Balkinization: Cycle of Presidents or Cycle of Regimes?

Cycle of Presidents or Cycle of Regimes?

For the symposium on Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019).

In Democracy and Dysfunction, I argued that American politics is moving out of the Reagan regime that has dominated our politics since the 1980s and moving into a new political regime, one that will most likely be led by the Democrats. This post and the next one take up some important objections to that thesis.

I begin with Stephen Skowronek's idea that American politics is experiencing a "waning of political time." One way of reading this claim is that, because there will be no more reconstructive leaders, we won't have a transition to a new political regime. Accordingly, Julia Azari and Scott Lemieux argue that we are moving into "long disjunction" with two equally matched parties--or perhaps we will have what Skowronek himself calls a "politics of perpetual preemption." In both cases there will be no new reconstructive leaders and no new political regime.

I addressed this possibility in my 2014 essay, The Last Days of Disco: Why the American Political System is Dysfunctional. There is an important distinction between styles of presidential leadership and constitutional regimes. A constitutional regime involves a dominant party, a reigning set of commitments of ideology and interest, a particular configuration of the various parts of government; the structure of party competition; the role of the courts in producing doctrine and the kinds of doctrines they produce; the forms of state building, and the work of civil society organizations and their relationship to the party system. Styles of presidential leadership, by contrast, concern how presidents behave within a given regime. They emerge from the conditions of a constitutional regime and the actions of previous presidents.

My primary focus is on constitutional regimes. That should hardly be surprising. I am a constitutional lawyer, and so I view things from the perspective of how the constitution-in-practice changes over time. (The "constitution-in-practice" is the set of rules, doctrines, institutions, and practices that characterize the constitutional system at any point in time.) Unsurprisingly, I pay a lot of attention to the courts, to state-building practices, and to how the courts deal with them, the rise of social movements, and the evolution of ideologies and interests. For me, the constitutional system, not the presidency, is the primary object of study, and I am interested in regimes because of what they tell me about how the constitution-in-practice is always changing. Skowronek, by contrast, is the great scholar of the presidency, and so his theory of regime change is viewed from the perspective of the presidency and its warrants for authority and action. In his model, the presidency is shaped by the constitutional regime that surrounds it and it, in turn, reshapes that regime as political time proceeds.

Skowronek points out that presidents’ authority is limited by the political and historical circumstances in which they find themselves, and by the kind of opportunities created—and foreclosed—by their predecessors. Skowronek also believes that in the long run, presidents will increasingly be hemmed in by the cumulative institutional structures and innovations of the past. They will be unable to act with the same degree of ground-clearing transformative energy, and they will have to maneuver within existing institutions. Eventually, all presidents will find themselves in situations akin to the preemptive presidents in the cycle.

This is the “waning of political time” thesis. But you can see by the way that I have described it that it is not really a thesis about the succession of constitutional regimes. Rather, it is a thesis about the relationship of the presidency to the constitutional regime—that is, a growing lack of opportunity—and not necessarily a claim about the engines of change within regimes or across regimes. Thus, it is more properly called the waning of presidential time.

Now, to be sure, if you view constitutional regimes only in terms of cycles of presidential leadership, then the waning of political time means that there are no new regimes after the Reagan regime. But if you think of regimes as constitutional, then the president is only one player in the evolution of regimes and there will be more of them to come.

So consider the possibility that what is waning is not political time—that is the succession of constitutional regimes—but rather presidential time—the cycle of leadership styles. Then the story of the present is a bit different. For the time being, at least, presidents may lack the reconstructive opportunities and abilities that (a small number of) previous presidents have enjoyed. This may be a permanent condition or only temporary. But it does not mean, however, that there will never be any new constitutional regimes, and that we are stuck in the Reagan regime forever.

My claim—and here I differ from the usual interpretation of Skowronek’s work—is that the reconstructive or transformative model of presidential leadership is not always required for a transition to a new constitutional regime. Successive regimes involve a new dominant party and changes in governing coalitions. But a party can become newly dominant for reasons of demographic and technological change without affording presidents the same possibilities for reconstructive leadership that occurred in the first hundred years of the republic.

In fact, I argue that if Skowronek's waning of political time thesis is correct, then it demonstrates that the forces that cause regimes to rise and fall do not depend on the existence of reconstructive presidencies. Reconstructive presidents take advantage of those forces, but they are not the primary, much less the sole cause, of them.

Reagan's example is instructive. Skowronek points out that Reagan was unable to change as much as FDR, much less Lincoln or Jackson. Yet there is no doubt that the Reagan regime’s governing coalition, governing assumptions, and commitments of ideology and interest are very different from those of the New Deal/Civil Rights regime. It is also quite obvious that the constitution-in-practice as it existed in 1980, when the regime begins, is very different from the constitution-in-practice in 2019, late in the regime. And, if Justices Gorsuch, Kavanaugh, and the rest of the Trump appointees to the federal courts have anything to say about it, the constitution-in-practice of the future will increasingly become different from the Constitution of the New Deal/Civil Rights regime.

How can the Reagan era be so different, and its political assumptions so different, if Reagan wasn't as transformative a reconstructive president as Jackson or Lincoln? The answer is that changes in constitutional regimes do not rest wholly on presidential leadership. The changing structure of the political parties, the organization of Congress, and the work of courts are also quite important. It is no accident that two of the most important features of the Reagan regime are (1) party polarization in Congress and the states and (2) a judicial revolution. Both are clearly related to the presidency, but neither is wholly subsumed by it.

If we take a broader perspective, this point should be obvious. After all, society continues to change, technology changes (boy does it change!), demographics change, new generations succeed older ones with different values, concerns, and aspirations. The party system changes too. Today’s parties, I have argued, have been transformed by technology and systems of campaign finance. I call this transformation the party as database. The person who controls the data controls the party—and usually also has a leg up on getting the money too. This is a very different party structure than the one that existed during the New Deal or even the early years of the Reagan regime.

And then there’s the Constitution itself, or what I call the “constitution-in-practice.” No one would confuse the Constitution of 1969, in the heyday of the Warren Court, with the Constitution of 2019, fifty years later. Because presidents pick judges and Justices, there is every reason to believe that the Constitution-in-practice is going to keep on changing. In addition, we must consider how civil society is changing, the new forms of activism and protest, the changing structure of the bureaucracy, and…..well, you get the picture. There is every reason to think that there will be new constitutional regimes, whether or not we have reconstructive presidencies in the mold of Jackson and Lincoln.

The more interesting question, the one posed by Julia Azari and Scott Lemieux, is whether we will continue to have dominant parties in these new regimes. They suggest that instead we will have two highly competitive parties, with neither able to dominate, which is one aspect of what they call the coming “long disjunction.”

I don’t agree. The only thing that is certain in politics is the procession of generations. The country’s changing demographics—not to mention the Republican party’s policy positions, racial appeals, and xenophobia, which are increasingly toxic to young people—suggest that the Republican Party is going to lose its current dominance in the next decade. Indeed, that is why the Republican party is engaged in increasing rounds of constitutional hardball, doing everything it can to entrench itself in the judiciary, shrink the electorate, change the voting rules, and so on. Republicans may not admit it out loud, but, to quote George R.R. Martin, they know that winter is coming. My prediction is that there will be a new dominant party, and that party will be the Democrats.

I'll talk more about the coming changes in my next blog post.

Posts in this series:

1. Escaping Dysfunction
2. Cycle of Presidents or Cycle of Regimes?
3. How Polarization Leads to Disjunction-- There Must be Fifty Ways to Leave Your Party
4. The New Party Configuration
5. The Limits of a Cosmopolitan Party
6. How Constitutional Rot Ends

Posted 9:30 AM by JB [link]