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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 Faith in Renewal
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Monday, September 14, 2020
Faith in Renewal
Guest Blogger
For the Symposium on Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020). Stephen Skowronek The Cycles of
Constitutional Time draws a bit on my own work on cycles of “political time,”
but Balkin’s analytic lens is wider. “Constitutional time” is a composite of
several different but intercurrent patterns of change, all of which are
implicated in the moment at hand. After distinguishing these patterns, Balkin draws
inferences about near term prospects from their contingent juxtapositions and
mutual impingements. As a scholarly construction of where we are and whither we
are tending, this is state of the art. Balkin situates the current juncture within three
cycles observable in our political history: a cycle of political decay and regime
reordering, a cycle of polarization and bipartisanship, and a cycle of
constitutional rot and renewal. On the face of it, the configuration of these
elements in American government today appears about as debilitating as it can
be. The conservative regime that took hold in the wake of the Reagan Revolution
is in an advanced state of decay, and its degeneration coincides with a time of
extreme polarization and constitutional rot. Balkin dwells on this seemingly dire
convergence. By distinguishing its several aspects, and by reckoning with their
interaction, he takes full measure of the gravity of our situation. Remarkably,
however, the prognosis offered is cautiously optimistic. Optimism follows from thinking cyclically. Balkin’s keen
appreciation of this system’s regenerative capacities allows him to address the
current malaise without recoiling and, in the process, to point the way out. If
the past in any guide, Trump’s political intervention is unlikely to arrest,
reverse, or otherwise surmount the crisis of the old order. The cycle of
political decay and regime reordering points instead to a Trump misfire that
will cut deeply against the conservative project and considerably brighten the prospects
for a progressive reordering. Much of Balkin’s book is a sober assessment of
the outlook for a new progressivism and its potential to overcome the
degradations of polarization and rot. I share Balkin’s assessment of Trump’s moment in
political time, and although I am not by nature an optimist, I too think that the
prospects for a progressive reordering are brightening. Cycles should inform and encourage practical work toward
that end, for, as Balkin is careful to note, past patterns do not determine the
future. Useful as it is to call attention to the rhythms and rhymes, there are
no exact parallels. Specifying a variety of different cycles at work on our constitutional
system and indicating how they interact in unique configurations is itself an important
advance in conceptualizing themes and variations. Balkin’s response to the skepticism
I have expressed in past work about the capacity of presidents to continue to
serve as drivers of political reconstruction follows in the same spirit: he acknowledges
emergent obstacles to another presidentially-led political reconstruction, but
rather than give up on the prospects for reordering, he illuminates alternative
pathways to a similar end. All this said, Cycles
passes lightly over an issue that is worth opening up. The conversation yet to
be had is wedged between the diagnosis and the prognosis on offer. As I see it,
the current interregnum, pregnant as it is with progressive possibilities, presents
an especially severe test of the regenerative capacities of the American
constitutional system. I take Balkin’s optimism as a prod to the rest of us to think
more deeply about what lies behind the cycles we observe in our history. For
all that has been said about these patterns, we know surprising little about why this system has periodically reordered
itself. Faith in renewal has a lot of history to draw on, but I would feel more
confident in that history if I had a firmer grasp of the features of the system
that have been most essential to producing the regenerative effects. The point is pressing because the periodic reordering
of constitutional relationships has not been benign. Introducing sweeping
substantive changes at every turn, the reordering associated with these cycles has
repeatedly altered constitutional government itself. If we let the cyclic
rhythms of change substitute for direct attention to the changes they actually brought
about, we risk discounting political developments that might be complicating system
dynamics and with them, the patterns we see so vividly displayed in the past. Substantive
developments are unavoidable when accounting for variations observed from one
cycle to the next. Balkin’s response to the concerns I have expressed about the
presidents continuing to play their historic role is a case in point. The outstanding
question is whether such developments might have an even more profound effect,
whether the regenerative capacities on which this system has relied might be
weakened, or washed out altogether, by its repeated reformulation and
redeployment. I am a long way from drawing firm conclusions about this. I am
willing to entertain the possibility that the effects of all this substantive reworking
on the system’s regenerative capacities are minimal, but I don’t think we can
assume this to be so, and even if things shake out again as our history would predict,
it would be helpful to know why the cycles persist despite manifest
transformations of the system itself. Let me illustrate my concern with reference to three
developments in particular. The first speaks to Balkin’s cycle of polarization
and bipartisanship. As he observes, a period of relative bipartisanship
spanning the middle decades of the twentieth century, was sandwiched between
two periods of intense polarization. Balkin’s forecast of a new era bipartisanship
harkens back to the earlier transition out of the stark polarization of the
late-nineteenth century. Since we have worked our way out of polarization
before, it not at all implausible that a similar transition is in the offing. But
it seems to me no small caveat that those decades of relative bipartisan
cooperation were themselves transformative. They witnessed the construction of
an activist government and a vast administrative state. It is not much of a stretch to imagine that the effective
operation of an administrative state depends on a modicum of bipartisan consensus.
It no stretch at all to see that the full development of America’s
administrative state has put enormous strain on the consensus upon which it emerged.
The current period of extreme polarization is unique not only because it has
arisen in the presence of an administrative state but also because the
intrusions of programmatic government have become a prime driver of
polarization, pushing the parties farther apart. Projecting forward to a second
modus vivendi, we need to imagine a new and sustainable relationship between
partisanship and activist government. Balkin’s analysis anticipates a
relatively moderate progressive consensus, and that might well do the job, but it
seems hard to square with other developments in plain view. For instance, the
unprecedented concentration of policy making authority at the center has
abetted the rise of a permanent and well-endowed class of intense policy
demanders who have no apparent interest in consensus and who pull at the administrative
state from the right and the left. That has made it much harder to gain
agreement on the rules that might stabilize operations one way or the other. Looked
at somewhat differently, the modicum of national consensus necessary to sustain
the administrative state today is likely to sorely test the patience of progressive
interests looking to the EPA for a concerted assault on climate change, and to
the Justice Department for a decisive assault on systemic racism, and to HHS
for more comprehensive social supports. My second concern is closely related to the first, but
it may go more directly to the heart of the matter. Balkin calls attention to a
cycle of constitutional rot and renewal, but there too, secular changes are at
work that seem worthy of worthy of attention. That is to say, part and parcel
of any conception of “constitutional time” are structural shifts that have eroded
restraints categorically along the way. Consider a developmental dynamic that relates
incremental social inclusion to the incremental relaxation of constitutional discipline.
The Civil War brought about the abolition of slavery, and in the process, it liberated
the national power from the straightjacket of state-contract theory. The New
Deal incorporated working class interests into the high affairs of state, and in
the process, it shattered the restraints of the Commerce Clause. The civil
rights movement upended Jim Crow, and in the process, it broke the back of
federalism. Each of these great democratic breakthroughs prompted a major
reordering of constitutional relationships, and each reordering expanded political
access to national power at the expense of former institutional restraints. Put
another way, before the 1970s, reordering at the top was still a relatively
contained exercise, constitutionally and socially. Every prior regime was built
on the major social exclusions still remaining, exclusions anchored
governmentally by localism and prior right. Now, with those structurally-supported social exclusions
all but eliminated, American politics has become fully nationalized, and reordering
at the top has to proceed, for the first time, without any elite assurances
regarding limits and restrictions. This newfound inclusiveness is, I suspect, no
minor stipulation conditioning the traditional dynamics of constitutional renewal.
I’m not sure “rot” is the right word for this, but democratization does seem to
have made it harder for American government to sustain consensus on rules. The
free-for-all quality of current institutional contests suggests a secular
erosion at their foundations, an erosion that may prove difficult to repair. It
is certainly no coincidence that the conservative reordering which took hold in
the 1980s has been accompanied by a series of rather desperate efforts to throw
up new barriers to access, and though the effect of those efforts should not be
discounted, I think it is fair to say that containment is hard to reestablish once
its old constitutional supports have been shattered. By the same token, we have
no experience of a progressive reordering under conditions of full inclusion. As
Ira Katznelson and his colleagues have documented, progressivism in 20th
century government rested on an elite consensus regarding Jim Crow. Any new
progressive order will have to carry in its train a much wider range of social interests,
and it will have to stabilize a constitutional system shorn of fixed
relationships by prior developments. This leads to a final concern. The regime-based
structure of American government so vividly displayed in our history rested in
good measure on the development of new instruments of institutional cooperation
and collective responsibility. Balkin calls our attention to the most glaring
impediment to cooperation in a new progressive regime: the institutionalization
of movement conservativism in the judiciary. The coming court battles will be true
to form, characteristic of the politics of reordering. But changes on other
fronts suggest novel challenges. In the past, political reordering has drawn on
extra-constitutional institutions and arrangements that bridged the separation
of powers, fostering mutual buy-in and cooperation between the president and
the Congress and between the national and local governments. For example, through
most of our history, governmental institutions were bound together by locally-based
parties and the convention system of presidential nomination. Cooperation was
also facilitated by arrangements that established common ground in national
administration. That was true of both the spoils system, which fused national politics
and national administration to localism, and of the progressive system, which insulated
national administration from national political divisions with extensive
protections for knowledge-based authority. The modicum of inter-branch cooperation and collective
responsibility once achieved through various arrangements of party and
administration has been under severe strain since the 1970s. The demise of
convention nomination and the rise of “presidential parties” have made
presidents far more independent in political action, and doctrines like the “unitary
executive” (on the right) and “presidential administration” (on the left) have
fostered an executive branch more hierarchically organized under the president’s
direct political control. Presidentialism of this sort is unlikely to recede
anytime soon, and it too carries profound implications for a stable institutional
reordering. Presidentialism turns control of the White House into the all-consuming
preoccupation of the nation’s political interests. It reduces presidential incentives
to buy in to new instruments of institutional cooperation, and it fosters confrontation
and brinksmanship in inter-branch relations. Rather than binding things
together in a new regime, presidentialism accentuates the whipsaw effect of
change from one administration to the next. None of this is to deny the many promising signs of a
progressive opening. The question is whether developments like the creation of
an administrative state, the democratization of the polity, and the rise of
presidentialism are just incidental complications to underlying processes of
renewal, or whether those processes have themselves been compromised by our
long history of constitutional adaptation. Common sense tells us that no
institutional system with any integrity of its own is going to be infinitely
adaptable. That is reason enough to try to identify the critical properties that
have facilitated this system’s repeated regeneration. Until we do that, the
cycles of constitutional time may stimulate more wonder than confidence.
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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 |