Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Yesterday I gave a talk at a Yale Law School Alumni luncheon in New
York City.This is a summary of my
remarks. (It is not a transcript—I spoke from notes.)
* * * * *
When you think about politics these days, it’s hard to avoid focusing
on Donald Trump’s remarkable rise to power and his even more remarkable
presidency. It’s even harder to avoid thinking about the scandals swirling
around him day to day. It’s not that I don’t think these are important. But
they are not the subject of today’s talk.In this talk, I want to look at the big picture. In this picture, Trump
is merely a symptom. He is a symptom of a serious problem with our political
and constitutional system.
Because Trump’s method is to provoke outrage and fluster his opponents,
many people have wondered whether we are currently in some sort of constitutional
crisis. We are not. Rather, we are in a
period of constitutional rot.
By “constitutional rot,” I mean the decay of features of our system
that keep it a healthy republic.Constitutional rot, which has been going on for some time, has produced
our current dysfunctional politics.
Constitutional dysfunction isn't the same thing as gridlock—after all,
the three branches of government are currently controlled by the same party.
Rather, it is a problem of representation.
Over time, our political system has become less democratic and less republican.
It is increasingly oligarchical.
By “democratic,” I responsive to popular will and popular opinion. By
“republican,” I mean that representatives are devoted to the public good, and responsive
to the interests of public as a whole—as opposed to a small group of powerful
individuals and groups. When representatives are responsive not to the
interests of the public in general but to a relatively small group of
individuals and groups, we have oligarchy.
Republics are especially susceptible
to constitutional rot
Republics are premised on pursuit of the common good. Representatives
are given power for the sole purpose of pursuing the public good. The Framers
understood that republics are fragile things. They are easily corrupted, and over
time, they are likely to turn into oligarchies or autocracies.
When a government becomes oligarchical, leaders spend less and less
time working for the public good. Instead, they spend more and more time enriching
a small group of important backers that keep them in power. Because the general
public feels abandoned by politicians, it gradually loses faith in the
political system. This leads to the rise of demagogues, who flatter people with
promises that they will make everything right again.
Oligarchy has resulted from the gradual breakdown of the party system
that selects candidates and makes political parties responsive to the public,
as well as from changes in how political campaigns are financed and changes in
the structure of mass media. The problem has occurred in both parties, but it
is especially pronounced in the Republican party, which styles itself as a
populist party but is anything but. A small class of wealthy donors has
disproportionate control over the Republican policy agenda. The influence of
the donor class over that agenda is the best explanation of developments in
What are the deeper causes of constitutional rot? There are four
interlocking features, which we might call the Four Horsemen of Constitutional Rot:
(1) political polarization; (2) loss of trust in government; (3) increasing economic
inequality; and (4) policy disasters, a term coined by Stephen Griffin to
describe important failures in decision making by our representatives, like the
Vietnam War, the Iraq War and the 2008 financial crisis.
Today, one of the most important, overarching policy failures is
America’s inadequate response to globalization. The 2008 financial crisis is a
special case of this larger policy failure. A democracy requires a stable,
economically secure middle class to create the right incentives for government
officials to pursue the public good. A globalized economy puts serious pressure
on social insurance programs and on the economic stability and self-sufficiency
of Americans. Political and economic elites have not navigated globalization’s
changes well. They have taken pretty good care of themselves, but they have not
taken care of the whole country. This inadequate response to globalization has
hastened constitutional rot.
These four horsemen—polarization, loss of trust, economic inequality,
and policy disaster— mutually reinforce each other.Political scientists have pointed out that
rising economic inequality exacerbates polarization, which in turn helps
produce policies that exacerbate inequality.Rising inequality and polarization also encourage loss of trust.Polarization and oligarchy create
overconfidence and insulate decision makers from necessary criticism, which makes
policy disasters more likely; policy disasters, in turn, further undermine
trust in government, and so on.
In an oligarchical system, regardless of its formal legal
characteristics, a relatively small number of backers effectively decide who
stays in power. In such a system, politicians will have strong incentives to divert
resources to the relatively small group of backers who keep them in power. Not
surprisingly, the power of government and resources for government are often wasted
or diverted from important public goods. Our constitutional system is still
formally democratic but has become more oligarchical in practice over time. As a
result, the United States has wasted a great deal of money on policy disasters,
it has shaped the tax code so that most of the benefits of economic growth have
gone to the wealthiest Americans, and through unwise tax and fiscal policy it
has diverted a lot of money that could have been used for public services and
public goods to the wealthy.
Constitutional defenses against
Our Constitution is designed to ward off both oligarchy and demagogues
and preserve a republic. For the most part, it has been quite successful in the
face of a wide variety of changes and challenges. Some of these features of our
constitutional system, however, don't work very well any more in preventing
oligarchical tendencies.Separation of powers between Congress and the
President is a good example. Rick Pildes and Darryl Levinson have pointed out
that our system is better described as separation of parties rather than
separation of powers.When the President
and Congress are from the same party, there will be little oversight of the
President. The Republican Congress’s almost complete disinterest in checking
Trump is a particularly worrisome example of this.
Even so, the United States still has many other republican defenses. We
still have an independent judiciary, regular elections, and a free press. Many
other countries that have eventually succumbed to autocracy are not so
fortunate. Moreover, in the United States, from the Founding forward, lawyers
have played a crucial role in defending the republic: in staffing an
independent judiciary; in promoting rule of law values in the bureaucracy; and
in bringing cases to protect constitutional rights and check executive
overreach. Once again, many other countries that have become autocratic are not
as fortunate as the United States.
Propaganda and constitutional rot
One should not underestimate the value of our free press, even as comes
under assault from the Trump Administration. Reporters have not been cowed into
silence as they have been in other countries.If anything, Trump’s shenanigans and his successful manipulation of the
press in 2016 have caused the press to think more deeply about its democratic responsibilities.
Even so, the power of the press to protect republican government has
been weakened.Part of this is due to economics, and part of
it is due to other factors.The American
system of freedom of the press was undermined in 2016, not by censorship but by
Trump’s very effective hacking of the media; he is both a master manipulator
and an effective demagogue in the digital era.
The system of free press was also undermined by the production of
effective propaganda both from within the United States and from outside it.
These two forms of propaganda come from different sources but they reinforced
each other in a perfect storm in 2016.
We now have domestic propaganda machines that have thrown their support
behind Trump, and now engage in the shameless forms of propaganda which would
have done Soviet-era apparatchiks proud. The only difference is that instead of
propping up communism, they prop up Trump. In addition, Russia and allied
groups in Eastern Europe engaged in successful propaganda campaigns during the
2016 election season, designed to enhance Trump’s chances and sow discord and
confusion in the United States.
Propaganda’s effects corrode republican institutions and encourage
constitutional rot. Propaganda enhances polarization; it increases distrust of political
opponents, as well as those elements of government held by one’s political opponents.
Propaganda seeks to foster controversies that divide the country and
enhance mutual distrust and hatred among fellow citizens. It seeks to convert
politics into a particularly brutal opposition between virtuous friends and
evil enemies who must be stopped at all costs and by any means necessary.
Propaganda also undermines the crucial role of deliberation and the
search for truth in a democracy. Propaganda attempts to put everything in
dispute, so that noting can be established as true, and everything becomes a
matter of personal opinion or partisan belief.Because everything is a matter of opinion, one can assume that anything
a political opponent says can be disregarded, and that factual claims contrary
to one’s own beliefs can also be disregarded. Thus, successful propaganda
builds on motivated reasoning and encourages even more motivated
reasoning.It undermines shared criteria
of reasoning, good faith attempts at deliberation and mutual accommodation
between political opponents in democracies.
Moreover, if people stop believing in the truth of what they read, they
don’t have to think hard about political questions. Instead, they can simply
make political decisions based on identity or affiliation with their political
allies. Propaganda, in other words, undermines truth to destroy the concept of
the public good and to encourage tribalism.
As a political system becomes increasingly oligarchical, it also
becomes less equal, more polarized, and generates greater distrust, both of
government in general and of political opponents. People not only lose trust in
government, but in other people who disagree with them.Political opponents appear less as fellow
citizens devoted to the common good and more like internal threats to the
Another way of putting it is that in a well-functioning republic, there
are friends and potential friends. Potential friends are people you currently disagree
with, but might ally with in the future because both of you are devoted to the
public good.In system of constitutional
rot, you have something like Carl Schmitt’s model of friends and enemies. From
this perspective, Schmitt’s friend/enemy distinction is a corruption of
politics, rather than its essential nature.
Trump as a symptom of constitutional
Loss of trust in the government and in political opponents eventually
produces demagogues who attempt to take advantage of the situation. Demagogues
don’t spring up unawares. People see them coming from miles away. But by this
point people have so lost faith in government that they are willing to gamble
on a demagogue. They hope that the demagogue can make things right again and
restore past glories.
Trump is a demagogue. We might even say that he is straight out of
central casting for demagogues: unruly, uncouth, mendacious, dishonest and
cunning.His rise is a symptom of
constitutional rot and constitutional dysfunction. Constitutional rot not only
allowed Trump to rise to power; he also has incentives to increase and
exacerbate constitutional rot to stay in power. Many of his actions as
president—and his media strategy—make sense from this perspective.
Polarization helps keep Trump in power, because it binds his supporters
to him. He exacerbates polarization by fomenting outrage and internal division.
He also confuses and distracts people, keeping them off balance and in a state
of emotional upheaval. Emotional upheaval, in turn increases fear and fear
enhances mutual distrust.
Trump doesn’t care if his opponents hate him, as long as his base hates
and fears his political opponents more. Because his supporters hate and fear his
enemies, they are more likely to cling to him, because they are quite certain
that his enemies are even worse.
Polarization also helps keeps most professional politicians in his
party from abandoning him. Many Republican politicians do not trust Trump and
many regard him as unqualified. But if Republican politicians turn on Trump,
they will be unable to achieve anything during a period in which they control
both Congress and the White House. This will infuriate the base and anger the
wealthy group of donors who help keep Republicans in power. Republican
politicians who oppose Trump may face primary challenges. Finally, Republican
politicians can’t be sure that enough of their fellow politicians will follow
them if they stick their necks out. In fact, they may provoke a civil war
within the Republican Party, in which Trump’s supporters accuse them of
stabbing Trump (and the party) in the back.
Many people think that the sense of upheaval that Trump has created in
American politics means that he cannot keep going this way for long; and that
his presidency is about to crack apart at any moment. This is a mistake.
Polarization and upheaval are good for him. Crisis is his brand.
Why Trump has been a populist turncoat
If you understand the relationship between polarization and oligarchy
you will understand a remarkable feature of American politics. Although Trump
ran as a populist who promised to protect the working class from the
depredations of globalization, as soon as he entered the White House, he
reversed course. His cabinet is full of wealthy individuals, and many of his
top advisors are from the very financial class that he excoriated in his
campaign. Moreover, he has quickly allied himself with the most conservative
elements of the Republican Party, and he has supported a health care bill that
is likely to harm many working class Americans.
The Republican Party in Congress depends on its donor class to stay in
power. The central goal of the Republican agenda, therefore, is to deliver benefits
to the donor class, either through tax cuts, government expenditures, or
The current health care bill passed in the House and awaiting action in
the Senate is a case in point. It is actually a tax cut disguised as a health
care measure. It offers a 600 billion dollar tax cut to the wealthiest Americans,
which it pays for by removing some of Obamacare’s insurance protections and
gradually eliminating its Medicaid expansion. The health care bill’s tax cut
also sets the revenue baseline that will be used to evaluate tax reform in the
next fiscal year, when the Republicans will once again use the reconciliation
procedure to pass a bill that cannot be filibustered.By locking in tax cuts in the health care
bill, Republicans make tax reforms easier to accomplish in ways that are more
likely to please their donors.
From the standpoint of populism, the health care bill is an utter
travesty; it withdraws important benefits and protections from working class
Americans to benefit the very wealthiest. But it makes perfect sense from the
standpoint of oligarchy. Even so-called moderate Republicans in the Senate
depend heavily on the donor class, and therefore they face enormous pressures
to cave and support the bill by adopting a face-saving (but ineffectual) compromise.
Something similar happened in the House. Establishment and more moderate
Republicans also caved, not because the Freedom Caucus is so powerful, but
because the powerful donors who shape the party’s policy agenda wanted their
tax cuts. Moreover, because the Senate bill is likely to be so unpopular among
the general public, Senate Republicans are drafting it in secret, with no
public hearings.The actual text won’t
be revealed until shortly before the vote is taken.After all, as one Senate aide explained, the
Republicans aren’t stupid. They know that the bill is toxic. But it pleases
their donors, and so they will sacrifice any pretense of procedural regularity
to achieve their goals.
The health care bill is a prime example of constitutional rot. Our nominally
republican system of government has become so infected by oligarchy that the
party in power has no scruples about acting in an entirely shameless manner, as
long as the interests of its masters are well-served.
Which brings us back to Trump’s about face. Trump ran as a populist but
he now governs as a sellout. This is not an unusual phenomenon among populist
revolutionaries. Once they take power, they often quickly discard the people
who put them in power; they substitute new backers who are easier to deal with
and/or pay off to stay in power.
Trump is a huckster, with few actual ideological commitments. So he has
few qualms about changing course. It is much easier for Trump to ally himself
with Congressional Republicans than to attempt a seriously populist legislative
agenda, which would be very costly, and would be opposed by members of his own
party. Working across the aisle with Democrats is unlikely because of the very
polarization Trump has helped foster. Democrats do not trust him and working
with them might lead his Republican allies in Congress to abandon him.And he needs loyalty among Republicans to
fend off the scandals swirling around him.
Thus, ironically, Trump’s very strategies for gaining power—dividing
the country and fomenting mutual hatred—mean that he should align his policies with
members of his own party against the Democrats. That means that he will not
govern as an economic populist, although his rhetoric will remain rabidly
populist. But there will be little substance behind it. It is far easier to
align with Congressional Republicans, who will protect him from Democrats who
despise him and want to topple him with scandals.
Having cast his lot with Congressional Republicans, that means that he
too, will serve the same donor class. Trump may have run a populist campaign,
but now that he is in power, he has pretty much embraced oligarchy. His
populism is mostly sloganeering—it is a Potemkin village.We might say that it takes a Potemkin village
to make a Trump presidency.
That’s the bad news. Here is the good news.
First, Trump represents the end of a cycle of politics rather than the
future of politics.American politics is divided
into regimes in which one party’s agenda tends to dominate. Eventually that
party runs out of steam, its coalition fragments, its political agenda becomes
irrelevant and inadequate to current problems, and the evolution of the political
system undermines it.
Trump is the last president in the Reagan regime. During this period, the dominant party
was the Republican Party; the regime’s policy agenda was tax cuts and
deregulation above all; its coalition was white voters plus professionals and
wealthy business elites; and it fostered and exacerbated the polarization of
political parties that began with the 1968 election.
The Reagan regime's electoral coalition is falling apart; from 1992 to 2016, the Republican Party won the
presidential popular vote only once; twice the party has had to depend on an electoral
college victory. This is a sign of weakness, not strength.
The regime is crumbling; Trump is the last Reaganite. In the next few
election cycles, a new regime will begin, offering the possibility of a new
beginning in American politics.
Second, despite the influx of propaganda and the decline of separation
of powers in restraining the President, many features of the constitutional
system remain robust. We still have an
independent judiciary, a free press, and regular elections.
Third, we should not confuse what's been happening in the past several
months with constitutional crisis. Constitutional crisis means that the Constitution
is no longer able to keep disagreement within politics; as a result people go
outside the law and/or turn to violence or insurrection. However unpleasant our
politics may be, all of our current struggles are still within politics.
Fourth, we are headed for a big showdown in electoral politics over the
next several election cycles.One of the
two parties will have to find a way to restore trust in government and renounce
oligarchical politics.The next decade
will tell the tale. I remain hopeful.
Even if Trump left office tomorrow, and were replaced with Mike Pence,
there would still have to be a reckoning over these issues. Indeed, even if
Hillary Clinton had won the election, there would still have to be a
reckoning—perhaps even more urgently if Clinton won, because she ran a campaign
that paid so little attention to populist concerns. The United States has
failed to reconcile globalization with democracy.It has not accommodated the demands of
republican government to global economic change. This is a serious policy
failure, and it has contributed to constitutional rot. The bill for this neglect is
coming due. We will have to pay it.
The central question is how to preserve republican government in the face of a changing global economy.Trump is a merely symptom of the larger
problem. So my advice to you is: keep your eye on the larger issue, and not on
the President’s latest tweets.
I believe we will get through this, together. But we have to pay
attention to the real sources of constitutional dysfunction, and preserve our
republic. In this task, lawyers like the people in this room today have an
important role to play in defending the Constitution and the rule of law. Thank
you very much.