published: 19.01.2021 20:18

link: https://www.fr.de/kultur/gesellschaft/den-anforderungen-nicht-mehr-gewachsen-90172517.html?utm_source=pocket-newtab-global-de-DE

translator: me

The author

Christian Lotz, born in 1970, is Professor of Philosophy at Michigan State University (East Lansing) and has lived in the USA for 20 years.

The US is in a constitutional crisis. The functional weakness provokes political resistance and with it, the current situation.

In a recently published essay “Democracy in the Crisis” in FR (02.01.2021), the Frankfurt social philosopher Rainer Forst promoted a distinction between “structural crises” and “justification crises”. His thesis is that the current crisis in Germany and Europe is not a structural crisis, but a crisis of justification. With regard to the USA, this thesis has to be turned around. What we have before us is not just a crisis of the legitimation of politics, but a structural crisis of the political process in the US as a whole.

The functional weakness of the political community

When we talk about the structure of a political community, we mean the constitution of a state or a political community. If we assume that a constitution defines the fundamental processes that regulate not only the state institutions in the narrower sense (government, parliament, elections, parties), but also the state apparatus (legal institutions, military, police, prisons) and can even relate to the training system, media system and welfare state (as in Germany), it follows that if all or crucial apparatus and rules fail to function, one can speak of a constitutional crisis. A constitutional crisis arises when a political community does not become unstable due to political turmoil, but rather arouses political resistance due to its own functional weakness - and we now have such a situation before us in the USA.
This state of affairs is distorted by the televised images of an angry crowd breaking the windows of the Capitol. This clash is, however, an effect of the US constitution, which structurally is no longer up to the challenges of the 21st century. Political enmity and violence are often not only at the beginning of many modern constitutions, but can also be understood as signs of disintegration. And this is the moment of crisis in the current US situation.

In the USA the political order is falling apart

Constitutions contain the basic political order of a state. Constitutional laws in modern times are almost always the result of political and often violent conflicts. So, they make possible an overarching framework that must be taken for granted by all political actors if political disputes are not to end in political enmity. When the latter gains the upper hand, the order becomes unstable. The principle of any state constitution is basically very simple, namely the attempt to subordinate political power and decision-making processes to the law in order not only to bring power and the use of power to a rational decision-making process, but also to determine and determine the sovereignty of a political community internally and externally to delimit. Thus, constitutions contain binding regulations on the state organization and legitimation of state organs and their precise procedures. The idea of a liberal and representative democracy is based on the idea of a constituted state in the sense of an order of interests and groups. Constitution is synonymous with order.
What we have been observing in the US for years is not just the social decline of the country, but a gradual decline in the political order. Trump is not the cause of this crisis, just its visible sign. It is an attempt to place the relationship between law and politics in a different relationship, that is, to transfer it to a different order.

The US Constitution is shaped by two decisive differences from other constitutions

In addition to many smaller aspects, the US Constitution has two features that differ from other Western constitutions: First, the entire constitution is not only federally oriented, but is essentially built on it. MPs are not bound to any party or nation, but to their constituencies and donors. This ensures individualization and weak loyalties in the chambers.
Second, the US Constitution is purely political. It contains hardly any regulations on welfare state measures and also no regulation of the media system. In contrast to Germany, it is much more difficult for the US system to take social welfare measures or to steer the media system in a rational direction. For example, the annually recurring exchange of blows over the health system in the United States since the Second World War, with slogans now empty, is not only due to politicians who cannot agree, but also to a deficiency in the constitution because the order as a whole does not have inscribed health care in the regulatory mechanisms. To put it bluntly: Nowhere is it written that the state has to take care of its citizens. It is not the passive stance of the Trump administration in the Corona crisis that is actually problematic, but the constitution of the political-legal apparatus shows itself here within its limits. The assumption that health is something “private” is not only an expression of deep-seated bourgeois-capitalist principles and attitudes, but can also be traced back to the lack of any social policy in the US constitution.
That makes it difficult to perceive social policy as a common goal from the outset. Camps irreconcilably opposing each other are the logical consequence of the constitutional framework itself. If welfare state goals are inscribed in a constitution, these ensure a depoliticization, since they are already a prerequisite for the politicization of positions and solutions. Citizens and politicians can then still argue about how social goals are implemented, but no longer whether they should be pursued.

The aspects that make up the US Constitutional crisis

Let's look at some other aspects of the US Constitution that make up the crisis in the current situation.

Impeachment. The (first) impeachment proceedings against Trump showed very well how much law and politics have diverged. Since it was clear from the start that Republicans would side with the president in the decisive votes, the hearing process became a farce. What is intended as a fair process and a fair dispute in order to enforce the “checks and balances” in reality has become an empty procedure that had no substance from the beginning and in the end hardly anyone was interested.
It was very different with Nixon when the entire nation was in front of the TV screens and radios because they saw it as something that concerns all Americans. In Trump's case, however, it became apparent that the idea of impeachment, since there is no direct control of the executive by parliament, turns into empty rhetoric as soon as the legal form of the procedure is completely reduced to political camp formation. It has been shown that the Senate and House of Representatives exert only weak influence on the executive branch.
To give just one simple example: the use of the presidential plane Air Force One for election campaigns is illegal, but Trump's use of the plane did not bother anyone in the end. The blatant violation of previously recognized rules becomes normal and will not be corrected because it cannot be corrected. The constitution, which ties the Justice Ministry too close to the executive through the Attorney General, remains a toothless tiger here.

In the USA politics is becoming a propaganda and PR machine

Money and advertising. It has become so normal that hardly anyone in the US is upset that even for elections in the individual states, candidates have to raise up to $ 20 million in order to even have a chance to enter the race. In most cases this is only possible if one is either supported by powerful lobbies or is rich oneself. While the unemployed have to queue up at the blackboard in the wake of the Covid 19 crisis because otherwise they won't have enough food on the table, around $ 500 million were recently squandered in Georgia in the election campaign for the two remaining Senate seats.
The thing is profitable for part of the capital: A large part of the money goes back to the media industry, and the companies that run the campaigns and back it up legally make a profit. Politics becomes pure propaganda and PR machine here. But as long as the financing of the political system is not constitutionally regulated, this dynamic will not change. Even political wars are always material battles.

Irrational traditionalism in the party system

Parties. The Democrats and Republicans are not well-organized institutions that invite participation, membership and participation. In the USA, the word “party” only determines who feels a part of which side. For the most part, the only function that Republican or Democratic offices have in cities and towns is to raise money for the next election. There is no such thing as “party headquarters” with hierarchically organized decision-making structures. This means that parties are only tailored to the election as they do not contribute to the organizations of daily political life. "Electoral politics" is what it means in the USA. This means that there is no mediating authority between those elected to their offices with a lot of money and the citizens. There is next to no way of translating anger or approval into action through institutional participation.
The absence of the parties and any public discussion institutionalized by them leads to irrational traditionalism. You are a Republican or a Democrat in the USA because your own family “always has” been. The Pew Research Center estimates that only about seven percent of the electorate are actual swing voters. Party affiliations have degenerated into identities and are therefore no longer defined as political positions that have to be balanced and, if necessary, defended. Polemics predominate. Yes or no. Black or white. There is no balance. Either you are for the candidates or against them.

The parties in the USA lack a program

Hatred is the result. It is no coincidence that almost all election results of the last few years have been decided by wafer-thin majorities. Let's think back to 2004. Although the 9/11 Commission had shown in a detailed report a few weeks before the election of the president that the US government had built the invasion of Iraq on a lie, the then President Bush was confirmed in office.
This irrational traditionalism based on the two-party system, identity politics and the lack of party structures also lead to a lack of programs that determine the longer-term goals of one's own political position. If you look at the websites of the democratic and republican "parties", you can see that it is about administration and abstract values, but not about political goals or political programs that define where the country should be in the future. So, one has to conclude that a two-party system - especially when it is not purely parliamentary as in the UK - tends to become dysfunctional in domestic politics.

Federalism and the electoral system weaken the federal government of the USA

Federalism and elections. The fact that there are no real party structures, as indicated above, is also due to the fact that the constitution of the USA is very strong, much more so than in Germany, based on a federal structure. This has two consequences: it leads to the fact that the political representatives in Washington feel much more connected to their constituencies than to really pursue national interests in domestic politics. Second, it makes it more difficult to set up nationally operating ministries, since they have to intervene in the national sovereignty. Therefore, from environmental protection to the distribution of the Covid-19 vaccine, there are difficulties in organizing this. Only civil protection and the military work really well in the USA.
It is therefore no coincidence that the national government in Washington is mostly only asked for assistance by states in the event of a disaster. The electoral process is unorganized and based on rules and technologies that are not nationally uniform, even when it comes to the election of the president.
The postal vote this year showed how the system is becoming dysfunctional. For example, in some states it was only possible to apply for a postal vote shortly before the vote, although it was clear that the national postal service was struggling with huge delivery delays. The voting cards are not always clear, so many people sign them in the wrong place and their votes become invalid. Due to severe congestion in the national postal service, rumors that the elections are not going to be fair have been fueled. The election registration remains chaotic due to different passport and identity documents and can thus be exploited by Trumpists.

Disproportionate influence of the small states

Senator distribution and electors. Not only the system of electors, which non-Americans are now wondering about, but also the distribution of seats in the two chambers is highly problematic. Hardly anyone can understand why California, with a population of 40 million, has as many Senate seats as Montana, with a population of one million. The magazine "Jacobin" recently demonstrated with a simple card that the Senate majority could be secured with just nine percent of the votes cast. Of course, it is understood that when this rule was introduced, the aim was to protect the small states. In a superstate in the 21st century, this form of disproportionate representation of the population is exactly the opposite: the small states, mostly conservative, have a disproportionate influence.

Reforms to the US political system remain unlikely

Pardon. The absurdity of quasi-feudal institutions such as pardons for outgoing US presidents has proven to be what they are constitutional to in Trump's case, namely an absolutist power to undermine the law. In this case, Trump has only brought matters to their internal consistency to protect allies and family members from prosecution. Such an attitude is based on a gang mentality, but it is written into the Constitution.
This also means that not only the spouses of the presidents are accommodated in the executive branch without further legitimation or that opposing candidates in the primary, such as Rudy Giuliani, occupy the most important advisory position in the executive branch, although they were not elected for this, but also that the Daughter and son-in-law have a say in important matters - without ever having submitted to a political legitimation process. This is not just “abuse of power” as the Democrats have heard at times, but part of the order itself because it is not regulated or restricted by the constitution.
One has to come to the conclusion that as long as the structures of the US political and legal system are not at least reformed and as long as we do not understand that social problems are also effects of the constitution of society, so long also the necessary reforms in society will not be possible. However, the US constitutional framework encourages radical camp formation and is therefore very unlikely to generate substantial reforms. (Christian Lotz)

I bet Xapy would have a lot to say.


US was never destined to be the only superpower. It overtook Europe only because of luck. The luck of Europe destroying it's global position by sabotaging itself throught ww2.

Europe and Asia have matching, or greater potential.

Potential in terms number of people, land resources which are necessary for powerful countries.

An interesting perspective, though I disagree with the conclusion and much of the reasoning behind said conclusion. Still an interesting read. Thanks for sharing.

I agree with about 95% of this. In the first several paragraphs, they describe the US perfectly. I do think we need a constitution reform, but we need to keep the entire Bill or Rights.

You are welcome! I hope the conclusion is wrong as well for personal reasons, but i am no expert in the matter by any means, so idk...

I say The american Constutucion Needs A Big rewrite From scratch

The problem isn't really the structure of the constitution so much as that the constitution is routinely misunderstood or simply ignored by elected public servants and by citizens in general. The document is designed to be amended as time goes on and continue to be a living breathing rule book.

I have way more to say when I have time.

Edited 1/28/2021 21:51:18

>Frankfurt School

So exactly what Lotz wrote just happened again: "The blatant violation of previously recognized rules becomes normal and will not be corrected because it cannot be corrected." Expect something similar to the Capitol storming to happen in the coming four years... And really likely to be worse...

Dude, the Frankfurt school literally believe that mental illness has to be promoted and Western civilization dismantled to create a new utopia, they themselves believe that the rule of law should be destroyed.

First: What has this to do with the topic?
Second: That is a pretty harsh accusation, care to elaborate?