Broken trust: dysfunctional government and constitutional reform

Abstract

This is Chapter 1 of a forthcoming book, Broken Trust: Dysfunctional Government and Constitutional Reform, to be published this fall by University Press of Kansas. Chapter 1 serves both as the introduction and begins the discussion in the rest of the book by setting out my themes of the relationship of trust in government to the constitutional order, understanding dysfunctional government in terms of studying the aftermath of “policy disasters,” and whether and how we should reform the Constitution. I also include the table of contents for the book, which is intended to be short and accessible.Chapter 1 starts by establishing a framework, inspired by the work Madison did in preparation for the Philadelphia convention, for assessing claims that the ways in which our national government is dysfunctional justify changing the Constitution. It argues that although the idea that our government is dysfunctional is quite plausible, it is much harder than most assume to build a case that this dysfunction justifies fundamental constitutional reform. Despite this, the book assumes the burden of arguing that such fundamental reform is justified. However, I have an original take on how such an argument can be made and so I go about this task differently from most of the existing literature on dysfunctional government. In particular, although I have no quarrel with the evidence of political polarization, at least among elites, I steer clear of arguments about dysfunction based on polarization. I believe that the problem of trust in government is more fundamental and more relevant to the challenge of justifying constitutional reform.So how to justify changing the Constitution, something most Americans instinctively oppose? The book concentrates on two related phenomena: the increasing occurrence of “policy disasters” – policy outcomes that are in no one’s interest – and the long-term decline of trust in the federal government. I argue that we can better understand how these developments are related in contemporary times by examining the experience of California and other western states with “hybrid democracy” – a combination of Madisonian representative government with direct democracy. Although unpopular with constitutional scholars, hybrid democracy nonetheless offers valuable lessons relevant to our contemporary difficulties with dysfunctional government at the national level. These lessons underpin the agenda for reform that I propose, emphasizing democratic innovations aimed at producing both more effective government and greater trust in our political institutions.Ultimately, I argue that dysfunctional government, along with the policy disasters it engenders, is a product of the deep and persistent distrust in government. Put simply, effective government in the kind of constitutional order we have today requires high trust in government or, at least, higher trust than we have seen in many decades. Building that trust should be our common project.