Finding a way out of constitutional rot

Guest Blogger

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

Julie C. Suk

Jack Balkin’s Cycles of Constitutional Time is the bearer of bad news: we are living through a period of severe constitutional rot, characterized by peak polarization and conservative dominance. The federal judiciary is deepening the rot, instead of providing an antidote. Balkin’s account of constitutional history, particularly the dynamics between presidential regimes and the federal judiciary, leads him to cast polarization and constitutional rot as stages of a cycle that, in the past, produced renewal and democratic innovation.  Balkin thus concludes that a path out of this constitutional rot, by way of political mobilization and reform movements, is on the horizon. But the story of constitutional rot in this incisive and engaging book leaves me less confident than the author that the “malaise is only temporary” (3) and soon to be surmounted.  In what follows, I will explain why, and further suggest that the Constitution itself contributed to what Balkin calls constitutional rot over time, making it doubtful as to whether a new constitutional order can emerge without a more thorough redesign of our constitutional institutions.

Balkin argues that constitutional rot, while unpleasant, is nothing new.  Polarization moves in cycles, and this nation experienced a cycle when a period of high polarization began at the end of the 19^th century, with a sharp rise in inequality during the Gilded Age. Inequality “became so pronounced that public opposition eventually overwhelmed the political blockages to redistribution and reform” (36). This cycle of polarization gave way to the Progressive Era, which set off a process of depolarization, culminating in the constitutional renewal achieved by the New Deal. Balkin insists that it’s a cycle, rather than a “constitutional crisis” – in which the continued existence of the Constitution is itself under serious threat. Balkin defines constitutional rot as “the decay of those features of a constitutional system that maintain it both as a democracy and as a republic” (44). The joint pursuit of the public good disappears, and the country functions in political darkness as an oligarchy.

“I promise you, this eclipse is purely temporary,” Balkin writes (65). But the fact that our constitutional democracy managed to survive its past life-threatening illnesses does not render it immortal, nor does it render renewal feasible. Renewal through depolarization and judicial reform may have fallen further out of reach in the intervening time.  Balkin identifies “four horsemen” that have caused constitutional rot in the United States: political polarization, economic inequality, loss of trust, and policy disasters. Balkin suggests that the Founding Fathers were aware of these future threats and wrote a Constitution to “limit the cycle of constitutional rot” (47).

But the Founders also wrote provisions into the Constitution that spawned, rather than limited, constitutional rot. Pro-slavery forces entrenched their interests in the Constitution, as evidenced by Article V’s provision that made the slave trade unamendable until 1808 as well as the fugitive slave clause. Even though these provisions, and the three-fifths clause, were superseded by the Thirteenth and Fourteenth Amendments, the pro-slavery forces also entrenched their interests in the institutional design of our political institutions, which continued to give disproportionate political power to the states that depended on slave labor, even after the Thirteenth Amendment abolished slavery. The Constitution guaranteed that every state would have two Senators regardless of population, and immunized the states’ equal representation in the Senate from the ordinary process of amendment in Article V, requiring each state to consent to changing its equal representation in the Senate. The Electoral College was also enshrined to protect states’ control over presidential selection, which undermined democracy by entrenching slaveholding states’ disproportionate influence.

Balkin obliquely criticizes the electoral college several times throughout the book by pointing out that Trump’s electoral college victory diverged from the popular democratic vote by the people. While he clearly regards Trump’s election and administration as a manifestation of constitutional rot, and anticipates the reasonable possibility that the electoral college will deliver yet another Trump victory this November, Balkin does not characterize the electoral college or other entrenched undemocratic constitutional provisions as enablers of constitutional rot. Furthermore, Balkin identifies the Senate’s “constitutional hardball” to prevent Obama’s appointment of Merrick Garland to the Supreme Court upon Justice Scalia’s death as another major indication of constitutional rot. But he does not discuss the undemocratic composition of the Senate required by the Constitution as an underlying enabler of Mitch McConnell’s success in shaping the federal judiciary that is failing to protect democracy.

Article V of the Constitution, also unchanged by the Civil War amendments, makes formal constitutional change rare and unlikely. Amendments to the Constitution require two-thirds of both houses of Congress and ratification by three-fourths of the state legislatures, or else a petition to Congress by two-thirds of state legislatures for a constitutional convention, which can propose amendments that then need to be ratified by three-fourths of the state legislatures.  The consensus required to amend the constitution essentially gives formerly slaveholding states veto power over constitutional amendments.    

It is perhaps because the U.S. Constitution is impossible to amend without making common cause with some racists and white supremacists (as the recent 19^th Amendment centennial has brought to light) that liberal constitutional reform projects tend to steer clear of proposing constitutional amendments.  Balkin’s proposed reforms in Chapter 11 are no exception. To overcome the constitutional rot, Balkin argues that political action, rather than judicial decision, will lead the way, and can be achieved without a constitutional amendment. His reforms include (1) instituting regular and predictable Supreme Court appointments, (2) term limits for Supreme Court Justices; (3) reducing the Supreme Court’s control over its own docket; and (4) sunrise provisions.  These are all reforms that would reduce the sitting judiciary’s contribution to constitutional rot, but the focus on the judiciary may be misplaced if the President and Congress (including a Senate that disproportionately represents the American people) are equally responsible for constitutional rot. Furthermore, to the extent that Balkin presents his theory of reform as a prediction of what’s next in the cycle, rather than as a normative prescription, one wonders whether Congress – even assuming liberals win majorities in both Houses—will be moved to legislate such significant reforms of the judiciary.  Whereas Republicans and the conservative movement have made judicial appointments a central issue in legislative and presidential elections, Democrats and liberals have paid little attention to the composition of the judiciary in legislative and presidential campaigns in 2020.

Balkin’s optimism about a political mobilization completing a cycle of depolarization may be unwarranted. He does not identify a movement that can carry out the “painful process” of emerging from the “stubborn condition” (174) of constitutional rot. The “most likely candidate” is a “natural evolution of the coalition” “of minorities, millennials, college-educated professionals, suburbanites, and women.” While the book’s thesis sounds in deterministic prediction; it acknowledges that emerging from constitutional rot will require hard political work that is contingent and subject to failure.

The coalition on which Balkin hangs his promise of constitutional renewal will face barriers to exercising the political power necessary to reverse the rot because, with the exception of women, they tend to be concentrated geographically in places that are disempowered by the flawed constitutional design of the Senate, the electoral college, and Article V.  In addition, the prior New Deal coalition of working-class people with socially liberal college graduates initially left out minorities and women.  As it evolved to encompass the civil rights movement and women’s liberation in the 1960s and 1970s, the Reagan regime successfully capitalized on the cultural backlash to these politics of identity and prevailed in 1980.

It may well be that salvaging democracy in the twenty-first century will require a more ambitious project of constitutional renewal, beyond Balkin’s proposed judicial reforms, if this multifaceted coalition is actually to be empowered. Other countries are undertaking new processes of constitution-making under conditions more inclusive and democratic than our existing Constitution envisions.  In Chile, for instance, a plebiscite in October will determine whether a new constitution will be drafted by a constituent assembly elected to reflect gender parity. In Iceland, a crowdsourced constitution produced in 2018 was not ratified by Parliament, but it led the government to conduct deliberative polls to plan a constitutional revision process that is currently in progress. If a rotten constitution has enabled the constitutional rot over time, rethinking the design of our representative lawmaking institutions and the process by which the Constitution is amended may be the only hope.

Julie C. Suk is Professor of Sociology & Political Science, The Graduate Center – CUNY; Visiting Professor of Law, Yale Law School, and the Author of We the Women: The Unstoppable Mothers of the Equal Rights Amendment (2020).  You can reach her by e-mail at jsuk@gc.cuny.edu, or julie.suk@yale.edu, and on Twitter at @JulieCSuk