Dementia: It means “insanity.”
Uncle Fester: My name is Fester. It means “to rot.”
Constitutional scholar Jack Balkin (Professor, Yale Law School) wrote a short chapter for the 2018 book Constitutional Democracy in Crisis?, edited by Mark A, Graber et al. Balkin’s chapter 2, Constitutional Crisis and Constitutional Rot, explains the difference between the two concepts. The topic is timely because many people are concerned that the US is in or near a constitutional crisis in view of President Trump’s institutionally corrosive and socially divisive rhetoric and actions. Constitutional rot is a concept that most people are not aware of, while constitutional crisis is mostly misunderstood. Knowing the difference helps put America’s political situation in much better context.
Constitutional crisis defined: Balkin and another scholar Sanford Levinson, have described what a constitutional crisis (CC) is and is not in a constitutional democracy. That is summarized in Balkin’s chapter 2. There are three different kinds of CC. The Type One CC occurs when politicians and/or military officials announce they will not obey the constitution any more. That can happen when politicians and/or military officials refuse to obey a court order. Once refusal to adhere to constitutional rules has occurred, the constitution has failed.
The Type Two CC occurs when the constitution prevents political actors from trying to prevent an impending disaster. This is rare because the courts tend to find ways to allow political actors to avoid disasters. The Type Three CC occurs when many people refuse to obey the constitution. In these scenarios, there can be street riots, or, states or regions try to secede from the nation. This involves "situations where publicly articulated disagreements about the constitution lead political actors to engage in extraordinary forms of protest beyond mere legal disagreements and political protests: people take to the streets, armies mobilize, and brute force is used or threatened in order to prevail."
Balkin goes on to argue that most time when the term CC is used, it is hyperbole. Constitutions rarely break down.
Constitutional rot (CR): By contrast with a CC, CR arises when norms that held power in check fall, partisans play constitutional hardball and fair political competition comes under attack. We are seeing this now. For example, it was constitutional hardball by Mitch McConnell to ignore President Obama’s Supreme Court nomination of Merrick Garland. In CR, politicians favor short-term political gains over long-term damage to the constitutional system. As CR progresses, the political system becomes less democratic. State power becomes less accountable and less responsive to the public, while politicians become more beholden to backers who keep them in power. In essence, the country drifts into oligarchy.
While that is happening, the public loses trust in government and the political system because they have been abandoned: “When constitutional rot becomes advanced, and the public’s trust in government is thoroughly undermined, people turn to demagogues who flatter the public and who stoke division, anger and resentment. Demagogues promise they will restore lost glories and make everything right again. They divert the public’s attention to enemies and scapegoats within and without the republic. They divide the public in order to conquer it. They play on people’s fears of loss of status. They use divisive rhetoric to distract attention, maintain a loyal set of followers, and keep themselves in power. There are always potential demagogues in a republic, but healthy republics restrain their emergence and ascension. When demagogues manage to take power and lead the nation, however, CR has become serious indeed.”
Does any of that sound familiar?
The four horsemen of CR: Balkin describes the four horsemen of CR as (1) loss of trust in government and fellow citizens, (2) polarization that leads to people seeing fellow citizens as enemies of the state[1], (3) increasing economic inequality which foments anger, resentment and a search for scapegoats, and (4) policy disasters such as the Iraq war and the 2008 financial crisis, which undermine public trust in political leadership and constitutional governance. He argues that each one of these tends to feed into the one or more of the other factors. For example, polarization deflects public attention to symbolic and zero-sum conflicts, which allows wealthy interests to entrench their power and foster oligarchy. In turn, that tends to undermine public faith in a government that is drifting away from them and their interests. Rot begets more rot.
Balkin sees hardball politics and attendant destruction of norms of fair politics as leading to “a gradual descent into authoritarian or autocratic politics.”
Regarding our current situation, Balkin sees it like this: “The United States is not currently in a period of constitutional crisis. But for some time--at least since the 1990s--it has been in a period of increasing constitutional rot. The election of a demagogue such as Trump is further evidence that our institutions have decayed, and judging by his presidential campaign and his first year in office, Trump promises to accelerate the corruption.”
It sounds like we are in for more CR and maybe even a deep descent into corrupt, anti-democratic authoritarian politics ad full-blown CC. How gradual the process may be and how far it might go are matters open for debate. It appears to me that the process is moving rather crisply toward a nasty CC, but that is just one person’s opinion.
Footnote:
1. As discussed here before, a January 2018 survey of experts ranked the president as least great of all US presidents, but more importantly for this discussion, they ranked him as the most polarizing.
B&B orig: 5/24/19; DP orig 6/3/19
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