Good morning,
We live in an era where there is little confidence in, or support of, institutions. With varying degrees of justification or evidence to warrant such opinions, people distrust congress, the media, corporate America, NATO and other international alliances, lawyers, doctors, religious institutions, courts, the judicial system, schools, academia…just about everyone.
INSTITUTIONAL DISTRUST OF EACH OTHER
As much as the general public has deep distrust of many of our institutions, many people who serve in these institutions are distrustful of others in that institution or are distrustful of other related institutions. When institutions distrust related institutions, there are other, deeper ramifications.
Our system of government is predicated upon the separation of powers and the notion that each branch will “stay within its lane” and acknowledge that, in some areas it is not paramount. For instance, by virtue Marbury v. Madison and its progeny, the Supreme Court is the ultimate arbiter of constitutionality. Similarly, we entrust people like the CDC to oversee our public health and the justice department to act as an independent instrumentality of law enforcement and prosecution. Those who serve need to have enough respect for our system and the ability of other, well-meaning professionals, to make rational decisions in their areas of expertise and/or authority. When the personal, philosophical or religious beliefs of someone enters into a calculus, years (or decades) of work by others who are empowered in, and expert in, another area, can become subject to often malicious derision, based solely on opinion.
As an example, District Court Judge Matthew Kacsmaryk recently revoked FDA approval of the abortion pill. The choice of this judge in this forum was no accident, as political players have become adept at forum shopping to get a judge who may apply political belief over the law. This judge has stated in public his disapproval of abortion in any form. It is hardly a surprise that the filing was made in this judge’s court. In this case, the Judge acted alone, unsupported by the science, standing, precedent, and acknowledgement of the FDA’s established methodology. He infringed on the actions of the Executive (in the form of the FDA) in an area of that agency’s expertise, by overturning its 20 year approval of a drug. This was judicial overreach, pure and simple, disrupting the separation of powers. Fortunately, the Judge was overruled—but not before finding some support among the most conservative of the Supremes. The system worked because less ideologically driven jurists corrected his error.
The danger of the court acting in such a cavalier manner is that it invites push-back from the legislative branch and it politicizes the courts. In a little-reported rejoinder to the judge’s overreach was the questioning of the concept of judicial review. The judge was, to most court-watchers, something that should have been overturned, as was the eventual result. But when the case came out and before the Judge’s order was overturned, Representatives Alexandria Ocasio Cortex (D) and Nancy Mace (R) encouraged that “as part of the checks and balances,” President Biden and his administration simply ignore the court’s holding. Never mind that the ACTUAL checks and balances in this case resulted in a stay of his order. Never mind that we have a system to deal with wrongly decided (and politically motivated) decisions. What AOC and her Republican colleague were recommending was that the executive branch ignore the judicial branch and its historic role in judicial review, thus undermining another branch of government. This is a slippery slope, in which the branches of government (increasingly including the judiciary) become co-equal political branches. In such a system, where a court’s rulings are ignored, we would find ourselves maneuvered into a “tie,” with no tie-breaker. This is quite different from the concept of “checks and balances.” Once the constitutional roles of the branches are violated like this, we are on a dangerous road. There needs to be certainty, consistency, and a system to resolve disputes with finality.
This got me thinking about these institutions and our reliance upon them. After all, all institutions are artificial constructs—fictions designed to create a peaceful and orderly way to resolve disputes, and appropriate checks and balances on power that are designed to balance power, control excess, sustain the state and bolster people’s confidence. Wild proclamations such as that of the two Congresswomen undermine these institutions and systems, to our collective detriment.
FAIR INSTITUTIONS BIND AND SUSTAIN NATIONS
The German sociologist Max Weber thought a lot about institutions and states. Nations typically are created, he noted, because of a particular achievement (victory in war, discovery of a new area, or invention that changes the people’s way of life) and/or a charismatic leader. Garibaldi brought together the various regions of modern Italy in the 19th century. The same is true of the German state consolidated by Prussia in the same period. Other states, like America, come into being by a small group of elites demanding independent determination. Some states break off of other states, like South Sudan and Bangladesh. Some de-colonize, like India and Pakistan and myriad other states created in the 20th century. But there always seems to be a major event and/or a charismatic leader with a vision.
Weber suggests that the greater challenge of any nation-state is to maintain that state after it is formed. Once the “event” or the charismatic leader become something in the distant past, there must be something holding the state together. In earlier times, religion was an institution around which the people could coalesce. In more modern times, states are maintained through durable institutions. These institutions create a sense of order, establish a means for controlling the excesses of the majority (including, I might add, populism), encourage the creation of legal and physical infrastructure that might otherwise be difficult to negotiate among disparate independent actors (e.g., roads, aqueducts, property rights), and create a means of providing redress and resolution for disputes.
EXACERBATING DISTRUST
Today, our nation and its institutions are under fire from a variety of fronts. The most obvious reason institutions can lose their luster is when they demonstrate their inability to confront urgent—often relatively simple—problems. That we seem to establish bipartisan consensus, such that we can move forward (like tax reform, immigration reform), only to have political grandstanding set such efforts aside is not only unproductive, but destabilizing and encouraging further distrust.
Institutions also have to resist the natural tendency toward the inefficiencies and unwieldiness resulting from size. They often are burdened by red tape, rules, and antiquated systems. They often are ossified and ineffectual. There usually are institutional and set up roadblocks to their evolution and modernization. The joke is made that the DMV is the model of bureaucratic ossification or that one can’t get past the recorded menu at the IRS. These inefficiencies are bad but they become life-threatening when they exist within a public healthcare system that, despite state-of-the-art doctors and hospitals, therapies, and procedures, deliver services in a delayed, sporadic, often counter-productive manner as determined by faceless bureaucrats in insurance companies.
And yet, the institutions of our nation, as unwieldy and inefficient as they may be, have been a model borrowed by other nations as being the best system yet created by a people to govern themselves. It is imperfect, and it may be difficult to improve them, but their fundamental raison d’etre remains noble.
At the core of the seeming continual decline in our institutions are seemingly conflicting—yet destructive—belief systems. On the one hand, there are those who want a much larger state, despite its unwieldiness, yet are willing to spend into mounting deficits to achieve this. More destructive, is a group that have gone beyond the “small government” mantra of the 1980s to embrace a narrative that the system doesn’t deserve our trust or support because players within that system are irredeemably corrupt, typically without evidence to support that conclusion. Consider, for example, the notion that the FBI, as a whole, is on a mission to destroy Donald Trump (notwithstanding virtually handing him the presidency to him in 2016) or that late ballot counting “gave” the 2020 election to Joe Biden (notwithstanding the rules requiring that late counting), or that the media handed the election to Biden because of the early call of Arizona (notwithstanding this decision coming from the Trump-friendly Fox News), or that the IRS cannot be funded further because they will be weaponized against ordinary Americans (notwithstanding the need to upgrade their antiquated systems and hire more and more sophisticated personnel to go after high-income tax evaders).
REMEMBERING THE FOUNDERS
It seems that today we Americans are not doing a great job of furthering the intent (and the myth) of the Founders, who imagined a society based upon the natural conflict of political factions but protected both the majority and the majority, through a carefully calibrated system, refined over time, to create stability out of natural conflict.
For all the talk about our schools and their failures, perhaps their greatest failure is their inability to nurture a sense of civility, an appreciation for our institutions (and how hard it was to get to this point), the importance of critical thinking, and a sense of civic pride. We have a responsibility to explain, support, and improve our institutions. And that includes better education in the area once called “civics”—namely, explaining the systems of our government and institutions how to be a good citizen within the context of our democracy and its institutions. There is a saying that “don’t blame the player—blame the game.” I believe the opposite of this might be the right way to think about this. Perhaps the game is fine but the players are at fault. It is time we perhaps stop blaming the game and start blaming some of the players for debasing or ignoring the rules of the game.
We all read studies that conclude confidence in our institutions (whether our legislatures, our courts, the media, the professions, the markets, academia) is at all-time lows. For a time, it seemed our judicial system was by-and-large immune from this downward trend. But with the current court’s “fast and loose” reimagining of its purpose and applying the bizarre doctrine of “originalism” (it’s whatever the Founders’ words and and history can be twisted into in order to serve a political or theological point of view) changed that. The last of the institutions held in high esteem has fallen the way of the rest.
Big problems. No great solution, other than to elevate these institutions through education as to their great contributions throughout our history and the importance of their existence, getting better people to run these institutions, and a need to regulate them in ways that serve the nation more than the people being regulated. And, above all, to re-instill a sense of personal responsibility not only for one’s own success, but the success of one’s neighbors.
Have a good day,
Glenn
Excellent analysis of our current state of affairs. Well written and insightful. Thank you for this.