Trusting in Power, Not Concentrated Power

12-13-2013

Francis Fukuyama has a new essay up on “The Decay of American Political Institutions.” Fukuyama begins with a basic point that is undeniable, and is artfully made manifest in George Packer’s National Book Award Winning The Unwinding: “Many political institutions in the United States are decaying.” There are many reasons for that failure. But in Fukuyama’s analysis, two reasons stands out: First, the American penchant for addressing political problems through law, and second, the legalized corruption of interest groups. What unites these two culprits in Fukuyama’s grand synthesis is that both are born out of what he sees as a fundamentally American distrust of government.

Distrust of government means, Fukuyama writes, that American politics has elevated the judiciary to a position of power unlike other democracies. And this has led our political institutions to decay.

The decay in the quality of American government has to do directly with the American penchant for a state of “courts and parties”, which has returned to center stage in the past fifty years. The courts and legislature have increasingly usurped many of the proper functions of the executive, making the operation of the government as a whole both incoherent and inefficient. The steadily increasing judicialization of functions that in other developed democracies are handled by administrative bureaucracies has led to an explosion of costly litigation, slow decision-making and highly inconsistent enforcement of laws. The courts, instead of being constraints on government, have become alternative instruments for the expansion of government. Ironically, out of a fear of empowering “big government”, the United States has ended up with a government that is very large, but that is actually less accountable because it is largely in the hands of unelected courts.

Fukuyama knows bureaucracy can be problematic—the rule of nobody, in Arendt’s formulation—but at least bureaucrat rule is rule. In his telling, the problem is that U.S. has developed a huge bureaucracy that we don’t trust and thus limit through lawsuits, injunctions, and constitutional challenges. So we have the worst of both worlds, a large unelected and anonymous bureaucracy that is itself disempowered and neutered by an even more powerful unelected and anonymous judiciary.

Because there is “too much law,” the bureaucracy doesn’t work. What is more, the combined power of an anonymous bureaucracy and an anonymous judiciary has led to our present crisis of representative democracy, one in which Americans of all political persuasions feel that government is a foreign occupying power that is unanswerable to them. This leads in turn to a distrust of all government, a cynicism that “further reduces the quality and effectiveness of government by reducing bureaucratic autonomy.”

The fact that Americans distrust government means that they place increasing judicial and legislative roadblocks in front of governmental decisions. There is the famous multiplication of agencies and competing authorities, which offers multiple points for influence by lobbyists. As long as so many different agencies have the power to veto or slow down governmental action, government is stymied. “The longstanding distrust of the state that has always characterized American politics had led to an unbalanced form of government that undermines the prospects of necessary collective action. It has led to vetocracy.” Lobbyists thus have an outsized power to capture authorities and disproportionately impact legislation, which furthers cynicism about government. These problems are deeply ingrained in American values and in our Constitution, which makes them unsolvable. Which is the depressing note upon which Fukuyama ends his essay:

Americans regard their Constitution as a quasi-religious document. Persuading them to rethink its most basic tenets short of an outright system collapse is highly unlikely. So we have a problem.

What is striking is how Fukuyama is unable to find resources in the American Constitutional system that might reinvigorate our political institutions. It is as if the American distrust of government means that American democracy is unsalvageable. At times of partisanship, it will lead to Civil War or sclerosis. There is no alternative.

It is a mistake—although one commonly made—to understand the U.S. Constitution as one dominated by a mistrust of governmental power and thus marked by institutions designed to limit governmental power. The genius of the American Constitution, as Hannah Arendt argues, is not the limitation of power, but the multiplication of powers. More important than the three branches of the Federal government in Arendt’s account is the preservation of multiple levels of federal, state, county, city, and village power. The Congress’ power was limited not simply by the President and the Judiciary, but by the states and local authorities. The grant of powers to Congress was limited and expansion of national power was to be constrained by the power of local institutions.

What Arendt saw in a way Fukuyama ignores is that Americans don’t distrust power so much as they distrust the concentration and centralization of power. It his been quintessentially American for citizens to engage in government, especially local government, and to take active part in public debates about political questions. From their arrival in the New World, Americans formed councils, engaged in public affairs, and empowered democratic institutions. The federalist elements of the Constitution provide ample support for vibrant democratic and local institutions.

Beyond the judicializaiton of politics and the rise of a corruption by lobbyists, another cause of the present decay of American politics is the increasingly national approach to government and the hollowing out of local institutions. There are many other causes for the increasing concentration of power and the loss of local institutional power, but there are plenty of resources for reinvigorating local self-governmental institutions in the American political tradition and in the Constitution itself. Yes, “we have a problem.” But there are always ways forward.

Francis Fukuyama’s analysis of our current political decay is powerful and important. It is your weekend read.

-RB