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Constitutional Rot

Can It Happen Here?: Authoritarianism in America, Cass R. Sunstein, ed. (2018, Forthcoming)

Yale Law School, Public Law Research Paper No. 604

15 Pages Posted: 30 Jun 2017 Last revised: 2 Nov 2017

Jack M. Balkin

Yale University - Law School

Date Written: June 14, 2017

Abstract

Constitutional rot refers to the decay of features of a constitutional system that maintain it as a healthy republic. Constitutional rot has been going on for some time in the United States, and it has generated the country's current state of dysfunctional national politics. Constitutional rot has made American politics increasingly less democratic, less republican, and more oligarchical.

The causes of constitutional rot are four interlocking phenomena, 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 - important failures in decision-making by our representatives, such as the Vietnam War, the Iraq War and the 2008 financial crisis.

Each of these four phenomena exacerbates the others. In addition, America's inadequate response to globalization has hastened constitutional rot.

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 nation.

When people lose faith in government, they are likely to turn to demagogues who promise to make everything right and restore former glories. The rise of Donald Trump, who has many of the traits of a traditional demagogue, is a symptom of constitutional rot, rather than its cause.

Constitutional rot not only allowed Trump to gain power; he also has incentives to increase constitutional rot to stay in power; for example, by increasing polarization, and sowing distrust and confusion. Many of his actions as president—and his media strategy—make sense from this perspective.

Moreover, Trump, like many populist demagogues before him, has maintained populist rhetoric while abandoning any serious effort at pushing for genuinely populist policies. Once populist demagogues take power, they often discard the people who helped put them there; instead, they substitute new backers who are easier to deal with and/or pay off to stay in power.

The United States still retains many structural advantages that might allow it to halt and reverse constitutional rot, including an independent judiciary, a free press, and regular elections. In fact, Trump's presidency likely represents the end of an enervated political regime, and not the necessary future of politics. Although the present situation looks bleak, the next several election cycles offer the possibility of political renewal if Americans can rise to the challenge.

Keywords: Constitutional Rot, Constitutional Crisis, Oligarchy, Republicanism, Trust, Polarization, Corruption, Donald Trump

JEL Classification: K10

Suggested Citation

Balkin, Jack M., Constitutional Rot (June 14, 2017). Can It Happen Here?: Authoritarianism in America, Cass R. Sunstein, ed. (2018, Forthcoming); Yale Law School, Public Law Research Paper No. 604. Available at SSRN: https://ssrn.com/abstract=2992961

Jack Balkin (Contact Author)

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States
203-432-1620 (Phone)

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