Constitutional Rot: Like A Total Eclipse, Or A Mistuned Clockwork?

Guest Blogger

For the Symposium on Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020).

Sam Wang

In his new book, Prof. Balkin argues that the constitutional rot of our time and many of its associated problems are likely to be transient. He suggests that history can go in cycles and makes a comparison to the total eclipse of August 21, 2017.

A total eclipse is an unforgettable experience. I watched that eclipse from the commons of Bryan College in Dayton, Tennessee. Our choice of viewing location was fitting to the theme of Prof. Balkin’s book in multiple ways. Bryan College is named after William Jennings Bryan, loser of the 1896 election that ended the first Gilded Age. Dayton is known as being the location of the infamous Scopes “monkey” trial, in which Bryan argued for the losing, anti-science side. Denial of knowledge and the role of science in human betterment is a growing hallmark of our current cycle of rot.

A total eclipse is an intense and for some, a harrowing experience. The temperature goes down a few degrees, animals act as if it's nightfall, and a black hole opens in the sky where the sun used to be. In previous eras, anyone who happened to be in the path of a total solar eclipse might well have thought the world was coming to an end. I myself felt caught up in a feeling that something had gone deeply wrong with the world.

However, as we know, eclipses end. An hour later the world appeared to be back to normal.

Prof. Balkin argues that regimes of constitutional rot are also cyclical, and that a change is coming. I’ve been thinking this too. However, there’s a difference. Unlike an eclipse, governmental systems are shaped by people. That means that history can operate in cycles, as Balkin suggests – but it also means that human agency can shape how the transitions occur. In our time, choices we make can shape whether the long-term outcomes are good or bad for constitutional democracy.

(Another difference is that there have been innumerable total eclipses, while there’s only been one Gilded Age. Really, he’s extrapolating from only one cycle. Still, you gotta have hope!)

In this post I look at the path forward. Here I will take an approach that starts from my parent discipline, the quantitative sciences. I will couch the discussion in terms of complex systems. In engineering and biology, one often encounters complex systems of interacting parts, whose many interactions lead to an emergent phenomenon of interest. In engineering, examples include a power grid or a mechanical clockwork. These are designed complex systems. In biology, examples include populations of animals and the evolution of new species (evolved complex systems). In both cases, the system’s behavior arises from a mixture of internal rules and action from outside the system.

Gerrymandering is an example of uncontrolled positive feedback. When legislators draw their own district lines, they are able to sustain themselves in power. They also create a situation in which they do not have to respond to their constituents. Gerrymandering is an example of constitutional rot that takes the form of uncontrolled positive feedback. Gerrymandering can be addressed a decade later at the next redistricting cycle – though a legislature can then draw itself another advantageous map, continuing the feedback cycle, potentially indefinitely.

Judicial appointments are also a form of positive feedback. The President’s political party appoints members of the federal bench, usually of similar ideological and political outlook, and those judges can reinforce or impede the operation of the other branches of government. Since federal judgeships are currently lifetime appointments, courts accumulate and retain the effects of changes in other branches of government for decades.

Prof. Balkin proposes a reform that shortens the duration of this judicial feedback. He suggests that new members be added to the Supreme Court in a continuous manner, with one new justice added every two years. The most recently appointed nine justices would do the work at the court, while longer-serving justices would take on other duties such as participating in lower-court cases. Since the composition and term of the court is within the power of Congress to establish and does not require a constitutional amendment, such a reform could realistically happen.

This reform shortens the term of most-active service to 18 years. Two justices have served longer than that: Clarence Thomas (nearly 29 years) and Stephen Breyer (26 years). By shortening the duration of most-active service, Prof. Balkin’s reform would limit the influence of newly appointed Supreme Court justices to 18 years would create a court system in which the Court’s composition responds to changes in the other branches of government with an average delay of 9 years. That seems like a healthier and more little-r republican approach than what we have now.

Prof. Balkin’s reform also brings the lifetime of court influence well within the time scale of demographic change. The Republican Party has become increasingly a party of white, mostly non-college citizens. This is a shrinking group relative to the rest of the population. Until the party finds a way to expand its base, its best route to political survival centers on engineering advantages for itself such as gerrymandering, capturing the judiciary, chipping away at individual voting rights, and modifying the rules of government.

Advantages like partisan gerrymandering and lifetime appointments are attempts to hold back the tide of a natural force, demographic change. Here are the results of a 2016 survey of K-12 students. These students are coming of voting age now, and will continue to do so for the next decade.

Younger voters are turning away from the Republican Party. More are throwing in their lot with the Democratic Party, which is shaping up as a coalition of ethnic minority groups and college-educateds, and tilting toward women. The growth of this coalition supports Balkin’s view that at some point in the future, the dominant party is likely to be the Democrats.

However, the phrase “at some point in the future” is doing a lot of work. Constitutional rot diminishes the responsiveness of government no matter who is in charge. Bringing the nation back from this parlous condition will take active effort. To make the analogy to an engineered system, if a clockwork has fallen into disrepair it must be repaired and reset, or else it will get out of time again.

We face a few problems now. Foremost of these is how to un-cement recently-engineered advantages which fall into the negative category of entrenchment, the subject of a recent book by Paul Starr. The goal is to reform our government to represent, in some facsimile, the wishes of the majority of the governed (while addressing the structural disadvantages felt by minority groups). These reforms constitute a form of positive entrenchment. Some reforms can take place at a state level, such as the progress on partisan gerrymandering of the last few years. For now, the long-term dominance of the judiciary by Republican-appointed judges continues the impact of the Republican Presidencies of 2001-2008 and 2017-2020 – Presidencies that began with popular-vote losers.

The broader problem is how to reach a stable outcome in which all citizen groups feel bought into a shared system of governance. A number of other reforms and changes have been suggested: admitting new states to the Union, changing the rules of the Senate, and passing the National Popular Vote Interstate Compact to mitigate the idiosyncrasies of the Electoral College. These changes seem like they will help make the system more responsive (i.e. more little-r republican) and more representative (i.e. more little-d democratic) in decades to come. But it should also be noted that unanticipated consequences can and do arise. Destabilizing an existing system, even one with a lot of rot, should be done with care.

Sam Wang is a professor of neuroscience at Princeton University and founder of the Princeton Election Consortium and a new project, the Electoral Innovation Lab.