The decay and renewal of the American constitutional order
- September 28, 2022
- Philip Bobbitt
By the end of the twentieth century, a new model of nationhood emerged which relied on markets. While not inherently malign, this new constitutional order has the potential to be a destabilising force in US politics.
This essay originally appeared in Nation, State and Empire: Perspectives from the Engelsberg Seminar, published by Bokförlaget Stolpe in collaboration with the Axel and Margaret Ax:son Johnson Foundation for Public Benefit, 2017.
Some day – not tomorrow, not next year, but probably sometime before runaway climate change forces us to seek a new life in outer-space colonies – there is going to be a collapse of the legal and political order and its replacement by something else. If we’re lucky, it won’t be violent. If we’re very lucky, it will lead us to tackle the underlying problems and result in a better, more robust, political system. If we’re less lucky, well, then, something worse will happen. — Matthew Yglesias
In October 2015, the American journalist Matthew Yglesias wrote the essay ‘American Democracy is Doomed’, which was published on the Vox.com website and picked up by a number of commentators. Many seemed to believe that the root of the problem was institutional gridlock, and some thought that the solution — enhanced executive power — would produce an American presidential dictatorship. ‘It won’t happen in a big bang, and no individual step process will feel like a massive leap into tyranny,’ wrote Dylan Matthews in response to Yglesias, also on the Vox site. Some commentators thought the end of the American state was a realistic possibility; others did not. Critics described a lengthy list of difficulties and headwinds facing the US system. In their 2012 book, It’s Even Worse Than It Looks: how the American constitutional system collided with the new politics of extremism, the political scientists Thomas Mann and Norm Ornstein had already observed that the two national political parties‘ have become as vehemently adversarial as parliamentary parties… in a governing system that, unlike a parliamentary democracy, makes it extremely difficult for majorities to act’.
It’s not, however, that American politics is moving in search of a parliamentary system. And it’s not that our party leaders resemble the reforming parliamentary leaders of Britain like Robert Peel or William Gladstone. Actually, the person they most resemble is Charles Stewart Parnell, the Irish nationalist Member of Parliament in the late nineteenth century who used his political genius to frustrate the ordinary course of business at Westminster through a series of deft manoeuvres that played on the British parliament’s dependence on customary, collaborative procedures. Parnell was an insurgent who wished to destroy the British state as it was then constituted. Whether they realise it or not, that is the implicit goal of the Democratic and Republican parties.
Nor is the United States unique in this respect. In fact, many states can today be observed as undergoing fundamental change as a shift in the constitutional order of the state gets underway, which is to say when one constitutional form is in terminal decay and a new form emerges. For make no mistake about it, the American constitutional system as it exists today could well be said to be in a process of collapse, but only if by that is meant a metamorphosis into a new constitutional order — a new form of the legitimate state. It has happened before.
The watermark of any particular constitutional order is its claim to legitimacy. Today, we live in industrial nation states, a constitutional order that emerged in the United States after the American Civil War and in Europe after German unification. Give us power, the industrial nation state said, and we will improve your material wellbeing. Lloyd George and Franklin Roosevelt made this assertion, but so too did Vladimir Lenin and Adolf Hitler, for they were all leaders of the same fundamental form of the state (though they had different ideas about how to fulfil this objective). The constitutional order of the industrial nationstate brought us mass, free education; the mass electoral franchise, including not only property-less males but females as well; old age pensions and unemployment compensation; the public funding of science; state-owned enterprises like airlines and railroads, telecommunications and other national industries; and also total warfare, that is, warfare against the nation.
The constitutional order of the industrial nation state superseded that of the imperial state nations of the late eighteenth and early nineteenth centuries. That constitutional order claimed legitimacy based on its promise to unite the state with the nation — that is, with the dominant historical, cultural and ethnic popular group. The US founding fathers, Washington, Hamilton and Madison, were among its founders, but so too was Napoleon. The First World War demonstrated that imperial state nations were no match for the emerging constitutional order of the industrial nation state.
The industrial nation state has been a remarkable success. It reached its apogee in 1990 when the Long War (as I have called it, describing the series of major conflicts from the start of the First World War to the collapse of the Soviet Union in 1991) that was fought over which system — communist, fascist, or parliamentarian — would be the rightful model for this constitutional order was finally settled. Almost immediately, however, threats to the fundamental legitimacy of this constitutional order began to appear.
Those challenges include: a global system of communications that prevents any nation state from controlling its culture, because this system of networks penetrates every society and enables social networking technology on a scale that rivals the state apparatus itself; an international system of trade and finance that prevents any state from effectively managing its national economy and which brings an increased vulnerability to every state to decisions made by markets assessing states; an international legal system of human rights that pre-empts any state’s national laws and has most recently been the basis for armed attack on a state that posed no threat to any other state but appeared on the verge of attacking its own people; transnational health threats like Aids and Sars, climate change and global, non-national terrorism, that no state can hide from or arrest by its own efforts alone; and finally, the commodification of weapons of mass destruction, where crucial components can either be sold or bartered on a clandestine market or simply downloaded via the internet (such as the information by which mousepox can be transformed into a human pathogen).
Interestingly, all of these developments are the result of the successful policies deployed to win the long war of the twentieth century. As I spoke these words in Sweden, I was reminded of a passage from Nathanael West’s 1933 novel, Miss Lonelyhearts: ‘He sat in the window thinking. Man has a tropism for order. Keys in one pocket, change in another. Mandolins are tuned G-D-A-E. The physical world has a tropism for disorder, entropy. Man against Nature… the battle of the centuries. Keys yearn to mix with change. Mandolins strive to get out of tune. Every order has within it the germ of destruction. All order is doomed, yet the battle is worthwhile.’
Industrial nation states used law and regulation to tame the market. State-owned enterprises (airlines, energy companies, transportation networks, telecoms) abounded. Most industrial nation states had a national health service and a system of public universities with negligible student fees. Banks were heavily regulated and, in many countries, were forbidden to conduct both depositary and investment operations within the same entity. The price of gold was negotiated by states and their currencies were pegged to a fixed value. The movement of capital across international lines was strictly controlled.
With the end of the Long War, all that began to change and a new, insurgent constitutional order began to emerge. This constitutional order — the informational market state — relied on the market rather than attempting to control it and steadily abandoned the industrial nationstate’s enforcement of the moral commitments of the dominant national group through law. The legitimacy of the informational market state was based on the premise that success in the post-Long War world would accrue to the state that maximised the total wealth of society by providing sustained economic growth — and that the way to do that was to increase the opportunities for all citizens. New policies and practices began to appear as harbingers of this new constitutional order.
In all of the following instances, we see the beginnings of a change in the constitutional order: when states shift from a reliance on law and regulation so characteristic of the nation state to deregulating not only industries but, far more importantly, women’s reproduction; when states move from conscription to an all-volunteer force to raise armies, as all the most powerful states have done; when states end their policies of tuition-free higher education in favour of a combination of top-up fees and merit-based scholarships; when we go from direct cash transfers like the dole and workmen’s compensation to providing job retraining and the skills to re-enter the labour market; when state-owned enterprises are replaced by sovereign wealth funds; when market-based regimes of direct democracy like referendums, recall votes, political polling and voter initiatives begin to spread in preference to representational systems, turning citizens of a polity into consumers of its political products.
For it wasn’t only the shortcomings of the industrial nation state in dealing with the five challenges described earlier that led to the emergence of the informational market state; there are reasons why the constitutional order is changing in this particular way — informational market states have certain advantages. The principal reason is that the market holds vast amounts of information, and owns the critical infra-structure that depends upon information. With its near monopoly on information, the market becomes a necessary partner for the state. Because markets are global, networked, devolved, decentralised, out-sourcing and privatised, the market state will acquire all these characteristics. Industrial nation states could be national, centralised, and the creators of immense public works because manufacturing, mining and resource extraction, agriculture and production are all local by necessity. But once finance and financial services outpaced the creation of tangible products as a portion of the economy of the major countries, information replaced industry as the dominant element determining the management of the state.
The emergence of this competitive model for the constitutional order will cause conflict within all the great powers and perhaps even between those powers, as one constitutional order fights for legitimacy and seeks to impose this system on all the other states. Eventually a great diplomatic congress will create a new constitution for the society of states that enshrines the new, dominant constitutional order. This is what happened at Augsberg in 1555, at Osnabruck and Munster in 1648, at Utrecht in 1703, at Vienna in 1815, and what was attempted at Versailles in 1919, when the strategically dynamic parliamentary industrial nation state was unsuccessful in imposing its particular form of constitutional order on Germany and Russia. But that — the transformation of the international order — is a subject for another essay.
Suffice it to say that the ferocity and polarisation within industrial nation states today is a direct consequence of the birth struggle occasioned by this new constitutional order. We should remind ourselves that nation states were no great friends to nationalism, despite their name. Rather, they exalted a particular nation — the English in the United Kingdom area good example — and suppressed other nations within the state ruthlessly. Market states, by contrast, encourage nationalism in two ways: first, they abandon the sense of a single polity held together by adherence to fundamental values. This is most offensive to those groups of which the dominant nation is composed. Second, market states provide the economic and defence umbrella within which smaller states can flourish. Catalonia, the Basque region, Lombardy, Scotland, are all examples. It is a tragic irony that the British exit from the emerging market state of the European Union is the surest route to the break-up of the United Kingdom for this reason.
Please note that this conflict, or congeries of conflicts, is not a left/right matter. When the left seeks affirmative action in state institutions, and the right wants to ban abortion, when the left wants to make hate speech a crime and the right criminalises drug use, these are examples of groups seeking to write their moral preferences into law and, as such, they are quintessentially the practices of industrial nation states.
If the nation state was characterised by the rule of law, the market state is largely indifferent to the norms of justice, or for that matter to any particular set of moral values, so long as the law does not act as an impediment to economic competition. Because market states are also indifferent to the values of loyalty, reverence for sacrifice, political competence, privacy, and the family, they pose an important challenge to civil society: either these values must be supported without government backing or we will replace them with the values of the market which largely seem to exalt entertainment and the accumulation of wealth.
The fundamental choice for every market state is whether to be (1) a mercantile state, i.e., one that endeavours to improve its relative position vis-à-vis all other states by competitive means, or (2) an entrepreneurial state, one that attempts to improve its absolute position while mitigating the competitive values of the market through cooperative means, or (3) a managerial market state, one that tries to maximise its position both absolutely and relatively by regional, formal means (such as trading blocs).
The mercantile state seeks market share above all else, in order to gain relative dominance in the international market; the entrepreneurial state seeks leadership through the production of collective goods that the world’s states want; the managerial state seeks power through its hegemony within a regional zone. One is not more moral or necessarily more benign than another.
This choice will have both constitutional and strategic implications.No state will reflect purely one valence or another, and every great power at some point will have political movements within it representing each of these options. But that is also the subject for another essay
In the US, the constitutional framework of federalism will channel the sorting of in-state migration that is already well underway. Then, at some tipping point, the majorities that are the result of this sorting will seize the state apparatus, a concern I expressed in 2001. This development will drive the emergence of the American market state: the experimentation and innovation so dear to the market state may thrive more abundantly under federalism than under an omni-competent central government characteristic of industrial nation states. Indeed, federal states would be better positioned to encourage the locality as a laboratory and could even tolerate wide variations in, for example, welfare benefits and criminal sanctions. In a country as riven by racial prejudice as the US, such variations are bound to produce invidious inequalities and discrimination. It could also lead to the disintegration of the United States into regional, quasi-racial and religious enclaves, devoid of any sense of overarching identity.
If you think I’m being alarmist, I should tell you that all the pieces for such a development are being put in place. Consider the progress of the normalisation of civil and criminal rights within the US. Beginning with the language of the fourteenth Amendment to the US Constitution, adopted in 1868 but not vindicated in practice until after the Second World War, the US has struggled to normalise constitutional practices across the now 50 states that compose the United States. Today, if you receive a speeding ticket in Texas, you are entitled to the same due process procedures as if you were in Massachusetts. If you are arrested in Florida for shoplifting, you will be read the same ‘Miranda’ rights as if you were in California.The same standards for the exercise of free speech by demonstrators will be applied in Oregon and Alabama. This is a historic achievement and one of which Americans can be justly proud. But it is about to be thrown into reverse.
We already have some variation in the application of constitutional norms by the constituent states. Some states permit capital punishment, for example, others don’t — even though in most countries the practice of capital punishment is a national policy. We can see something radically new, something related to this new evolution of the state in the appearance of the sanctuary cities movement — at least five American states and countless local communities now limit or forbid police cooperation in the enforcement of US immigration laws, and a similar initiative can be found in the legalisation by some states of marijuana in defiance of federal drug laws. Both of these developments have been treated very gingerly by the federal government but both are in complete contradiction of the subordination of the states to central government, as provided in Article VI of the US Constitution which declares: ‘This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of theUnited States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution orLaws of any State to the Contrary notwithstanding.’
This development — the exploitation of federalism to achieve radical decentralisation which is inimical to industrial nation states but hastens the arrival of market states — is a phenomenon of the last thirty years, which is to say after the end of the Long War.
At present, the beast slouching towards Bethlehem is the movement for a constitutional convention as provided by Article V: ‘[O]n the Application of the Legislatures of two thirds of the several States, [Congress] shall call a Convention for proposing Amendments, which… shall be valid to allIntents and Purposes, as Part of this Constitution, when ratified by theLegislatures of three fourths of the several States.’
We are already terrifyingly close with the proposal for a balanced budget amendment. What makes this terrifying, apart from the questionable economic analysis that lies behind such a proposal, is that no-one knows whether or not a constitutional convention called by the states can be limited to the purpose for which it was called. If you think this should be obvious, remember that the very first ‘runaway’ convention was called for the limited purposes of amending the Articles of Confederation, yet it resulted in the constitution the US has today. If you look at the map of the states voting for Donald Trump it tracks closely the states that have adopted legislative calls for a constitutional convention. This is where the system of federalism that treats all states as political equals can get us in trouble, for the states themselves are witnessing a transformation in their populations that will divide them more definitively than at any time since the Civil War. Americans are culturally, politically, ethnically and sociologically sorting themselves into states to a degree that makes a regional concentration of voters more or less a certainty. A rather small population in a great many states could ratify this call for a convention.
Don’t confuse this phenomenon with the secession of the Confederacy in 1860. That was a reaction to the new emerging industrial nation state and an effort to preserve the pre-existing imperial state nation. Imperialism is not on offer today even if a great number of our people wanted it, which they do not.
The cultural and political segregation of pre-Civil War America was enforced by the lack of mobility, including slavery, whereas today it’s the very ease with which Americans can move from place to place that has created cultural and political segregation. This is what happens when individuals become more affluent, better educated and face fewer restraints on their personal and political choices: that is, when market states – whose motto is: ‘Give us power and we will maximise your opportunities’ – become more viable and attractive.
Because Americans are so mobile, even a mild preference for living with the like-minded leads over time to severe segregation. Better educated people tend to be richer so they have more choice about where they live. In the 1990s, 45 per cent of young Americans with a college degree moved states within five years of graduating from university while only 19 per cent of those with just a high school education did so.
Thus, as American writer Bill Bishop wrote ten years ago: ‘As the country attracts more and more immigrants and its large metropolitan areas become multiracial and multilingual, people feel a strong desire to retreat to the safety of smaller communities and live among those who look, think and behave like themselves.’
People with college degrees were evenly spread across American cities in the 1970s. Today, college graduates are congregated in particular cities, a phenomenon that has decimated the economies in some places and caused other regions to flourish.
In the 1970s, only about a quarter of American voters lived in a county which a presidential candidate won by a landslide margin. By 2004, the figure was nearly half. In the last ten years that number has continued to increase. Most of Mrs Clinton’s almost three million vote margin of popular victory came from huge wins in California and New York; while Trump narrowly carried crucial Democratic counties in Michigan, Florida, Wisconsin and Pennsylvania, he won the counties outside urban enclaves by huge majorities.
This sorting is good for local government because homogeneous communities can act with unity and dispatch. And that’s a lucky thing because nationally, it’s a disaster. Congress has lost most of its moderate members and is in a condition of gridlock. Voters in landslide districts tend to elect more extreme members of Congress. Bitterly partisan lawmakers find it impossible to reach consensus.
Sorting does not seem to be driven by economic factors, or at least by economic factors alone. Income is a poor predictor of party preference.It’s more a matter of culture which, though composed of politics in part, has a powerful impact on politics. Thus, the playwright Arthur Miller could ask in 2004: ‘How can the polls be neck and neck when I don’t know one Bush supporter?’
In the past, transitions to a new constitutional order have been accompanied by and ratified by violence. More Americans died, from a vastly smaller population, in our civil war than in all the wars of our history combined.
About the same time as the Engelsberg Conference in 2017, the New Yorker magazine published an essay by Robin Wright, entitled ‘Is America Headed for a New Kind of Civil War?’ Wright contacted five prominent historians of the American Civil War for their assessments. Most agreed with Eric Foner, perhaps the most distinguished of the group, who voiced scepticism about such a possibility. The article recorded this exchange: ‘Obviously, we have some pretty deep divisions along multiple lines — racial, ideological, rural versus urban,’ he told me. ‘Whether they will lead to civil war, I doubt. We have strong gravitational forces that counteract what we’re seeing today.’ He pointed out that ‘the spark in Charlottesville — taking down a statue of Robert E Lee — doesn’t have todo with civil war. People are not debating the Civil War. They’re debating American society and race today’.
I wonder if this is right, that if the debates we are currently undergoing are in fact the normal dialogues of a democracy or whether the divisions over issues like our statues do not reflect a much deeper divide over our history, our cultural values, and what we consider acceptable behaviour in our leaders.
Wright’s article was prompted by a brief observation in the magazine Foreign Policy by the military writer and journalist, Thomas Ricks, who considered ‘another civil war breaking out in this country over the next ten to fifteen years’ a real possibility. ‘By “civil war”‘ Ricks wrote, ‘I don’t necessarily mean set-piece battles and Pickett’s Charge. I do mean wide-spread political violence with parallel (though not necessarily connected) efforts to reject current political authority in certain legal domains or physical spaces.’
This post was sharply attacked as ‘irresponsible’ and ‘nonsense’ by one critic, Josh Barro who, in an article for the Business Insider website, observed:
By this definition, America experienced a civil war from the late 1950s to the early 1970s, when race riots engulfed major American cities, four major political figures were assassinated, and the federal government had to send National Guard troops into Southern states to enforce integration over the objections of both local officials and violent white mobs. According to the FBI, there were 2,500 bombings in the US in 1971 and 1972 alone, often carried out by left-wing groups like the Weather Underground. I agree there is a real risk that the US will return to 1950s–70s levels of political violence and social upheaval. And I’m worried about this. But calling such a situation a ‘civil war’ just makes everybody dumber.
I’m not so sure. If, as Foner concludes, there is a reassuring difference between 1860 and 2017, there are also disquieting differences between the 1960s, the 1970s and the present, and these differences are both constitutional and strategic. Constitutionally, we are more divided as a state today than at any time since the 1860s. Strategically, the increasing lethality of weapons, coupled with the ability to organise mass movements through social media, and the decentralisation of both phenomena, are very worrisome. Moreover, in one crucial respect, the US today is not so different from the 1860s: that would be the paralysis of Congress and a lack of confidence in the two major parties, our Whigs (the establishment Republicans) and our Democrats (then divided regionally, now ethnically and racially).
In conclusion, I don’t know if we can have a birth — the birth of a new constitutional order — without blood and pain. But I do know that a birth is coming.