The Coming Constitutional Collapse

Very soon, quite probably within a decade, we will confront a constitutional collapse. Unless we revamp the constitutional order in major respects, it will simply seize up or keel over (pick your metaphor)—in what way and with what consequences, no one can say.

By “Constitution”, I do not mean the formal, written Constitution, which will survive for the foreseeable future. Rather, I mean what scholars sometimes call the “small-c constitution.” It encompasses, in addition to the formal arrangements, institutional patterns and practices that are (1) longstanding; (2) central to the political system’s operation; and (3) too entrenched to be broken by ordinary political means (elections and legislation), in ordinary times. It’s in this sense that we speak of an “antebellum Constitution” or a “New Deal Constitution.” And it’s in this sense that Social Security, the administrative state, and the Civil Rights Act are part of our Constitution or, if you prefer, our constitutional system. No one seriously proposes to abolish these arrangements; and even if you wanted to, you couldn’t.

There is no good, widely accepted term for our current Constitution. Much of it, we owe to the Great Society; but a “Great Society Constitution” has never had currency and certainly wouldn’t stick now. The term I have chosen for present purposes is “The Constitution of Affluence.” The basic intuition was brilliantly articulated by Chris DeMuth over a decade ago: a long stretch of rising prosperity creates both an expectation that the trend will continue and a distinctive pattern of politics. Over time, the arrangements will harden and become part of the institutional landscape.

In this light, the logic of the dramatic “constitutional collapse” prediction emerges. Rising social affluence produces demand for policy as a luxury good, just as private affluence produces demand for BMWs. The glitch is that on a downswing, institutional behavior is far stickier than household behavior (in real life, let alone on the economists’ blackboards): lower expectations with respect to future income fail to produce a downward shift towards the Chevy-equivalent policy set. The tangible result of this dynamic is an ever-growing and now nearly unmanageable level of public debt, on and off the books (as with pensions).

Our deepest problem isn’t that we can no longer afford our extravagant transfer state, or even that we cannot possibly pay back the accumulated debt in real dollars: that much, everyone knows. The real problem is that encrusted institutional structures, built up willy-nilly in times of prosperity, block any meaningful, durable reform.

Way back in 1787, statesmen recognized that the country’s catastrophic debt could not possibly be managed by decrepit institutions that had caused the predicament in the first place. The United States needed a workable Constitution, an effective tax system, and a Bank. 225 years later, we again need something similar—not a new formal Constitution, for sure, but an institutional program on a Hamiltonian scale.

I haven’t the foggiest notion of what such a program might look like. What I do know is that our politicians and pundits are whistling past the graveyard. As for “scholarship,” It’s Even Worse Than It Looks, to quote the latest of many screeds that deliver purported institutional analysis at the level of talk show chatter. Consider these posts a modest attempt to start a more serious conversation.

Michael S. Greve

Michael S. Greve is a professor at George Mason University School of Law. From 2000 to August, 2012, Professor Greve was the John G. Searle Scholar at the American Enterprise Institute, where he remains a visiting scholar. His most recent book is The Upside-Down Constitution (Harvard University Press, 2012).

About the Author

Comments

  1. Brett Bellmore says

    Why not a new formal constitution?

    I mean, I agree that our constitutional system is fundamentally broken. We’ve accumulated so many work-arounds to circumvent various aspects of it, that for many purposes we don’t actually have a constitution anymore.

    Since there’s no prospect of those work-arounds being abandoned, it seems to me that we either implement a new formal constitution, or give up on having one. I think our political class aspires to the latter…

    But, seriously, why not a new formal constitution? Is the idea of written constitutions which actually get followed in good faith obsolete?

  2. libertarian jerry says

    The original intent of the Founders in instituting the Constitution was to set up the machinery of government as if it were a balanced clock. What has happened with the introduction of the 14th,16th and 17th Amendments,the Federal Reserve System,fiat currency,The Social Security Act,The Civil Rights Act plus the entering of America into the United Nations is that the mechanism has been so altered , changed around and neglected that the clock has been destroyed. This altering of the Constitutional balancing mechanism has bankrupted America and placed it into perpetual debt. What will happen is that the laws of economics,which are like the rules of nature,will not only bankrupt and destroy whats left of our Constitutional Republic but replace that Republic with a dictatorship. Sadly,Its just too late for any other fate. America was not perfect. We had slavery,women couldn’t vote and there were many other problems that were eventually worked out through the Constitutional and legislative process. However what will doom America is what has doomed Republics throughout history. Government that is too big, involved in too many foreign adventures and has a corrupt Welfare State bankrupting it. If the original Constitution,with its original intent, had been adhered to and respected ,then all the things that are destroying America would have never come to fruition. The balanced clock.mechanism that was America’s law of the land is now smashed and laying in pieces and all that’s left is the clock’s outer shell. A pity.

    • says

      Lionell – What we need to discuss is ectxaly that: what conservatism should be. I don’t think anyone here is under the illusion that what we have now is what it should be. Tradition for its own sake is blind and useless, but it often contains principles that have been proven over time by successful nations and cultures. “Faith, family, and country” are things that have shown themselves successful over years, centuries and millenia. They are principles (applications may vary) that have produced successful and stable societies – including this one. Those are what we need to find and put at our core: the things that work. We can build the rest on that.Monster – I think we buy into a failing game when we equate the philosophy with the party. For example, your statement that “conservatives” want to regulate what he can put in his body. I know many conservatives – solid ones – who have not the slightest interest in what you do with your body. I’m one of them: if you want to get sloshed on Friday night, that’s your business and your family’s. Once you get behind the wheel of a car, of course, it becomes an entirely different issue. But what you do strictly to yourself is your business. My view of conservatism has nothing to do with protecting you from yourself.Orrin – nicely done. As Monster notes, it could use a little clarification, but you’ve got a solid foundation. Thank you.

    • says

      In Shain’s “Opposing voices” (Jonathan Ball, 2006), Tony Leon (at 38) rerfes to our “liberal democratic constitution”, Zille (at 99) to “our essentially liberal constitution” while Van Zyl Slabbert (at 154) writes that our country “is deservedly renowned for its liberal democratic constitution, which is one of the best in the world”.If I understand you correctly, you maintain that they are all wrong – and that their (and several million other citizens’) understanding and conception of the constitutionally settlement of the 1990’s is simply wrong and/or misguided? This all smacks of constitutional fraud at a massive scale.“Transformation” is ANC political jargon. To now “debase the currency” of the constitution by referring to it as a “transformative constitution” is to link it to the ANC’s policies and agenda. Then it exactly does not serve to protect the individual citizen from the tyranny of the majority. Then it is simply ANC political philosophy made law. As if anything done under the banner of transformation is constitutional. Is that really what you maintain?“A democratic country does not need a constitution to reflect current values. Elections do that. A written constitution is needed to protect values against prevailing wisdom.” (Ring: Scalia Dissents (2004) at 4).But maybe (and in an effort to find middle ground between our different views) this debate crystallises the problem: the DA/Liberals claim it to be a liberal democratic constitution. And the ANC claim it to be a transformative constitution. And the progressives claim it to be a progressive constitution. For the CC to then award it to the ANC by declaring it a transformative constitution, is to declare the ANC as the right/correct “constitutional” party. And the DA/Liberals the wrong party – the one with the unconstitutional policies. May I pose a question: By labelling it a “transformative constitution”, do you thereby also firmly maintain that it is not a liberal democratic constitution?And, of all possible labels, why use this particular one (transformative) to brand the Bill of Rights we all so desperately need to succeed and to gain acceptance and legitimacy.

  3. Eric Hodgdon says

    18 years ago, I told a friend we need to clean the rug and flatten down the high spots before someone trips and falls. Today I’d add a few new threads and use some double-sided tape to hold the rug in place – for a while.

    Our Constitution is a brief document worth saving, but it requires further safegards against corruption and excessivism.

    If someone wants a new Constitution, then write up an outline so we can view it, I’ll help. Talking must led to action. Without action, we waste our time on theory and speculation.

  4. Eric Hodgdon says

    “No form of government can foster a fanaticism for wealth, without being corrupted.”**

    “A love of wealth, fostered by honest industry, is an ally both of moral rectitude, and national happiness, because it can only be gratified by increasing the fund for national subsistence, comfort, strength and prosperity; but a love of wealth, fostered by partial laws for enriching corporations and individuals, is allied to immorality and oppression, because it is gratified at the expense of industry, and diminishes its ability to work out national blessings.”**

    Life is for the benefit of the universe. People benefit from life. Business is for the benefit of the people. Government is for the benefit of the people. Government and businesses exist solely from the will of the people. We, the people, can continue to exist without governments and businesses. However, we do better with both, which indicates the needed requirement for control of all involved parties.

    Liberty means restraint, also. Liberty can not exist without it being restrained. Personal and economic Liberty requires restraining from some higher source.

    ** Construction Construed and Constitutions Vindicated, John Taylor (1820), Online Library of Liberty Edition, 2011, p. 12.

  5. Eric Hodgdon says

    Lastly, a new political party needs creating. Our two major parties are broken – spare parts have been discontinued. Face this fact and truth along with discarding any other baggage. Neither major political entity is current, nor true to their founding. Competition is sorely needed in this political field.

    Creating something new is not impossible. It does require people to communicate with each other. The process requires, if it’s to last awhile, fresh thinking and ways of thinking, and a maturity past our past.

    Finding people to do this would not be difficult, so long as breaking with the past is understood from the outset. The restraints on maturing are self-imposed.

  6. says

    The only reason our debt is becoming unmanageable is because, since about 1980, one of the parties has been devoted to a tax policy best summed up as “you can have and eat cake at the same time.” One of the parties repeatedly claims that it can raise revenue by dramatically cutting taxes on the top 1% of the country, and so, each time that party takes the White House, it enacts that same obviously-wrong tax policy, dramatically expanding the debt. That same party then also pretends that military spending should not factor into tax or spending policy, and so dramatically expands that spending, too, partly as payback to favored interests and partly out of sheer irresponsibility.

    If that one party would stop doing that, we’d be fine.

  7. libertarian jerry says

    Max kennerly……….If,for the last 45 years, we had no military spending,no wars and no Federal government spending on anything but Social Security,Medicare/Medicaid and Interest on the National Debt America would not be “fine.” It would be bankrupt. It ‘s these 4 items alone that have bankrupted our nation. Of course the military spending and the wars didn’t help. However,our fiscal situation is the end result of The New Deal and The Great Society. Its the collapse of the Welfare State. Its the failure of Socialism.Its a debt hole that can never be climbed out of. That is how bad things are.

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