93 Indiana Law Journal 93 (2018)
As Part I explains, the American constitutional system assumes a certain sort of democratic culture. That assumption is encapsulated in Chief Justice John Marshall’s dictum, in M’Culloch v. Maryland, that the Constitution is “intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs.” The U.S. Constitution indeed lacks “the prolixity of a legal code,” but subsequent history confirms that its relative sparseness is not, as Marshall maintained, because it is “a constitution we are expounding.” The U.S. Constitution is among the world’s least prolix and most difficult to amend. These attributes contribute to its mystique, but also render the constitutional text a radical underspecification of the American constitutional system.
This Essay argues that democratic culture in the United States is increasingly antisocial, and may become so to a degree that the American constitutional system cannot accommodate. President Trump’s election is a harbinger of this constitutional failure. As Part II explains, Trump’s hostility to the sustaining norms of the constitutional system reflects the ascendancy of a fundamentally antagonistic and hegemonic approach to democratic politics. The rise of this political culture is enabled by technological changes that have diminished the role of intermediaries in public life in ways that have contributed to political polarization and social balkanization.
We need not assume that a polity exhibiting these antisocial features is ungovernable, but it is safe to say that its constitutional arrangements require strong rules of recognition. Relying on soft, unwritten norms is an invitation to abuse by whoever happens to be in power, which we can then expect to invite retaliatory abuse when power shifts. The existing U.S. Constitution is of a type one would expect of a reasonably socialized culture, but its politics are approaching those of a post-conflict society.
Part III discusses what to do about the potential mismatch between American constitutional arrangements and American politics. Without assuming that any course of action will be successful—the forces arrayed against deliberative democracy are formidable—it is fair to say that the most promising strategies tend to channel the exercise of power and the promulgation of policy into processes of political negotiation.
Reform in at least three broad areas might assist toward that end. First, American electoral institutions could be better suited to negotiated action. We should seek to bolster supermajority requirements, such as the filibuster, while at the same time seeking means of eroding party discipline by creating greater and more varied electoral competition. Second, we must think creatively about restoring or creating institutions of trust that can act as intermediaries between the public and our political actors. New models of media financing, including through public processes, or establishing government bodies tasked with public integrity may be better suited to the present moment than previously believed. Third, the judiciary has a role to play in reorienting our rights discourse toward dialogue, both between judges and political actors and within the political branches themselves.
The Future of the U.S. Constitution: A Symposium. April 14-15, 2017, Bloomington, Indiana. Sponsored by Indiana University Maurer School of Law, Indiana Law Journal & the American Constitution Society for Law and Policy.
"Trump as Constitutional Failure,"
Indiana Law Journal: Vol. 93
, Article 7.
Available at: https://www.repository.law.indiana.edu/ilj/vol93/iss1/7