1 00:00:00,920 --> 00:00:25,160 Sort of like. Good evening, everyone, and welcome. 2 00:00:25,160 --> 00:00:32,270 It is perhaps a slight breach of Oxford Protocol on occasions such as this for there to be any sort of introductory remarks, 3 00:00:32,270 --> 00:00:35,030 but as the director of the rather more American Institute, 4 00:00:35,030 --> 00:00:42,530 I wanted to take the opportunity to welcome all of you to this year's inaugural lecture for the one professorship of American government. 5 00:00:42,530 --> 00:00:48,740 I'm Hal Jones, I'm the director here, and it's a real pleasure to have you all with us. 6 00:00:48,740 --> 00:00:55,370 The John G wine and visiting professorship of American Government is a tribute to the legacy of Ambassador John G. 7 00:00:55,370 --> 00:01:00,110 Gil Winant, who represented the United States and Great Britain during World War Two and was 8 00:01:00,110 --> 00:01:06,260 a key figure in forging an Anglo-American alliance at that difficult moment. 9 00:01:06,260 --> 00:01:14,000 The professorship was established thanks in large part to the generosity of the late Rivington Winant and his wife, Joan Wine, 10 00:01:14,000 --> 00:01:22,430 and who remains a close friend to the institute and in whose generosity we'd certainly like to acknowledge on this occasion. 11 00:01:22,430 --> 00:01:31,340 For more than 10 years now, the professorship has allowed us to bring distinguished scholars of American politics to Oxford for the year, 12 00:01:31,340 --> 00:01:37,370 to contribute to our community and to the broader intellectual life of our Balliol College, 13 00:01:37,370 --> 00:01:43,790 with which the professorship is affiliated and and with the wider collegiate university. 14 00:01:43,790 --> 00:01:53,870 Oxford University Community We've had many great lectures in this series of inaugural lectures from our various visitors, 15 00:01:53,870 --> 00:01:59,720 but certainly amongst this very distinguished group known as more distinguished than the current incumbent. 16 00:01:59,720 --> 00:02:06,590 Professor Stephen Skowronek is the Pettitt professor of political and social science at Yale University when he is at home. 17 00:02:06,590 --> 00:02:11,150 He is regarded as a founder of the field of American political development 18 00:02:11,150 --> 00:02:15,320 and is a co-founder of the journal Studies in American Political Development. 19 00:02:15,320 --> 00:02:22,550 He has authored a number of highly important influential works, including, amongst others, the politics president. 20 00:02:22,550 --> 00:02:28,820 Make Presidents, make leadership from John Adams to Bill Clinton, the search for American political development, 21 00:02:28,820 --> 00:02:36,260 presidential leadership and political time reprise and reappraisal. And most recently, and he's got a handy prop. 22 00:02:36,260 --> 00:02:43,070 The policy states an American predicament co-authored with Karen Orin. 23 00:02:43,070 --> 00:02:48,800 It's a real pleasure to have Steve with us for the year, and we're looking forward to his lecture tonight, 24 00:02:48,800 --> 00:02:56,810 which is entitled Has American Democracy Outstripped Its Institutional Foundations Principles Without Traction in 21st Century Governance? 25 00:02:56,810 --> 00:03:01,880 We will adhere to the Oxford Convention for inaugural lectures by forgoing any 26 00:03:01,880 --> 00:03:07,040 formal period of question and answer or discussion at the conclusion of this talk, 27 00:03:07,040 --> 00:03:16,370 but will adjourn immediately after Steve finishes his remarks for a reception just outside here at the institute, where conversation can continue. 28 00:03:16,370 --> 00:03:20,870 And of course, Steve will be with us for the remainder of the the academic year. 29 00:03:20,870 --> 00:03:27,740 We look forward to lots more chances to engage with him on the content of this lecture and on his his work more widely. 30 00:03:27,740 --> 00:03:41,180 Please join me in welcoming Steve's garage for his inaugural. Well, thank you. 31 00:03:41,180 --> 00:03:47,360 First, I want to thank everyone who has made it possible for me to be here this year, most especially Howard Jones, 32 00:03:47,360 --> 00:03:54,710 who helped my wife and I negotiate the logistics of this Balliol College and the Master of college, 33 00:03:54,710 --> 00:03:58,580 Dame Helen Ghosh, for sending me such a warm welcome. 34 00:03:58,580 --> 00:04:07,970 I was pleased to meet Vivian Harmes Wirth, secretary of the Rotherham Earth Foundation, and his wife, Alexandra, just a few minutes ago. 35 00:04:07,970 --> 00:04:12,770 I'm honoured to serve as the wine that visiting professor of American government. 36 00:04:12,770 --> 00:04:20,720 I look forward to many productive exchanges, both here at Rothenburg and throughout the university community. 37 00:04:20,720 --> 00:04:26,930 Now, at the risk of prompting a stampede for the exits, let me begin with a fair warning. 38 00:04:26,930 --> 00:04:34,850 I'm going to talk this evening about issues only tangentially related to Donald Trump. 39 00:04:34,850 --> 00:04:41,630 I hasten to add that we're convening a conference at Oxford Conference, doesn't I? 40 00:04:41,630 --> 00:04:47,930 Does King and I. There's also, I should acknowledge, has helped me make the most of my time here at Oxford. 41 00:04:47,930 --> 00:04:58,760 And I are organising a conference on the Trump presidency, be held at Nuffield on June 14th, and I hope that all your you all come to that. 42 00:04:58,760 --> 00:05:03,350 But as it happens, my interest over the past several years have turned back to larger. 43 00:05:03,350 --> 00:05:11,360 I think more serious issues are the same issues that preoccupied me before I began writing about the presidency. 44 00:05:11,360 --> 00:05:16,820 My work way back when dealt with issues of American state formation and my most 45 00:05:16,820 --> 00:05:22,160 recent book with Karen Warren that I'll just mention returns to that theme. 46 00:05:22,160 --> 00:05:32,720 This book, the policy state, is an attempt to identify and attempt to come to terms with a newly emerging form, a form we call the policy state. 47 00:05:32,720 --> 00:05:41,630 And this talk sketches of the outlines of a follow up study that I'll be thinking through my time during my time here. 48 00:05:41,630 --> 00:05:53,530 It uses that policy stage frame to address issues more directly related to the deepening crisis of governance in America today. 49 00:05:53,530 --> 00:05:58,720 Pundits, when they talk about this crisis and they talk about it constantly, 50 00:05:58,720 --> 00:06:08,770 they frame the crisis as a yes, but moment, yes, basic American institutions appear dysfunctional. 51 00:06:08,770 --> 00:06:13,420 Rights feel insecure. Rules seem unreliable. 52 00:06:13,420 --> 00:06:21,280 Parties are polarised. Norms are crumbling. But we've seen the likes of this before. 53 00:06:21,280 --> 00:06:27,400 Indeed, we've been through a lot worse. For me, this presents an interesting analytic problem. 54 00:06:27,400 --> 00:06:33,820 Simply put, American government boasts such a long history of success and navigating tough times 55 00:06:33,820 --> 00:06:39,590 that it's hard to gauge the significance of the issues that currently beset it. 56 00:06:39,590 --> 00:06:46,820 Time and again, the Constitution is whether it adjusted to seemingly intractable difficulties all along the way. 57 00:06:46,820 --> 00:06:50,060 Reformers have generated new governing arrangements. 58 00:06:50,060 --> 00:06:57,860 Arrangements wholly unanticipated by the original constitutional design by the 19th century saw the rise of a party state, 59 00:06:57,860 --> 00:07:05,090 a government we cast around political organisations that the framers of the Constitution feared and hoped to avoid. 60 00:07:05,090 --> 00:07:13,880 The 20th century gave us an administrative state. A programmatic government with powers of the Constitution's framers could scarcely have imagined. 61 00:07:13,880 --> 00:07:19,760 Reformation like these attests to the system's historic responsiveness and adaptability. 62 00:07:19,760 --> 00:07:25,610 They speak to American ingenuity in rethinking relations of power and authority. 63 00:07:25,610 --> 00:07:33,230 Left to speak for itself, this history would seem to offer assurances that the fundamentals are sound, that the Constitution is resilient. 64 00:07:33,230 --> 00:07:41,840 The current problems are manageable. That issues of governance above all issues of governance eventually take care of themselves. 65 00:07:41,840 --> 00:07:46,610 But that is the question, isn't it? Is that sense of security warranted? 66 00:07:46,610 --> 00:07:54,020 Our present difficulties really just more of the same with due regard for American history and ingenuity. 67 00:07:54,020 --> 00:07:56,120 I'm a sceptic. 68 00:07:56,120 --> 00:08:04,820 One reason for my scepticism is that historical adjustments have time and again altered the Constitution itself so that by dint of past changes, 69 00:08:04,820 --> 00:08:09,860 the system of authority on hand to grapple with current problems is a bit different 70 00:08:09,860 --> 00:08:15,500 from that which resolved earlier ones before we rest too comfortably on our history. 71 00:08:15,500 --> 00:08:22,790 I think we might want to take a closer look at institutional adaptation and its processes and its cumulative effects, 72 00:08:22,790 --> 00:08:27,470 and think more carefully about how they might bear on current prospects. 73 00:08:27,470 --> 00:08:33,560 If there's something in our long history of success that might be of special concern to Americans today, 74 00:08:33,560 --> 00:08:43,940 something categorically different about current problems of governance, I suspect it may lie in the mechanics of adjustment themselves. 75 00:08:43,940 --> 00:08:49,430 Safe to say, institutional adaptation has worked best when its aim for consistency. 76 00:08:49,430 --> 00:08:57,350 What do I mean by that? Well, principles of good government have been extrapolated from the Constitution's formal set up, 77 00:08:57,350 --> 00:09:03,440 and then those principles are redeployed in new arrangements that have altered the constitutions operations. 78 00:09:03,440 --> 00:09:09,200 Take the National Party Convention a signal innovation of that 19th century party state. 79 00:09:09,200 --> 00:09:14,270 It drew on constitutional principles, principles of federalism and representation, 80 00:09:14,270 --> 00:09:19,100 but it created new communities of interest that will cooperate across the institutions that the 81 00:09:19,100 --> 00:09:26,940 Constitution had purposefully divided and juxtaposed the Administrative Procedure Act a signal, 82 00:09:26,940 --> 00:09:33,710 a signal innovation of that 20th century administrative state that shows something similar. 83 00:09:33,710 --> 00:09:40,460 It concentrated in regulatory agencies powers distributed by the Constitution to the Congress and the courts. 84 00:09:40,460 --> 00:09:49,760 But it did so by dividing agency rulemaking from agency adjudication on the constitutional principle of the separation of powers. 85 00:09:49,760 --> 00:09:55,490 So when both of these examples, the Constitution provided guidance for innovations that transformed it. 86 00:09:55,490 --> 00:10:02,240 Consistency was found in the elevation of its principles over its forms. 87 00:10:02,240 --> 00:10:11,180 The development of American government is full of improvisations like these, each a reasoned institutional response to changes on the ground. 88 00:10:11,180 --> 00:10:18,800 Moreover, the record shows that easing the formal constraints on the exercise of authority that did just keep the system going. 89 00:10:18,800 --> 00:10:26,600 It also opened it up to new stakeholders previously excluded from full access to its services and its protections. 90 00:10:26,600 --> 00:10:29,900 Those hard won advances on the principle of government by we, 91 00:10:29,900 --> 00:10:39,500 the people or the pride of American political development and in large measure processes of adjustment have been assessed from that vantage point. 92 00:10:39,500 --> 00:10:48,320 So we know a lot about democratisation in America, about its initial incongruities, its uneven progress, its major achievements. 93 00:10:48,320 --> 00:10:52,400 It's still potent adversaries in politics and culture. 94 00:10:52,400 --> 00:10:58,310 What we know far less about, however, is how easing the constraints, eliminating the incongruities, 95 00:10:58,310 --> 00:11:08,070 facilitating greater inclusiveness has affected the Constitution's capacities to cope with the new issues and demands thrust upon it. 96 00:11:08,070 --> 00:11:15,060 Put that way, it may be less jarring to ask whether a government that was framed in writing some 220 years ago doesn't 97 00:11:15,060 --> 00:11:22,890 eventually encounter some serious problems directly related to its long history of institutional adaptation. 98 00:11:22,890 --> 00:11:26,370 The dynamic that I just described adaptation at its best. 99 00:11:26,370 --> 00:11:33,630 This would seem on its own terms self-limiting as constitutional formalities are more steeply discounted, 100 00:11:33,630 --> 00:11:39,160 it will likely to get harder to find traction in all the different principles derived from it. 101 00:11:39,160 --> 00:11:44,890 Easing institutional constraints may help in incorporating the interests of a wider range of stakeholders, 102 00:11:44,890 --> 00:11:50,920 but it's also likely to make it harder to reach consensus on new rules about how to govern. 103 00:11:50,920 --> 00:11:56,500 The inner intuition I want to pursue in this new project is that repeated extrapolations from 104 00:11:56,500 --> 00:12:02,260 the same basic forums will gradually rob governing principals of their institutional grounding, 105 00:12:02,260 --> 00:12:06,080 rendering them more abstract and less tractable. 106 00:12:06,080 --> 00:12:14,520 That serial accommodations and rearrangements will eventually make it more difficult to say with authority what is consistent and what is not. 107 00:12:14,520 --> 00:12:23,800 On this reasoning, opening up the old frame to alternative interpretations of permissible governmental action will not only help the system adjust, 108 00:12:23,800 --> 00:12:29,890 will also give rise to a principled free for all and hollow the system out. 109 00:12:29,890 --> 00:12:39,610 I call this the adaptability paradox. Warned of past success and submerged in our greatest Democratic achievements. 110 00:12:39,610 --> 00:12:48,420 It bears directly on our national faith that the Constitution is self-correcting and that more serviceable arrangements lie just around the corner. 111 00:12:48,420 --> 00:12:58,560 As I presented it, just as I presented it thus far, it's just an inference, a historical structural conjecture, if you will. 112 00:12:58,560 --> 00:13:01,650 But it's not without contemporary resonance. 113 00:13:01,650 --> 00:13:09,720 The previous institutional settlement that administrative state took hold in the first half of the 20th century. 114 00:13:09,720 --> 00:13:13,830 Politics in America has become an all fronts assault on the principles that produce 115 00:13:13,830 --> 00:13:19,650 that adaptation and yet convergence on an alternative is nowhere in sight. 116 00:13:19,650 --> 00:13:23,820 The issues now at the fore did not arrive suddenly with the Trump presidency. 117 00:13:23,820 --> 00:13:32,880 American government has been in what many call transition since the rights revolution swept the nation in the 1960s and 70s a half century ago, 118 00:13:32,880 --> 00:13:37,170 and little that's happened in those intervening decades instils confidence that 119 00:13:37,170 --> 00:13:42,470 our institutions are slowly edging their way toward the next ingenious reset. 120 00:13:42,470 --> 00:13:47,660 To be sure, there's been no shortage of ideas about what a principled path forward might look like. 121 00:13:47,660 --> 00:13:57,670 The problem that's now coming into focus is that the authority sufficient to sustain support for any one of those ideas has evaporated. 122 00:13:57,670 --> 00:14:01,030 That's just what one might expect when the formal arrangement of authority has 123 00:14:01,030 --> 00:14:07,710 been hollowed out and the different principles behind it all thrown up for grabs. 124 00:14:07,710 --> 00:14:13,290 The adaptability paradox I propose rests on observable developmental dynamics, 125 00:14:13,290 --> 00:14:20,760 but by before I bring these profitable remarks to a close, let me stake out the analytic ground and opens up. 126 00:14:20,760 --> 00:14:31,270 Against other perspectives on the right and on the left. Against the right, the adaptability paradox discards nostalgia for the way things once were. 127 00:14:31,270 --> 00:14:35,470 It confronts directly the historical incongruities of constitutional government 128 00:14:35,470 --> 00:14:39,550 in the United States and tackles governing problems as we find them now, 129 00:14:39,550 --> 00:14:47,030 without insisting that somewhere along the way, American political development must have made a wrong turn. 130 00:14:47,030 --> 00:14:55,250 Against the left, the adaptability paradox identifies problems encountered in the process of democratisation that have compromised the structure of 131 00:14:55,250 --> 00:15:05,330 decision making authority itself prioritises those problems over the other social problems now pressing for policy solutions. 132 00:15:05,330 --> 00:15:09,830 My concerns lie with developments that are robbing policy solutions of their legitimating 133 00:15:09,830 --> 00:15:15,410 anchors and limiting the gains to be realised from muscling new policies through. 134 00:15:15,410 --> 00:15:21,080 The adaptability paradox focuses attention then on democratic advances that seem to have 135 00:15:21,080 --> 00:15:29,000 outstripped their institutional accommodations and put the future of American democracy at risk. 136 00:15:29,000 --> 00:15:38,090 So. And still piecing the story together, I can, however, elaborate on its two central elements. 137 00:15:38,090 --> 00:15:41,720 I'll divide the remainder of these remarks into two parts. 138 00:15:41,720 --> 00:15:51,500 First, I'll offer a brief schematic history, a broad overview of the mechanics of adaptation opening on to the current impasse. 139 00:15:51,500 --> 00:16:02,370 And second, I'll survey some basic principles principles old and new that seem to be losing traction and digging governance deeper into a hole. 140 00:16:02,370 --> 00:16:07,380 My cinematic history begins with, appropriately enough, with the framing of the Constitution, 141 00:16:07,380 --> 00:16:13,900 that was a beginning of sorts, but it was also interestingly also an adaptation. 142 00:16:13,900 --> 00:16:16,090 Like later resets the Constitution, 143 00:16:16,090 --> 00:16:24,160 we organised operations around shared principles so as to ease strains mounting on the received governing arrangements. 144 00:16:24,160 --> 00:16:31,840 The framers immediate objective was to bring a bit more governance under national authority and to relax constraints on its exercise. 145 00:16:31,840 --> 00:16:35,360 And that proved to be the pattern going forward. 146 00:16:35,360 --> 00:16:42,350 Notwithstanding the encompassing principles, but defended the constitution or the sovereign act of locking it in, 147 00:16:42,350 --> 00:16:47,780 the changes in governance contemplated in its structure were incremental. 148 00:16:47,780 --> 00:16:53,960 In fact, most of governance in America continued on after ratification, as it had before, 149 00:16:53,960 --> 00:17:00,530 on legal foundations that were far older than the Constitution and far more deeply entrenched. 150 00:17:00,530 --> 00:17:06,140 Prior writes untouched by the Constitution's reconfiguration of authority, 151 00:17:06,140 --> 00:17:13,430 incongruous with its professed principles, implicitly excluded from its programmatic ambitions. 152 00:17:13,430 --> 00:17:15,810 They did the bulk of the work. 153 00:17:15,810 --> 00:17:24,000 Carried over from time out of mind, anchored and more in assumption than an argument in force, mainly at the local level. 154 00:17:24,000 --> 00:17:29,900 These claims regulated and protected much of the previously established order of things. 155 00:17:29,900 --> 00:17:34,520 These prior rights, which deeper than the formal declarations of the Bill of Rights, 156 00:17:34,520 --> 00:17:39,700 which were at the time, just additional assertions of the Constitution's principles. 157 00:17:39,700 --> 00:17:47,510 Rights unmentioned and largely indifferent to those principles, organise relations throughout early American society. 158 00:17:47,510 --> 00:17:55,490 Masters over slaves, employers, over employees, husbands, over wives, fathers, over children. 159 00:17:55,490 --> 00:18:04,910 With all of that authority off the table, the new platform of institutions and principles erected by the Constitution carried a relatively light load 160 00:18:04,910 --> 00:18:11,060 tests a grounding in this governance by other means not only to limit the reach of the framers arrangements. 161 00:18:11,060 --> 00:18:15,050 It also served to articulate those arrangements and to bind them together. 162 00:18:15,050 --> 00:18:24,440 As a practical matter, the new platform drew much of its structural integrity from all the rest of the governing being done beneath them. 163 00:18:24,440 --> 00:18:31,610 In effect, the Constitution authorised a refined stratum of rights holders to contend over national matters of concern to them, 164 00:18:31,610 --> 00:18:39,950 largely issues of trade and security. The principle declarations and reasoned divisions that riddled the frame reflected that community's 165 00:18:39,950 --> 00:18:46,440 consensus on how best to make decisions within the domain of discretion that it set for itself. 166 00:18:46,440 --> 00:18:57,060 The new arrangement, the formal structure of federalism, separation checks, enumeration, mixed representations, the serve, the interest recognised. 167 00:18:57,060 --> 00:19:05,470 It assured rightsholders anxious about the government's new policy making powers that they could keep everything else the same. 168 00:19:05,470 --> 00:19:09,340 Describing the initial conjunction of history and structure in this way, 169 00:19:09,340 --> 00:19:19,390 that is a constitutional ordering of authority articulated and bound together by the concurrent operation of other incongruous orders of authority. 170 00:19:19,390 --> 00:19:26,950 This serves both to identify the major fault lines of this system and to bring the mechanics of adaptation more clearly into focus. 171 00:19:26,950 --> 00:19:31,430 As we know, things did not remain the same. One by one, 172 00:19:31,430 --> 00:19:40,410 those old social hierarchies were overthrown and the burdens of governing shifted incrementally upward onto the constitutional platform itself. 173 00:19:40,410 --> 00:19:45,900 The implications were two fold practical operations pushed farther afield of the assumptions 174 00:19:45,900 --> 00:19:51,000 embedded in the formal structure of constitutional authority and principles consistent with 175 00:19:51,000 --> 00:19:56,970 that structure were enlisted to accommodate the alternative arrangements improvised when newly 176 00:19:56,970 --> 00:20:02,310 recognised claimants demanded more of government than the original frame had anticipated. 177 00:20:02,310 --> 00:20:06,690 When the programmatic interventions necessary to give effect to their newfound rights tax. 178 00:20:06,690 --> 00:20:15,720 The Constitution's cumbersome divisions when the scope of conflict amongst rights holders widened, principals stepped into the breach. 179 00:20:15,720 --> 00:20:21,690 They helped relax formal constraints. They rendered new arrangements compatible with the Constitution. 180 00:20:21,690 --> 00:20:27,930 They facilitated the management of a burgeoning array of rights and policies. 181 00:20:27,930 --> 00:20:36,120 I think that these dynamics are equally instructive when there consider the other way around, because the burden on principals increase gradually, 182 00:20:36,120 --> 00:20:42,420 governance beyond their reach remain substantial, even as the community of rights holders expanded. 183 00:20:42,420 --> 00:20:49,620 Those boundaries continue to ease the way for those incorporated to reach some new accommodation on how to govern. 184 00:20:49,620 --> 00:20:56,480 In this way, tacit grounding in governance by other means aided the whole long history of adaptation. 185 00:20:56,480 --> 00:21:06,010 As in the initial reset of 1789, the new issues of governance to be accommodated in each subsequent round of reordering were limited. 186 00:21:06,010 --> 00:21:13,990 Stakeholders could buy into the new arrangements under SURANCE that other governing relationships of concern to them would remain unaffected. 187 00:21:13,990 --> 00:21:15,640 So what we view in retrospect, 188 00:21:15,640 --> 00:21:24,840 as constitutional resilience was always conditioned on the operation of governance outside the formal written arrangements. 189 00:21:24,840 --> 00:21:31,410 The outstanding question, the historical structural question is what happens when the serial extension to 190 00:21:31,410 --> 00:21:36,600 principles runs out of exclusions and there's nothing left to circumscribe them? 191 00:21:36,600 --> 00:21:43,700 What happens when everyone is included and its principles all the way down? 192 00:21:43,700 --> 00:21:49,130 The belted resilience of the major post constitutional post constitutional adjustments 193 00:21:49,130 --> 00:21:54,890 is evident in the first of the great adaptations the party's state of the 19th century. 194 00:21:54,890 --> 00:22:04,370 The early decades of that century witnessed a revolt against rule by notables, the extension of voting rights to white men, rapid expansion westward. 195 00:22:04,370 --> 00:22:07,970 All of this open the national government to a wider range of claimants. 196 00:22:07,970 --> 00:22:15,470 It also sharpened the national expression of political conflict and abraded more deeply seated rights. 197 00:22:15,470 --> 00:22:20,810 In response, a new breed of state managers grasp an alternative governing instrument. 198 00:22:20,810 --> 00:22:26,810 Political parties. Though previously seen as a threat to the integrity of the Constitution, 199 00:22:26,810 --> 00:22:33,680 political parties endorsed a more fulsome expression of the principle of popular sovereignty and by ratifying changes on the ground, 200 00:22:33,680 --> 00:22:39,860 they accommodated a significant broadening of participation in political political affairs. 201 00:22:39,860 --> 00:22:45,980 Simultaneously, these parties reorganised constitutional relationships from the bottom to the top. 202 00:22:45,980 --> 00:22:50,030 They integrated national power into local centres of political activity. 203 00:22:50,030 --> 00:22:54,380 They coordinated the action across separated branches of the national government. 204 00:22:54,380 --> 00:23:01,070 They facilitated the distribution of the federal largesse across a sprawling territory. 205 00:23:01,070 --> 00:23:11,310 These parties also served as a containment mechanism. Their bottom up organisation protected local discretion over new conflicts brewing. 206 00:23:11,310 --> 00:23:18,840 Antebellum party managers built rival cross sectional coalitions that braced the nation against the rising slavery 207 00:23:18,840 --> 00:23:25,930 controversy and assured anxious slave masters that the new democracy would protect their other interests. 208 00:23:25,930 --> 00:23:33,400 That was bounded resilience once the conflict over slavery broke through the institutional arrangements designed to contain it. 209 00:23:33,400 --> 00:23:39,230 The system collapsed in constitutional crisis and civil war. 210 00:23:39,230 --> 00:23:45,650 The next adaptation proved a misfire, but I think it's no less instructive for that. 211 00:23:45,650 --> 00:23:52,940 In the war's aftermath, amendments ratified to aid in the reconstruction of government gave rights to former slaves and authorised Congress 212 00:23:52,940 --> 00:24:00,080 to create new arrangements for the accommodation of that momentous extension of the Constitution's principles. 213 00:24:00,080 --> 00:24:07,280 But despite the seemingly authoritative articulation of principles, the old forms did not give way to new inclusions. 214 00:24:07,280 --> 00:24:16,770 As I see it, this failure of reconstruction offers a stark illustration of the trade-offs involved in all such efforts. 215 00:24:16,770 --> 00:24:23,040 The residual claims of federalism, the separation of powers, states rights, the decentralised parties themselves, 216 00:24:23,040 --> 00:24:29,830 these prove formidable obstacles to the extension of programmatic rights to the freedmen. 217 00:24:29,830 --> 00:24:35,020 Before men are just exhausted themselves without providing the protections adequate to the incorporation 218 00:24:35,020 --> 00:24:40,480 of the new entrants and with the incursion on the old institutional boundaries contained, 219 00:24:40,480 --> 00:24:45,700 the party state resumed its operations with only minor adjustments. 220 00:24:45,700 --> 00:24:53,480 Here, in effect, was an elaboration of principles stymied by the resilience of the old forms. 221 00:24:53,480 --> 00:25:01,400 More decisive breakthroughs came in the 20th century, the rise of an administrative state and its early decades track deepening industrial 222 00:25:01,400 --> 00:25:06,620 conflict and culminated during the new deal with the displacement of the ancient common law, 223 00:25:06,620 --> 00:25:15,410 ordering of workplace relations and the ratification of workers rights to organise and bargain collectively with their employers. 224 00:25:15,410 --> 00:25:20,870 With the interests of the working class incorporated into a contentious new industrial democracy, 225 00:25:20,870 --> 00:25:28,850 the bottom fell out of the Constitution's Commerce Clause. Virtually all the nation's commerce became subject to national regulation, 226 00:25:28,850 --> 00:25:35,150 and the formalities of dual sovereignty gave way to a marble cake arrangement where relations between state and national 227 00:25:35,150 --> 00:25:42,530 governments grew progressively more cooperative as programmatic regulation of the national economy expanded its reach. 228 00:25:42,530 --> 00:25:50,540 Much of the responsibility for management shifted off the formal structure of the Constitution and onto bureaus of experts. 229 00:25:50,540 --> 00:25:59,210 Constitutional relationships were re-engineered in the wake of the new deal around accommodation to non-partisan administration and agency rulemaking, 230 00:25:59,210 --> 00:26:03,230 inter-related statutes enacted in the years straddling World War Two. 231 00:26:03,230 --> 00:26:08,450 Hammered out this new settlement, the Executive Reorganisation Act of 1939, 232 00:26:08,450 --> 00:26:14,660 the Administrative Procedure Act of 1946, the Legislative Reorganisation Act of 1946. 233 00:26:14,660 --> 00:26:23,250 The Employment Act of 1946. A concerted systemic constitutional shift. 234 00:26:23,250 --> 00:26:28,980 Several features of the new system that congealed in 1946 stand out for attention. 235 00:26:28,980 --> 00:26:36,270 One is that unlike the Civil War Experiment, the reconstruction experiment, this one rested entirely on statute's a rearrangement. 236 00:26:36,270 --> 00:26:41,760 As comprehensive as this would have been hard to work through the formal amendment process. 237 00:26:41,760 --> 00:26:48,930 By the same token, however, this achievement relax core distinctions in American constitutional law lines, 238 00:26:48,930 --> 00:26:53,160 demarcating the formal structure of government from policy lines, 239 00:26:53,160 --> 00:26:55,380 demarcating rights from policy, 240 00:26:55,380 --> 00:27:04,160 these grew more porous and the domain open to alternative interpretations and political choices widened correspondingly. 241 00:27:04,160 --> 00:27:10,340 Not surprisingly, re-establishing order under these circumstances compounded the burden on principals. 242 00:27:10,340 --> 00:27:14,970 Government reached farther afield to rationalise these new arrangements. 243 00:27:14,970 --> 00:27:23,390 Relying now on science and expertise to support greater cooperation amongst the authorities separated by the constitutional design. 244 00:27:23,390 --> 00:27:28,580 Faith in administrative objectivity and professional competence inform the supervisory duties of 245 00:27:28,580 --> 00:27:35,440 each of the three branches and compensated for the relaxation of formal divisions amongst them. 246 00:27:35,440 --> 00:27:45,740 Finally, and with all due regard for the heavy lifting done being done by these new principles, prior right still held much out of bounds. 247 00:27:45,740 --> 00:27:53,990 As in the party's state of the 19th century and the original constitution before that, this reset too was held together by what was left out. 248 00:27:53,990 --> 00:27:57,590 The South was keen to tap into the new services on offer, 249 00:27:57,590 --> 00:28:04,570 but the region bought into the new arrangement only on assurances that racial hierarchies would remain undisturbed. 250 00:28:04,570 --> 00:28:10,720 The southern delegations became the political balance wheel of America's industrial democracy. 251 00:28:10,720 --> 00:28:17,110 No legislation could be passed on either economic affairs or race relations that the South would not accept. 252 00:28:17,110 --> 00:28:24,090 The new arrangement remained resilient so long as the rights of racial minorities were held beyond reach. 253 00:28:24,090 --> 00:28:30,930 This bounded resilience of America's administrative state, the principled consensus, the practical cooperation, 254 00:28:30,930 --> 00:28:36,540 the rule based regularity in government attained in that settlement rested on limits 255 00:28:36,540 --> 00:28:41,730 that the rights revolution of the 60s and 70s shattered the civil rights movement, 256 00:28:41,730 --> 00:28:46,930 broke the back of the remaining structural protections for social hierarchy and for a critical period. 257 00:28:46,930 --> 00:28:52,680 Cooperative partnerships between state and national governments gave way to coercive federalism, 258 00:28:52,680 --> 00:28:58,440 with the national government dictating terms of inclusion to the governments below. 259 00:28:58,440 --> 00:29:09,240 Since that breakthrough, the incorporation of new claimants has picked up steam to include other racial minorities, women, young people, gay people. 260 00:29:09,240 --> 00:29:16,200 So if there is something categorically new, something different about the problems that beset American government today, 261 00:29:16,200 --> 00:29:22,650 it's just this for the first time, there are no assumed exclusions from the Constitution's principles. 262 00:29:22,650 --> 00:29:30,600 No other means of governing to facilitate agreement on rules for institutional action and to restore regularity. 263 00:29:30,600 --> 00:29:38,580 National institutions then fully fully exposed, open to all the interests once dealt with by localism and prior right. 264 00:29:38,580 --> 00:29:47,920 Everyone is engaged all at once. On a field of choice were principles range free against the historically weakened boundaries of the formal structure. 265 00:29:47,920 --> 00:29:56,330 Every issue was a national issue. Authority is jumbled. Discretion is broad politics unbridled? 266 00:29:56,330 --> 00:30:02,760 These are the cumulative effects of development and development is not benign. 267 00:30:02,760 --> 00:30:08,370 These effects seem to weigh heavily against another institutional reset. 268 00:30:08,370 --> 00:30:12,780 The shedding of old incongruities is surely the Constitution's crowning achievement, 269 00:30:12,780 --> 00:30:19,320 but the free play of its principles does not make it easier to forge agreement on a consistent path forward. 270 00:30:19,320 --> 00:30:26,170 On the contrary, constitutional government of the United States seems to face a new and severe test. 271 00:30:26,170 --> 00:30:28,150 When there are no issues to bracket or exclude, 272 00:30:28,150 --> 00:30:34,780 it's harder for these old forms to reach new accommodations amongst their many amongst its many conflicting principles, 273 00:30:34,780 --> 00:30:40,150 harder for them to sustain rules, harder for those forms to firm up commitments and priorities, 274 00:30:40,150 --> 00:30:45,580 harder for them to contain conflicts amongst the burgeoning community of rights holders. 275 00:30:45,580 --> 00:30:49,570 When the scope of political choice over social relations is wide open, 276 00:30:49,570 --> 00:30:58,930 interpretations of the proper ordering of authority find no firm resting place, no durable settlement when its principles all the way down. 277 00:30:58,930 --> 00:31:03,180 No one can discount the importance of who is next in charge. 278 00:31:03,180 --> 00:31:11,480 Mutual forbearance is eclipsed by mobilisation and counter mobilisation each way with intent on rearranging authority for itself. 279 00:31:11,480 --> 00:31:19,880 The long history of bounded resilience is over. And for all appearances, governance is at its wits end. 280 00:31:19,880 --> 00:31:26,710 Now, to be clear. There is nothing especially surprising about the fact that the social revolution 281 00:31:26,710 --> 00:31:32,050 of the 60s and 70s unsettled institutional relationships across the board. 282 00:31:32,050 --> 00:31:36,700 My claim is that since that inflexion point, principles have been losing traction, 283 00:31:36,700 --> 00:31:43,360 seemingly unable to sustain any agreement, sustain any agreeable reordering. 284 00:31:43,360 --> 00:31:51,270 If my diagnosis is correct. It paradoxically, the system's resilience has been compromised by its greatest achievements. 285 00:31:51,270 --> 00:31:57,570 If responses to heightened levels of stress have seriously relax constraints and eroded the system's filters and boundaries, 286 00:31:57,570 --> 00:32:03,030 we should see a similar pattern across a wide range of disparate developments. 287 00:32:03,030 --> 00:32:08,430 If we observe an accelerating shake down of institutional authority along a number of different dimensions, 288 00:32:08,430 --> 00:32:15,900 with principles fuelling the very conflicts they're meant to mollify, then I think my diagnosis becomes a bit more plausible. 289 00:32:15,900 --> 00:32:21,870 So let me now turn to the second part of these remarks. A survey of the burdens mounting on principals. 290 00:32:21,870 --> 00:32:29,900 I'm compiling an inventory. What are you doing here? But in the interest of time, I'll select just for. 291 00:32:29,900 --> 00:32:37,040 In each case, I want to call attention to a qualitative shift in changes underway since the 1970s. 292 00:32:37,040 --> 00:32:43,490 First, the leading principle of good government, the rule of law, 293 00:32:43,490 --> 00:32:49,040 the rule of law relies above all else on faith in the independence and impartiality of judges. 294 00:32:49,040 --> 00:32:56,810 You see where this is going? Judicial confirmation hearings still elicit ritual endorsements of those values. 295 00:32:56,810 --> 00:33:03,690 I have no agenda at nominee John Roberts. My job is to call balls and strikes, not to pitch or bat. 296 00:33:03,690 --> 00:33:09,090 Or, as Brett Kavanaugh insisted more recently at his own more explosive confirmation hearing, 297 00:33:09,090 --> 00:33:20,290 the Supreme Court must never be viewed as a partisan institution. Neutrality is always a testy proposition in democracies. 298 00:33:20,290 --> 00:33:26,560 Scepticism about these pretensions in America dates back to Jefferson's critique of the federal lock on the judiciary, 299 00:33:26,560 --> 00:33:32,260 and court battles have been a prominent feature of the politics of adjustment ever since. 300 00:33:32,260 --> 00:33:35,740 Until recently, however, there's been a fallback position, 301 00:33:35,740 --> 00:33:41,500 the fallback position that justice will eventually conform to a new governing consensus that has helped 302 00:33:41,500 --> 00:33:47,920 sustain faith in the rule of law and to keep those politically inspired court battles intermittent. 303 00:33:47,920 --> 00:33:54,400 It's that fallback position which is now in jeopardy as full inclusion has weakened consensus. 304 00:33:54,400 --> 00:33:58,900 It's also exposed the court's authority a safeguard of the rule of law. 305 00:33:58,900 --> 00:34:06,340 The problem is twofold deepening political divisions make governmental action more reliant on faith in neutral arbiters, 306 00:34:06,340 --> 00:34:12,550 while at the same time they rob the principle of neutrality of much of its political purchase, 307 00:34:12,550 --> 00:34:19,540 the rights revolution at once expanded judicial discretion and narrow the ground of national political agreement. 308 00:34:19,540 --> 00:34:22,960 Ever since, the judiciary has been under intense political pressure, 309 00:34:22,960 --> 00:34:29,950 its traditional claims to authority swept up in an escalating battle for control over the shape of social relations. 310 00:34:29,950 --> 00:34:35,320 One effect has been to subject judicial appointments top to bottom to ideological litmus tests. 311 00:34:35,320 --> 00:34:39,430 This was begun by Richard Nixon and institutionalised by Ronald Reagan. 312 00:34:39,430 --> 00:34:43,780 Intensive political screening by rotating bands of partisans has extended the 313 00:34:43,780 --> 00:34:48,640 contentiousness in your resolution of the political branches into the courts. 314 00:34:48,640 --> 00:34:55,090 One high profile court decisions divide sharply, according to the partisan affiliation of the appointing president. 315 00:34:55,090 --> 00:35:01,200 Faith in the rule of law corrodes, as does the independent authority of the court itself. 316 00:35:01,200 --> 00:35:10,400 A related effect is the practical conflation of judicial reasoning about the scope of rights and the boundaries of structure with mere policy choices. 317 00:35:10,400 --> 00:35:20,530 Consider federalism. In 1976, the court in its Ussery decision began what would become a long halting campaign to push back against the incursions of 318 00:35:20,530 --> 00:35:28,510 the New Deal in the great society and to restore a principled integrity to the federal structure of American government. 319 00:35:28,510 --> 00:35:38,020 Less than a decade into that experiment, however, the Swing Justice and Ussery bolted and a new majority declared efforts to protect the traditional 320 00:35:38,020 --> 00:35:44,800 governmental functions of the states to protect those against national regulation declared them unworkable, 321 00:35:44,800 --> 00:35:53,470 bereft of any organising principle. An affront to Democratic self-governance and effort by an unelected judiciary to make decisions 322 00:35:53,470 --> 00:35:59,410 about which policies it favours and which it dislikes tilting toward democratic principles. 323 00:35:59,410 --> 00:36:07,150 The majority of nineteen eighty five left the boundaries of federalism to be decided by the political process. 324 00:36:07,150 --> 00:36:14,720 Decisions like these underscored just how difficult it's become to determine with authority what is consistent and what is not. 325 00:36:14,720 --> 00:36:20,120 Twenty eight years later, Shelby County versus Holder has the earmarks of a similar foray. 326 00:36:20,120 --> 00:36:25,790 Another ringing defence of Federalist principles, this time against the alleged ravages of the Voting Rights Act. 327 00:36:25,790 --> 00:36:28,770 This decision to rope five to four. 328 00:36:28,770 --> 00:36:34,830 The dissenters in Shelby Shelby presented compelling arguments that the majority had the value of rights and the value 329 00:36:34,830 --> 00:36:42,900 of structure exactly backwards and political efforts to fashion a workaround immediately became an opposition priority. 330 00:36:42,900 --> 00:36:50,520 In fact, by recognising the the Congress's authority to act and objecting only to the way it had gone about its rightful business, 331 00:36:50,520 --> 00:36:58,650 the majority in Shelby provoked more than it resolved. It appeared despite itself to solicit political responses. 332 00:36:58,650 --> 00:37:01,620 It put little light between the rule of law and judges preferences. 333 00:37:01,620 --> 00:37:06,540 And as those distinctions get harder to draw as the practical entanglements of structure, 334 00:37:06,540 --> 00:37:14,040 rights and policy become harder to sort out, convincingly, settlements become more tenuous. 335 00:37:14,040 --> 00:37:18,930 Finding an authoritative voice for the law is more difficult now, not because judges lack principles, 336 00:37:18,930 --> 00:37:25,490 but because principles are all there are to work with in setting the rules to which others are expected to defer. 337 00:37:25,490 --> 00:37:30,740 The settled boundaries, which once stiffened the rules with firm backstops on interpretation and choice, 338 00:37:30,740 --> 00:37:38,180 that that's gone the way of old social exclusions. It's not just that there are always competing principles that point some other way, 339 00:37:38,180 --> 00:37:44,860 it's that there's nothing no longer anything beyond the play of principles to the limit the choices made. 340 00:37:44,860 --> 00:37:50,890 Individual judges seeking consistency in action reach for theories of constitutional interpretation. 341 00:37:50,890 --> 00:37:55,300 But there are now an unprecedented variety of such theories. 342 00:37:55,300 --> 00:37:58,510 Each builds on a different set of constitutional principles, 343 00:37:58,510 --> 00:38:05,350 so adherence to one or the other serves as a proxy of support for a contentious set of policy choices. 344 00:38:05,350 --> 00:38:13,390 Chief Justice Roberts has been alert to these dangers. He's identified Block like voting on major cases and the appearance of stark ideological 345 00:38:13,390 --> 00:38:18,790 divisions on the court as the most serious threats facing judicial authority today. 346 00:38:18,790 --> 00:38:24,670 But there's no sign that anyone except Roberts is interested in providing relief. 347 00:38:24,670 --> 00:38:26,920 Since Roberts first expressed those concerns, 348 00:38:26,920 --> 00:38:33,130 Senate Majority Leader Harry Reid and Mitch McConnell have abandoned supermajority requirements for court appointments, 349 00:38:33,130 --> 00:38:38,750 easing the way toward an even more ideologically charged and policy driven judiciary. 350 00:38:38,750 --> 00:38:45,470 In 2016, we know the Senate refused to consider Barack Obama's nomination of Merrick Garland to the Supreme Court. 351 00:38:45,470 --> 00:38:50,480 And after alerting the nation to the potential alteration of the ideological balance on the bench, 352 00:38:50,480 --> 00:38:55,540 its leadership actively encourage political mobilisation around the vacancy. 353 00:38:55,540 --> 00:39:01,600 Donald Trump, the Republican nominee, followed up rallying support for his candidacy by brandishing a list of 354 00:39:01,600 --> 00:39:07,280 prospective judicial nominees certified by conservative political action groups. 355 00:39:07,280 --> 00:39:12,530 As Trump, as President Trump has called into question the motivation behind adverse judicial rulings, 356 00:39:12,530 --> 00:39:15,830 cast aspersions on the integrity of the judicial process, 357 00:39:15,830 --> 00:39:22,930 and touted his own appointments to the court as a political service delivered as promised to his electoral base. 358 00:39:22,930 --> 00:39:27,970 This accelerating erosion of institutional protections for the principle of the rule of law, 359 00:39:27,970 --> 00:39:33,730 it's de facto fusion with national party combat, electoral mobilisation and policy demand. 360 00:39:33,730 --> 00:39:37,120 This is a burden the court is unlikely to shake. 361 00:39:37,120 --> 00:39:43,300 Roberts has recently pushed back against Trump's charge that there are Obama judges and there are Bush judges. 362 00:39:43,300 --> 00:39:47,710 But these unusual protestations from the bench seem only to acknowledge developments that 363 00:39:47,710 --> 00:39:53,300 are compromising the court's central mission to say with authority what the law is. 364 00:39:53,300 --> 00:40:01,310 As perceptions of the court's neutrality erode, I think we can expect challenges to that authority to become more routine. 365 00:40:01,310 --> 00:40:12,270 For a second example. Let me turn to the leading principle principle behind the administrative state authority in competence. 366 00:40:12,270 --> 00:40:18,660 And its rise to prominence, this administrative state promised to surmount the limitations of courts and parties alike. 367 00:40:18,660 --> 00:40:22,980 Reformers offered new principles to help manage industrial society, 368 00:40:22,980 --> 00:40:27,870 and they worked over decades to transform constitutional relationships accordingly. 369 00:40:27,870 --> 00:40:33,750 Policy science grounded in objective analysis, technical expertise and professional judgement. 370 00:40:33,750 --> 00:40:37,920 These held out a substitute for older forms of authority. 371 00:40:37,920 --> 00:40:47,390 It promised to ease checks to promote cooperation to provide Walter Lippmann called a new discipline for democracy. 372 00:40:47,390 --> 00:40:55,100 As with judicial neutrality, neutrality neutral competence in administration was never accepted at face value. 373 00:40:55,100 --> 00:41:02,180 Perceptions of political bias at the National Labour Relations Board drove enactment of the Administrative Procedure Act, 374 00:41:02,180 --> 00:41:10,670 but the general reworking of constitutional relationships that culminated in 1946 provide provided a new framework of accountability, 375 00:41:10,670 --> 00:41:16,940 one that elevated administrative competence into a vital principle of good government. 376 00:41:16,940 --> 00:41:24,980 Then with the opening to new rights and a corresponding white, correspondingly wider range of programmatic interventions, 377 00:41:24,980 --> 00:41:33,680 the power of administrators was more fully exposed and the centrepiece of the received order became more contentious in the 1970s. 378 00:41:33,680 --> 00:41:41,240 Each of the three branches began simultaneously to reassert its constitutional prerogatives more aggressively, 379 00:41:41,240 --> 00:41:47,120 with the effect of slowly pulling administrative management into a principled melee. 380 00:41:47,120 --> 00:41:52,430 This resurgence of formal reasoning after decades of adjustment to its practical limitations, 381 00:41:52,430 --> 00:41:58,040 this has done less to eliminate dependence on administration than to cast doubt on administrative 382 00:41:58,040 --> 00:42:03,860 competence and to compromise administrative rationality with everyone doubling down on principles. 383 00:42:03,860 --> 00:42:09,710 The value of regularity is getting buried in divergent purposes and shifting political winds. 384 00:42:09,710 --> 00:42:17,510 The administrative state that formation that prioritised rules professional authority cooperation around expertise. 385 00:42:17,510 --> 00:42:23,750 This is a thing of the past. To subordinate administration more directly to the White House. 386 00:42:23,750 --> 00:42:29,210 Presidents draw on the constitutional principle of the unitary executive. 387 00:42:29,210 --> 00:42:34,850 The pattern since the Nixon administration has been to sideline instruments of Inter branch cooperation lodged by the 388 00:42:34,850 --> 00:42:41,710 Congress in the Executive Office and to concentrate agenda control instead in the political offices of the West Wing. 389 00:42:41,710 --> 00:42:46,790 Presidents extend the reach of loyal political operatives deeper into the administrative hierarchy, 390 00:42:46,790 --> 00:42:52,060 and they set policy more routinely unilaterally through executive orders. 391 00:42:52,060 --> 00:42:59,620 Congress resists this drive toward presidential ism, and by asserting its own constitutional authority, is the premier lawmaking body. 392 00:42:59,620 --> 00:43:03,580 It too closes in on administrators, amongst other things. 393 00:43:03,580 --> 00:43:07,930 Congress established the Congressional Budget Office to compete for agenda control. 394 00:43:07,930 --> 00:43:14,530 It recast its General Accounting Office as a General Accountability Office for tighter programme supervision. 395 00:43:14,530 --> 00:43:22,330 It wrote more detailed statutes its Congressional Review Act made it easier for legislators to reverse agency rules. 396 00:43:22,330 --> 00:43:28,210 For its part, the Court two expanded its stockpile of supervisory supervisory roles, 397 00:43:28,210 --> 00:43:32,080 allowing it to tighten or loosen its review of agency decisions more freely. 398 00:43:32,080 --> 00:43:38,890 Case by case, this has made it harder to find rhyme or reason in the application of any rule. 399 00:43:38,890 --> 00:43:46,360 For example, the court has recently signalled a readiness just to discard its fabled Chevron doctrine that is a settlement from the 1980s that 400 00:43:46,360 --> 00:43:53,620 purported to sort things out to recognise congressional presidential administrative prerogatives and to limit judicial review. 401 00:43:53,620 --> 00:44:00,520 Accordingly, such deference, the court now says, need not apply when it's dealing with a major question. 402 00:44:00,520 --> 00:44:08,950 This irregular offering squeeze on administrative competence presents itself as a revival of formal constitutional principles of accountability. 403 00:44:08,950 --> 00:44:15,700 What could be wrong with that? But the Constitution did not anticipate the administrative state and its adaptation to 404 00:44:15,700 --> 00:44:21,760 that arrangement rested on the semblance of a consensus on new ordering principles. 405 00:44:21,760 --> 00:44:26,680 By itself, a revival of formalism is unlikely to reorder things again, 406 00:44:26,680 --> 00:44:31,510 if only because the formal principles of control offer no coherent response to the altered 407 00:44:31,510 --> 00:44:37,010 conditions of governance which gave rise to the administrative state in the first place. 408 00:44:37,010 --> 00:44:42,140 But the reversion to formalism really reflects our widening disagreements about the programmes 409 00:44:42,140 --> 00:44:47,360 administered and the absence of any consensus on how to proceed in these circumstances. 410 00:44:47,360 --> 00:44:51,430 There is no new discipline for democracy in formalism. 411 00:44:51,430 --> 00:44:58,330 Constitutional constitutionalism degenerates into a kind of lawfare were policy driven calculations, 412 00:44:58,330 --> 00:45:02,550 subordinate rules to the instrumental wisdom of the moment. 413 00:45:02,550 --> 00:45:10,740 As faith in administrative competence has eroded, public administration has found itself drawn ever more directly into the crosshairs. 414 00:45:10,740 --> 00:45:17,670 In the 1970s, think tanks proclaimed the administrative state incompetent and promoted alternative principles 415 00:45:17,670 --> 00:45:23,980 of privatisation and marketisation allegedly more consistent with America's fundamental values. 416 00:45:23,980 --> 00:45:29,320 More recently, political scepticism about the principles that built the administrative state push beyond the high 417 00:45:29,320 --> 00:45:35,850 minded concerns of conservative economists and accelerated into a full blown populist revolt. 418 00:45:35,850 --> 00:45:41,100 President Trump has taken scepticism of agency cultures to a new level of hostility, 419 00:45:41,100 --> 00:45:48,330 staffing of the executive branch slowed to a crawl as finding managers of sufficient loyalty became more difficult. 420 00:45:48,330 --> 00:45:51,210 At the same time, Congress sidelined its own budget office, 421 00:45:51,210 --> 00:45:58,840 dismissing the forecasts of its own chosen experts because they failed to accord with the programmatic priorities of the majority. 422 00:45:58,840 --> 00:46:03,220 On the other side of this assault are the constituencies for programmes under attack. 423 00:46:03,220 --> 00:46:08,710 They've rallied a counter movement around the slogan I believe in science. 424 00:46:08,710 --> 00:46:15,910 And they've cheered career administrators as they push back on behalf of knowledge based governance by competent professionals. 425 00:46:15,910 --> 00:46:20,980 This ups the ante considerably pushed back in favour of professional administrators, 426 00:46:20,980 --> 00:46:26,770 undermines faith in the actions of elected politicians and raises uncomfortable questions 427 00:46:26,770 --> 00:46:31,630 about whether formal authority is an adequate basis for the government's choices. 428 00:46:31,630 --> 00:46:40,060 That, in turn, feeds already aroused suspicions of administrative power, and a political bias is embedded in public administration itself. 429 00:46:40,060 --> 00:46:44,620 Sceptical partisans in the White House and the Congress now routinely identify administrators and 430 00:46:44,620 --> 00:46:51,940 their support networks with a deep state that defies constitutional authority and democratic will. 431 00:46:51,940 --> 00:46:56,620 This is a principle free for all, with the potential to tear this government apart. 432 00:46:56,620 --> 00:47:06,450 And strange to say, it's hard for a detached observer to tell which side is mounting the coup. 433 00:47:06,450 --> 00:47:13,020 That illustrate the reach of the concerns to broaden a bit the reach of the concerns I'm trying to raise here, 434 00:47:13,020 --> 00:47:19,400 let me consider the principle of diversity e pluribus unum. 435 00:47:19,400 --> 00:47:27,200 And the relationship between liberalism and nationalism. There's an old saw that America is. 436 00:47:27,200 --> 00:47:33,770 Just a set of liberal principles. A nation held together by the universal ideals that it espouses. 437 00:47:33,770 --> 00:47:39,050 The American constitution upholds equal rights, equal protection, representation, toleration, 438 00:47:39,050 --> 00:47:47,540 individualism, blind to difference, open to all these principles support a nation of great diversity. 439 00:47:47,540 --> 00:47:55,130 Repeatedly, reformers have leveraged these ideals against local prejudice, against social hierarchy, against rule, by prior right. 440 00:47:55,130 --> 00:48:02,030 Those efforts have in turn expanded the powers of the federal government to broaden the base of rights holders and created a more diverse polity, 441 00:48:02,030 --> 00:48:10,220 in fact. But the cultural baggage of time and place weighs heavily on the elaboration of universal principles. 442 00:48:10,220 --> 00:48:13,610 Now that reality has caught up with principles, diversity, in fact, 443 00:48:13,610 --> 00:48:21,590 is testing the relationship between liberalism and nationalism and throwing governance into the grips of a culture war. 444 00:48:21,590 --> 00:48:29,690 The accommodation of diversity and nationality is an ideal that predated the Constitution and in no small measure justified it. 445 00:48:29,690 --> 00:48:36,440 The early Connexions, however, were closely circumscribed diversity made a team appearance relatively tame appearance, 446 00:48:36,440 --> 00:48:44,990 at least in as a constitutional principle in The Federalist Papers and James Madison's famous arguments for an extended republic. 447 00:48:44,990 --> 00:48:50,570 The emphasis there was on the greater variety of property interests to be represented in the national legislature 448 00:48:50,570 --> 00:48:57,470 and on the security provided there by four represented minorities against the formation of tyrannical majorities. 449 00:48:57,470 --> 00:49:01,460 As a principle of good government and a rationale for federal empowerment, 450 00:49:01,460 --> 00:49:06,350 diversity promised to moderate the ambitions of each interest represented at the 451 00:49:06,350 --> 00:49:12,960 Centre and to help policy decisions attain the semblance of a national consensus. 452 00:49:12,960 --> 00:49:18,990 This argument for mutual protection through diverse representation was undercut a bit by the rise of a party state, 453 00:49:18,990 --> 00:49:23,550 which, after all, facilitated the national formation of programmatic majorities. 454 00:49:23,550 --> 00:49:29,130 It was undercut even more by the Civil War, which raised the spectre of a partisan majority in the North, 455 00:49:29,130 --> 00:49:34,230 empowered to force the incorporation of new rights holders in the South. 456 00:49:34,230 --> 00:49:40,290 Ironically, it was those defeated secessionists suddenly vulnerable in their own locale, 457 00:49:40,290 --> 00:49:44,400 suddenly desperate to moderate the new powers of this post-war republic. 458 00:49:44,400 --> 00:49:49,260 It's they the Southerners who revived the principle of unity in diversity. 459 00:49:49,260 --> 00:49:57,870 They made it once again a condition for the exercise of federal authority, the very premise of the South's re-entry into the national government. 460 00:49:57,870 --> 00:50:04,050 This time, though, they gave the idea a cultural spin all the more ominous for its sheer perversity. 461 00:50:04,050 --> 00:50:05,640 The true cause of reunion. 462 00:50:05,640 --> 00:50:15,770 It was said, was the renunciation of all sectional programmes and a guarantee of mutual respect for the different ways of life found in each section. 463 00:50:15,770 --> 00:50:20,930 When the rights revolution exploded, that pretension and finally open things up. 464 00:50:20,930 --> 00:50:28,740 It forced a reckoning with these tensions long simmering within the notion of a diverse nation held together by universal principles. 465 00:50:28,740 --> 00:50:32,520 No sooner did a more muscular national government throw its weight behind affirmative 466 00:50:32,520 --> 00:50:38,050 action for new rights holders than others pushed back in defence of equal treatment. 467 00:50:38,050 --> 00:50:42,190 Justice Lewis Powell, not coincidentally, a son of the Old South, 468 00:50:42,190 --> 00:50:52,480 hit upon compromise his opinion in 1978 and regions of the University of California versus Balki, which has diversity. 469 00:50:52,480 --> 00:50:59,550 No longer would it be a vital protection for rights holders or a condition for national empowerment. 470 00:50:59,550 --> 00:51:05,410 Impels hands diversity became just another goal, hanging on as a legitimate public purpose. 471 00:51:05,410 --> 00:51:08,410 The principal could be promoted through policy, 472 00:51:08,410 --> 00:51:14,920 but only if its advocates could show that their methods minimised any infringement on other people's rights. 473 00:51:14,920 --> 00:51:19,330 The balky decision strained for consistency without producing much traction. 474 00:51:19,330 --> 00:51:24,640 Instead, it drew out the historical mismatch between liberal principles and national realities, 475 00:51:24,640 --> 00:51:31,650 and that far from sorting through the dissonance, has pulled the country deeper into a cultural quagmire. 476 00:51:31,650 --> 00:51:39,390 On one side, the reality of greater diversity bears down on assertions of national authority with the full weight of past injustices. 477 00:51:39,390 --> 00:51:43,920 Recognition is no simple matter for new rights holders for the cumulative consequences 478 00:51:43,920 --> 00:51:49,860 of a long history of exclusions links a hollow ring to belated offers of incorporation. 479 00:51:49,860 --> 00:51:56,880 Multiculturalism resists mere accommodation, identity politics, conditions, the legitimacy of national action. 480 00:51:56,880 --> 00:52:01,500 Old forms no longer instil confidence and mutual protection. 481 00:52:01,500 --> 00:52:08,850 More troubling still is the reaction of those who experience the new inclusiveness as an infringement on liberties previously enjoyed. 482 00:52:08,850 --> 00:52:16,680 Animated by their own brand of identity politics, they identify proponents of diversity as a threat to the nation's historic character, 483 00:52:16,680 --> 00:52:25,950 and they issue cosmopolitan demands for rights, recognition and representation in defence of a more full throated Americanism. 484 00:52:25,950 --> 00:52:35,130 The culture wars did not begin with Donald Trump. Trump has, however, dispelled the illusion that cultural divisions are just a historical hangover. 485 00:52:35,130 --> 00:52:44,610 The John Dewey's great community lies just around the corner. It's less certain than ever that liberal principles inevitably will out. 486 00:52:44,610 --> 00:52:51,370 For my final example, let me say a few words about balance. 487 00:52:51,370 --> 00:52:57,130 For the framers, balance was the principle that held all other principles together, 488 00:52:57,130 --> 00:53:04,480 the framers large balance in structure in the composition and arrangement of institutions. 489 00:53:04,480 --> 00:53:08,200 The House of Representatives balanced majority with minority rights. 490 00:53:08,200 --> 00:53:14,050 The Senate balanced nationalism with federalism. The Electoral College balance, large states with small states. 491 00:53:14,050 --> 00:53:16,390 The whole panoply of divisions and separations. 492 00:53:16,390 --> 00:53:24,100 Balanced interests and policy against protections for rights because the equities were ingrained in the arrangements themselves. 493 00:53:24,100 --> 00:53:33,960 No one was to have to work very hard to discover them. By and large, they were to be upheld and personally, operationally, automatically. 494 00:53:33,960 --> 00:53:38,790 Again, however, under the pressures of development, the formalities repeatedly fell short. 495 00:53:38,790 --> 00:53:47,670 There were times, as in the Missouri crisis of 1820, when the principle of balance could be upheld by a simple extrapolation and informal balance. 496 00:53:47,670 --> 00:53:54,360 Rule was invoked to maintain an equilibrium of free states and slave states over the course of westward expansion. 497 00:53:54,360 --> 00:54:03,750 But at other times, one set of principles steamrolled other concerns, upsetting the balance and opening the structure to a major transformation. 498 00:54:03,750 --> 00:54:10,800 That was the case with the reconstruction amendments, when the principle of balance is reasserted after a shake up like that. 499 00:54:10,800 --> 00:54:19,230 The institutional arrangements on which it's supposed to rest become less self-evident and the equity is asserted become more contestable. 500 00:54:19,230 --> 00:54:23,880 The doctrine of separate but equal that was a bold declaration of principles purporting 501 00:54:23,880 --> 00:54:28,530 to reconcile new conflicts amongst rights holders rumbling out of reconstruction. 502 00:54:28,530 --> 00:54:34,330 But as a practical matter, the balance struck by that rule was glaringly one sided. 503 00:54:34,330 --> 00:54:38,560 All these adaptations claim consistency with the Constitution, but by degrees, 504 00:54:38,560 --> 00:54:45,890 the formal structure of government was doing less of the work and producing a balance and pressures to maintain some semblance of equity. 505 00:54:45,890 --> 00:54:51,310 We're falling increasingly on officeholders themselves. Recognising these pressures, 506 00:54:51,310 --> 00:54:57,370 progressive reformers in the early 20th century sought to shift responsibility for finding the right balance off 507 00:54:57,370 --> 00:55:06,010 of structure per se and onto what Herb or Crowley called representative men exercising discretionary authority. 508 00:55:06,010 --> 00:55:10,960 The so-called revolt against formalism charge political leaders to produce 509 00:55:10,960 --> 00:55:17,620 equities proactively through what Crowley called constructive discriminations, 510 00:55:17,620 --> 00:55:22,030 the legal pragmatism of Oliver Wendell Holmes did something similar for judges. 511 00:55:22,030 --> 00:55:30,160 It denied categorical rights and tied rights instead to what Holmes called the neighbourhood of principles in which they operate. 512 00:55:30,160 --> 00:55:37,630 This intellectual shift in thinking about balance from reliance on structure and rights to reliance on policies and principles, 513 00:55:37,630 --> 00:55:44,250 this prestigious the political free for all that would follow the decisive social breakthroughs to come. 514 00:55:44,250 --> 00:55:47,790 The institutional foundations of balance were shaken to the core when the court 515 00:55:47,790 --> 00:55:52,470 set aside the last of the structural restraints on realising equal treatment. 516 00:55:52,470 --> 00:55:56,890 And when Congress followed up with civil rights legislation. Since then, 517 00:55:56,890 --> 00:56:02,770 the constitutional principle of balance has come to turn on the proliferating set of judge made rules determining 518 00:56:02,770 --> 00:56:09,310 appropriate degrees of scrutiny through which the scope of rights and the range of policy will be defined, 519 00:56:09,310 --> 00:56:16,660 categories have blurred. Judgement calls have become pervasive. Judging itself has become harder to distinguish from legislating. 520 00:56:16,660 --> 00:56:25,180 Observers of all political stripes worry about constitutional law in this age of judge made balance fearing, as one commentator says. 521 00:56:25,180 --> 00:56:33,890 We fear that it has lost its ability to persuade. The problem of legibility that plagues today's balancing rules brings full circle. 522 00:56:33,890 --> 00:56:38,000 My survey here of the burdens mounting on principals. This is, after all, 523 00:56:38,000 --> 00:56:46,160 the same development that's magnified this way of political considerations in judicial selection and threatened judicial impartiality. 524 00:56:46,160 --> 00:56:51,470 Officers throughout American government are now charged to strike the right balance by their own lights. 525 00:56:51,470 --> 00:56:58,610 Indeed, balance is no longer an institutional principle at all. If there's a shared standard that justifies action on this score, 526 00:56:58,610 --> 00:57:04,820 if there's a precept from the 1970s that all officers espouse and finding the right balance, 527 00:57:04,820 --> 00:57:13,210 it's the economic principle that the benefits should outweigh the costs. Any hope of reordering American government on that ground seems slim. 528 00:57:13,210 --> 00:57:17,580 Its costs and benefits, the very stuff of political contestation. 529 00:57:17,580 --> 00:57:25,980 Balance has in this way become another principle without traction, one that exacerbates the very conditions the Constitution was designed to assuage. 530 00:57:25,980 --> 00:57:32,110 One that feeds by turns, scepticism, volatility and gridlock. 531 00:57:32,110 --> 00:57:43,140 So where does this leave us? A long history of successful adjustments steals the American psyche against the idea that I'm forwarding in this talk, 532 00:57:43,140 --> 00:57:47,340 the idea that there's a point beyond which the Constitution's adaptive mechanisms 533 00:57:47,340 --> 00:57:52,960 cease to be effective in reducing stress and restoring a semblance of order. 534 00:57:52,960 --> 00:57:59,920 And yet I would say developments are now bumping up against the assumption that the old forms can be updated indefinitely, 535 00:57:59,920 --> 00:58:02,750 so long as we have the right principles. 536 00:58:02,750 --> 00:58:09,530 The hunch that I've elaborated on this talk is that the historic resilience of the Constitution has been undermined by its greatest achievements, 537 00:58:09,530 --> 00:58:14,390 that the elimination of those incongruous exclusions and the concomitant opening to interests in 538 00:58:14,390 --> 00:58:21,500 contention have weakened categorically that the adaptive capacities of its basic institutions. 539 00:58:21,500 --> 00:58:26,380 Raising this possibility recast the institutional problems of our day. 540 00:58:26,380 --> 00:58:31,990 If this diagnosis rings true, conservatives will find it harder to assert that the Constitution had it right at 541 00:58:31,990 --> 00:58:37,340 the start and that all we need to do is find our way back to its true principles. 542 00:58:37,340 --> 00:58:43,070 It will also be harder for progressives to argue for plunging ahead on the view that modern governance is all about 543 00:58:43,070 --> 00:58:50,650 solving policy problems and that any necessary rearrangement of the furniture well that will take care of itself. 544 00:58:50,650 --> 00:58:57,710 There are several responses to the argument that I'm building here. 545 00:58:57,710 --> 00:59:05,510 One might be just won't let it rip. If it's true that rule based regularity rested on exclusions, well, who needs it? 546 00:59:05,510 --> 00:59:10,850 This is, I admit, an appealing sentiment, but I don't think it's much of a solution. 547 00:59:10,850 --> 00:59:17,600 Even the most ardent Democrat must recognise that rules are what make commitments credible and governments trustworthy. 548 00:59:17,600 --> 00:59:25,960 Developments that weaken them make it harder to secure the rights and sustain the programmatic supports that modern democracies demand. 549 00:59:25,960 --> 00:59:34,660 At the opposite extreme, one might be tempted to blame democracy and look for ways to roll back access and circumscribed commitments once again. 550 00:59:34,660 --> 00:59:39,490 That impulse is ample in evidence in American politics today. 551 00:59:39,490 --> 00:59:44,080 But if the goal is to stabilise affairs, this too seems to me to be a dubious strategy. 552 00:59:44,080 --> 00:59:48,250 It's one thing to assume ancient boundaries on inclusion. 553 00:59:48,250 --> 00:59:54,430 Quite another to keep people out who are broken through them hard to defend as anything other than wilful repression. 554 00:59:54,430 --> 01:00:01,290 After the fact, restrictions are unlikely to alleviate, the pressure is mounting on basic institutions. 555 01:00:01,290 --> 01:00:09,570 For those of sturdier faith, it will be tempting just to write off these concerns as a failure of imagination. 556 01:00:09,570 --> 01:00:14,190 Not hard for me to think up ways that current problems of government might be addressed through 557 01:00:14,190 --> 01:00:19,230 some further redeployment of the Constitution's principles on the basis of what I presented here, 558 01:00:19,230 --> 01:00:23,640 the possibility that there's another rabbit in the house, I can't be foreclosed. 559 01:00:23,640 --> 01:00:29,160 Note, however, that the problem, as I posed it is not a lack of ideas. 560 01:00:29,160 --> 01:00:34,430 This polity, the American polity, is awash in ideas. 561 01:00:34,430 --> 01:00:41,840 The issues we have yet to focus on a historical and structural, the problem is that through its own developmental processes, 562 01:00:41,840 --> 01:00:47,030 this polity seems to have eroded the ground for any political agreement on the up, 563 01:00:47,030 --> 01:00:53,990 for any political agreement on any particular ordering of its principles. 564 01:00:53,990 --> 01:01:00,200 If the platform of institutions and principles erected by the Constitution now appears hollow and wobbly, 565 01:01:00,200 --> 01:01:06,200 it may be because all the unprincipled material beneath it has finally been cleared away and because all the 566 01:01:06,200 --> 01:01:12,890 governing problems once dealt with down there are by prior right have been piled on top of this platform itself. 567 01:01:12,890 --> 01:01:21,350 That makes this emergent state, this policy state a principle free for all its actions and priorities, 568 01:01:21,350 --> 01:01:28,520 no longer anchored by a robust sense of rights and a reliable structure of decision making authority far 569 01:01:28,520 --> 01:01:34,860 more inclusive than the party state of the 19th century or the administrative state of the 20th century. 570 01:01:34,860 --> 01:01:42,420 This new formation is also unbridled in its instrumental ism, volatile in its politics and unstable and its rules. 571 01:01:42,420 --> 01:01:45,060 The cumulative effects of development express themselves here, 572 01:01:45,060 --> 01:01:54,690 paradoxically in democratic gains that have outstripped their institutional accommodations and put American democracy itself at risk. 573 01:01:54,690 --> 01:02:06,083 Thank you.