Compromising Trust.

• Author: Itagaki, Lynn Mie
• Position: A New Hope? An Interdisciplinary Reflection on the Constitution, Politics, and Polarization in Jack Balkin's "The Cycles of Constitutional Time"

TABLE OF CONTENTS TABLE OF CONTENTS 541 I. DISTRUSTING TRUST 542 II. COMPROMISE, CONSENSUS, COMMON GROUND 550 III. CONCLUSION 553 I. DISTRUSTING TRUST

Public distrust erodes the efficiency and productivity of our economy, government, and society. It accelerates and amplifies weaknesses in our democratic political infrastructure alongside business relationships and social interactions in mutually reinforcing ways. Determining how to cultivate public trust depends on definitions of "the public": to whom the government and its officials are accountable. Given the history of the United States as a White settler colonial state, its dependence on African chattel slavery, and its continuing racist xenophobia, "the public" is a frustratingly elastic term. For marginalized populations, public trust might vary in intensity over the past centuries since the nation's founding. In analyses and assessments of levels of trust in the strength or fragility of public institutions, Black, Indigenous and people of color ("BIPOC") have often been excluded from the polls and surveys upon which public opinion or sentiment is based. A lack of public trust in government significantly impacts determinations of constitutional rot and renewal; however, in the absence of BIPOC responses and inclusion in "the public" over the centuries of U.S. history, constitutional rot for marginalized populations has been an ongoing emergency in their continual lack of or restricted access to constitutional rights and protections. This perpetual constitutional rot is far from an unusual condition.

Policymakers and pundits look to influential surveys to assess levels of trust. From 1964 to 1980, public trust in federal government fell fifty percentage points, from seventy-seven to twenty-seven percent. (1) With peaks of forty-four percent in 1983 and fifty-four percent in 2002, public trust has languished well under fifty percent since 1980. Public trust dropped to its lowest, fifteen percent, in 2010 and has hovered between fifteen and twenty percent since. The Organisation for Economic Co-operation and Development ("OECD") identifies the compounding drawbacks of public distrust: "A decline in trust can lead to lower rates of compliance with rules and regulations. Citizens and businesses can also become more risk-averse, delaying investment, innovation and employment decisions that are essential to regain competitiveness and jumpstart growth." (2) The lack of public trust has long-term costs that undermine the legitimacy of the rule of law and the government that creates and enforces it.

Trust can be defined as "positive perception" or "confidence" in the actions of individuals or institutions. (3) It is a necessary precondition for cooperation - which philosopher Diego Gambetta defines as the "abstention from mutual injury" (4) - and which undergirds the most basic interactions of daily life: "from marriage to economic development, from buying a second-hand car to international affairs, from the minutiae of social life to the continuation of life on earth." (5)

Trust is often perceived as the oil that greases the wheels of our foundational institutions; distrust can disrupt the smooth functioning of these systems. In his 2019 book, The Cycles of Constitutional Time, Jack M. Balkin identifies how our political system functions in three primary cycles: of regimes, polarization, and constitutional rot and renewal. (6) All three cycles depend on public trust and themselves produce increases or decreases in trust at various points in the cycle. (7) These cycles are useful typologies of decline and recovery, and Balkin's discussion serves as an exhortation for readers of one political moment to move from one stage of a regime to a better one, from polarization to depolarization and from rot to renewal. The difficulty of analysis, of definitively apprising where we are in the cycles - whether on our way down or poised upward - stems from trust functioning simultaneously as an indicator, cause, or outcome. Trust might indicate a future trajectory, push us toward renewal or rot, or result from where we are in the cycle, respectively. In this Article, I focus on the third cycle of constitutional rot and renewal in order to evaluate the general assumption that political compromise could foster more trust, and that more trust would lead to more cooperation.

In positing the notion of constitutional rot, Balkin argues that we can evaluate the "failures" or weakening of democracy and republicanism: a decrease or lack of "responsiveness to public opinion and public will" and "public officials' devotion to the public good." (8) Balkin details further essential criteria of rot in the political system:

When public servants are increasingly diverted into the pursuit of their own wealth, or when they are increasingly diverted into serving the interests of a relatively small number of very powerful individuals, democracy and republicanism decay, and we have constitutional rot. And when public officials are no longer responsive either to public will or to the public good, and instead serve the interests of a small group of powerful and wealthy people, the result is oligarchy - rule by the few. (9)

The first two decades of the twenty-first century easily illustrate some of these warnings. Economic inequality has skyrocketed in the aftermath of the 2007-09 Great Recession and deepened during the COVID-19 lockdowns despite a global Occupy movement and some reforms and regulations in response to the global financial crisis. (10) The police murders of, and brutality against, Black people have garnered more national and international media attention over the safety of Blacks in the privacy of their own homes or out in public. (11) Vote denial and dilution has contracted and attenuated the power of voters through gerrymandering, voter intimidation, lax voting rights enforcement, and restrictive voter identification laws; the dismantling of the 1965 Voting Rights Act in Shelby County v. Holder was the most prominent federal example. (12) In campaign finance deregulation, Citizens United v. FEC greenlighted the creation of "super PACs" with opaque donor lists and unlimited corporate general fund donations, and McCutcheon v. FEC removed the biennial aggregate spending cap for individual donors and allowed unlimited aggregate donations - although contributions to any individual candidate were still capped, an individual donor could contribute up to the maximum amount to unlimited candidates. (13)

In The Cycles of Constitutional Time, Balkin identifies two further dimensions of constitutional rot and renewal that impede or facilitate government: levels of cooperation and trust in institutions. Constitutional rot and renewal rests on the choices of public officials and fellow citizens to uphold "political norms of mutual forbearance and fair political competition that make it possible for people who disagree with each other to jointly pursue the public good." (14) Legal and political systems, however elaborate and sophisticated, cannot incentivize all behaviors to engage in effective governance: "Republics depend on more than mere obedience to the letter of the law. They depend on well-functioning institutions that balance and check power and ambition, and conventions that require government officials to behave in a public-spirited fashion." (15)

Given the repeated emphasis on the public good, public opinion, and public will, the notion of the public obviously plays a crucial role in public trust. The problem of public trust is that the term "public" has not referred to the same constituency since the first voting cycle of the new republic, and the opinions and preferences of those excluded are ignored. "The public" is constituted legally and politically as a grouping of citizens and eligible voters, and government officials and policymakers are perceived most accountable to this public. Although in everyday conversations we might refer to "the public" and U.S. eligible voters as if these terms always included all citizens, say over eighteen years old, the "public" of public opinion, public will, and public good has...