case for Reforming Presidential Elections by Subconstitutional Means: The Electoral College, the National Popular Vote Compact, and Congressional Power, 100 GEO. L.J. 237, 254-58 (2011).
19. Citizens United v. FEC, 558 U.S. 310 (2010).
20. See Mark Graber, Belling the Partisan Cats: Preliminary Thoughts on Identifying and Mending a Dysfunctional Constitutional Order, 94 B.U. L. REV. 611, 643-44 (2014) (arguing that veto points can lead either to political blockage or bipartisan bargaining, depending on the construction of political parties and the constitutional order).
21. Graber, supra note 18, at 645 ("The goal of most successful constitutional reform in the United States is to entrench the existing structure of political competition and align other constitutional practices so that the dominant political forces can operate the constitutional order more effectively."); See also id. at 646 ("[M]ost (temporarily) successful exercises of constitutional reform in the United States are better described as 'hegemonic preservation,' as efforts by existing elites to realign politics to preserve a favorable constitutional politics, than as means for undermining the existing structure of political competition." (citing RAN HIRSCHL, TOWARDS JURISTOCRACY: THE ORIGINS AND CONSEQUENCES OF THE NEW CONSTITUTIONALISM 11 (2004)) (footnote omitted)).
22. THOMAS E. MANN & NORMAN J. ORNSTEIN, IT'S EVEN WORSE THAN IT LOOKS: HOW THE AMERICAN CONSTITUTIONAL SYSTEM COLLIDED WITH THE NEW POLITICS OF EXTREMISM 44 (2012) ("Partisan polarization is undeniably the central and most problematic feature of contemporary American politics.").
23. Thomas E. Mann & Norman J. Omstein, Admit It. The Republicans Are Worse., WASH. POST, Apr. 29, 2012, at B1.
24. See Geoffrey C. Layman & Thomas M. Carsey, Party Polarization and "Conflict Extension" in the American Electorate, 46 AM. J. POL. Sci. 786, 789 (2002).
25. See IRA KATZNELSON, FEAR ITSELF: THE NEW DEAL AND THE ORIGINS OF OUR TIME 127-29 (2013) (describing the phenomenon and its long-term effects on American politics).
26. Graber, supra note 18, at 640; See also Mark A. Graber, The Coming Constitutional Yo-Yo? Elite Opinion, Polarization, and the Direction of Judicial Decision Making, 56 How. L.J. 661, 695-99 (2013) (explaining the relationship between elite polarization and conflict extension).
27. STEPHEN SKOWRONEK, PRESIDENTIAL LEADERSHIP IN POLITICAL TIME: REPRISE AND REAPPRAISAL 135-36 (2d ed. 2011) (describing President Bush as "the latest in a long line of 'orthodox innovators' in American presidential history" (citation omitted)).
28. In the wake of the Budget Control Act of 2011, House Speaker John Boehner famously asserted that "I got 98 percent of what I wanted[;] I'm pretty happy." Interview by Scott Pelley with John Boehner, Speaker of the House, U.S. House of Representatives, in Washington, D.C. (Aug. 1, 2011)
29. (transcript archived at http://perma.cc/5NGW-9XHJ).
30. See generally STEPHEN SKOWRONEK, THE POLITICS PRESIDENTS MAKE: LEADERSHIP FROM JOHN ADAMS TO BILL CLINTON (3d prtg. 2000); SKOWRONEK, supra note 35.
31. See SKOWRONEK, supra note 35, at 181-86 (arguing that the age of transformative presidencies is over); Stephen Skowronek, Twentieth-Century Remedies, 94 B.U. L. REV. 795 (2014).
32. Jack M. Balkin & Sanford Levinson, The Processes of Constitutional Change: Front Partisan Entrenchment to the National Surveillance State, 75 FORDHAM L. REV. 489, 489-501 (2006) [hereinafter Balkin & Levinson, Processes of Constitutional Change]
33. Jack M. Balkin & Sanford Levinson, Understanding the Constitutional Revolution, 87 VA. L. REV. 1045, 1066-68 (2001) [hereinafter Balkin & Levinson, Understanding the Constitutional Revolution]
34. see also Howard Gillman, How Political Parties Can Use the Courts to Advance Their Agendas: Federal Courts in the United States, 1875-1891, 96 AM. POL. Sci. REV. 511, 512 (2002) [hereinafter Gillman, Political Parties]
35. Howard Gillman, Party Politics and Constitutional Change: The Political Origins of Liberal Judicial Activism, in THE SUPREME COURT & AMERICAN POLITICAL DEVELOPMENT 138-68 (Ronald Kahn & Ken I. Kersch eds., 2006) [hereinafter Gillman, Party Politics].
36. For variations on this basic theme, see BALKIN, supra note 13, at 286; KEITH E. WHITTINGTON, POLITICAL FOUNDATIONS OF JUDICIAL SUPREMACY: THE PRESIDENCY, THE SUPREME COURT, AND CONSTITUTIONAL LEADERSHIP IN U.S. HISTORY 158-60 (2007)
37. Balkin & Levinson, Processes of Constitutional Change, supra note 60, at 495-96; Balkin & Levinson, Understanding the Constitutional Revolution, supra note 60, at 1105-07; Gillman, Political Parties, supra note 60, at 517-22; Gillman, Party Politics, supra note 60, at 138-68; Mark A. Graber, The Countermajoritarian Difficulty: From Courts to Congress to Constitutional Order, 4 ANN. REV. L. & SOC. SCi. 361, 363-64 (2008).
38. See Craig Timberg & Amy Gardner, Democrats Push to Use Obama Voter Database, WASH. POST, NOV. 21, 2012, at A1, A1 ("If you voted this election season, President Obama almost certainly has a file on you. His vast campaign database includes information on voters' magazine subscriptions, car registrations, housing values and hunting licenses, along with scores estimating how likely they were to cast ballots for his reelection.")
39. See also How Rove Targeted the Republican Vote, PBS FRONTLINE (Apr. 12, 2005), http://www.pbs.org/wgbh/pages/frontline/shows/architect/rove/metrics. html, archived at http://perma.cc/FK74-7FQ9 ("[Karl] Rove built an elaborate system for identifying the Republican vote. It centered on gathering extensive statistics on voters, refining and testing this data to predict the potential Republican votes, and then implementing a get-out the-vote strategy while constantly monitoring, measuring and testing it.").
40. See Colin Bennett, The Politics of Privacy and the Privacy of Politics: Parties, Elections and Voter Surveillance in Western Democracies, FIRST MONDAY (Aug. 5, 2013), http://firstmonday.org/ojs/mdex.php/fm/article/view/4789/3730, archived at http://perma.cc/M22Q-KBVZ ("The winning strategy of [the Obama presidential] campaign has been attributed, in part, to its unprecedented ability to capture and profile personal data on the American voting public and to target precisely defined constituencies with tailored messaging, in both off-line and online formats.").
41. See, e.g., Kenneth P. Vogel, Karl Rove v. the Koch Brothers, POLITICO (Oct. 10, 2011, 4:44 AM), http://www.politico.com/news/stories/1011/65504-Page3. html, archived at http://perma.cc/RW6P-JBM9 (describing "dueling efforts to build databases of likely conservative voters for targeting throughout the campaign and on Election Day")
42. Kenneth P. Vogel & Maggie Haberman, Karl Rove, Koch Brothers Lead Charge to Control Republican Data, POLITICO (Apr. 22, 2013, 5:04 AM), http://www.politico.com/story/2013/04/karl-rove-koch-brothers-control- republican-data-90385.html, archived at http://perma.cc/BPF6-AVAA ("[I]t's about who controls the party through its most precious asset - its voter data- and the multimillion-dollar contracts that could follow.").
43. Steven M. Teles, Kludgeocracy in America, NAT'L AFF., Fall 2013, at 97, 97-98 ("[A] kludge is an inelegant patch put in place to solve an unexpected problem⋯. When you add up enough kludges, you get a very complicated program that has no clear organizing principle, is exceedingly difficult to understand, and is subject to crashes.").
44. Id. (observing that the rise of mass political parties coincided with increased polarization and "a different constitutional order, one based on rule by the legitimate party of the people"); Mark A. Graber, Constructing Constitutional Politics: The Reconstruction Strategy for Protecting Rights 68-69 (Univ. of Md. Francis King Carey Sch. of Law, Working Paper No. 1390, 2013), available at http://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi? article=2394&context=fac-pubs (explaining how Republicans designed the Fourteenth Amendment to entrench control by the "legitimate party of the people").
45. Carl Hulse & Adam Nagourney, Senate Republican Leader Finds Weapon in Party Unity, N.Y. TIMES, Mar. 17, 2010, at A13.
46. Remarks at an Obama Victory Fund 2012 Fundraiser, in Minneapolis, Minnesota, 2012 DAILY COMP. PRES. DOC. 436, at 3 (June 1, 2012).
47. For a cautionary note, see John Sides, The Democratic Party's Uphill Path to 270 Electoral Votes in 2016, WASH. POST (Jan. 18, 2014, 10:24 PM), http://www.washingtonpost.com/blogs/monkey-cage/wp/2014/01/18/ the-democratic-partys-uphill-battle-to-270-electoral-votes-in-2016, archived at http://perma.cc/3P2X-62Z9
48. John Sides, The Perils of Democrats' Euphoria, or Why the 2012 Election Is Not a Realignment, MONKEY CAGE (Nov. 12, 2012), http://themonkeycage.org/ 2012/ll/12/the-perils-of-democrats-euphoria-or-why-the-2012-election-is-not-a- realignment, archived at http://perma.cc/8UEJ-54TK.
49. See, e.g., Noel Canning v. NLRB, 705 F.3d 490, 498 (D.C. Cir. 2013) (citing U.S. CONST, art. II, § 2, cl. 3) (describing President Obama's use of the Recess Appointments Clause to place members onto the National Labor Relations Board without obtaining the Senate's advice and consent), cert, granted, 133 S. Ct. 2861 (2013)
50. Hearing on Libya and War Powers Before the S. Foreign Relations Comm., 112th Cong. 11-17 (2011) (statement of Hon. Harold Koh, Legal Adviser, U.S. Department of State) (explaining why President Obama's intervention in Libya did not violate the War Powers Resolution).
51. For a historical perspective, see Andrew Rudalevige, Waiving at History, MONKEY CAGE (Aug. 8, 2012), http://themonkeycage.org/2012/08/08/waiving-at- history, archived at http://perma.cc/K8HU-MKW6.
52. See, e.g., Press Release, Dep't of Homeland Sec, Secretary Napolitano Announces Deferred Action Process for Young People Who Are Low Enforcement Priorities (June 15, 2012), archived at http://perma.cc/83S4-JXSU
53. Obama's New Immigration Policy Explained: 7 Key Facts, DAILY BEAST (June 15, 2012), http://www.thedailybeast.com/articles/2012/06/15/obama-s-new- immigration-policy-explained-7-key-facts.html, archived at http://perma.cc/CG3F- ZH9U.
54. See, e.g., Ted Cruz, The Imperial Presidency of Barack Obama, WALL ST. J., Jan. 29, 2014, at A17.
55. See generally Sanford Levinson & Jack M. Balkin, Constitutional Dictatorship: Its Dangers and Its Design, 94 MINN. L. REV. 1789 (2010) (describing how the American constitutional system bestows discretionary powers onto the executive branch and observing that, even in the context of emergency powers, the President ordinarily has much greater discretion to act unilaterally in the area of foreign policy than in the area of domestic policy).
56. See Major Garrett, Top GOP Priority: Make Obama a One-Term President, NAT'L J. (Oct. 23, 2010), http://www.nationaljoumal.com/member/magazine/top-gop- priority-make-obama-a-one-term-president-20101023, archived at http://perma.cc/JPQ2-QYHN.
57. See, e.g., Gregory A. Caldeira & James L. Gibson, The Etiology of Public Support for the Supreme Court, 36 AM. J. POL. Sci. 635, 660-61 (1992) ("[I]f the public at large accords the Court a high level of diffuse support⋯ then these issue-oriented [political] elites might run some political risks if they press vigorously for Court-curbing measures.")
58. Tara Leigh Grove, The Structural Safeguards of Federal Jurisdiction, 124 HARV. L. REV. 869, 885-86 (2011) ("[T]he lawmaking requirements of Article I⋯ give the political faction supporting the judiciary - even if it is only a political minority - multiple opportunities to veto jurisdiction- stripping legislation favored by its opponents.")
59. See generally James L. Gibson & Michael J. Nelson, Is the U.S. Supreme Court's Legitimacy Grounded in Performance Satisfaction and Ideology?, 58 AM. J. POL. SCI. (forthcoming 2014), available at http://papers.ssrn.com/ sol3/papers.cfin?abstract-id=2222749.
60. See U.S. CONST, art. III, § 1 ("The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour⋯. "). Putting aside what is meant by "good Behaviour," life tenure is a nearly unique feature of the United States Constitution. Almost no countries, and only one of the fifty states, have life tenure. See LEVTNSON, OUR UNDEMOCRATIC CONSTITUTION, supra note 5, at 125-26; Linda Greenhouse, New Focus on the Effects of Life Tenure, N.Y. TIMES, Sept. 10, 2007, at A20 ("Most countries place term or age limits on their high-court judges, as do 49 states (all but Rhode Island)."). Thus, the complicated relationship between new constitutional orders and the composition of the judiciary is due to the Constitution of Settlement.
61. Gerard N. Magliocca, Preemptive Opinions: The Secret History of Worcester v. Georgia and Dred Scott, 63 U. PITT. L. REV. 487, 488-90 (2002).
62. See Mark A. Graber, The Jacksonian Origins of Chase Court Activism, 25 J. SUP. CT. HIST. 17, 19-20 (2000) (arguing that once the Civil War ended, Jacksonian appointees on the Chase Court returned to upholding the commitments of the old regime against Republican innovations).
63. Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857), superseded by constitutional amendment, U.S. CONST, amends. XIII, XIV.
64. On the role of civil society organizations, see CHARLES R. EPP, THE RIGHTS REVOLUTION: LAWYERS, ACTIVISTS, AND SUPREME COURTS IN COMPARATIVE PERSPECTIVE 20-22 (1998)
65. STEVEN M. TELES, THE RISE OF THE CONSERVATIVE LEGAL MOVEMENT: THE BATTLE FOR CONTROL OF THE LAW 11-14 (2008).
66. Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2608-09 (2012) (plurality opinion)
67. See Jack M. Balkin, From off the Wall to on the Wall: How the Mandate Challenge Went Mainstream, ATLANTIC (June 4, 2012, 2:55 PM), http://www.theatlantic.com/national/archive/2012/06/from-off-the-wall-to-on-the- wall-how-the-mandate-challenge-went-mainstream/258040, archived at http://perma.cc/68XN-25UK (explaining the role of the Republican Party and its allied intellectuals and media organizations in changing public opinion about the plausibility of the constitutional challenge to the individual mandate).
68. Shelby Cnty. v. Holder, 133 S. Ct. 2612,2631 (2013).
69. See Reva B. Siegel, Foreword: Equality Divided, 127 HARV. L. REV. 1, 72-73 & nn.367-68 (2013) (describing the Reagan Administration's hostility to the Voting Rights Act and President Reagan's belief that it was humiliating to the South).
70. See Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193,197, 202-06 (2009) (avoiding the question of the Voting Rights Act's constitutionality, but suggesting that its preclearance provisions may be outdated).
71. See Linda Greenhouse, What's Your Hurry?, N.Y. TIMES OPINIONATOR (June 12, 2013, 8:30 PM), http://opimonator.blogs.nytimes.com/2013/06/12/whats-your- hurry/?-php=true&-type=blogs, archived at http://perma.cc/7ZKW-KHYS ("[T]he overall theme [of the Roberts Court] in the words of the old Janis Joplin song [is]: get it while you can. This is as good as it's going to get."). Keith Whittington's work on judicial review suggests that we might also expect significant struggles between a Democratic President and Republican holdovers in the federal judiciary until the Democrats control the courts once more. Whittington believes that transformative Presidents like Jackson or Lincoln are most likely to engage departmentalist rhetoric, arguing for the President's ability to interpret the Constitution independently from the courts. See WHITTINGTON, supra note 61, at 22-23. In other context, however, Presidents are likely to eschew departmentalist rhetoric and treat the courts as an occasional or potential ally against Congress or state and local governments. An interesting question raised by Whittington's thesis is what will happen in an age without reconstructive presidencies in the Jacksonian mold. Will Obama, who lacks many features of a reconstructive President, take a departmentalist line? Or will Obama behave more like a preemptive President? Preemptive Presidents often find it prudent to support judicial review even when they lose, because in particularly difficult political environments, "the law and the judiciary may be the best defense that a president has." Id. at 166-67; See also BALKIN, supra note 13, at 286.
72. GLORIA GAYNOR, I WILL SURVIVE (Polydor Records 1978).
73. For a live performance of the diva in action, see Ichnos71live, Gloria Gaynor - I Will Survive (Live 1979), YOUTUBE (Dec. 13, 2008), http://www.youtube.com/watch?v=Faflch7Q9XE.
74. See generally Jack M. Balkin, CONSTITUTIONAL REDEMPTION: POLITICAL FAITH IN AN UNJUST WORLD (2011).
75. ALL ABOUT EVE (Twentieth Century-Fox Film Corp. 1950).