2015 by the University Press of Kansas
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Published by the University Press of Kansas (Lawrence, Kansas 66045 ), which was organized by the Kansas Board of Regents and is operated and funded by Emporia State University, Fort Hays State University, Kansas State University, Pittsburg State University, the University of Kansas, and Wichita State University
Library of Congress Cataloging-in-Publication Data
Griffin, Stephen M., 1957 author.
Broken trust : dysfunctional government and constitutional reform /
Stephen M. Griffin.
pages cm (Constitutional thinking)
Includes bibliographical references and index.
ISBN -- 7006 - 2122 - (cloth : alk. paper)
ISBN -- 7006 - 2153 - (ebook)
. Constitutional lawUnited StatesInterpretation and construction.
. Law reformUnited States. I. Title.
KF 4552 .G 2015
342.7303dc23
2015013776
British Library Cataloguing-in-Publication Data is available.
Printed in the United States of America
The paper used in this publication is recycled and contains percent postconsumer waste. It is acid free and meets the minimum requirements of the American National Standard for Permanence of Paper for Printed Library
Materials z.- 1992 .
To Donn Parson, Rex Martin, Philip Kissam, Bill Nelson, and Sandy Levinson
Teachers, friends, and mentors to me and many others
Foreword
O ver at least the past decade, it has become almost trite to describe the national political system in the United States as dysfunctional. Analysts across the political spectrum seem to agree on that, if on almost nothing else, and they present a variety of explanations for the phenomenon. Some emphasize the truly exceptional way that Americans finance elections (including, of course, the primaries that increasingly choose candidates). Others focus on the development of the -hour news cycle plus the decline of what is now called, often contemptuously, the mainstream media in favor of cable television, talk radio, the blogosphere, and varieties of social media. Attention is also paid to the increasing polarization of American politics, which has been helped along by a repulsion among significant portions of the public at the idea of compromising with ones political enemies. As to polarization, it is almost enough to quote the title of a 2012 book by two longtime Washington-based students of American politics, Norman Ornstein and Thomas Mann: Its Even Worse Than It Looks: How the American Constitutional System Collided with the New Politics of Extremism.
The Constitution was designed in 1787 to create multiple veto points on the way to passing legislation, which, it was thought, would encourage compromise inasmuch as the alternative would be what we today call gridlock. Thus, one should also attend to the title of a 2013 book by political theorists Dennis Thompson and Amy Gutmann, The Spirit of Compromise: Why Governing Demands It and Campaigning Undermines It. Contemporary American politics has become distinguished by what has been labeled the permanent campaign, with constant worry, for example, about raising money and forestalling primary challenges. An important consequence is that it becomes ever harder to generate what they call the spirit of compromise necessary for actual governance in a system where one party does not have sufficient dominance simply to pass its programs through the House and the Senateprograms that will then be happily signed by a president of the same party.
My own analysis, as reflected in two books I have published in the past decade, Our Undemocratic Constitution: Where the Constitution Goes Wrong (and How We the People Can Correct It) and Framed: Americas51Constitutions and the Crisis of Governance, has emphasized the degree to which the formal political structures established by the Constitution of 1787 , and amended in only minor ways since then, contribute to the gridlock that effectively makes it nearly impossible to achieve the passage of legislation that adequately responds to the challenges facing the United States in the twenty-first century.
Stephen Griffin is one of the legal academys most gifted analysts of American constitutionalism. His first book, American Constitutionalism: From Theory to Politics ( 1997 ), emphasized the various ways that the constitutional system in fact changed over time, even without formal constitutional amendment, to adjust to new realities. John Marshall emphasized in McCulloch v. Maryland that our Constitution was intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs. The most obvious such crises are probably great wars, whether the American carnage of 18611865 or the two world wars fought in the twentieth century; the implications of such developments are the subject of Griffins most recent book, Long Wars and the Constitution. Similarly obvious, and one of the examples considered in this new book, are the effects of natural disasters such as Hurricane Katrina (or, later, Sandy), not to mention, of course, the near collapse of the international economic system in 2008 and the Great Recession that plagued the United States for years thereafter. American Constitutionalism was in context quite optimistic about the resilience of the American constitutional system. This book is more somber in tone.
Griffin begins this book with a review of the literature on dysfunctionality. And, of course, the title of his book itself brings this analysis to the fore. But what makes Griffins voice distinctiveand more than justifies its inclusion in the series on constitutional thinking that Jeff Tulis and I coedit for the University Press of Kansasis his elaboration of a fresh insight about the deep causes, and potential cures, of our present discontents. Quite obviously, our basic constitutional structures have not changed in recent years; one can argue, therefore, that they did not present fatal impediments in the past to confronting some very basic crises, including economic depressions and world wars. What has changed, and what Griffin argues is absolutely crucial, is the relative decline of trust in the ability of those institutions (and the people who make them up) to serve the public well.
As he puts it, We must create virtuous cycles that produce both greater trust in government and more effective government. Each is both cause and effect of the other; the perception of effectiveness leads us to trust public officials and their suggestions regarding the need for new programs; concomitantly, the perception that these officials are in fact trustworthy will generate a needed level of confidence that their advice as to new programs should be followed. However, for several decades now the cycle has been distinctively vicious: the perceived ineffectiveness of governmentencouraged, of course, by the rise to power of a wing of the Republican Party that systematically promoted contempt for what was usually called big government and the bureaucrats administering itreinforces the mistrust underlying Ronald Reagans famous comment that the ten most dangerous words in the English language are Hi, Im from the government, and Im here to help. The inevitable failure of at least some percentage of governmental programs has become for many Americans evidence