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So what is the present "state of the union"?

By Jack M. Balkin

Joel Achenbach has an interesting piece in the Washington Post entitled "The Audacity of Nope." Key passages follow:

The state of the union is obstreperous. Dyspepsia is the new equilibrium. All the passion in American politics is oppositional. The American people know what they don't like, which is: everything.

Consider the poll last week by The Washington Post and ABC News. People were asked a standard question about how much confidence they had in President Obama to "make the right decisions" for the nation's future. A majority -- 53 percent -- gave the two most dismal of the four possible responses: "just some" and "none at all." The same question had been asked a year earlier; in just 12 months, the "none at all" camp had tripled, from 9 percent to 27 percent....

Lawmakers will feel some kinship with the president, because they're all getting pummeled by the public. Democrats in Congress did worse than Obama in the Post-ABC poll, and Republicans in Congress did worst of all. The health-care bill that lawmakers have labored on for the past year has gotten a national thumbs-down: According to a new USA Today/Gallup poll, 55 percent of Americans want Congress to suspend work on the current health-care bills and start over....

The political winds are gusting, and in no particular direction. Conventional wisdom has become conventional disorientation. The party in power is utterly powerless. The president's last true friend is his dog...

The Republican minority has been accused of having no message other than "No." As if that weren't a winning message. As if we lived in an era when the things people were in favor of were more numerous than the things they were against.

So what we are moving to (assuming we are not already there) is a basic breakdown in the possibility of genuine governance, at least at the domestic level, since presidents, for better and for worse, continue to have significant unilateral powers with regard to foreign and military policy. Whether or not the American people are "nihilistic" (surely they are not, in terms of philosophical definitions of nilhilism), they/we seem to be moving toward what in other contexts might count as a "revolutionary situation," i.e., the breakdown of basic levels of trust that lead one to some regard for public officials.

Needless to say, I'm not about to say that this mood is completely unjustified. Just as needless, but I'll say it anyway, is that it is astounding that for all of the fulmination, from Tea Partiers and Obama's critics on the left, there is a stunning absence of discussion about the structures created by the Constitution that have led to this breakdown. There is, of course, some feeble discussion of the filibuster, but, as yet, no mainstream politician seems interested in leading a genuine popular movement against even this aspect of the Senate (or, its even more evil twin, "holds"). A reader of my previous post sent me a very courteous message by email suggesting that I was unfair to Sen. Lincoln, that she was in fact representing the majority not only of her home state of Arkansas (perhaps that is correct; she has, after all, been elected by Arkansas voters) and even the country inasmuch as the country at large is said to support the filibuster. Perhaps even that is true, but one reason is that there is no serious criticism of the filibuster by political leaders. Significant change is the product of popular movements (e.g., the Civil Rights Movement, perhaps the contemporary Tea Party) and the people who lead them, who are usually a mixture of outsiders (Martin Luther King) and insiders like Lyndon Johnson in the 1960s and perhaps Tea Partiers and Sarah Palin in 2012 (when I predict that she is likely to be the candidate of a "third party," on the assumption that the Republican Party will not in fact be willing to turn itself over to such a patently unqualified candidate).

But, of course, the only time Democrats discussed the filibuster was to proclaim its wonderfulness at the time that Bill Frist was threatening the "nuclear option." Would that the brain-dead Democratic Party had told him to go ahead. Because sooner or later, we're going to have a mass movement with suitable leaders who will engage in the equivlance of "nuclear politics" relative to our dysfunctional Constitution. The most likely movement today, alas, seems to have fascistic overtones. But, of course, there were fascists in the 1930s as well in the US. The difference is that there were also aroused progressive movements, and there was a President who was willing to criticize (though not enough) our "horse-and-buggy" Constitution (or, to be more accurate, the Supreme Court and their crabbed interpretations of that Constitution). We have a dreadful current Supreme Court, but, to be frank, it doesn't hold a candle, in explaining our present situation, to the Constitution itself, most of which the Court has nothing to do with. Citizens United is far less a menace to the country than the U.S. Senate and its arcane rules.

Most Americans, including myself, apparently believe "the country is headed in the wrong direction." Shouldn't there be at least some public discussion of the possibility that the Constitution itself is a major impediment to ever getting back to the right direction?

Full post as published by Balkinization on January 27, 2010 (boomark / email).