Populism in America: What it is and its impacts on US Governance
*Based on my paper written in January 2017 & updated September 2017
Table of Contents
What is Populism? (Jan-Werner Mueller)
1) Mueller’s Four Dead Ends
2) Modernization Theory
3) Mueller’s Definition of Populism
4) Populism: Populism in Power
Mueller’s Three Unresolved Questions
Democratic Constitutionalism – Obama Doctrine
1) Cycles – US Political Regimes 1776 – 2017
2) Cycles – Polarization & Depolarization
3) What is a Constitutional Crisis?
4) What is Constitutional Rot?
5) What Causes Constitutional Rot?
Was Obama a Populist Authoritarian?
1) 2016 Election
2) The Trump Doctrine (Trumpism)
3) Trump Populism
There are many professed values in American business, politics, & academia; few of which are meaningfully practiced. The 2016 election of Donald Trump to President of the United States of America has already and will continue to change U.S. governance. While that assertion can be said about every presidential election, the objective of this research paper is to examine the specific nature of the change and potential implications for the future. Donald Trump has been labeled a populist authoritarian and a fascist by many news outlets and pundits but protest parties or people’s parties are always labeled as populist in nature. So what exactly is populism and its governing nature with respect to its impacts on U.S. governance? After providing brief background information on the nature of technology, governance, and religion with respect to their impacts on humans; this question will be addressed by using a framework provided by Princeton professor Jan-Werner Mueller in his seminal work on the topic of populism.(1)
Populism is the shadow of Democracy according to Mueller, which brings about four dead end lines of argument commonly attributed to politicians and their parties. After exploring these dead end arguments, we will briefly discuss modernization theory and its impacts on some of these dead end arguments. This will not be an attempt to say whether modernization theory is right or wrong, but simply to discuss how it feeds these dead end argument strategies. The next component to discuss will be Mueller’s definition of populism and the caveats he places on it with respect to necessary core claims by politicians and parties. This will lead the discussion into topics of pluralism, political representation, and political institutions. The conversation will then cover elections and their impacts on populists according to Mueller’s definition.
To close out the section of this paper on Populism, we will cover what Mueller says about Populism when it’s in power. Mueller provides three elements to a populists governing style, while these styles are not proprietary to populists, they are distinct to populists if adhering to Mueller’s definition of populism. Mueller also provides his own assessment on the true nature of populists and this will lead us to his three unresolved questions on the issue of populism. This paper will attempt to answer Mueller’s unresolved questions by examining the Obama administrations governing doctrine of “Democratic Constitutionalism” by utilizing a treatise on Constitutional decay by famed democratic constitutionalist and Yale Legal Scholar, Jack Balkin. This examination will enable us to make a determination of whether Obama was a populist according to Mueller’s definition or not and then conclude.
Lets now begin by briefly discussing the nature of technology, governance, and Religion with respect to their impacts on U.S. governance.
- The definition of what Populism is and is not deserves examination
- What is populism?
- What do populists in power do?
- What limitations do populists have?
- The Obama governing doctrine needs to be further understood
- What is “Democratic Constitutionalism?”
- How do “Democratic Constitutionalists” govern?
- What limitations do “Democratic Constitutionalists” have?
- The Trump doctrine necessitates clarity
- How does Trump define national sovereignty?
- What is economic nationalism?
- What does it mean to deconstruct the administrative state?
The game of humans and gods is a very old one but played daily. Historically humans have been characterized as living in fear of god(s) or as aspiring to achieve god status as humans in this game. Since humans are emotion machines, these two characterizations make complete rational sense in historical terms but the modern technological age, in my opinion, has changed the game in two material ways.
My specific aim with this background is to illustrate the two material changes and explain the importance of viewing both governance and religion as technologies in of themselves. I think it will be meaningful to first explain the latter component to this specific aim. Doing so helps vividly illustrate the material changes in the game.
The purpose for my exercise in evaluating whether governance and religion can be considered technologies was to highlight how they are similar, not how they are different.(2) There is no shortage of books and authors on how governance and religion are different. There are examples of authors exploring how they are the same but they lack a common taxonomy to be useful for meaningful scientific analysis. I believe some people of religious faiths will disagree with my assertion that religion is a human technology. That is fine but I do believe those same people will agree the products of the analysis are critically important because they illustrate how their freedom to practice their particular set of beliefs are more at risk in the modern version of the game. Lets now illustrate how the game of humans and gods has changed.
The first way this game has changed is humans now have a digital life that mirrors their real life.(3) Thanks to advancements in information and communication technologies, humans now emit data and data about data at all hours of the day.(4) This information is stored and shared globally and it can be argued our real lives and digital lives are treated as separate and unequal under the eyes of the law.(5) The vast majority of our data is owned by governments and corporations and not controlled by you as an individual.(6) This information is also not sufficiently secure from theft and illicit use, which can have severe negative implications for our real lives.(7) These are core-contributing factors into the second material way in which the game of humans and gods has changed.
The second way the game has changed is we have a modern understanding of what technology is and how it evolves.(8) This modern understanding enables us to create new and rational definitions of key terms in the game of gods. The terms that can be defined as human technologies in of themselves are “Governance” and “Religion”.(9) These technologies, which are designed to serve a human purpose, are core contributors to the battle of ideas in managing human behavior. Both technologies have provided ideas that have driven humans into the darkest of emotional times and they have escorted us out of them too. Both technologies are designed to give human emotion machines hope and faith in a rapidly changing world and in the information age, with rapid advancements in new information tools and bio-technologies, the world is changing at the speed of light when compared to all other times in human history.
These two material changes in the game of humans and gods brings me to the rational conclusion humanity is speeding towards an event of emotional cardiac arrest. Any student of history will tell you moments like these almost always manifest in wars that have a true human cost. These have always been emotionally devastating to humanity and what has led society out of the dark are new technologies, including upgrades to the ideas generated by the technologies of governance and religion. An empirical data point of the technology of religion getting an upgrade to better serve its human purpose, is the recent changes in family doctrine by the Catholic Church lead by Pope Francis.(10) While the changes by the Catholic Church are encouraging for real human lives, its power and prestige have limits.
The governance systems that comprise modern western civilizations have also undergone upgrades thanks to aggressive foreign policies.(11) These upgrades in response to acts of terrorism can be argued to be authoritarian in nature over foreign and even their own domestic populations.(12) These upgrades are primarily focused on collecting and controlling our information.(13) These governance changes have evolved in secret but thanks to brave journalists and whistle blowers, we continue to learn what western governments have been doing and still planning to do with our information. Politicians always profess this is being done in the name of keeping us safe and secure, but it’s apparent its really about trying to safely secure the modern states power over us.
There has been a shift in Constitutional legal thinking over time towards what are known as “positive rights”.(14) Those who think this way believe restrictions on the power of governance systems are overwhelmingly negative because it restricts what they believe the state through the Constitution should be providing.(15) They refer to their doctrine as “Democratic Constitutionalism” which is ironic because it corrodes/decomposes democracy and focuses on rendering the Constitution meaningless.(16) Positive rights are synthetic privileges manufactured by the state in the form of laws subject to change based on ideological interpretation.(17) These interpretations have a positive bias towards what the state thinks is right for you and they believe this approach is “simpler government”. I refer to this as the religion of state power and it doesn’t like competition.
Within the U.S. Constitutional framework, the religion of state power uses three approaches to compete for its legitimacy and power. First, it attempts to create parallel tracks of preventative law enforcement that route around the traditional guarantees of the Bill of Rights. Meaningful examples of this activity have been found in the NSA Snowden revelations in how the government is collecting our information and information about our information. The government does this by conscripting the technology industry in secret and coerces them to keep quiet through what have become ruled as unconstitutional practices by courts (i.e. National Security Letters).
A second and related method the religion of state power uses to compete for its legitimacy has been the transition of traditional law enforcement and social services to increasingly resemble the new parallel tracks of laws. Once governments have access to powerful surveillance and data mining technologies, there will be enormous political pressure to utilize them in everyday law enforcement and delivery of government services. Examples of this can be found in the governments’ utilization of the IRS to investigate ideological groups it deems as threats. These efforts restricted the flow of money to support political speech that is ideologically opposed to the religion of state power. In the U.S. money has been interpreted by the Supreme Court as being tantamount to speech, so restricting money that represent beliefs you oppose is critically important.
Another potent example of this second method is U.S. attorney generals legally attacking organizations who fund research related to climate change that challenges government dogma on the matter.(18) Today it is climate change; tomorrow it will be something different. The religion of state power tries to stamp out privacy and free speech first because once it can control the narrative; it can accomplish the rest of its ideological goals; but it still needs help. Which is why the third method is important.
The third method to maintaining its legitimacy is to leverage private power in private/public cooperation. Conscripting technology companies in private to share your data has been one glaring example of this but there are more subtle examples. Utilizing administrative laws and burdensome regulations to influence industries such as energy, healthcare, insurance, banking, and manufacturing are just one way in which the religion of state power gets others to do its ideological work. To a degree every company across industries are rapidly becoming “technology companies” which collect and use data. Some call this movement “Digital Transformation”. These are just a few of the many examples people see and feel on a daily basis how this religion is forcing its will on us. The government will always say everyone is equal under the eyes of the law, but truth be told it believes those who serve its purposes are more equal than those who do not. So in closing, I ask the question:
In the information age who is playing God?
According to many establishment politicians, parties, and media outlets we are experiencing a rise in populism in the U.S. and Europe. A rise in populism shouldn’t surprise anyone, it usually arrives when constitutional systems have almost fully hollowed themselves out or decomposed. Established elites always malign political movements they don’t like as populist because they want to avoid a reckoning with reality, but popular movements are a piece of representative democracy, so what truly is populism? Lets now explore that question through the eyes of Princeton University Professor, Jan-Werner Mueller, who published a seminal piece of work on the topic in August 2016.
What is Populism? (Jan-Werner Mueller)
No US election in modern history has seen as many invocations of “populism” as the one of 2015-2016.(19) Both Donald Trump and Bernie Sanders were labeled as populists.(20) The term is often employed as a synonym for anti-establishment, irrespective, it seems, of any political ideology; content, as opposed to attitude, simply doesn’t seem to matter.(21) The term is thus also primarily associated with particular moods and emotions: populists are “angry”; their voters are “frustrated” or suffer from “resentment.”(22) Similar claims are made about political leaders in Europe and their followers: Marine Le Pen and Geert Wilders, for instance, are commonly referred to as populists.(23) Both of these politicians are clearly on the right.(24) But, as with the Bernie Sanders phenomenon, left-wing insurgents are also labeled populists: there is Syrizia in Greece, a left wing alliance that came to power in January 2015, and Podemos in Spain, which shares with Syrizia a fundamental opposition to Angela Merkel’s austerity policies in response to the Euro crisis.(25) Both Podemos and Syrizia make a point of feeling inspired by what is commonly referred to as the “pink tide” in Latin America: the success of populist leaders such as Rafeal Correa, Evo Morales, and above all, Hugo Chavez.(26) Yet what do all these political actors actually have in common according to Mueller?(27)
Nobody really knows the answer to that question because all different types of phenomenon are labeled as populist, thus Mueller succinctly labors to provide a meaningful framework for recognizing and addressing populism. Mueller believes the greatest danger to democracies today is not some comprehensive ideology, but populism itself, which in his opinion is a degraded form of democracy that promises to make good on democracy’s highest ideals. His framework begins by providing four dead end strains of arguments commonly attributed to those labeled as populists. Politicians and news pundits will use many of these dead end strains of argument to further their cause or make good entertainment news sound bites, but they yield very little intellectual value for they don’t delineate a meaningful definition. Lets succinctly examine.
Mueller’s Four Dead Ends
The first line of argumentation is semantic, the other three are social scientific.(28) Very simply, just because a political figure labels himself/herself a populist doesn’t mean they are one. Politicians are chameleons by their very nature and attempt to put on a surface level of conformism when it serves their interests. Also, people have a tendency to label a politician as a populist when they want to attribute the meaning of the term negatively to a politician in history who turned out to be an autocrat or something else. The semantic arguments are common rhetorical weapons in political debate but they yield very little in understanding what populism truly is. Populism is obviously a politically contested concept, which leads us to the next dead end line of argument.
The second dead end argument Mueller illustrates is the attempt to define a populist by their electorate support or socioeconomic group.(29) Populist movements are always anti-establishment parties and since democracy is representative of the people, there have been all types of popular movements that represented the middle class, the poor, the rich, business class, political class, etc.(30) This approach can seem like a sociologically robust theory because social classes are constructs but they can be empirically specified in precise ways.(31) This approach usually comes with an additional set of criteria drawn from social psychology, which is the third dead end argument made by Mueller.
It can be argued those who espouse populist claims in public and those who cast ballots for populist parties/candidates are said to be driven by “fears” or “feelings” of “anger,” “Frustration,” and “resentment”.(32) This psychological approach also extends to spending time questioning the mental wellness of individuals, classes of people, political candidates, and elected officials. Again, this approach is subjective and it doesn’t delineate anything meaningful. Perhaps its most meaningful purpose is emotional venting for political pundits & news personalities to feel better about themselves. But this approach could also just be projection of their own insecurities regarding valid criticisms of their ideas.(33)
The fourth and final dead end line of argumentation is the attempt to define a populist by their policies.(32) First of all, whenever examining the quality of policies, its hard to deny that some policies justified with reference to “the people” really can turn out to have been irresponsible: those deciding on such policies did not think hard enough: they failed to gather all the relevant evidence; or, most plausibly, their knowledge of the likely long term impacts should have made them refrain from policies with only short term electoral benefits for themselves.(33) One does not have to be a neoliberal technocrat to judge some policies as plainly irrational according to Mueller.(34)
Even so, we still cannot generate a criterion for what constitutes populism using this fourth method of inquiry. (35) For in most areas of public life, there simply is no absolutely clear, uncontested line between responsibility and irresponsibility. (36) Often enough charges of irresponsibility are themselves highly partisan in nature. In any case, making a political debate a matter of “responsible” vs. “irresponsible” poses the question, responsible according to which values or larger commitments? (37)
The debate then has to be about the value commitments of a society as a whole, or perhaps about the different income distributions that follows from different economic theories. Specifically, In the U.S. the debate eventually boils down to the interpretation of what is or is not “Constitutional”, the US Constitution is uniquely written to restrict the power of government and what it cannot do with respect to the natural human rights doctrine. This Constitutional debate in the modern age has achieved a new texture thanks to a movement called “Democratic Constitutionalism”, which seeks ways of circumventing the guarantees within the Bill of Rights while minimizing the meaningful effects of democratic outcomes. We will address Democratic Constitutionalism and how it decomposes our system of government later this in this paper.
Lets now briefly focus how modernization theory is utilized as a method for entertaining these lines of dead end argument. This is not meant to be an exercise to determine whether modernization theory is right or wrong; just making the point people heavily rely on it for their assessments in pursuit of these dead end lines of argumentation.
Focusing on specific socioeconomic groups, electoral groups, and their psychosis for meaningful analysis derive mostly misleading statements. They are also empirically dubious, as a number of studies have shown by Pew research, Gallup, and many other credible polling organizations.(38) Less obviously, such an argument often results from a largely discredited set of assumptions from modernization theory according to Mueller.(39)
Modernization theory is utilized as a method for trying to explain how advancements in technology, tools, and processes (modernization) impact societies. (40) The genesis of modernization theory stems from the German sociologist Max Weber and his work on the roles of rationality and irrationality in the transition from traditional to modern society. (41) Weber’s ideas picked up momentum when Harvard sociologist Talcott Parsons translated Weber’s work and provided his own interpretation on the modernization paradigm.(42) The potency of modernization theory reached its apex in the 1960’s and has largely been discredited for being to euro/western centric, but the theory had a resurgence in the 1990’s as globalization became a new argument for spreading modernizing economic ideas across borders.(43) Because modernization theory stems from a focus on human rationality and irrationality (emotion & thought), it is often invoked as a rhetorical device to either credit or discredit a political point of view.(44)
According to Mueller it was liberal intellectuals like Daniel Bell, Edward Shils, and Seymour Martin Lipset (All disciples of Max Weber) who during the 1950’s began to describe what they considered to be “populism” as a helpless articulation of anxieties and anger by those longing for a simpler, “pre-modern” life.(45) Lipset, for instance, claimed that populism was attractive for “the disgruntled and the psychologically homeless, the personal failures, the socially homeless, the economically insecure, the uneducated, unsophisticated, and authoritarian personalities.”(46) The immediate targets of these social theorists were McCarthyism and the John Birch Society but their diagnosis often extended to the original American populist revolt of the late 19th century. Victor Ferkiss, for instance according to Mueller, saw the followers of the Farmer’s Alliance and the People’s Party as nothing less than the precursors of a distinct American variety of fascism.(47) This thesis was not to remain uncontested but the background assumptions are still present among many social and political commentators today. So what is populism according to Mueller? Lets explore.
Mueller’s Definition of Populism
Populism, according to Mueller, is a moralistic imagination of politics, a way of perceiving the political world that sets a morally pure and fully unified, but fictional, group of people, against elites who are deemed corrupt or in some other way morally inferior.(48) It is a necessary but not a sufficient condition to be critical of elites in order to qualify as a populist in Mueller’s argument, otherwise anyone who criticizes the powerful and status quo in any country would by definition be a populist.(49) In addition to being anti-elitist, populists are always anti-pluralists: populists claim that they, and only they, represent the people.(50)
Other political competitors are just part of the immoral, corrupt elite, or so populists say, while not having power themselves; when in government, they will not recognize anything like a legitimate opposition.(51) The populist core claim also implies that whoever does not really support populist parties might not be part of the proper people to begin with. (52) In the words of the French philosopher Claude Lefort, the supposedly real people first need to be “extracted” from the sum total of actual citizens. (53) This ideal people are then presumed to be morally pure and unerring in its will according to Mueller. (54)
Populism arose with the introduction of representative democracy: it is its shadow.(55) Populists hanker after what the political theorist Nancy Rosenblum has called “holism”; the notion that the polity should no longer be split and the idea that its possible for the people to be one and —-all of them — to have one true representative.(56) The core claim of populism is thus a moralized form of anti-pluralism.(57) Political actors not committed to this claim are simply not populists.(57) Populism requires a pars pro toto argument and a claim to exclusive representation, with both understood in a moral, as opposed to empirical, sense.(58) Mueller asserts there can be no populism, in other words, without someone speaking in the name of the people as a whole.(59)
Mueller states there is great pressure on populists to question institutions.(60) When populists lose an election, they offer an interpretation where they still hold a moral dominance, despite the empirical outcome.(61) This is why populists always align with “conspiracy theories” according to Mueller.(62) Populists make anti-pluralism and anti-democratic claims of moral majority on values and thus will question authenticity of democratic institutions.(63) Populists will say or strongly imply the whole system is broken and undemocratic when they lose.(64)
Populism: Populism in Power
Contrary to conventional wisdom, populists do not have to be against the idea of representation as such; rather, they can endorse a particular version of it.(65) Populists are fine with representation, as long as the right representations represent the right people to make the right judgments and consequently do the right thing according to Mueller.(66) In simpler language it’s understood as making an imperative mandate from the people. Populists don’t have a problem with political representation, but many who call people “populist” think they do.
Apart from determining who really belongs to the people, populists therefore need to say something about the content of what the authentic people actually want.(67) What they usually suggest is that there is a singular common good, that the people or less plausibly, a movement, can unambiguously implement it as policy.(68) The notion that populists in power are bound to fail one way or another is comforting; it’s also an illusion according to Mueller.(69)
Mueller says protest parties once in power can and will continue to criticize the elites, even if they are now in an elite position.(70) Once in power Mueller states there are three distinct governing styles of populists, however he admits that populists are not the only ones in history to utilize these styles.(71) Moreover, he says those who have used these styles are predominantly oligarchic, autocratic, and or totalitarian in nature.(72)
The first style Populists will use is to capture the state and give up on a neutral bureaucratic state and will do this openly.(73) Capturing key institutions is done by installing ideological aligned leadership and developing new rules that enable the institution to be politically weaponized.(74) While populists are not the only political actors to do this, what is unique about populists is they will do it openly and transparently.(75) Since populists believe the people have given them an imperative mandate, corrupting institutions is something they believe is generally expected of them to further diminish their political/ideological enemies.(76) Of course the populist will say this is being done completely inline with democracy, while the action directly corrodes democratic processes and outcomes.(77)
The second style populists will use is generally understood as mass clientalism.(78) In essence these are tributes in the form of government benefits to the supporters of the populists.(79) Again, populists are not the only political actors engaging in this type of activity, however a populist will do it with a moral justification to support “the real people” they represent which is not everyone.(80) Of course there will be whole groups of people left out from the benefits and this will be completely justifiable by the populist because obviously those who receive nothing, are not truly with the people.(81) Mueller says there is actually a moral justification by the populist to ensure some people receive nothing.(82) This leads into the third governing style.
The third governing style Mueller illustrates is the attempt to diminish those parts of civil society who have a different point of view than the populist.(83) Again this is not a style only populists utilize, many authoritarian regimes do this, but a populist will do it in such a way where civil society still looks independent but those independent voices are constantly delegitimized by utilizing the prior two governing styles to make them look corrupt and foreign.(90)
Mueller admits these governing styles are very stylized and can seem contradictory with a populist movement because populists in pursuit of power will claim the elites have poisoned institutions, are corrupt, and only care about their own supporters. Mueller basically admits that populists once in power may engage in the same or worse behavior the corrupt elites were doing when the populists were in opposition. While most people will say this is truly corrupt, the populist will say it is not corruption because these activities are legitimately done in the name of the true people.(91)
In summary, Mueller states populists are anti-pluralists, non democratic, and basically authoritarian. This is not to say people who claim to represent the people are all this way. Within un-democratic or illiberal systems, claims that we are the people are actually emancipating claims, which help move towards democracy. Within a more or less functioning democracy, claims of we are the people become deeply problematic and corrosive (Identity Politics). Within a more or less functioning democracy, claims of we are “also” the people are entirely legitimate, non-populist, and invite inclusive dialog to move towards improving/repairing democracy.
The first unresolved question for Mueller is how to identify the people. It’s a very tricky problem often understood in political science as the boundary problem. It’s not so much an issue for non-populists, but because populists have true moral criteria for who the people are, they have a moral upper hand in the debate. An example of this would be people who don’t have citizenship in a country vs. people who do and their respective rights. (Legal Immigrants vs. Illegal Immigrants vs. Citizens)
The second unresolved question is why don’t populists go all the way to being authoritarian since they are anti-pluralist? In essence, if populists truly believe what they say, why don’t populists just simply declare an openly authoritarian state? The simple trivial answer is it would be a public relations issue and there are all sorts of international constraints that can be imposed on an openly authoritarian government. It’s more preferable to at least be wearing the fig leaf of democracy, preferably a cloak, while not truly practicing it at all. Some people think populism and constitution making are actually in opposition. It’s not a problem according to Mueller because a populist will develop a constitutional structure that has all the “positive” outcomes the populist wants, including constraints on competing actors. This helps perpetuate and make permanent the populists agenda.
The third and final unresolved question is one about exclusion of groups. Populists like to lay claim to exclusive representation over the true people, which inherently excludes other people/groups. It becomes contradictory because once parties start explicitly excluding each other it infinitely regresses. To a populist exclusion must be morally justified, this can be seen as any group not abiding to the dictates of the populist party. Rarely will this exclusion be explicit due to the slippery slope of mutual exclusion and the political risks involved.
Now that we have a firm understanding of what Populism is according Mueller lets spend time examining the effects on the U.S. Constitution through the prism of the Obama governing doctrine of “Democratic Constitutionalism” and its methods for developing and maintaining legitimacy. In the background section of this paper we covered what “Democratic Constitutionalism” is and what its methods for maintaining legitimacy are, the meaningful effects of this doctrine are to rot the U.S. constitutional system. Lets now explore what that means.
Democratic Constitutionalism – Obama Doctrine
The election of Donald Trump was entirely unexpected by the US political and intellectual class. Jack Balkin the famed Yale legal scholar and intellectual leader of the democratic constitutionalist movement is no exception. Trump’s election did more than just ripple through the establishment though; it has upended and unsettled them greatly. Diminishing confidence in their own tools of understanding and institutions of analysis that told them Hillary Clinton was guaranteed victory. Reality, or acceptance of reality, may never truly set in or be acknowledged by some, which is why they will try to write their version of history to preserve a chance at redemption. Redemption in this case means doing anything to maintain massive income inequality, a two-tiered justice system, and a unitary political system that masquerades as a republic, while siphoning wealth and cultural vitality from the public.
One of the key limitations to Democratic Constitutionalism is the issue of candor. For a long time they could not publicly say their movement was to hollow out the features of the US Constitution that make it a republic, but that’s the current state of affairs according to Jack Balkin in a recently published paper & talk on “Constitutional Rot”. So those scholars & politicians who labored to poison the waters of our Constitutional system are now going to try and return as the commissioner of the water company, and profess how they, and they alone, can and will clean up the system to protect the people from Donald Trump. Lets now examine in more detail, what and how Jack Balkin thinks about the state of US governance.
Jack Balkin refers to current political affairs in the US as “the recent unpleasantness”.(92) The construct of Mr. Balkins argument begins by discussing constitutional cycles and how they intersect. Most Constitutional scholarship is linear in thinking with Originalism and Living Constitutionalism being the predominant schools of thought, both are linear according to Balkin. (93) The goal of Originalism is to return to the original principles of the Constitution, those original principles were designed to forestall and buffer against despotism and oligarchy.(94) The further in time the country moves away from the moment that grounds the Constitutions authority, can be understood as one of decay over time according to Balkin.(95)
Living Constitutionalism is also a linear approach to constitutional interpretation. (96) Essentially, living constitutionalism is an implied story of progress; people probably recognize the phrase “The arc of history is long but bends toward justice”. That sums it up. Every day in every way, the Constitution and governance is aspiring to improve.
Balkin asserts the way to think about Constitutional history is through cycles.(97) Quoting Mark Twain, Balkin says, “history doesn’t repeat itself, but it does rhyme.” His big idea is that right now there are three cycles at work and have converged in a certain way, which brings about a Constitutional moment of unpleasantness. The three cycles are:
Cycle 1: Polarization/Depolarization
Cycle 2: Political Regimes
Cycle 3: Rise & Decay of Republican governance (Constitutional Rot & Renewal)
Each of these cycles operates on its own time scale and while many pundits in the media are and will continue to claim the US is in a constitutional crisis, Balkin says we are nowhere close to one.(98) But the country is suffering from a terrible case of Constitutional rot. He says the US is currently at peak polarization which is inversely correlated to constitutional rot. So the further our republic is hollowed out from its original principles, political polarization will inevitably increase because the original principles of the Constitution were to protect the people from despotism and oligarchy (Major concentrations of wealth & power). What this means according to Balkin is the US is in a time of transition from one political regime to new one.
The current problems in US politics stem from the fact we are in the final days of a decadent and crumbling political regime and no new regime has appeared to take its place. Balkin believes this is a difficult and sad time in American life because the country is at peak polarization while also being at the nadir of constitutional decay.(99) So the situation cannot get any worse according to Balkin in making this transition to a new political regime easier. He predicts it will take 5-10 years to emerge from this unpleasantness and attempts to explain how this will occur by discussing the cycles of political regimes in more detail.(100) His articulation is supported and primarily based on the work of Stephen Skowroneck in Yale’s political science department.
Cycles – US Political Regimes 1776 – 2017
Balkin’s big idea here is that if you look at American history there are long stretches of time where one party is the dominant party. This party sets the agenda for politics even though it doesn’t win all the elections or control everything all of the time.(101) What you get are political party systems that form coalitions. Eventually the coalition changes due to economic, technological, demographic, and social changes. Political coalitions whither and die over time which create windows of opportunity for a new party to create a new political regime. This has happened six times in American history.
1776 – 1800 – Revolutionary Regime
1800 – 1824 – Jeffersonian Regime (Era of Good Feelings)
1824 – 1860 – Jacksonian Regime (Democratic Party of Slavery leading to Civil War)
1860 – 1932 – Republican Regime
1932 – 1970’s/80’s – New Deal Civil Rights Regime
1980 – Present – Reagan Regime (Neo-Liberalism)
The Reagan neo-liberal regime is crumbling and dying even while the Republican Party has never been more powerful. Republicans hold the presidency, house, senate, majority of state governorships, and state legislatures.(102) It is an incredibly strong party at the local and state level but is severely fractured at the federal level. Balkin quips he can’t tell if the republicans at the federal level are in their own civil war or just having a nervous breakdown. There are multiple factions within this group that are simply unable to do simple legislation i.e. ObamaCare repeal and replace.(103) Although, it had no problem approving a $700 billion defense spending bill, $70 billion more than what the president’s budget requested, with essentially no debate and lots of help from the Democratic Party.
Balkin’s opinion is Trump didn’t cause the fractures within the party. In fact, he took advantage of the fractures for his own political gain. Trump is merely a symptom of these larger regime-crumbling issues. The regime started under Reagan with the priorities of smaller government, reduced regulation, strong national defense, and reduced taxes.(104) These policies, according to Balkin, are unhelpful for the modern problems the country faces, and while it might have been great advice in the 1980’s, they could be detrimental and he believes the party is now a victim of its own success.(105) In part, Balkin says this is due to how innovative the party conducted campaigns with unintended bad side effects. One example is the 60-vote senate rule instituted during Newt Gingrich’s time as House Speaker to obstruct then President Bill Clinton. That same 60-vote limit is what’s hamstringing the party from legislative success right now.(106) A change in demographics has also hamstrung the party, i.e. if your policies are reflective of what the populace want, demographics shouldn’t matter. Balkin also posits campaign finance has played a role in this party crack up. Today there are more financial warlords in politics to dictate policies that hollow out the Republic, increase inequality, and thus increase political polarization.
Political polarization has peaked one other time in US history. This was leading up to the Civil war during the Jacksonian Regime (Democratic Party of Slavery).(107) Post the civil war the country was still very much polarized until around 1930’s. Polarization started to decrease around 1900, by 1930 the country was depolarized and this depolarization produces new politics leading to the new deal era.
Polarization increases again in the 1970’s & 80’s as a product of the Republican party, the rise of talk radio, Newt Gingrich policies, 60 vote senate rule, and the political strategy of obstruction according to Balkin.(108) The challenge with crafting a strategy around political polarization is it creates problems for you at the tail end. In polarized environments you will consistently hear rumblings of “Constitutional Crisis”. Whenever someone sees something that is surprising or deeply troubling, they immediately say it’s a Constitutional Crisis. One example is Trump’s travel ban. Presidential power is at its apex at the country’s borders. Balkin is very clear when he asserts the US is not currently in a constitutional crisis, but it is worth time to briefly discuss what a constitutional crisis actually is.(109)
What is a Constitutional Crisis?
A Constitution is a human technological device that makes politics possible; Politics as opposed to violence, insurrection, and civil war in human affairs.(110) A constitution works when people’s disagreements and struggles for power are contained by a system of law and political procedures, and do not break out into violence, insurrection, or civil war.(111) A constitution works as long as it can contain the desire for dominance and power that is ever present in human affairs into struggles within politics.(112) The goal is to keep politics, within politics. As long as that is occurring, a constitution is working.(113)
A constitution fails when it is unable to perform that central task. It can happen in one of three ways, all of which are very rare occurrences:
The first way a constitution fails is when presidents or political officials decide to openly declare they will not follow the constitution in order to save the republic. (114) I.E. enemies outside or within the country necessitate sidestepping it, thus creating a crisis.
The second way a crisis erupts is when presidents or political officials adhere too strictly to the constitution and cannot survive crisis or challenges that erupt.(115) This is a situation of too much constitutional fidelity and not enough constitutional innovation. This is rare because the US is quite creative in interpreting its constitution when it’s theoretically required, which also leads to Constitutional rot over time.
The third and final way a constitution fails is simple, when violence, secession, or civil war erupts.(116) The US constitution has been amazingly durable throughout its history, it has only failed once and that was during the civil war. Currently none of these things are occurring in the US, the real situation is that we are experiencing a terrible case of constitutional rot. Lets dig deeper into what constitutional rot is according to Balkin.
What is Constitutional Rot?
Constitutional rot is decay in the features of a constitutional system that maintain it as a Republic according to Balkin.(117) What is a republic? It’s a public thing, a joint enterprise by citizens to pursue the public good. When a republic decays it turns into something other than a republic. Balkin states the United States is now an oligarchy, or rule by the few who hold economic and political power.
Current problems are sometimes discussed as political gridlock, but gridlock is a form of divided government.(118) The US doesn’t have divided government, it has a unitary government and we still have political dysfunction.(119) There’s something more sinister and deep occurring within our system and Balkin attributes it to constitutional rot. Balkin states the US the last 30-40 years has increasingly become less democratic and less republican. Less democratic means the government is not responsive to popular opinion or public will. Less republican means the representatives have increasingly become less devoted to the public good and look after a group of small wealthy and powerful individuals/groups.(120)
Collectively we are all interested in the failures of democracy and responsiveness to public opinion/public will, and interested in a loss of republicanism.(121) When the devotion by the public and politicians to pursue the public good, diverts into serving the interests of a few powerful people and powerful groups, we get “oligarchy” or the rule by the few.(122) Republics according to Balkin are especially susceptible to constitutional rot; the framers of the US constitution knew this fact very well.
“A republic madam, if you can keep it”
Ben Franklin 1775
Ben Franklin wasn’t joking when he made this statement. In fact, at the end of the Philadelphia convention, Franklin makes a speech and here is one of the more memorable excerpts:
“The New American government is likely to be well administrated for a course of years and can only end in despotism as all other forms of government have done before. When the people shall become so corrupted as to need despotic government, being incapable of any other.”(123)
All the founding fathers understood from reading the history of mankind that republics are very difficult to keep going due to human ambition, greed, lust for power, and other human failings.(124) This happens over and over in history as people are always initially motivated by doing the public good but over time become corrupted.(125) The founders believed this would eventually happen to the US constitution so they drafted it with various devices to try and forestall the cycles of republican rot.(126) Also, to have the rot bottom out before it turned into mob rule, oligarchy, and dictatorship.(127) The founders had read Aristotle’s works on governance and even Aristotle said this is eventually the direction all governments go.(128)
Constitutional rot is a way of thinking about the US constitution and its structural features.(129) Balkin wants us to think of the structure in terms of it providing a dampening effect not as a preventative tool. (130) These dampening effects are why the US Constitution has proven to be durable and doesn’t just fall apart. This is why it has separation of powers to provide natural checks and balances within the system. Federalism enables a committed and loyal opposition that is always reforming itself in the battle of ideas. This is also why the US has an independent judiciary so Judges can be independent of political pressure to make judicial determinations. Although, a main theme of Democratic Constitutionalism is to elevate judges within the judiciary who see themselves more as partners with social movements and not just simple interpreters of the law, which brings about the potential for more rot. An example of this judicial behavior can be seen in the extreme remedies sought by judges in response to Trump’s travel ban.(131)
So if you can look at the Constitution in this way, you will see it’s not just a blue print for liberty, which is how it’s most commonly discussed, but also an insurance policy for republics.(132) Republics will get better or worse over time depending on the amount of public virtue. Sometimes we elect great political representatives and some times we don’t, sometime there is low corruption and at other times corruption is quite high. There will be cycle and flow and the objective is to engineer a system that should buffer in the worst of times, however the price you pay for that buffering is some inefficiency during the best of times according to Balkin.(133) Lets now discuss what Balkin has to say about the main drivers of constitutional decay.
What Causes Constitutional Rot?
In modern US politics and governance there are a number of contributing factors leading to Constitutional rot.(134) There is the gradual breakdown of the political party system and regimes; the collapse of Neo-liberalism is in process right now. (135) Changes in how campaigns are financed make it so very wealthy people and groups can shape the system to serve their interests over the public good.(136) Also the Long-term changes in the structure of mass media have played a large role to our current problems because they have encouraged political distrust, exacerbate polarization, merges politics and entertainment, which ultimately makes the public more susceptible to propaganda.(137) The US doesn’t have a state media, but if it did, it would look exactly like the media we have today. According the Balkin, in the US today, there is a lot of propaganda in the media that comes from outside the country and a lot from the inside too.(138)
There are four main causes of constitutional rot; Balkin refers to them as the four horsemen of constitutional decay. They are:
- Loss of trust in government & loss of trust in fellow citizens
- Increasing economic inequality
- Policy disasters
Policy disasters are what Balkin calls failures in decision making.(139) The modern examples he gives are the Vietnam War, the second Iraq war, decisions leading to the 2008 financial crisis, and the decisions in response to the 2008 financial crisis. (140) The single largest modern failure in decision-making according to Balkin is the US government’s response to globalization.(141) In the context of globalization the elites have taken great care of themselves but not the country as a whole.(140) Balkin asserts the 2008 financial crisis is a special case of the long-term failure of the country to come to grips with this problem of globalization and its corrosive effects on republics.(141)
If you are going to have a republic that is devoted to the public good you have to have a counterweight to concentrations of wealth and power.(142) The founders understood this well because they knew creating a broad and stable middle class gives politicians a reason to adapt their policies to the public good.(143) If economic inequality becomes too pronounced whoever is the most powerful will use that to obtain more wealth and power.(144) It’s a vicious cycle which results in corroding republics and end in oligarchy.(145)
The founders had the idea that the US would be a middle class country and it was important to not have too wide a difference in income.(146). The political structure of the US is not only tied to the Constitution, but also the maintenance of a particular kind of political economy.(147) That political economy creates a stabilizing effect on the republic.(148) Globalization threatened this system because it created too much temptation for mass accumulations of wealth and undermined the system of social insurance in the US.(149)
The modern post 20th century democracy is comprised of a military coupled with an insurance company.(150) A vast amount of money is spent on military and social insurance schemes; the goal of social insurance is to try and ensure a broad middle class and republican governance.(151)
Balkin states these four types of constitutional rot feed off each other in a number of ways.(152) Rising income inequality increases polarization and causes people to distrust each other more because the economic pie seems smaller for them. Polarization helps produce policies that increase economic inequality and create culture wars.
Over the last forty years the US has experienced a massive shift in income and burden shifting of risk through the tax & legal system.(153) This has mostly impacted the middle class.(154) Risk shifting can be simply understood as who bears the risk if something bad happens? An example of this would be the 2008 financial crisis where banks acted recklessly and the US taxpayers were forced to bail them out.(155) Other forms of risk shifting occur through a burdensome tax system and unequal access to the justice system in the US. The primacy of equal application of the law was paramount to the founders; currently in the US today there is a two-tiered justice system that is very lenient on elites, and very punishing to the middle and lower class.(156)
Polarization and oligarchy increase distrust in government and fellow citizens.(157) They also create overconfidence in those who run the country and insulate them from criticism, which leads to further policy disasters.(158) Policy disasters then lead to further distrust in government… ad infinitum.(159) While the US has remained formally democratic it is in fact an oligarchy now according to Balkin.(160) This has led to a number of policy disasters like the wars in Iraq & Afghanistan, the rules that led to the 2008 financial crisis, the response to the financial crisis, etc.(161) Unfortunately politicians today have the wrong form of incentives; they look primarily to their next election and choose the most politically expedient path at the expense of the public good.(162)
There is good news though; the US has been in this position before. During the Gilded age around 1900 the US had massive income inequality and constitutional rot.(163) However, we are now living through a period where all three cycles have aligned, which is a new experience.(164) The gilded age produced populist/peoples parties and over time created progressive factions within the Democratic and Republican parties, much like today’s tea party conservatives that gained power in response to Obama’s ideological agenda and the Bernie Sanders wing of the Democratic Party in response to Obama’s economic agenda. (165)
One side effect of constitutional rot according to Balkin is it produces snake oil salesman, demagogues, and charlatans in the political arena.(166) High polarization, high distrust of government, and wide income inequality will drive voters to support these types of politicians.(167) Slogans like “change you can believe” and “yes we can” during a time of severe economic and market crisis when coupled with disastrous foreign policy debacles, are professed, but what we got was more expansion of state power, more public debt, stagnant economic & wage growth, and many more foreign policy debacles, corruption, etc.(168) The product of this populist authoritarianism produced a very contentious 2016 election cycle between a deeply corrupt political establishment figure and a political novice billionaire businessman. (169) The famed journalist Seymour Hersch asserted Trumps election was the tripping of a circuit breaker in our constitutional republic.(170) Meaning the country had achieved all the merits of populist authoritarianism by Mueller’s definition during a time of peak constitutional rot, peak polarization, and at the end of the neo-liberal political regime. Even Balkin states Trump is a symptom of a much larger set of problems. So what does that make Obama and his administration?
Yes. By every measure of Mueller’s definition of a populist authoritarian, the Obama administration fits the bill. Vast expansion of state power, circumvention of civil liberties, weaponizing state power for political purposes, and increased regulatory frameworks to bring everything in the US way of life under the power of the state, are just a few of Obama’s accomplishments. Rhetorically, Obama used sugary sweet language to mask most of his true policies, which is why many people still like him. Sometimes this is referred as liberal fascism. As we have learned through Jack Balkin’s treatise on Constitutional Rot and political regimes, we get further evidence of the rank authoritarianism of the Obama administration. Strangely, much of the constitutional rot and manufacturing of an effective police state within the US was done with the help of Jack Balkin and the Democratic Constitutionalists. Jack Balkin is the intellectual headmaster at the school of constitutional rot.
A criticism of Trump leading up to the election was that he may or may not accept the election results. This threw Obama and the Democratic Party into fits of fury, calling it “un-American”. However after the democrats lost, they themselves have tirelessly labored to diminish the Trump administration and to nullify the democratic election results. Mueller’s definition includes this as a core component to authoritarian populism, even though the Obama democrats lost the election, they still believe they won on “moral” grounds, thus they are engaging in further authoritarian behavior to seek redemption from the reckoning of their poor policy and governing history.
A complicit media embarrassed by missing or ignoring what was truly happening in US political life is aiding and abetting this authoritarian behavior by the Democratic party and some people in the Republican party who are also anti-Trump. Remember, we have unitary government according to Balkin and Trump is either the enema the system needed and or deserved.
Many have maligned the election of Donald Trump as a sign of Authoritarianism in America. As we can see, authoritarianism is and was already here before Trump, which is why he is a symptom, not the cause of this severe decay in our system. The greatest sin Donald Trump has committed in American politics, is earnestly committing to serve the people by selling policies that are widely popular to many on the left and right, even if they don’t like Trump the person. If your policies are popular, demographics don’t matter. Don’t expect the political establishment, which caused these problems, not to put up an amazing fight to keep the status quo, Authoritarianism. Everyday Donald Trump is successful is a further reckoning for the establishment and their many failures.
One of the defining moments in the 2016 election was when the Clinton campaign, in all its wisdom in response to Trump’s slogan “Make America Great Again”, responded by asking when did America stop being great? With a stagnant economy, bloating government debts, foreign policy disasters, crony capitalism, etc. anyone who was paying attention knew the answer to this question. Trump’s slogan was a direct shot at and demonstration of the limitations of prestige in American politics, academia, and business. So what’s next?
What’s Next: 2016 Election
The three key limitations to Democratic Constitutionalism are the issue of candor, identifying whom they serve, and their ability to exclude groups from “the true people”. The election of Trump has forced the political establishment to now address in public their true governing ideas where those ideas are subject to serious critiques. Both political parties battle for representing the middle class/working people of the U.S., while the Democratic Party at one time represented the working class, it has changed over time to serve corporate and large money interests, over the working people. The election of Trump was a direct indictment of this change. However, the Republican establishment is really no better because they serve the same moneyed interests. Even though Trump ran as a Republican, nobody claims that he is one.
There are progressive wings to both parties who have much in common and alignment with Trumps agenda of improving national sovereignty, economic nationalism, and deconstructing the administrative state. The 2018 mid terms will be a litmus test for the power of these progressive wings of the parties.
What’s disconcerting is this process will bring about the rise of political violence and discussions of secession by some emotionally and intellectually frustrated people. Some individuals and groups of people hold onto their ideas and beliefs so tightly, their only natural response to something they consider to be disturbing is to suggest or engage in political violence to affect their own political/ideological outcomes. Again, a constitution is seen as working if it can contain this type of behavior, so the Trump administrations response to these unfortunate events will be critical to strengthen its governing strategy and legitimacy.
The Trump Doctrine (Trumpism)
Despite what you hear in the news, the Trump administration is well aware of the issues in modern American political and economic life. The evidence for this is based on the administrations three-pillar strategy focused on National Sovereignty to cure our constitutional republic of its rotting nature. Second, economic nationalism means a complete rebuke and change in US policy to Neo-liberalism’s poor response to the corrosive effects of globalization to our republic. The third and final pillar is to deconstruct the administrative state that has been built within the US government as a government in of itself. Some in the media & academia refer to this as the deep state. Professor Michael Glennon at The Fletcher School of Law & Diplomacy wrote a comprehensive book on this specific issue titled “National Security & Double Government.” These are the myriad of bureaucratic institutions created over time and given expansive powers to determine their own policies, judged in their own courts, with zero meaningful oversight from a complicit congress, who avoids taking hard votes, in favor of pushing policy and rule making off to the unelected agency bureaucrats.
Very simply, US governance has become intellectually/physically lazy and corrupt. The Trump doctrine is a shock campaign of healthy, if sometimes unnerving political rhetoric, designed to increase public virtue on all sides. This will energize both houses of Congress to be responsive to public opinion and public will on meaningful policies that American citizens deem popular and in the interest of the public good. A healthy vibrant economy, engaging political discourse on a range of topics previously considered forbidden, and meaningful legislative activities, will put the US back on track to a healthy functioning republic. But it’s going to take time and diligence; there are no quick fixes to these problems. No magic diet pill can solve this overnight; in fact it will take 5-10 years for the country to begin depolarizing.
A strange phenomenon in the media and political class is that it appears the genesis of all of our problems in the US was the moment Trump was elected, and the acceptable quick fix is to rid the body politic of Trump. Those are words and deeds that come from anti-pluralists, charlatans, demagogues, and snake oil salesmen (Authoritarians).
So what is populism? Jan Werner-Mueller wanted to malign populism as authoritarian because he published his treatise earlier in 2016 with the baked in assumption Trump would never win an election. If Trump hadn’t been elected, Mueller’s work would have been weaponized by the political establishment to malign anyone running as populist with ideas popular and seen to serve the public good. However, we are thankful Mueller published his work for it is a direct reflection of all the reasons Trump won the election.
Populism can be understood as the flourishing of governing ideas supported by public opinion and will. As public virtue increases in the US and we have honest and earnest debates about our issues, the rot will melt away, politics will depolarize over time, and we will enter a new American century stronger than before. All thanks in no small part to Donald J. Trump.