Sort of like. Good evening, everyone, and welcome.
It is perhaps a slight breach of Oxford Protocol on occasions such as this for there to be any sort of introductory remarks,
but as the director of the rather more American Institute,
I wanted to take the opportunity to welcome all of you to this year's inaugural lecture for the one professorship of American government.
I'm Hal Jones, I'm the director here, and it's a real pleasure to have you all with us.
The John G wine and visiting professorship of American Government is a tribute to the legacy of Ambassador John G.
Gil Winant, who represented the United States and Great Britain during World War Two and was
a key figure in forging an Anglo-American alliance at that difficult moment.
The professorship was established thanks in large part to the generosity of the late Rivington Winant and his wife, Joan Wine,
and who remains a close friend to the institute and in whose generosity we'd certainly like to acknowledge on this occasion.
For more than 10 years now, the professorship has allowed us to bring distinguished scholars of American politics to Oxford for the year,
to contribute to our community and to the broader intellectual life of our Balliol College,
with which the professorship is affiliated and and with the wider collegiate university.
Oxford University Community We've had many great lectures in this series of inaugural lectures from our various visitors,
but certainly amongst this very distinguished group known as more distinguished than the current incumbent.
Professor Stephen Skowronek is the Pettitt professor of political and social science at Yale University when he is at home.
He is regarded as a founder of the field of American political development
and is a co-founder of the journal Studies in American Political Development.
He has authored a number of highly important influential works, including, amongst others, the politics president.
Make Presidents, make leadership from John Adams to Bill Clinton, the search for American political development,
presidential leadership and political time reprise and reappraisal. And most recently, and he's got a handy prop.
The policy states an American predicament co-authored with Karen Orin.
It's a real pleasure to have Steve with us for the year, and we're looking forward to his lecture tonight,
which is entitled Has American Democracy Outstripped Its Institutional Foundations Principles Without Traction in 21st Century Governance?
We will adhere to the Oxford Convention for inaugural lectures by forgoing any
formal period of question and answer or discussion at the conclusion of this talk,
but will adjourn immediately after Steve finishes his remarks for a reception just outside here at the institute, where conversation can continue.
And of course, Steve will be with us for the remainder of the the academic year.
We look forward to lots more chances to engage with him on the content of this lecture and on his his work more widely.
Please join me in welcoming Steve's garage for his inaugural. Well, thank you.
First, I want to thank everyone who has made it possible for me to be here this year, most especially Howard Jones,
who helped my wife and I negotiate the logistics of this Balliol College and the Master of college,
Dame Helen Ghosh, for sending me such a warm welcome.
I was pleased to meet Vivian Harmes Wirth, secretary of the Rotherham Earth Foundation, and his wife, Alexandra, just a few minutes ago.
I'm honoured to serve as the wine that visiting professor of American government.
I look forward to many productive exchanges, both here at Rothenburg and throughout the university community.
Now, at the risk of prompting a stampede for the exits, let me begin with a fair warning.
I'm going to talk this evening about issues only tangentially related to Donald Trump.
I hasten to add that we're convening a conference at Oxford Conference, doesn't I?
Does King and I. There's also, I should acknowledge, has helped me make the most of my time here at Oxford.
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.
But as it happens, my interest over the past several years have turned back to larger.
I think more serious issues are the same issues that preoccupied me before I began writing about the presidency.
My work way back when dealt with issues of American state formation and my most
recent book with Karen Warren that I'll just mention returns to that theme.
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.
And this talk sketches of the outlines of a follow up study that I'll be thinking through my time during my time here.
It uses that policy stage frame to address issues more directly related to the deepening crisis of governance in America today.
Pundits, when they talk about this crisis and they talk about it constantly,
they frame the crisis as a yes, but moment, yes, basic American institutions appear dysfunctional.
Rights feel insecure. Rules seem unreliable.
Parties are polarised. Norms are crumbling. But we've seen the likes of this before.
Indeed, we've been through a lot worse. For me, this presents an interesting analytic problem.
Simply put, American government boasts such a long history of success and navigating tough times
that it's hard to gauge the significance of the issues that currently beset it.
Time and again, the Constitution is whether it adjusted to seemingly intractable difficulties all along the way.
Reformers have generated new governing arrangements.
Arrangements wholly unanticipated by the original constitutional design by the 19th century saw the rise of a party state,
a government we cast around political organisations that the framers of the Constitution feared and hoped to avoid.
The 20th century gave us an administrative state. A programmatic government with powers of the Constitution's framers could scarcely have imagined.
Reformation like these attests to the system's historic responsiveness and adaptability.
They speak to American ingenuity in rethinking relations of power and authority.
Left to speak for itself, this history would seem to offer assurances that the fundamentals are sound, that the Constitution is resilient.
The current problems are manageable. That issues of governance above all issues of governance eventually take care of themselves.
But that is the question, isn't it? Is that sense of security warranted?
Our present difficulties really just more of the same with due regard for American history and ingenuity.
I'm a sceptic.
One reason for my scepticism is that historical adjustments have time and again altered the Constitution itself so that by dint of past changes,
the system of authority on hand to grapple with current problems is a bit different
from that which resolved earlier ones before we rest too comfortably on our history.
I think we might want to take a closer look at institutional adaptation and its processes and its cumulative effects,
and think more carefully about how they might bear on current prospects.
If there's something in our long history of success that might be of special concern to Americans today,
something categorically different about current problems of governance, I suspect it may lie in the mechanics of adjustment themselves.
Safe to say, institutional adaptation has worked best when its aim for consistency.
What do I mean by that? Well, principles of good government have been extrapolated from the Constitution's formal set up,
and then those principles are redeployed in new arrangements that have altered the constitutions operations.
Take the National Party Convention a signal innovation of that 19th century party state.
It drew on constitutional principles, principles of federalism and representation,
but it created new communities of interest that will cooperate across the institutions that the
Constitution had purposefully divided and juxtaposed the Administrative Procedure Act a signal,
a signal innovation of that 20th century administrative state that shows something similar.
It concentrated in regulatory agencies powers distributed by the Constitution to the Congress and the courts.
But it did so by dividing agency rulemaking from agency adjudication on the constitutional principle of the separation of powers.
So when both of these examples, the Constitution provided guidance for innovations that transformed it.
Consistency was found in the elevation of its principles over its forms.
The development of American government is full of improvisations like these, each a reasoned institutional response to changes on the ground.
Moreover, the record shows that easing the formal constraints on the exercise of authority that did just keep the system going.
It also opened it up to new stakeholders previously excluded from full access to its services and its protections.
Those hard won advances on the principle of government by we,
the people or the pride of American political development and in large measure processes of adjustment have been assessed from that vantage point.
So we know a lot about democratisation in America, about its initial incongruities, its uneven progress, its major achievements.
It's still potent adversaries in politics and culture.
What we know far less about, however, is how easing the constraints, eliminating the incongruities,
facilitating greater inclusiveness has affected the Constitution's capacities to cope with the new issues and demands thrust upon it.
Put that way, it may be less jarring to ask whether a government that was framed in writing some 220 years ago doesn't
eventually encounter some serious problems directly related to its long history of institutional adaptation.
The dynamic that I just described adaptation at its best.
This would seem on its own terms self-limiting as constitutional formalities are more steeply discounted,
it will likely to get harder to find traction in all the different principles derived from it.
Easing institutional constraints may help in incorporating the interests of a wider range of stakeholders,
but it's also likely to make it harder to reach consensus on new rules about how to govern.
The inner intuition I want to pursue in this new project is that repeated extrapolations from
the same basic forums will gradually rob governing principals of their institutional grounding,
rendering them more abstract and less tractable.
That serial accommodations and rearrangements will eventually make it more difficult to say with authority what is consistent and what is not.
On this reasoning, opening up the old frame to alternative interpretations of permissible governmental action will not only help the system adjust,
will also give rise to a principled free for all and hollow the system out.
I call this the adaptability paradox. Warned of past success and submerged in our greatest Democratic achievements.
It bears directly on our national faith that the Constitution is self-correcting and that more serviceable arrangements lie just around the corner.
As I presented it, just as I presented it thus far, it's just an inference, a historical structural conjecture, if you will.
But it's not without contemporary resonance.
The previous institutional settlement that administrative state took hold in the first half of the 20th century.
Politics in America has become an all fronts assault on the principles that produce
that adaptation and yet convergence on an alternative is nowhere in sight.
The issues now at the fore did not arrive suddenly with the Trump presidency.
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,
and little that's happened in those intervening decades instils confidence that
our institutions are slowly edging their way toward the next ingenious reset.
To be sure, there's been no shortage of ideas about what a principled path forward might look like.
The problem that's now coming into focus is that the authority sufficient to sustain support for any one of those ideas has evaporated.
That's just what one might expect when the formal arrangement of authority has
been hollowed out and the different principles behind it all thrown up for grabs.
The adaptability paradox I propose rests on observable developmental dynamics,
but by before I bring these profitable remarks to a close, let me stake out the analytic ground and opens up.
Against other perspectives on the right and on the left. Against the right, the adaptability paradox discards nostalgia for the way things once were.
It confronts directly the historical incongruities of constitutional government
in the United States and tackles governing problems as we find them now,
without insisting that somewhere along the way, American political development must have made a wrong turn.
Against the left, the adaptability paradox identifies problems encountered in the process of democratisation that have compromised the structure of
decision making authority itself prioritises those problems over the other social problems now pressing for policy solutions.
My concerns lie with developments that are robbing policy solutions of their legitimating
anchors and limiting the gains to be realised from muscling new policies through.
The adaptability paradox focuses attention then on democratic advances that seem to have
outstripped their institutional accommodations and put the future of American democracy at risk.
So. And still piecing the story together, I can, however, elaborate on its two central elements.
I'll divide the remainder of these remarks into two parts.
First, I'll offer a brief schematic history, a broad overview of the mechanics of adaptation opening on to the current impasse.
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.
My cinematic history begins with, appropriately enough, with the framing of the Constitution,
that was a beginning of sorts, but it was also interestingly also an adaptation.
Like later resets the Constitution,
we organised operations around shared principles so as to ease strains mounting on the received governing arrangements.
The framers immediate objective was to bring a bit more governance under national authority and to relax constraints on its exercise.
And that proved to be the pattern going forward.
Notwithstanding the encompassing principles, but defended the constitution or the sovereign act of locking it in,
the changes in governance contemplated in its structure were incremental.
In fact, most of governance in America continued on after ratification, as it had before,
on legal foundations that were far older than the Constitution and far more deeply entrenched.
Prior writes untouched by the Constitution's reconfiguration of authority,
incongruous with its professed principles, implicitly excluded from its programmatic ambitions.
They did the bulk of the work.
Carried over from time out of mind, anchored and more in assumption than an argument in force, mainly at the local level.
These claims regulated and protected much of the previously established order of things.
These prior rights, which deeper than the formal declarations of the Bill of Rights,
which were at the time, just additional assertions of the Constitution's principles.
Rights unmentioned and largely indifferent to those principles, organise relations throughout early American society.
Masters over slaves, employers, over employees, husbands, over wives, fathers, over children.
With all of that authority off the table, the new platform of institutions and principles erected by the Constitution carried a relatively light load
tests a grounding in this governance by other means not only to limit the reach of the framers arrangements.
It also served to articulate those arrangements and to bind them together.
As a practical matter, the new platform drew much of its structural integrity from all the rest of the governing being done beneath them.
In effect, the Constitution authorised a refined stratum of rights holders to contend over national matters of concern to them,
largely issues of trade and security. The principle declarations and reasoned divisions that riddled the frame reflected that community's
consensus on how best to make decisions within the domain of discretion that it set for itself.
The new arrangement, the formal structure of federalism, separation checks, enumeration, mixed representations, the serve, the interest recognised.
It assured rightsholders anxious about the government's new policy making powers that they could keep everything else the same.
Describing the initial conjunction of history and structure in this way,
that is a constitutional ordering of authority articulated and bound together by the concurrent operation of other incongruous orders of authority.
This serves both to identify the major fault lines of this system and to bring the mechanics of adaptation more clearly into focus.
As we know, things did not remain the same. One by one,
those old social hierarchies were overthrown and the burdens of governing shifted incrementally upward onto the constitutional platform itself.
The implications were two fold practical operations pushed farther afield of the assumptions
embedded in the formal structure of constitutional authority and principles consistent with
that structure were enlisted to accommodate the alternative arrangements improvised when newly
recognised claimants demanded more of government than the original frame had anticipated.
When the programmatic interventions necessary to give effect to their newfound rights tax.
The Constitution's cumbersome divisions when the scope of conflict amongst rights holders widened, principals stepped into the breach.
They helped relax formal constraints. They rendered new arrangements compatible with the Constitution.
They facilitated the management of a burgeoning array of rights and policies.
I think that these dynamics are equally instructive when there consider the other way around, because the burden on principals increase gradually,
governance beyond their reach remain substantial, even as the community of rights holders expanded.
Those boundaries continue to ease the way for those incorporated to reach some new accommodation on how to govern.
In this way, tacit grounding in governance by other means aided the whole long history of adaptation.
As in the initial reset of 1789, the new issues of governance to be accommodated in each subsequent round of reordering were limited.
Stakeholders could buy into the new arrangements under SURANCE that other governing relationships of concern to them would remain unaffected.
So what we view in retrospect,
as constitutional resilience was always conditioned on the operation of governance outside the formal written arrangements.
The outstanding question, the historical structural question is what happens when the serial extension to
principles runs out of exclusions and there's nothing left to circumscribe them?
What happens when everyone is included and its principles all the way down?
The belted resilience of the major post constitutional post constitutional adjustments
is evident in the first of the great adaptations the party's state of the 19th century.
The early decades of that century witnessed a revolt against rule by notables, the extension of voting rights to white men, rapid expansion westward.
All of this open the national government to a wider range of claimants.
It also sharpened the national expression of political conflict and abraded more deeply seated rights.
In response, a new breed of state managers grasp an alternative governing instrument.
Political parties. Though previously seen as a threat to the integrity of the Constitution,
political parties endorsed a more fulsome expression of the principle of popular sovereignty and by ratifying changes on the ground,
they accommodated a significant broadening of participation in political political affairs.
Simultaneously, these parties reorganised constitutional relationships from the bottom to the top.
They integrated national power into local centres of political activity.
They coordinated the action across separated branches of the national government.
They facilitated the distribution of the federal largesse across a sprawling territory.
These parties also served as a containment mechanism. Their bottom up organisation protected local discretion over new conflicts brewing.
Antebellum party managers built rival cross sectional coalitions that braced the nation against the rising slavery
controversy and assured anxious slave masters that the new democracy would protect their other interests.
That was bounded resilience once the conflict over slavery broke through the institutional arrangements designed to contain it.
The system collapsed in constitutional crisis and civil war.
The next adaptation proved a misfire, but I think it's no less instructive for that.
In the war's aftermath, amendments ratified to aid in the reconstruction of government gave rights to former slaves and authorised Congress
to create new arrangements for the accommodation of that momentous extension of the Constitution's principles.
But despite the seemingly authoritative articulation of principles, the old forms did not give way to new inclusions.
As I see it, this failure of reconstruction offers a stark illustration of the trade-offs involved in all such efforts.
The residual claims of federalism, the separation of powers, states rights, the decentralised parties themselves,
these prove formidable obstacles to the extension of programmatic rights to the freedmen.
Before men are just exhausted themselves without providing the protections adequate to the incorporation
of the new entrants and with the incursion on the old institutional boundaries contained,
the party state resumed its operations with only minor adjustments.
Here, in effect, was an elaboration of principles stymied by the resilience of the old forms.
More decisive breakthroughs came in the 20th century, the rise of an administrative state and its early decades track deepening industrial
conflict and culminated during the new deal with the displacement of the ancient common law,
ordering of workplace relations and the ratification of workers rights to organise and bargain collectively with their employers.
With the interests of the working class incorporated into a contentious new industrial democracy,
the bottom fell out of the Constitution's Commerce Clause. Virtually all the nation's commerce became subject to national regulation,
and the formalities of dual sovereignty gave way to a marble cake arrangement where relations between state and national
governments grew progressively more cooperative as programmatic regulation of the national economy expanded its reach.
Much of the responsibility for management shifted off the formal structure of the Constitution and onto bureaus of experts.
Constitutional relationships were re-engineered in the wake of the new deal around accommodation to non-partisan administration and agency rulemaking,
inter-related statutes enacted in the years straddling World War Two.
Hammered out this new settlement, the Executive Reorganisation Act of 1939,
the Administrative Procedure Act of 1946, the Legislative Reorganisation Act of 1946.
The Employment Act of 1946. A concerted systemic constitutional shift.
Several features of the new system that congealed in 1946 stand out for attention.
One is that unlike the Civil War Experiment, the reconstruction experiment, this one rested entirely on statute's a rearrangement.
As comprehensive as this would have been hard to work through the formal amendment process.
By the same token, however, this achievement relax core distinctions in American constitutional law lines,
demarcating the formal structure of government from policy lines,
demarcating rights from policy,
these grew more porous and the domain open to alternative interpretations and political choices widened correspondingly.
Not surprisingly, re-establishing order under these circumstances compounded the burden on principals.
Government reached farther afield to rationalise these new arrangements.
Relying now on science and expertise to support greater cooperation amongst the authorities separated by the constitutional design.
Faith in administrative objectivity and professional competence inform the supervisory duties of
each of the three branches and compensated for the relaxation of formal divisions amongst them.
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.
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.
The South was keen to tap into the new services on offer,
but the region bought into the new arrangement only on assurances that racial hierarchies would remain undisturbed.
The southern delegations became the political balance wheel of America's industrial democracy.
No legislation could be passed on either economic affairs or race relations that the South would not accept.
The new arrangement remained resilient so long as the rights of racial minorities were held beyond reach.
This bounded resilience of America's administrative state, the principled consensus, the practical cooperation,
the rule based regularity in government attained in that settlement rested on limits
that the rights revolution of the 60s and 70s shattered the civil rights movement,
broke the back of the remaining structural protections for social hierarchy and for a critical period.
Cooperative partnerships between state and national governments gave way to coercive federalism,
with the national government dictating terms of inclusion to the governments below.
Since that breakthrough, the incorporation of new claimants has picked up steam to include other racial minorities, women, young people, gay people.
So if there is something categorically new, something different about the problems that beset American government today,
it's just this for the first time, there are no assumed exclusions from the Constitution's principles.
No other means of governing to facilitate agreement on rules for institutional action and to restore regularity.
National institutions then fully fully exposed, open to all the interests once dealt with by localism and prior right.
Everyone is engaged all at once. On a field of choice were principles range free against the historically weakened boundaries of the formal structure.
Every issue was a national issue. Authority is jumbled. Discretion is broad politics unbridled?
These are the cumulative effects of development and development is not benign.
These effects seem to weigh heavily against another institutional reset.
The shedding of old incongruities is surely the Constitution's crowning achievement,
but the free play of its principles does not make it easier to forge agreement on a consistent path forward.
On the contrary, constitutional government of the United States seems to face a new and severe test.
When there are no issues to bracket or exclude,
it's harder for these old forms to reach new accommodations amongst their many amongst its many conflicting principles,
harder for them to sustain rules, harder for those forms to firm up commitments and priorities,
harder for them to contain conflicts amongst the burgeoning community of rights holders.
When the scope of political choice over social relations is wide open,
interpretations of the proper ordering of authority find no firm resting place, no durable settlement when its principles all the way down.
No one can discount the importance of who is next in charge.
Mutual forbearance is eclipsed by mobilisation and counter mobilisation each way with intent on rearranging authority for itself.
The long history of bounded resilience is over. And for all appearances, governance is at its wits end.
Now, to be clear. There is nothing especially surprising about the fact that the social revolution
of the 60s and 70s unsettled institutional relationships across the board.
My claim is that since that inflexion point, principles have been losing traction,
seemingly unable to sustain any agreement, sustain any agreeable reordering.
If my diagnosis is correct. It paradoxically, the system's resilience has been compromised by its greatest achievements.
If responses to heightened levels of stress have seriously relax constraints and eroded the system's filters and boundaries,
we should see a similar pattern across a wide range of disparate developments.
If we observe an accelerating shake down of institutional authority along a number of different dimensions,
with principles fuelling the very conflicts they're meant to mollify, then I think my diagnosis becomes a bit more plausible.
So let me now turn to the second part of these remarks. A survey of the burdens mounting on principals.
I'm compiling an inventory. What are you doing here? But in the interest of time, I'll select just for.
In each case, I want to call attention to a qualitative shift in changes underway since the 1970s.
First, the leading principle of good government, the rule of law,
the rule of law relies above all else on faith in the independence and impartiality of judges.
You see where this is going? Judicial confirmation hearings still elicit ritual endorsements of those values.
I have no agenda at nominee John Roberts. My job is to call balls and strikes, not to pitch or bat.
Or, as Brett Kavanaugh insisted more recently at his own more explosive confirmation hearing,
the Supreme Court must never be viewed as a partisan institution. Neutrality is always a testy proposition in democracies.
Scepticism about these pretensions in America dates back to Jefferson's critique of the federal lock on the judiciary,
and court battles have been a prominent feature of the politics of adjustment ever since.
Until recently, however, there's been a fallback position,
the fallback position that justice will eventually conform to a new governing consensus that has helped
sustain faith in the rule of law and to keep those politically inspired court battles intermittent.
It's that fallback position which is now in jeopardy as full inclusion has weakened consensus.
It's also exposed the court's authority a safeguard of the rule of law.
The problem is twofold deepening political divisions make governmental action more reliant on faith in neutral arbiters,
while at the same time they rob the principle of neutrality of much of its political purchase,
the rights revolution at once expanded judicial discretion and narrow the ground of national political agreement.
Ever since, the judiciary has been under intense political pressure,
its traditional claims to authority swept up in an escalating battle for control over the shape of social relations.
One effect has been to subject judicial appointments top to bottom to ideological litmus tests.
This was begun by Richard Nixon and institutionalised by Ronald Reagan.
Intensive political screening by rotating bands of partisans has extended the
contentiousness in your resolution of the political branches into the courts.
One high profile court decisions divide sharply, according to the partisan affiliation of the appointing president.
Faith in the rule of law corrodes, as does the independent authority of the court itself.
A related effect is the practical conflation of judicial reasoning about the scope of rights and the boundaries of structure with mere policy choices.
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
the New Deal in the great society and to restore a principled integrity to the federal structure of American government.
Less than a decade into that experiment, however, the Swing Justice and Ussery bolted and a new majority declared efforts to protect the traditional
governmental functions of the states to protect those against national regulation declared them unworkable,
bereft of any organising principle. An affront to Democratic self-governance and effort by an unelected judiciary to make decisions
about which policies it favours and which it dislikes tilting toward democratic principles.
The majority of nineteen eighty five left the boundaries of federalism to be decided by the political process.
Decisions like these underscored just how difficult it's become to determine with authority what is consistent and what is not.
Twenty eight years later, Shelby County versus Holder has the earmarks of a similar foray.
Another ringing defence of Federalist principles, this time against the alleged ravages of the Voting Rights Act.
This decision to rope five to four.
The dissenters in Shelby Shelby presented compelling arguments that the majority had the value of rights and the value
of structure exactly backwards and political efforts to fashion a workaround immediately became an opposition priority.
In fact, by recognising the the Congress's authority to act and objecting only to the way it had gone about its rightful business,
the majority in Shelby provoked more than it resolved. It appeared despite itself to solicit political responses.
It put little light between the rule of law and judges preferences.
And as those distinctions get harder to draw as the practical entanglements of structure,
rights and policy become harder to sort out, convincingly, settlements become more tenuous.
Finding an authoritative voice for the law is more difficult now, not because judges lack principles,
but because principles are all there are to work with in setting the rules to which others are expected to defer.
The settled boundaries, which once stiffened the rules with firm backstops on interpretation and choice,
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,
it's that there's nothing no longer anything beyond the play of principles to the limit the choices made.
Individual judges seeking consistency in action reach for theories of constitutional interpretation.
But there are now an unprecedented variety of such theories.
Each builds on a different set of constitutional principles,
so adherence to one or the other serves as a proxy of support for a contentious set of policy choices.
Chief Justice Roberts has been alert to these dangers. He's identified Block like voting on major cases and the appearance of stark ideological
divisions on the court as the most serious threats facing judicial authority today.
But there's no sign that anyone except Roberts is interested in providing relief.
Since Roberts first expressed those concerns,
Senate Majority Leader Harry Reid and Mitch McConnell have abandoned supermajority requirements for court appointments,
easing the way toward an even more ideologically charged and policy driven judiciary.
In 2016, we know the Senate refused to consider Barack Obama's nomination of Merrick Garland to the Supreme Court.
And after alerting the nation to the potential alteration of the ideological balance on the bench,
its leadership actively encourage political mobilisation around the vacancy.
Donald Trump, the Republican nominee, followed up rallying support for his candidacy by brandishing a list of
prospective judicial nominees certified by conservative political action groups.
As Trump, as President Trump has called into question the motivation behind adverse judicial rulings,
cast aspersions on the integrity of the judicial process,
and touted his own appointments to the court as a political service delivered as promised to his electoral base.
This accelerating erosion of institutional protections for the principle of the rule of law,
it's de facto fusion with national party combat, electoral mobilisation and policy demand.
This is a burden the court is unlikely to shake.
Roberts has recently pushed back against Trump's charge that there are Obama judges and there are Bush judges.
But these unusual protestations from the bench seem only to acknowledge developments that
are compromising the court's central mission to say with authority what the law is.
As perceptions of the court's neutrality erode, I think we can expect challenges to that authority to become more routine.
For a second example. Let me turn to the leading principle principle behind the administrative state authority in competence.
And its rise to prominence, this administrative state promised to surmount the limitations of courts and parties alike.
Reformers offered new principles to help manage industrial society,
and they worked over decades to transform constitutional relationships accordingly.
Policy science grounded in objective analysis, technical expertise and professional judgement.
These held out a substitute for older forms of authority.
It promised to ease checks to promote cooperation to provide Walter Lippmann called a new discipline for democracy.
As with judicial neutrality, neutrality neutral competence in administration was never accepted at face value.
Perceptions of political bias at the National Labour Relations Board drove enactment of the Administrative Procedure Act,
but the general reworking of constitutional relationships that culminated in 1946 provide provided a new framework of accountability,
one that elevated administrative competence into a vital principle of good government.
Then with the opening to new rights and a corresponding white, correspondingly wider range of programmatic interventions,
the power of administrators was more fully exposed and the centrepiece of the received order became more contentious in the 1970s.
Each of the three branches began simultaneously to reassert its constitutional prerogatives more aggressively,
with the effect of slowly pulling administrative management into a principled melee.
This resurgence of formal reasoning after decades of adjustment to its practical limitations,
this has done less to eliminate dependence on administration than to cast doubt on administrative
competence and to compromise administrative rationality with everyone doubling down on principles.
The value of regularity is getting buried in divergent purposes and shifting political winds.
The administrative state that formation that prioritised rules professional authority cooperation around expertise.
This is a thing of the past. To subordinate administration more directly to the White House.
Presidents draw on the constitutional principle of the unitary executive.
The pattern since the Nixon administration has been to sideline instruments of Inter branch cooperation lodged by the
Congress in the Executive Office and to concentrate agenda control instead in the political offices of the West Wing.
Presidents extend the reach of loyal political operatives deeper into the administrative hierarchy,
and they set policy more routinely unilaterally through executive orders.
Congress resists this drive toward presidential ism, and by asserting its own constitutional authority, is the premier lawmaking body.
It too closes in on administrators, amongst other things.
Congress established the Congressional Budget Office to compete for agenda control.
It recast its General Accounting Office as a General Accountability Office for tighter programme supervision.
It wrote more detailed statutes its Congressional Review Act made it easier for legislators to reverse agency rules.
For its part, the Court two expanded its stockpile of supervisory supervisory roles,
allowing it to tighten or loosen its review of agency decisions more freely.
Case by case, this has made it harder to find rhyme or reason in the application of any rule.
For example, the court has recently signalled a readiness just to discard its fabled Chevron doctrine that is a settlement from the 1980s that
purported to sort things out to recognise congressional presidential administrative prerogatives and to limit judicial review.
Accordingly, such deference, the court now says, need not apply when it's dealing with a major question.
This irregular offering squeeze on administrative competence presents itself as a revival of formal constitutional principles of accountability.
What could be wrong with that? But the Constitution did not anticipate the administrative state and its adaptation to
that arrangement rested on the semblance of a consensus on new ordering principles.
By itself, a revival of formalism is unlikely to reorder things again,
if only because the formal principles of control offer no coherent response to the altered
conditions of governance which gave rise to the administrative state in the first place.
But the reversion to formalism really reflects our widening disagreements about the programmes
administered and the absence of any consensus on how to proceed in these circumstances.
There is no new discipline for democracy in formalism.
Constitutional constitutionalism degenerates into a kind of lawfare were policy driven calculations,
subordinate rules to the instrumental wisdom of the moment.
As faith in administrative competence has eroded, public administration has found itself drawn ever more directly into the crosshairs.
In the 1970s, think tanks proclaimed the administrative state incompetent and promoted alternative principles
of privatisation and marketisation allegedly more consistent with America's fundamental values.
More recently, political scepticism about the principles that built the administrative state push beyond the high
minded concerns of conservative economists and accelerated into a full blown populist revolt.
President Trump has taken scepticism of agency cultures to a new level of hostility,
staffing of the executive branch slowed to a crawl as finding managers of sufficient loyalty became more difficult.
At the same time, Congress sidelined its own budget office,
dismissing the forecasts of its own chosen experts because they failed to accord with the programmatic priorities of the majority.
On the other side of this assault are the constituencies for programmes under attack.
They've rallied a counter movement around the slogan I believe in science.
And they've cheered career administrators as they push back on behalf of knowledge based governance by competent professionals.
This ups the ante considerably pushed back in favour of professional administrators,
undermines faith in the actions of elected politicians and raises uncomfortable questions
about whether formal authority is an adequate basis for the government's choices.
That, in turn, feeds already aroused suspicions of administrative power, and a political bias is embedded in public administration itself.
Sceptical partisans in the White House and the Congress now routinely identify administrators and
their support networks with a deep state that defies constitutional authority and democratic will.
This is a principle free for all, with the potential to tear this government apart.
And strange to say, it's hard for a detached observer to tell which side is mounting the coup.
That illustrate the reach of the concerns to broaden a bit the reach of the concerns I'm trying to raise here,
let me consider the principle of diversity e pluribus unum.
And the relationship between liberalism and nationalism. There's an old saw that America is.
Just a set of liberal principles. A nation held together by the universal ideals that it espouses.
The American constitution upholds equal rights, equal protection, representation, toleration,
individualism, blind to difference, open to all these principles support a nation of great diversity.
Repeatedly, reformers have leveraged these ideals against local prejudice, against social hierarchy, against rule, by prior right.
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,
in fact. But the cultural baggage of time and place weighs heavily on the elaboration of universal principles.
Now that reality has caught up with principles, diversity, in fact,
is testing the relationship between liberalism and nationalism and throwing governance into the grips of a culture war.
The accommodation of diversity and nationality is an ideal that predated the Constitution and in no small measure justified it.
The early Connexions, however, were closely circumscribed diversity made a team appearance relatively tame appearance,
at least in as a constitutional principle in The Federalist Papers and James Madison's famous arguments for an extended republic.
The emphasis there was on the greater variety of property interests to be represented in the national legislature
and on the security provided there by four represented minorities against the formation of tyrannical majorities.
As a principle of good government and a rationale for federal empowerment,
diversity promised to moderate the ambitions of each interest represented at the
Centre and to help policy decisions attain the semblance of a national consensus.
This argument for mutual protection through diverse representation was undercut a bit by the rise of a party state,
which, after all, facilitated the national formation of programmatic majorities.
It was undercut even more by the Civil War, which raised the spectre of a partisan majority in the North,
empowered to force the incorporation of new rights holders in the South.
Ironically, it was those defeated secessionists suddenly vulnerable in their own locale,
suddenly desperate to moderate the new powers of this post-war republic.
It's they the Southerners who revived the principle of unity in diversity.
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.
This time, though, they gave the idea a cultural spin all the more ominous for its sheer perversity.
The true cause of reunion.
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.
When the rights revolution exploded, that pretension and finally open things up.
It forced a reckoning with these tensions long simmering within the notion of a diverse nation held together by universal principles.
No sooner did a more muscular national government throw its weight behind affirmative
action for new rights holders than others pushed back in defence of equal treatment.
Justice Lewis Powell, not coincidentally, a son of the Old South,
hit upon compromise his opinion in 1978 and regions of the University of California versus Balki, which has diversity.
No longer would it be a vital protection for rights holders or a condition for national empowerment.
Impels hands diversity became just another goal, hanging on as a legitimate public purpose.
The principal could be promoted through policy,
but only if its advocates could show that their methods minimised any infringement on other people's rights.
The balky decision strained for consistency without producing much traction.
Instead, it drew out the historical mismatch between liberal principles and national realities,
and that far from sorting through the dissonance, has pulled the country deeper into a cultural quagmire.
On one side, the reality of greater diversity bears down on assertions of national authority with the full weight of past injustices.
Recognition is no simple matter for new rights holders for the cumulative consequences
of a long history of exclusions links a hollow ring to belated offers of incorporation.
Multiculturalism resists mere accommodation, identity politics, conditions, the legitimacy of national action.
Old forms no longer instil confidence and mutual protection.
More troubling still is the reaction of those who experience the new inclusiveness as an infringement on liberties previously enjoyed.
Animated by their own brand of identity politics, they identify proponents of diversity as a threat to the nation's historic character,
and they issue cosmopolitan demands for rights, recognition and representation in defence of a more full throated Americanism.
The culture wars did not begin with Donald Trump. Trump has, however, dispelled the illusion that cultural divisions are just a historical hangover.
The John Dewey's great community lies just around the corner. It's less certain than ever that liberal principles inevitably will out.
For my final example, let me say a few words about balance.
For the framers, balance was the principle that held all other principles together,
the framers large balance in structure in the composition and arrangement of institutions.
The House of Representatives balanced majority with minority rights.
The Senate balanced nationalism with federalism. The Electoral College balance, large states with small states.
The whole panoply of divisions and separations.
Balanced interests and policy against protections for rights because the equities were ingrained in the arrangements themselves.
No one was to have to work very hard to discover them. By and large, they were to be upheld and personally, operationally, automatically.
Again, however, under the pressures of development, the formalities repeatedly fell short.
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.
Rule was invoked to maintain an equilibrium of free states and slave states over the course of westward expansion.
But at other times, one set of principles steamrolled other concerns, upsetting the balance and opening the structure to a major transformation.
That was the case with the reconstruction amendments, when the principle of balance is reasserted after a shake up like that.
The institutional arrangements on which it's supposed to rest become less self-evident and the equity is asserted become more contestable.
The doctrine of separate but equal that was a bold declaration of principles purporting
to reconcile new conflicts amongst rights holders rumbling out of reconstruction.
But as a practical matter, the balance struck by that rule was glaringly one sided.
All these adaptations claim consistency with the Constitution, but by degrees,
the formal structure of government was doing less of the work and producing a balance and pressures to maintain some semblance of equity.
We're falling increasingly on officeholders themselves. Recognising these pressures,
progressive reformers in the early 20th century sought to shift responsibility for finding the right balance off
of structure per se and onto what Herb or Crowley called representative men exercising discretionary authority.
The so-called revolt against formalism charge political leaders to produce
equities proactively through what Crowley called constructive discriminations,
the legal pragmatism of Oliver Wendell Holmes did something similar for judges.
It denied categorical rights and tied rights instead to what Holmes called the neighbourhood of principles in which they operate.
This intellectual shift in thinking about balance from reliance on structure and rights to reliance on policies and principles,
this prestigious the political free for all that would follow the decisive social breakthroughs to come.
The institutional foundations of balance were shaken to the core when the court
set aside the last of the structural restraints on realising equal treatment.
And when Congress followed up with civil rights legislation. Since then,
the constitutional principle of balance has come to turn on the proliferating set of judge made rules determining
appropriate degrees of scrutiny through which the scope of rights and the range of policy will be defined,
categories have blurred. Judgement calls have become pervasive. Judging itself has become harder to distinguish from legislating.
Observers of all political stripes worry about constitutional law in this age of judge made balance fearing, as one commentator says.
We fear that it has lost its ability to persuade. The problem of legibility that plagues today's balancing rules brings full circle.
My survey here of the burdens mounting on principals. This is, after all,
the same development that's magnified this way of political considerations in judicial selection and threatened judicial impartiality.
Officers throughout American government are now charged to strike the right balance by their own lights.
Indeed, balance is no longer an institutional principle at all. If there's a shared standard that justifies action on this score,
if there's a precept from the 1970s that all officers espouse and finding the right balance,
it's the economic principle that the benefits should outweigh the costs. Any hope of reordering American government on that ground seems slim.
Its costs and benefits, the very stuff of political contestation.
Balance has in this way become another principle without traction, one that exacerbates the very conditions the Constitution was designed to assuage.
One that feeds by turns, scepticism, volatility and gridlock.
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,
the idea that there's a point beyond which the Constitution's adaptive mechanisms
cease to be effective in reducing stress and restoring a semblance of order.
And yet I would say developments are now bumping up against the assumption that the old forms can be updated indefinitely,
so long as we have the right principles.
The hunch that I've elaborated on this talk is that the historic resilience of the Constitution has been undermined by its greatest achievements,
that the elimination of those incongruous exclusions and the concomitant opening to interests in
contention have weakened categorically that the adaptive capacities of its basic institutions.
Raising this possibility recast the institutional problems of our day.
If this diagnosis rings true, conservatives will find it harder to assert that the Constitution had it right at
the start and that all we need to do is find our way back to its true principles.
It will also be harder for progressives to argue for plunging ahead on the view that modern governance is all about
solving policy problems and that any necessary rearrangement of the furniture well that will take care of itself.
There are several responses to the argument that I'm building here.
One might be just won't let it rip. If it's true that rule based regularity rested on exclusions, well, who needs it?
This is, I admit, an appealing sentiment, but I don't think it's much of a solution.
Even the most ardent Democrat must recognise that rules are what make commitments credible and governments trustworthy.
Developments that weaken them make it harder to secure the rights and sustain the programmatic supports that modern democracies demand.
At the opposite extreme, one might be tempted to blame democracy and look for ways to roll back access and circumscribed commitments once again.
That impulse is ample in evidence in American politics today.
But if the goal is to stabilise affairs, this too seems to me to be a dubious strategy.
It's one thing to assume ancient boundaries on inclusion.
Quite another to keep people out who are broken through them hard to defend as anything other than wilful repression.
After the fact, restrictions are unlikely to alleviate, the pressure is mounting on basic institutions.
For those of sturdier faith, it will be tempting just to write off these concerns as a failure of imagination.
Not hard for me to think up ways that current problems of government might be addressed through
some further redeployment of the Constitution's principles on the basis of what I presented here,
the possibility that there's another rabbit in the house, I can't be foreclosed.
Note, however, that the problem, as I posed it is not a lack of ideas.
This polity, the American polity, is awash in ideas.
The issues we have yet to focus on a historical and structural, the problem is that through its own developmental processes,
this polity seems to have eroded the ground for any political agreement on the up,
for any political agreement on any particular ordering of its principles.
If the platform of institutions and principles erected by the Constitution now appears hollow and wobbly,
it may be because all the unprincipled material beneath it has finally been cleared away and because all the
governing problems once dealt with down there are by prior right have been piled on top of this platform itself.
That makes this emergent state, this policy state a principle free for all its actions and priorities,
no longer anchored by a robust sense of rights and a reliable structure of decision making authority far
more inclusive than the party state of the 19th century or the administrative state of the 20th century.
This new formation is also unbridled in its instrumental ism, volatile in its politics and unstable and its rules.
The cumulative effects of development express themselves here,
paradoxically in democratic gains that have outstripped their institutional accommodations and put American democracy itself at risk.
Thank you.