The End of the End of History?

In The Origins of Political Order, Francis Fukuyama casts the history of the state as the history of the sovereign power's struggle to neutralize powerful subjects' (or citizens') biological imperative to pass their advantages on to their children  -- that is, the sovereign's attempts to neutralize the force of kinship ties, which are the means of building rival power centers. Sovereigns have come up with various ingenious means of checking the encroaching power of hereditary local elites, such as an exam-based civil service (China) or an imported elite slave class (Mamluk and Ottoman empires). The most successful and enduring of such means has been democracy, enabled by (and evolving from) rule of law and a strong state, wherein the majority retains the power to periodically trim or slap back back entrenched privilege.  Hence Fukuyama's faith, famously professed in The End of History, that a kind of Darwinian pressure of global competition would lead all states to embrace liberal democratic capitalism.

Recent years have dented that faith, however, as Fukuyama has come to fear that that other Darwinian pull -- of elites to pass their privilege to their offspring -- might batter down the walls of commonwealth.  Here's how he puts it in an article previewing his next book, Political Order and Political Decay, due out in September 2014:

I have noted that kin selection and reciprocal altruism are the two natural modes of human sociability. They are not learned behaviors, but are genetically encoded into our mental and emotional makeup. A human being in any culture who receives a gift from another member of the community will feel a moral obligation to reciprocate. Early states were what Max Weber labeled “patrimonial” because they were regarded as the personal property of the ruler, who used his family and friends to staff his administration. Such states were built around these natural modes of sociability.

Modern states create strict rules and incentives to overcome the tendency to favor family and friends. These include practices like civil service examinations, merit qualifications, conflict-of-interest rules, and anti-bribery and corruption laws. But the force of natural sociability is so strong that it keeps coming back; guarding against it requires perpetual vigilance.

In the U.S., Fukuyama now laments, "we have dropped our guard" (the article is ominously titled "The Decay of American Political Institutions"). He identifies three major forces that have hamstrung the state's ability to check elite interests: the "judicialization" of legislation and rulemaking; current lobbying and campaign contribution practices (born of a traditional American propensity to empower private groups, and recently worsened by that rule-by-the-courts);  and the "vetocracy" -- our system of checks and balances that affords "too many actors the means to stifle adjustments in public policy."    Underpinning all is Americans' long-standing cultural distrust of government, which from the start has rendered federal authority weak by design. 

While The Origins of Political Order stitched together a rather intricate hypothesis regarding what caused rule of law, a strong central state, and eventually democracy to evolve in western Europe -- a chain of developments that seems almost random, in which church-imposed inheritance rules played a major role -- this precis of his next volume seems somewhat historically untethered.  It's not clear why a crisis of governance is occurring now, after 225 years --why the various alleged structural problems are now coming to a head. He more or less begins his tale of contemporary dysfunction with Brown v. Board of Ed:

The courts had cut their teeth earlier over union organizing rights; new social rules based on those rights provided a model for subsequent social movements in the late 20^th century, from environmental protection to women’s rights to consumer safety to gay marriage.
 

So familiar is this heroic narrative to Americans that they seldom realize how peculiar it is. The primary mover in the Brown case was the National Association for the Advancement of Colored People (NAACP), a private voluntary association. The initiative had to come from private groups, of course, because state governments in the South were controlled by pro-segregation forces. The NAACP pressed the case on appeal all the way to the Supreme Court. What was arguably one of the most important changes in American public policy thus came about not because Congress, as the representative of the American people, voted for it but because private individuals litigated through the court system to change the rules. Later developments, like the Civil Rights and Voting Rights Acts, were the result of congressional action, but even in these cases enforcement was carried out by courts at the behest of private parties.

No other liberal democracy proceeds in this fashion. All European countries have gone through similar changes to the legal status of racial and ethnic minorities, and women and gays in the second half of the 20^th century. But in Britain, France or Germany, the same results have been achieved through a national justice ministry acting on behalf of a parliamentary majority. The legislative rule changes might well have been driven by public pressure, but they would have been carried out by the government itself, not by private parties acting in conjunction with the judiciary.

Fukuyama does tie this tendency to legislate through the courts to American origins -- a propensity for a rule "by courts and parties" eclipsed only temporarily from the 1880s through the New Deal.  What's not clear is why the reforms that built the modern state did not, so to speak, complete the job -- why those seeking fundamental reforms like civil rights and environmental protection relied so heavily on the courts.

For many, the answer would lie in our "vetocracy" and the undemocratic structural elements of the Constitution, such as disproportionate representation of small states in the Senate.  The South, after all, maintained its chokehold on civil rights legislation for almost a hundred years. Vetocracy, in other words, leads to recourse to the courts -- the composition of which does indirectly reflect election outcomes. But still: why are these factors more paralyzing now than before, if in fact they are? (Perhaps the ballooning Gini cooefficient will reverse itself as suddenly as the seemingly intractable crime wave of the 1970s-80s did.)  Are other developed democracies better equipped to deal with today's challenges, such as galloping inequality and slow growth? I imagine that fans of the U.S.'s highly participatory and less-than-majoritarian democracy, like, say, Jonathan Bernstein, would have something to say about that.

In Fukuyama's telling, the three causes of democratic decay -- undue power of interest groups, legislation through the courts, and vetocracy -- feed on each other. Interest groups like recourse to the courts; the courts have further empowered interest groups; the courts themselves remain one powerful veto point in our legislative process. In this relatively short piece, however, it remains unclear why we've arrived at implied crisis now -- why our system has muddled through to adapt to past challenges but now seems stuck. That may be a matter of degree: past reforms have been forced by crisis. But here Fukuyama seems to imply that Constitutional reform -- a fundamental change in our structure of government -- might be required if the U.S. is to address current challenges effectively.

I want to return for a moment to the critique of the courts' role in legislation and execution of the law. It's unfamiliar to me, though not original to Fukuyama, as indicated below.  It sounds compelling, but I lack the means to assess the unfavorable comparison with European and Japanese governments it's largely based on:

The result [of the relatively weak American state] in post-civil rights movement America is what the legal scholar Robert A. Kagan labels a system of “adversarial legalism.” While lawyers have always played an outsized role in American public life, their role expanded dramatically during the turbulent years of social change in the 1960s and 1970s. Congress passed more than two dozen major pieces of civil rights and environmental legislation in this period, covering issues from product safety to toxic waste cleanup to private pension funds to occupational safety and health. This constituted a huge expansion of the regulatory state founded in the Progressive Era and New Deal, which American businesses and conservatives love to complain about today. 

What makes this system so unwieldy is not the level of regulation as such, but the highly legalistic way in which it is pursued. Congress mandated the creation of an alphabet soup of new Federal agencies—the EEOC, EPA, OSHA and so forth—but it was not willing to cleanly delegate to these bodies the kind of rule-making authority and enforcement power that European or Japanese state institutions enjoy. What it did instead was to turn over to the courts responsibility for monitoring and enforcing the law. Congress deliberately encouraged litigation by expanding standing (that is, who has a right to sue) to ever wider circles of parties, many of whom were only distantly affected by a particular rule. 

For example, Federal courts rewrote Title VII of the 1964 Civil Rights Act, “turning a weak law focusing primarily on intentional discrimination into a bold mandate to compensate for past discrimination.” Instead of providing a Federal bureaucracy with adequate enforcement power, “the key move of Republicans in the Senate . . . was to substantially privatize the prosecutorial function. They made private lawsuits the dominant mode of Title VII enforcement, creating an engine that would, in the years to come, produce levels of private enforcement litigation beyond their imagining.”³ Across the board, private enforcement cases grew from fewer than a hundred per year in the late 1960s to more than 22,000 by the late 1990s. Expenditures on lawyers increased six-fold during the same period. Not only did the direct costs of litigation soar; other, more indirect costs mounted due to the increasing slowness of the process and uncertainties as to outcomes. 

Thus, conflicts that in Sweden or Japan would be solved through quiet consultations between interested parties through the bureaucracy are fought out through formal litigation in the American court system. This has several unfortunate consequences for public administration, among them “uncertainty, procedural complexity, redundancy, lack of finality, [and] high transaction costs.” By estranging enforcement from the bureaucracy, the system also becomes far less accountable. In a European parliamentary system, a new rule or regulation promulgated by a bureaucracy is subject to scrutiny and debate, and can be changed through political action at the next election. In the United States, by contrast, policy is made piecemeal in a highly specialized and therefore non-transparent process by judges who are unelected and usually serve with lifetime tenure. In addition, if one party loses a legislative battle, it can continue the fight into the implementation stage through the courts. This is what happened in the case of the Affordable Care Act, or “Obamacare.”

 It's worth noting that while Kevin Drum tags Fukuyama as "conservative," his 30,000-foot view of a panoply of societies past and present stands outside our political spectrum -- or at least, Fukuyama affects to. He often portrays liberals and conservatives as afflicted by the same conceptual diseases, as in their addiction to the courts -- or holds out solutions not acknowledged by either party, as below:

The solution to this problem [unwieldy regulation and court-imposed mandates] is not necessarily the one advocated by many conservatives and libertarians, which is to simply eliminate regulation and close down bureaucracies. The ends government is serving, such as ensuring civil rights and environmental protection, are often important ones that private markets will not satisfy if left to their own devices. Conservatives often fail to see that it is the very distrust of government that leads the American system into a courts-based approach to regulation that is far less efficient than that found in democracies with stronger executive branches. But American progressives and liberals have been complicit in creating this system as well. They distrusted the bureaucracies that had produced segregated school systems in the South, or had been captured by big business interests, so they were happy to inject unelected judges into social policymaking when legislators proved insufficiently supportive. Everyone had his reasons, and those reasons have added up to massive dysfunction.

Some might call that false equivalence. But it seems to me that the criticism has some force. And Fukuyama remains an honest broker, tacking back and forth between celebration of democracy's strength and diagnosis of its discontents.