Transkript: Daniel Ziblatt and Maximilian Steinbeis: Is American Democracy Unreformable? The Anatomy of an Enduring Political Crisis
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Welcome, everybody. My name is Daniel Ziblatt. I'm director of the unit at the Vets at Bay on
transformations of democracy. Yeah, so it's wonderful to have everybody here. This is part
of the series Solvable and Unsolvable Problems, Social Science Perspectives on the Current Crisis.
This is the second version of this. We had one last week. And the next Friday, there will also be
be one with Ruth Koopmans on the Asylum Lottery.
Today we are talking about is American democracy unreformable, the anatomy of a political crisis.
So I'm joined today with Max Steinbeis, who is the editor of Fafasungsblog.
And so between the two of us, we're going to talk about these topics.
The way we're going to proceed is I'm going to talk for about ten minutes and then we'll
open it up for conversation between Max and myself.
And then the chat function is available to people, so people can ask questions.
And towards the last part of the conversation today, we'll open it up and go through the
questions in the chat to kind of have a more interactive conversation.
Really happy to talk about these topics and, you know, the theme of this series, unsolvable solvable problems.
I guess the motivation really is to think about in our politics, there's so many pressing crises
facing all of our polities today. And there's a growing sense that many of these things are
just unaddressable, and yet they're essential to address. And so when I was thinking about what I
wanted to contribute, I thought I would talk about the problem of American democracy, which is
something I've spent a lot of time thinking about recently. And the title again is, Is American
democracy unreformable. And the question I really am interested in thinking about is why does it
feel like with each election in the United States, the American political system is really on the
precipice, that it's about on the verge of collapse. And every four years in the presidential
election, there's a sense that everything could go wrong with global reverberations.
Now, this is really a puzzling question to even ask because, of course, America is an old
democracy. It's a rich democracy. And social scientists, they disagree about lots of things.
But two things that the past century of data make really clear is that old rich democracies
are not supposed to die. They're not supposed to even really get into trouble. They're supposed
to be consolidated. Age and wealth of a democracy is normally predicted to be highly correlated
with stability. But between 2016 and 2020, we saw that America did something that no other rich
democracy, old democracy in Western Europe – it depends on where you draw the border – but among
the old established democracies of Western Europe and Asia, the US experienced something that no
other democracy did, and that is that it experienced a genuine episode of what political scientists
It's called democratic backsliding.
Now, if you think about this, Freedom House, the organization that ranks democracies.
Has an annual global democracy freedom index that scores all countries from a low of zero to a high
of 100. 10 years ago, the US had a score of 94 out of 100, which put the US on par with roughly
the United Kingdom, Canada, and Germany. Today, the Freedom House scores the United States at 83,
which is tied with the country of Panama and two points lower than Argentina. Now, this may seem
shocking, at least it is probably to many Americans, but when you have widespread efforts to
restrict voting, violent threats against election officials, efforts by incumbent presidents to
overturn an election, then you reach a point where an organization like Freedom House considers you
less democratic than Argentina. Now why did all of this happen and why do we feel like often we're
on the precipice? Now it's very tempting to kind of blame a single demagogic politician.
It's also tempting maybe to blame American voters who vote for those demagogues.
But the main point I want to make today and the kind of main message of my brief comments
is to say that – and it's in some sense maybe a provocative point – is that both of these
missed what I think might be the central problem. That central problem may be America's constitutional structure itself, that our constitutional structure, the American constitutional structure has entrapped in a sense the American political system.
So I'll explain very briefly what I mean by this. Now, the American Constitution, as everyone probably knows, is among – is the world's oldest written constitution still in existence.
It's a brilliant document in many ways. It's remarkable for the period in which it was written. It's continued to be remarkable in providing a basis for prosperity and political stability.
There's much to admire about it, but it was also written in a pre-democratic era. I mean so it contains within it lots of undemocratic features.
These include an electoral college, which allows the loser of the popular vote to win office. That's something that has happened twice in the 21st century.
It also includes a second chamber, a senate with equal representation for each state, small states and big states, which allows a political party to hold power without winning majorities of the national electorate, something that's happened for about half of the 21st century.
And it also includes a federal judiciary, a federal court system without term limits or
retirement ages for judges. These are three core pillars of the national political system.
And then when you add to that something that's actually not in the constitution, a filibuster,
a rule that requires two-thirds majorities for all legislation. All legislation requires a two-thirds
majority to get through the Senate. This is an obstructionist tool that no other democracy has
close to having. So you add all of this up, and America really begins to look like a real
constitutional outlier. All democracies that used to have electoral colleges got rid of them.
Most democracies that had upper chambers either got rid of them as happened in Scandinavia,
weakened them, or as in West Germany after 1945, with the Bundesrat, made them more
proportional to population. And then finally, all democracies have imposed some kind of
retirement ages or term limits for federal judiciaries. Now, each of these political
institutions, this kind of unique configuration of constitutional structures in the United States
matters so much because they allow political parties to win power often without winning
majorities. So I'm just going to make this very concrete with a specific example. So in – this.
Indicates a kind of deeper problem. In 2016, a president won office without winning a majority
of the vote. His party allies, the Republicans, took leadership of the US Senate without representing
a majority of voters. That president then, who didn't represent a majority of voters,
nominated three conservative judges who were confirmed by that Senate not representing a
majority of Americans, creating a 6-3 balance that will endure now for decades because there
are no term limits or retirement age for those judges. I think many people would consider this
as a kind of form of minority rule.
So the question is why is the US in this situation? Well, if you look really at the arc of history, for the first 200 years of America's history, Americans, like citizens and other democracies, did the hard work of making their constitutions more democratic.
After the Civil War, this happened in the United States. In the early 20th century, there were progressive era reforms that gave women the right to vote.
Senators were elected instead of appointed. These all require constitutional amendments. So this is part of an American tradition.
But around 1970, this stopped. In America for the – about a half century now, since 1970, Americans have really stopped doing the work of making their political system and their constitution more democratic.
This has brought America, in my view, increasingly in the 21st century to a crisis.
You might say, why now? Well, each of these institutions that I just mentioned favor – increasingly favor rural
For most of our – America's history, these institutions benefited both parties, sometimes
with one party, sometimes another party. They always benefited rural areas.
Rural areas were over-represented in the political system.
But increasingly, because the Republican Party is the party of rural areas, the Democratic
Party is the party of urban areas, this means that rural areas, because they're overrepresented
in the constitutional structure, one political party is then overrepresented.
This has three – had three big consequences and sort of the heart of what I want to talk
about today is really the first one. It means that increasingly, public policy is increasingly out of sync of where voters,
So if you really study closely public opinion polls, one of the things you'll see is that
the most important issues of the day in American politics, gun control, abortion rights, climate
change, policies to address poverty, public opinion polls show overwhelming majorities in favor of action.
But because our institutions don't represent those majorities, our institutions thwart those majorities.
And so a second consequence of this then is that many Americans increasingly believe that their political system is simply not capable of action because, in fact, on these important issues, they aren't.
And there's – because there's such a divergence between policy preferences and our institutions, there's declining legitimacy.
And all of this, I would argue, has a feedback effect on the Republican Party in particular because it doesn't have to win majorities to win power, and so the normal mechanisms of accountability are broken.
I mean in a sense, if there's no pressure to reach out to moderate voters, if you're losing a lot of – usually when you lose elections, it's like a firm.
You're supposed to come up with a new strategy. You fire the CEO.
But if a political party is receiving the kind of bent protections of our constitutional structure,
then it doesn't need to do this. And so this, I think, contributes to at least one
factor to the radicalization of the Republican Party.
Now, so what this suggests, then, that there's some need for a constitutional amendment.
This kind of tradition needs to be reawakened. How do we get out of this bind?
And this comes now back to the problem of the unsolvable problem.
And we seem to face an unsolvable problem. It's because the American Constitution is among the world's most difficult to change. To change the US Constitution, to pass an amendment to the Constitution, which a lot of these institutions require, you need to have two-thirds of the House of Representatives vote on this, agree to it, two-thirds of the US Senate, and then three-quarters of the state legislatures across the US states.
It's because of this actual just mechanical difficulty that there's only been 27 amendments
in American history, and it's also in part because of this that Americans have given up on reform.
Now if I'm right that our constitutional structure is the source of the problem, and it's so
difficult to reform it, you can see the problem.
But this is the thing I kind of – the point I'll kind of end on is that there is however
really there has been a kind of great tradition of democratizing the Constitution. It's a 200-year-old
tradition, but it's a tradition that I think has withered away in a sense since roughly 1970.
So most Americans don't think that their constitution can change.
And this is a major barrier ultimately to reform because a barrier to reform is thinking that reform is impossible.
And so I think the way out of this bind in a sense is to begin to awaken this public debate, and in a sense, there needs to be a kind of new constitutional imagination.
I mean I'm very much aware of the kind of constraints that partisan interests play in this.
But it's pretty clear that there needs to be kind of social pressure, a broad social movement necessary to alter the calculus of political leaders.
Sometimes these movements in the past have taken decades and that's maybe what's necessary if we have the time.
I guess a final point I would end on is, well, what can scholars do?
I mean I'm a scholar. Probably lots of the people here in this seminar here are scholars.
And I think what we can do is begin to start to talk about these reforms, so that when the time is right, the reform ideas are there.
And I'll end – I think this is an appropriate way to end for a Wetzel Bay seminar, to a quote from Rolf Dahrendorf, an interview with Rolf Dahrendorf.
When he was asked in this interview that I saw of him many years ago, he was asked,
what explained the great leap in the creation of international institutions after World War II?
He answered, if you go back and look at the origins of the post-war order, starting with
the United Nations, the International Monetary Fund, and the World Bank, and a whole lot
of subsidiary institutions, if you look at the origins of all of that, you will find
that most of the ideas were actually thought out during the war.
It's extremely important that when the moment comes in which it is possible to take a new
leap forward in institution building, that the ideas are already there.
So I think that's what scholars need to do, is to begin to think about ways of making
constitutional structures work better, because without that, I think we'll continue – the
American political system will continue to be crisis-prone and crisis-ridden.
Thank you very much. This was really brilliant and I think it's particularly fortunate that we
talk about this American topic in the German context because this is one of the features
that both countries and both constitutional systems share that the constitution is looked
upon as some sort of a foundational text of the political community and is treated as a bit of a
of a sacred book of revelation that is handed down from a higher power as opposed to something, a man-made law, which of course can be changed.
And this is very much something the American public and the German public has in common, I think.
But on the other hand, the German constitution does not suffer from a lack of changeability.
Right? And probably even more the opposite. Some people like Dieter Grimm say that it can be
changed way too easily and this leads to a temptation for political super majorities to
withdraw certain policy topics from majoritarian politics and put it into the constitution itself.
And self-bind themselves to not deal with these topics any longer in a political way, in a majoritarian way.
So this is kind of like mirrors the American situation in some way, right?
Yeah, it's interesting because you're right that it is, it's a kind of the inverse problem,
But in many ways, it results in the same outcome, which is that because majorities aren't necessary – it's hard to build majorities in the United States.
It's not necessary to govern with majorities in a sense that things are kind of removed from majoritarian politics in the United States.
And the way that things get done is through these counter-majoritarian institutions.
And so in a certain – in a kind of paradoxical way, that's a kind of similar problem.
If one's goal is to kind of allow for democratic politics to take place, you can either remove
things from the – from that as you're saying, or constitutionally the structure
prevents that kind of politics from taking place.
Yeah, so that's quite interesting.
There is a reason for a constitution to withdraw the fundaments of majoritarian politics from majoritarian politics,
because otherwise this whole thing would become self-paradoxical.
So how do you strike the right balance there? But it makes a solvable, unsolvable problem in the first place, right?
Yeah, so striking the right – because I don't want to be misunderstood.
I mean I'm kind of making the case here for more majoritarian rule in the United States.
And I don't want to be mistaken as somebody who might be – if Netanyahu were to hear me say something like this in Israel, he might say, well, this is exactly what I'm saying.
This is why we need to work and weaken the courts in Israel.
Israel or Viktor Orban may say exactly. This is what – we want a political system where
majorities speak and we don't have these kind of constraints like judges protecting civil liberties.
I really do not want to be mistaken for making that argument, very much alert to that issue.
Because the democracy consists of two pillars. One is majority rule and one is the protection
of minority rights, and both are absolutely necessary. As you say, striking the right
balance is the trick. It's – so when one makes a diagnosis, does there need to be more majority rule
or less majority rule? It's very institutionally specific. So within the context of the United
States, because of these institutions that I've just laid out, it's actually – what's needed is
more majority rule. If you look at the Israeli context in which you have no written constitution,
a unicameral assembly, no federalism, the only constraint in effect on the government – I mean
the electoral system of course makes things more complicated. If you have a government,
the only constraint is the judiciary. So in the context of Israel to say that we need more
majority rule, we need to weaken the judges, allow the government to appoint the judges,
and limit the judge's abilities to constrain the government's decisions, that this is obviously – I think this is the – Israel is sort of at one end of the spectrum and the United States is at the other end of the spectrum.
And in the context of Israel, I would say that one actually needs more constraints on concentrations of power, more constraints on majorities.
So it's institutionally specific, but more generally, I mean, one of the things I've
sort of tried to think about is where.
How does one strike that balance that you're saying? I mean what – is there – are there certain domains that ought to be within the reach of majorities and are there certain domains that ought to be beyond the reach of majorities?
There was a very important Supreme Court case in the United States in the early 1940s in which Justice Jackson, who wrote the opinion, said there are certain things that are beyond the reach of majorities.
And by that, he meant that the case that he was looking at was this case of where a religious minority, Jehovah's Witnesses, and local communities refused – the children refused to salute the flag in schools to say the Pledge of Allegiance to the American flag.
And they said this was against their religious beliefs. And the local town passed an ordinance. The majority, the local majority passed a town saying they had to do this.
And initially, the court sided with the town saying, yes, they have to do this. I mean this was in the midst of World War II, and there's a kind of patriotic fervor.
But then eventually, the court came back and said no, and this is where Justice Jackson wrote his argument.
He said that certain things are beyond the reach of majorities. Certain individual minority rights are beyond the reach of majorities.
So where does one draw that line? And I guess the way I've thought about this, this is an effort to provide a solution to a potentially unsolvable problem.
So you can tell me, Max, if you're convinced or not, that there's two things that – there's
certain things that need to be beyond the reach of majorities in particular, and this
is sort of classical liberal – conception of liberal democracy.
One is basic civil liberties, freedom of speech, freedom of association, freedom of assembly.
Then second, the political opposition needs to be able to organize in a democracy.
So in other words, you can't have a temporary majority banning the opposition or making
It's life so difficult for the political opposition that it can't actually compete.
So in a certain sense, the opposition has to have a right to competition.
So these are things that majorities can't pass laws limiting competition, limiting the opposition.
And also you can't – the majority can't pass laws limiting civil liberties.
Now what – so those are things that ought to be beyond the reach of majorities.
That's probably not very controversial.
What things should be within the reach of majorities? I would say kind of two things.
One, the right to form governments.
So in other words, if you win the most votes or if you win a majority, you ought to be able to form a government.
And so what's kind of striking about the electoral college is that you can lose an election and still form a government.
And I can't really think of any theory of democracy that could justify that.
So elections ought to be within the reach of majorities, and then the second thing that has to be within the reach of majorities is the ability to legislate if you are a government.
If you formed a government, you should be able to pass laws in a legislature without excessive supermajority requirements, provided you're not passing laws that are violating those first two principles.
If you're just passing normal legislation that's not restricting civil liberties or disempowering the opposition, then the majority should govern.
And so that's where you strike the balance. I mean that's – in any case, I mean I know there's some gray edges to that, but I don't know.
Does that solve the problem or not in your mind, Max?
Max Blumenthal Do you have a country or a system in mind that you think strikes that balance?
Yeah, I don't know about that. I don't know about that. Israel doesn't and, and the United States doesn't. You know that. I don't know, maybe you know, because there's something that strikes me so why does Germany not strike that balance?
Balance? Again, because I think, or many think, and so do I, that it's too easy to.
Constitutionalize policy matters, as long as the two big parties agree upon a two-thirds majority
in the Bundestag, and the Bundestag agrees upon the fact that certain things should not be discussed
anymore because they're, they're none of the, neither the government parties nor the opposition
parties profit from it, then they can just write it into the constitution and have the illusion of
getting rid of it in some ways. And so why, yeah, so maybe I could ask you a question,
why is that? So why, why is this a problem? I mean, if there is broad consensus, and there's
something that, that there's kind of broad consensus on and you want to ensure that it
remains locked into place. I mean, you know, I think there is a value as much as I'm, you know,
concerned about having majorities govern. I mean, there is a value to having a constitution that.
Locks certain core values into place. What's the problem?
Dr. Andreas Spencer Yeah, because it's not core values, necessarily. It's just policy. It's a policy that at some point in history, the parties find it
comfortable to withdraw it from politics.
So an example, I guess, in the German context is the debt limit.
Maybe you could say – Yes, that's right.
So when was – yeah, so what was the political purpose, though, of including it in the constitutional structure?
The background was of course the debt crisis and also an agreement across parties that austerity politics is a good thing.
And so this becomes too easy.
And this changes and then suddenly you find out that you can't re-politicize it if you want to because it's right there in the constitution.
And you need to change the constitution for it and then to go through that process,
which is not made for discussing policy issues.
Yeah. Now, what about the, I mean, another issue that I guess I'm thinking about here
is not only the difficulty of changing the constitution, but also the importance of supermajority rules
to make it difficult for majority.
So, I mean, so in the US, I mean, this is the US filibuster is not part of the US constitutional structure.
In fact, the founding fathers were very nervous about these kinds of things.
I mean they looked to, of all places, Poland in the end of the 18th century and were very
concerned about the Liberum veto in Poland, which will – where there's a single member
of the Polish parliament could block any piece of legislation.
This allowed kind of inability to form a national security policy in effect.
So Austria, Prussia, and Russia could just sort of swallow up Poland.
So they were very concerned about this. So there was no filibuster rule requiring this two-thirds majority or two-thirds super
majority requirement. and this is something that only.
Kind of developed, I mean, very tentatively in the beginning of the 19th century, but only became
its common practice in the last 50 years. And what's kind of remarkable is this kind of idea
that things are viewed as coming from God, the Constitution comes from God.
You know, what's so incredible is that many leading American politicians think that the
filibuster was part of the constitutional order. And so give it the status, oh, well,
Well, the founders really wanted the filibuster so it would encourage us to kind of cooperate.
At least they say this publicly and then citizens hear this and they believe it.
But this idea that it can be used for all legislation is just this complete barrier to any effort to address.
Things like gun control and things that people care about.
But the filibuster has been developed in the absence of solid minority protection
in parliamentary procedure, right?
So this is what the system came up with to fill this gap.
Could that point be made? Yeah, no, I don't think so.
I mean, I think there are already lots of, I mean, there's a kind of plethora of minority protections.
I mean, there's a difference between a minority protection and a minority veto, preemptive minority veto.
I mean, this is the beautiful thing about the judicial review.
If there's some law that's a violation of individual liberties, then you can have a court kind of – somebody can file a case on this, and there can be a court review of this, and it can be decided.
But to kind of preemptively block – so there are certain Americans who certainly believe that their civil liberties are being violated.
If a law is passed to restrict their access to guns, I mean they feel like their laws, their rights are being violated.
And so the filibuster is necessary to protect their rights. And I guess my sense is that – I don't know why – what's the rationale for doing this preemptively in a way?
Why should one block this from happening to begin with? Instead of allowing a kind of legislative process to proceed, voters can punish the politicians for having pushed this through, and parties – they can punish them in a democratic process.
And so, in the end, it similarly is withdrawing things from the political sphere, but doing it through this kind of counter-majoritarian institution.
Could one make a distinction between withdrawing policy matters from the political sphere and procedural matters from the political sphere?
The very procedure in which majoritarian politics plays out, from my point of view, it makes sense or it's even a requirement for a functional constitutional democracy
democracy to withdraw the...
The ways majorities are formed and empowered from the majority itself,
because otherwise it would just become paradoxical.
So would that be a criterion to distinguish between legitimate minority protection
and super majorities and illegitimate ones?
So you're saying the ability to reform the procedures themselves, you're saying, should
be something that's beyond the outside of the reach of majorities.
Yes. And not yet the procedures, yeah, the political – exactly.
And I guess I would disagree with that, because I think the way you get major institutional
reforms, democratizing reforms, are through changing the rules of the game.
And so giving, let's say, African-Americans the right to vote required these fundamental changes of the rules of the game that could have been regarded by the defenders of the old racial order as, oh, this is disrupting this old constitutional order.
So I think there are these moments where – and you know what's incredible about the passage of the 14th and 15th Amendments.
The 14th Amendment guarantees equality before the law. This was passed right after the Civil War.
And the 15th Amendment prohibits the restrictions to access to the ballot on the basis of race.
Both of these laws were passed with overwhelming majorities of one political party.
The Republican Party in both cases overwhelmingly unanimously supported these, and not a single Democratic member of Congress or the Senate voted for these.
They all opposed it, and it's just because Republicans have these huge majorities.
So in some sense, it was a totally partisan affair, in part self-interested because the
Republican Party wanted to have voters – thought that African-Americans would be loyal voters
But without those – so there was no consensus on this. But without that kind of pushing through of reform, what if it ever come?
I guess that's kind of the paradox. So that's in a case where there was no protection of minority – of partisan minority rights.
I guess maybe that's another thing to think about. Isn't there a difference between partisan minorities and individual minorities or people
– cultural groups and other types of – I mean partisan minorities have no – parties represent people.
But partisan minority interest is just – I mean that seems to me to have some – less
of a normative value in some sense.
Doesn't the constitution have the function as well to give every party and every participant in the political process the sense of being safe from being just walked over?
Yes, it's absolutely necessary. And that's why you have basic – in the United States, in the American context, you have these kind of basic rights of civil liberties.
You have a court system that can enforce these.
And so I think all of that is necessary. It's just that one can go sort of too far in this direction.
I mean there's this kind of funny way in which the kind of things that I'm talking about are very, in some sense, very modest because every other democracy, I think, has the – does not have an electoral college or doesn't have these kind of extreme supermajority.
Majority of these extreme protections. And so, in the American context, it's regarded as radical.
So, you know, you're a kind of nut if you make these proposals. But if you are, you know,
speaking to a non-American audience, it's like, well, of course, you should get rid of these.
But again, we're back to the kind of core problem, which is how do you generate the movement.
Necessary to achieve that? That's something that's, of course, much harder.
Right. Let's return to that observation. So if I get you right, you actually think it's not so much a problem of the amendment procedure.
That would be, I mean, the bars are high, but that would be doable.
But the resolve is lacking. And why is that? Is this because it just has, like, the whole,
political discourse has deteriorated to a point where you just can't talk about anything, and so,
you can't talk about that any longer either? Or how would you explain that?
Yeah, you know, I don't know for sure, but I think, I mean, it's certainly the constitutional
barriers are enormously high. Without that, it would be much easier. I mean a constitution that
I like to compare the American Constitution to is the Norwegian Constitution because it's the
second oldest written constitution in the world after the American Constitution. It began as a
much less democratic constitution in 1814 or when it was written in the early 19th century.
Obviously with a king and upper chamber and highly undemocratic. But today, according to all
Norway is much more democratic than the United States, and it has a very old constitution that's still intact, but it's because the constitution is much easier to change.
And so that certainly plays a major role. But I don't think that can be changed in the US.
I mean I think the rules of changing the constitution can't be changed. So the question is how to – so this is the unsolvable problem.
How do we – these reforms are necessary, but they appear to be almost impossible.
So what do we do? And so you've asked me the question. I'm just – I'm repeating the problem. I'm not telling you the answer.
But I do think that because there is a record of – in the past, we need to begin to study that.
How did this happen in the past? And one thing that I think does – I mean one clue to the answer to your question is that these constitutional changes cluster together.
I mean it's no accident that they happen immediately after the Civil War and the early 20th century in the US.
I mean you have a series of amendments passing all within five years of each other, and then you get these long periods where nothing happens.
So what does that tell you? And I think what that partly tells you is that there is like a momentum of reform where – so I personally think like in the United States, you have to begin with reforming the filibuster,
which is something that's just a Senate rule.
And once that, that's the kind of path forward.
Once that would be reformed, then it would be possible to pass voting rights reforms
and these would no longer be blocked.
And this would generate momentum. I mean, I think citizens would begin to see
it is possible to make these reforms. Now, there's an additional barrier which I'm kind of downplaying,
which is the kind of high levels of polarization.
Because to get two-thirds majority, you need to have both parties
or overwhelming majorities for a single party,
if one party was in charge.
But this is where – so I'd say I'm using these kind of loose terms here as a social scientist, but political imagination.
Citizens have to think it's possible. But in addition to that, we need kind of creative political leadership to forge coalitions and to think about where are opportunities for finding alliances.
Republicans are really sort of anti-politician. They don't trust politicians in general.
They're always big fans of...
Term limits for politicians. What if a kind of deal was struck where you say,
US senators and members of Congress should have 18-year term limits? You can get re-elected
multiple times until 18 years up, and Supreme Court justices should get 18-year – everybody
gets 18-year term limits. The only people who don't have term limits are kings and professors.
Politicians maybe should have term limits. So this would be a kind of alliance. I don't know if this is like a viable thing, but this is the kind of thing where we have to kind of look for these kind of coalitions to be formed, to find alliances, to find kind of – to link these issues in a way.
But none of that will happen if we don't even think that this is something we need to do. So that's what I'm sort of trying to put this – a little bit like Rolf Darunder, put this on the agenda and then begin to think about how to find a way forward.
Right. Before we open up the floor for questions from the audience, of which there are a few by now, as far as I see.
One last point. As you mentioned, these constitutional amendments tend to cluster and they come in waves.
Could this be described as a process of pressure building up and then suddenly it reaches a point where the valve breaks
and these amendments can occur and this across the AL consensus can be reached.
And under which conditions? Like one could imagine that one condition is that
this happens after a big political conflict has occurred or even a military conflict has occurred
and one part has lost, clearly and unequivocally has lost.
And that this is the moment when you can sit together and talk about how to avoid this kind of situation
for the future. Would that describe correctly what has happened in American history?
Yeah, so I think, again, this is probably, you know, I'm a comparativist,
so I like to think comparatively, but given the difficulty of the constitutional amendment process,
we have to really look at the American history to look at when these reforms – I think it's institutionally specific.
I think you're partly right that after the Civil War, that's when a lot of these amendments
passed. So that's one instance of this.
But the early 20th century actually is in some ways more instructive because we hope
we don't have a civil war before constitutional reforms.
The early 20th century, the way a lot of these things got on the agenda is you had a third
– so this is really getting into the weeds of American history, but I think it's actually
very interesting, which is Theodore Roosevelt had been president as a Republican.
He stepped down, and then he decided to run again as a third-party candidate in the American
political system, which never makes any sense. You can't become president on a third party.
He created his own party, the Progressive Party, and the party platform – so it was a failed
effort. He got millions of votes but didn't get any electoral college votes, and so he lost.
But his party platform included a whole series of these reforms that ultimately
became – that passed, including the direct election of senators, female suffrage. And so.
As a third-party candidate, he failed in terms of winning the presidency, but he succeeded in
bringing these issues to the public agenda. And so this is partly how this issue came up,
emerged, and a kind of social movement developed where – and this worked at the level of states
where what happened was – I mean this is a kind of question of strategy. What reformers began to
to realize is that if we can get the states in a federal system to change their laws, then we de facto change the facts on the ground.
I mean this is a way that policy changes. You change facts on the ground, and eventually so many states had already given women the right to vote that to then at the national level change the constitutional structure was sort of a relatively easy process.
This is the same way that the direct election of US senators came about.
Because before the direct election of senators, what happened was that state legislatures picked the senators.
So it was a highly undemocratic, indirect election, and what the state – what reformers focused on a couple of states and said –
you know, convince the state legislatures to say whoever wins, you know, which whichever,
they will hold elections and then the state legislature will just choose the senator who
what wins the vote in the state.
And then enough states did this, so that eventually it kind of became a de facto reform. So in a federal system, this is – like the US, this is the way constitutional reform happens.
It's through social movement pressure at the state level. So that's why I think while we all focus on national politics, at the end of the day, the answers may come from the states.
I mean this is where a lot of problems are in American politics, and this is also maybe where the answers could come.
I could go on for hours like this, but I think we should give the audience an opportunity to ask a question.
Yes, thank you, Daniel and Max. This is Harald from the back end, from the VZB team running this webinar.
We at the moment have two questions.
Johannes Tim from the Stiftung Wissenschaft und Politik asks,
how do you assess the role of legal corruption, and that is in inverted commas, in the American system?
That is the role of money in politics after the decision on Citizens United,
the ethical lapses of members of the Supreme Court, the role of lobbyists, et cetera.
Who would like to take the question? Yeah, I can go for that.
So the Supreme Court decision, which, um,
which allows basically the free flow of money. I mean, it's an incredible system. It's equated
with free speech. It's a problem. It's a problem primarily though, I think, because it.
Introduces increased political inequality because it means that not everybody has one – everybody
has one ballot. In addition to that, some people have more money and can buy access and shape
policy in unaccountable ways. So that's clearly a problem for democracy.
In terms of the kind of extremism that's in American politics, I think what's kind
of striking is that the big money was never really behind Donald Trump.
I mean the big money was opposed to Donald Trump and he won the 2016 primary – 2015-2016
primary against the wishes of the big financial backers.
He was somebody who had the support, at least early on, of not the big-moneyed interests.
Over time, of course, he then – once he was president, people kind of joined the movement
and became his supporters.
So I don't think it necessarily explains extremism. But in terms of the kind of disjuncture between public policy and what citizens want and where
I think there's really two different sources of this disjuncture. One is money. I mean one is – and there's good political science research showing this – trying to show this anyway.
It's difficult to show how money affects policy outcomes. So climate change legislation is going to be blocked by interests who work against this.
But the point I would just emphasize is that our institutions are part of the problem. Our institutions allow for – prevent majority wishes often from coming into – from being implemented or from being passed through legislation.
So the combination of big money and these institutions is not a great combination.
Yeah, this is also – but I think that – again, maybe I'm an institutionalist in my kind of orientation here, but big money is going to be there, and that's certainly corrupting.
But a big part of this is that these guys are around forever.
If you want to buy a Supreme Court justice and you know they're going to be in office for 40 years, it's a good investment.
And the kind of opportunities for corruption are that much greater.
And so if you had shorter terms, I think that would be one way of addressing that problem.
And I think what's interesting actually in terms of what might spark a reform movement, this kind of corruption of the Supreme Court could, I could imagine, prompt efforts to reform the court in such a way as to kind of put in term limits.
So these are the kinds of catalyzing events that often provide opportunities for reform, but we need to know what reform ideas we want before that moment comes.
Alright, thank you. I'm not sure if Max would like to add anything, but we could move on to the next two questions.
Max, I'll proceed to the next question, I guess.
And these questions are addressing ideas maybe to reform this or to solve this.
Robert Strachwitz asks a long question, but I think a really interesting question that has two parts.
The first one is, would you agree that the party system in the US and elsewhere
has deteriorated to a point where political development can no longer be entrusted to the system alone.
The second part is, sort of a suggestion, where an added political force or arena, civil society, should be recognized
as an added contributor to political development.
And Kargolin-Helbig sort of follows up on that and asks what role could the public sphere, NGOs, social movements, etc. play in this reform process.
So, you can combine those two questions. Yeah, both are totally essential. I mean you certainly need political leaders to pass laws, but the calculus of political leaders only changes through social pressure I think.
And so reform groups – but a lot of these things – and I think we see some stirrings of this.
I mean in some sense, this is the way out of the unsolvable crisis.
Maybe that – so gun control. Let's take gun control as an example.
I mean there are these youth movements of kids who were in schools when school shootings took place, who have created these civil society organizations that are incredibly powerful, incredibly effective.
Masters of using social media, and they're putting real pressure on political leaders.
You could say so far it hasn't been enough, but I think that's the kind of basis
through which political change will come. Similarly, like in the state of Tennessee,
there were these young legislators who were, who, you know,
I mean they're part of the state legislature, but they kind of broke all decorum and state legislative rules and led a protest movement in their own state legislature.
And these guys are kind of inspiring young leaders, and so this pressure is growing and it's enormous, and it's not focused on constitutional reform.
It's focused on policy issues. It's focused on issues that people feel very passionately about.
But I think that's the engine of constitutional reform. I mean, you can't really get – it's hard to get people really excited about getting rid of the filibuster as a principle, right?
I mean these things only – these institutional reforms only come about when people who care about real substantive policy issues become frustrated.
So what the job of politicians are is to link those issues that people feel very passionately about to reform proposals.
And so I think that's exactly the way that these reforms will come.
If I can add something to that, like for the most part of the 14 years that I've been doing this Verfassungsblock business now,
these constitutional topics have been very much a nerdy, something nerdy for the specialists and nobody in the public at large really cared about it.
And that changed a lot from my point of view. These seemingly technical procedural,
like for example, the filibuster, perhaps this is suddenly something many people
and not just like lawyers or political scientists are urgently interested in.
And there's a big sense of this is where the roots or part of the root of the crisis are to be found.
So I think, and this current crisis, it's not just in the US, it's also in Europe and in Germany.
It can be observed that this is a time of also of constitutional creativity
and suddenly things that were unthinkable until not so long ago become thinkable.
Not just on the part of those who want to dismantle democracy, but on the other part as well. For example, Bürgerräte, citizens' councils.
This is an innovation that goes very much against the grain of what we have been discussing
under the headline of parliamentary democracy for a long time. But it gets more and more
promises, I'm not an expert in that, so I don't have a firm opinion on this, but it promises that it can
solve or help solving these unsolvable problems to some extent.
And be useful particularly where the party system is no longer productive in coming up with, or in fixing the crisis. So this would be
one example for perhaps, and this is for mobilizing the civil society in innovative ways.
And I think one of the points that that reinforces, which is actually one of the
themes of our research unit, is that, you know, democracy is not, you know, political scientists,
you read political science textbook, you take an introduction to political science class,
you kind of have a list of, you know, Robert Dahl gives us a list of like the 13 characteristics of
democracy. This is what democracy is. This is not a static concept. I mean this is something that's
constantly evolving. It's constantly a work in progress. We know a lot more now than we knew
50 years ago, 100 years ago, and I think we need to be open to that. There are going to be – there's
new problems, and so there'll be new innovations, and we know a lot more. I mean that's kind of
… something that in social science we sometimes forget. I mean I think there's sort of a sense – I was once in line at a – I was on a sabbatical at a research institute at Stanford, and the psychologist – it was an interdisciplinary seminar.
And the psychologist turned to me and said, so what do we know now in political science that we didn't know 50 years ago?
And that really stumped me for a second because I thought, well, I should be able to know this.
But I think one thing we certainly know is we know all of the institutions that are required to make a democracy work.
And certain things are no longer sufficient, and so there will be needs for innovations.
And there will be lots of false starts. I'm not saying that the bogata are the solution to things.
There will be some things that seem like good ideas but actually aren't.
But I think we need to be constantly thinking of these innovations and paying attention as scholars,
paying attention to what practitioners are doing and listen to the ideas that people have
and to sort of reflect on what this actually means.
So anyway, that's the sort of broader point.
All right, thanks. We have a third question. I think that's just in time. We have another six
minutes. And this question is posed by Rodrigo Kaufmann. He asks, can you currently see cases,
so concrete court cases, I guess, in which constitutional norms of procedure should be
challenged in order to improve democracy, as the case mentioned with voting rights for
African Americans after the Civil War? Yeah, I can see lots of.
There's cases where I think they should be. I mean so I think there's – can challenge norms for democratic reasons.
And so I think all of these – a lot of these institutional reforms that I'm suggesting are really establishing constitutional norms.
The argument against getting rid of the filibuster, for instance.
So I get lots of pushback when I talk to people who work in the Congress, and especially the staff people who work in Congress are really the ones who are most honest to me about this.
They say this is a terrible idea. Stop talking about it because what this means – if you get rid of the filibuster, what's going to happen is that Donald Trump is going to be elected president.
The Republicans are going to control the Senate, and the only tool to prevent Donald Trump from doing all these terrible things will be the filibuster.
And you'll say why did you – why did you guys get rid of this incredible tool of constraint?
This would have constrained a powerful executive. And so in that sense, that's – you know, you know you're proposing something that violates a norm of people get angry when you propose it, and people get angry when you propose this.
This is the way that things are done. I mean it's not a constitutional norm formally speaking, but it's almost – it's close to a constitutional norm because it's so deeply embedded in the body of the Senate.
And so – but from my view, I mean I think there's – I sort of have two reactions to that reasonable critique.
Very practically speaking, I think Republican senators hear these discussions too, and I think they may get rid of the filibuster themselves.
And so we could sort of try to protect it and then let the other side destroy it, and then – so that's one point.
But a second point is that other democracies don't have it and things don't work out.
I mean I think there's a kind of status quo bias where we assume – and Americans are particularly prone to this.
Max, this comes back to your point about treating these institutions as if they are not man-made institutions, that if we get rid of these, that everything will collapse.
I mean there's this kind of status quo bias when there seems to be little evidence to support that.
I mean there are lots of democracies that don't have this institution and countries survive.
So I think – I'm just not convinced.
So I think – so that's one obvious one. I mean I could list others as well.
But that's something that's a norm that's not really deeply rooted in the constitution.
It's a set of ideas about how we ought to act.
But I think it's something that ultimately is actually more destructive.
In many ways, what happens, the filibuster contributes to the radicalization of the Republican Party because what happens is the Republicans can propose outrageous legislation.
Get rid of the Department of Education, these kinds of things, because they know it will be stopped by filibuster.
And so they make – there's a lot of symbolic legislating where – that's inflaming our politics.
So rather – the filibuster is supposed to contribute to compromise, but it actually has the opposite effect.
And that if we got rid of the filibuster, then – and republicans propose these crazy ideas, they would be punished at the ballot box.
And my guess is that actually some of this kind of theatrical politics would actually be eliminated.
So, I think in the end, there's lots of good reasons to change that norm.
Questions are still coming in. There's one question of a more general nature.
Someone called Edmund asks, what about the concept of living constitution in the US?
I'm not sure if the question is too big now to take because we have a more concrete question by Rachel Steepe asking,
in comparison to filibuster, how do you feel about the practice of gerrymandering?
Would you say that it can also strengthen American democracy in some ways, or does it only have destructive effects on democracy? We'll see.
Yeah, it's – I mean so just very quickly on the gerrymandering, so this idea that parties are – I mean one reason I think it's – I mean it's a problem but one reason it's not as big a problem as people think it is, is that both parties do it.
And so it doesn't tilt the playing field for one party over another party if both parties are doing it.
I mean when you have gerrymandering, if one party is in power and stays in power and gerrymanders to such a degree that it can't be voted out of office, a kind of Hungarian model of electoral district drawing, then it's a problem.
And that's happening in some states. That's happening in – that's happening in Wisconsin as we speak.
And so then it is a problem. Maybe I'll just end very briefly with this story of – well, anyway, there's a fascinating story of Wisconsin.
I mean essentially what's happened is that a democratic judge was elected who threatened to undo this gerrymandering in Wisconsin.
And the state legislature, which is dominated by super majorities by the Republicans,
I mean, this sounds like contemporary Hungary, has passed an effort, is trying to impeach the judge
before she's even made any decisions. She's just been coming to office.
And the thing is that the way that this, that what would happen if they were to actually remove her
from office is that the governor, who's a Democrat, would appoint another judge who's friendly,
who would be also critical of gerrymandering.
So because the Republican majority in the state legislature knows that this would happen, they.
Plan to impeach the judge, which removes her from office temporarily, but not fully finish the process so
that that way a new judge can't be replaced to secure the— so the judge simply has to be removed but not replaced
to make sure that their kind of gerrymandered system can remain intact.
So this is clearly a problem for democracy.
But yeah, so that's just like a case study of how this kind of minority rule project works.
And just maybe as a final note here on the living constitution, I mean that's essentially what I'm arguing for,
is that the constitution is not a kind of holy document given to us that we have to go back and try to understand the founders' intentions.
This is something that is an effective constitution because it's constantly being improved upon.
Thanks for having on a positive note Daniel with the Living Constitution. I think it's great to go into the weekend. Thanks,
Thank you, and come back next week for Root Coupons on the Asylum Lottery.