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Balkinization
Balkinization Symposiums: A Continuing List                                                                E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts All Things End
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Tuesday, September 15, 2020
All Things End
Guest Blogger
For the Symposium on Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020). Randall Kennedy That one of the aims of Jack Balkin’s
new book is to assuage feelings of despair highlights the extraordinary peril
of the moment. “My purpose,” he writes, “is to offer
a bit of hope for people who read the news every day and fear that things are
only going to get worse.” He seems to adopt this purpose as a
matter in part of political strategy. A dutiful liberal reformer, he
seems to believe it important for him to lift the spirits of discouraged
comrades. People, he insists, “can’t allow themselves to be overcome by
despair and paralyzed into inaction.” Seeing hope as a staple of
responsible political conduct, he maintains that while “hope does not guarantee
action . . . it makes beneficial action more likely.” Balkin’s hopeful message is that our
present predicament, albeit awful, is transitory. Better days are
ahead. So hold on. Don’t give up. The wheel turns. Our
present impasse, he assures us, is like an eclipse – momentarily frightening
but over rather quickly. “ [O]ur recent unpleasantness,” he writes, “is
only a temporary condition. We are in transition – a very difficult,
agonizing, and humbling transition – but a transition nonetheless.” “The
fate of the United States, “ he assures us, “ is not going to be the same as
that of Turkey, Brazil, Hungary or Poland.” They might utterly
fail. But not the good old U.S.A. “We are in our Second Gilded Age,
and on the cusp of a Second Progressive Era.” Yet, amidst this bleakness,
Balkin somehow discerns renewal. “I predict,” he writes,
“that we are slowly moving into our Second Progressive Era.” The good
news, he concludes, “is that the cycles of constitutional time are slowly
turning. Politics is re-forming. The elements of renewal are
available to us, if we have the courage to use them.” I enjoyed reading The Cycles of
Constitutional Time as I enjoy reading most everything that Balkin
writes. He is lively, creative, wide-ranging, and independent-minded.
He crystalizes ideas memorably and coins useful concepts as in his depiction
of federalism and separation of powers as an insurance policy for republican
governance: I would like to embrace at least the
contours of Balkin’s thesis. After all, it proffers a story that is
never-ending, in which good always emerges from the depths (albeit only
to be followed again by another period of rot). Alas, the book leaves me
unconvinced. First, Balkin understates the danger
of the present moment. “We have been through these cycles before,”
he writes with attempted reassurance, asserting confidently that “we will
ultimately get out of our present troubles.” But I challenge him to
present another time in the history of the United States when it was headed by
a president who posed more of a danger to decent political practices and values
than Donald Trump. Balkin certainly realizes that Trump is awful, noting
that he “engages in race baiting,” “stokes fear of immigrants,” “finds
new ways to divide . . . the public,” “is utterly without shame,”
and is a corrupt “moral and political hypocrite who systematically
attributes his own failings to others.” Trump is, Balkin avers, “a
demagogue for our times” who has deliberately and repeatedly undermined key
democratic and republican commitments. The reality, however, is that
Trump is even worse, much worse, than what Balkin depicts. Balkin folds
Trump into a cyclical history of America. But Trump is quite
singular. Never before has an incumbent president acted in a fashion that
has led to reasonable worry that he might, to retain power, posptpone or
interfere with the election or, upon losing in the electoral competition,
refuse to leave office on the grounds that the election was rigged. I
agree with Balkin that Trump “is a symptom of advanced constitutional rot and
not its originating cause.” But Trump has exacerbated the rot in
extraordinary ways that have let lose toxins that will not be rinsed
away. Balkin talks about constitutional deterioration and renewal
but he hardly ever alludes to that other key phase in the history of nations
– The END. He never discusses constitutional death. But in
the fall of 2020 it is reasonable to do so. Second, although Balkin assures
readers that we are already in transition, headed towards a second progressive
era, he never identifies the vehicles that will accomplish that
transition. He says little about presidential contenders or the capacity
of the presidency as a force for progressive change. He pictures the
parties as internally conflicted and ineffectual. He dismisses the
judiciary. He portrays organized labor as a spent force. He says
little about social movements that could conceivably mobilize the energy,
ideas, and popular support needed to decisively reorient the governing
regime. He says at various points that the citizenry should not be
passive and expect historical cycles to turn on their own. But his
analysis actually replicates the attitude against which he warns. He
claims that wheels are turning but without identifying anything in particular
that is moving the wheels. The result is a quasi-religious appeal to
constitutional resurrection. The progress that Balkin promises is
by no means linear. But as a matter of faith he asserts it will certainly
reappear. . . even without the aid of any force that he can
identify. Third, far from feeling
comforted by Balkin’s invocation of mandatory ”hope,” I feel distrustful
of it. When Balkin tells me that his book is motivated in part by a
desire to shore up my morale, I am left to wonder whether I am getting a
straight dose of social analysis or a dose that is diluted by an officious
concern with my psyche. I would prefer social analysts to do their work
coldly and clinically, while leaving clerics, therapists, and kindred helpers
to do their work on a different register. I am both weary and wary of
obligatory optimism. If analysts believe that a situation is
hopeless, they should say so. To do otherwise is intellectually
irresponsible. I accept the sincerity of Balkin’s restrained
optimism. I just disagree with it. I don’t see a path forward
toward anything that deserves to be called “renewal.” The most likely
positive outcome that I can see is mere avoidance of utter ruin in just a
few weeks in the presidential election. But even if Joe Biden and Kamala
Harris prevail, the constitutional rot that Balkin describes will likely
continue to fester. And then we shall be revisited in four years or eight
by a smoother, smarter, more competent Trump.
All things end. The American Dream is no
exception. Randall Kennedy is Michael R. Klein Professor of Law at Harvard Law School. You can reach him by e-mail at rkennedy@law.harvard.edu
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Books by Balkinization Bloggers Linda C. McClain and Aziza Ahmed, The Routledge Companion to Gender and COVID-19 (Routledge, 2024) David Pozen, The Constitution of the War on Drugs (Oxford University Press, 2024) Jack M. Balkin, Memory and Authority: The Uses of History in Constitutional Interpretation (Yale University Press, 2024) Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University of Kansas Press, 2023) Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision - Revised Edition (NYU Press, 2023) Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, 2022) Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022) Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022) Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021). Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021). Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020) Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020) Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020) Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020). Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020) Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020) Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020) Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019) Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018) Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018) Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018) Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017) Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017) Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016) Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015) Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015) Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015) Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014) Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014) Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013) John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013) Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013) Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013) Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013) James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013) Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013) Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012) Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012) Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012) Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012) Jack M. Balkin, Living Originalism (Harvard University Press, 2011) Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011) Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011) Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011) Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011) Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010) Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010) Balkinization Symposium on The Decline and Fall of the American Republic Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010) Mark Tushnet, Why the Constitution Matters (Yale University Press 2010) Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010) Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009) Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009) Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009) Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009) Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009) Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008) David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007) Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007) Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007) Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006) Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006) Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006) Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006) Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006) Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005) Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004) Balkin.com homepage Bibliography Conlaw.net Cultural Software Writings Opeds The Information Society Project BrownvBoard.com Useful Links Syllabi and Exams |