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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 The Cycles (and Eddies) of Political Time
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Saturday, September 19, 2020
The Cycles (and Eddies) of Political Time
Guest Blogger
For the Symposium on Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020). Jedediah Britton-Purdy David Singh Grewal Thanks to Jack Balkin for letting us comment on his Cycles
of Constitutional Time. We wish to offer a few general remarks on some themes at the heart
of the project: the idea of cycles in politics, and of different modalities
(“time”), whether progression (in a “linear” fashion or otherwise) and
repetition (albeit “rhyming” not repeating, to follow Jack following Mark Twain
– and, more recently, Seamus Heaney and Joe Biden.) We dare not follow Jack or Steve Skowronek into the details of
long-lost Congressional majorities and the rhetorical postures of past
presidents. But we wonder whether these episodes of rivalry and polarization
(and depolarization) present something more like “eddies” in constitutional
time, and would not have been recognizable as “cycles” to the ancient Greeks or
ancient Chinese whom Jack evokes at the start, and whose (to modern eyes)
basically pessimistic idea of cyclical time encompassed a broader and more
troubling scope, from political flourishing to ruin. Our purpose in this
commentary is to ask whether there might be power still in the older conception
of the cycles of political time, and, if so, how they would bear on the
temporal character and the prospects of a modern constitutional republic that
is also a capitalist democracy. 1.
On political cycles: Here, with apologies to Plato and Polybius, is a short and sweet
version of the ancient Greek conception of the regime cycle. The despot
stands alone, victor over others but not victor over himself, and thus still a
participant in the human predicament. External exigencies – which induce
reliance on his bravest subjects – or internal evolution – the desire to bring
others in, for aloneness becomes loneliness in any political animal
– leads to a moderation of the despotism into something like monarchy,
perhaps over generations. But monarchies are seldom so strong that they can
stand alone: the oikodespotes of the ruling family cannot
alone command a kingdom. Rather, for reasons of military alliance and the
favored means of diplomacy among families, intermarriage, monarchies always
produce aristocracies, which initially return the favor: a handful
of optimate families are close to and participate in the
majesty of the monarchy – if not the monarch – conceived as an institution. But
crises of the monarchy lead the aristocracy to play a greater role in its power.
Weak monarchs – or worse, haughty ones (Tarquinus Superbus) – either generate
decay of the monarchy or inspire its overthrow. Those ready to pick up the
reins of the kingdom are the aristocrats who were always only a step away from
governing. They set up a governing council, the central institution of an aristocratic
republic. But by the very act, they work their own demise as a unique
ruling order. The status distinction between aristocrat and commoner is now a
visible, public boundary that ambitious men (typically) can aim to cross to
take a hand in public power and glory. Crowds of novus homini and,
worse, pretenders are the inevitable result, especially where an aristocratic
republic is unburdened by external war, and commerce – rather than valour – can
become the means of advance. The aristocratic republic becomes frankly oligarchic,
with status distinctions playing few (or none) of the disciplining roles of
previous generations, and money and connections counting for everything. But
money is not blood: it (and, sometimes, land) can be redistributed (or so it
seems) and the aspiring masses want their share. Demagogues break into
the oligarchy by rallying popular forces, promising redistribution or simply
using personal wealth to buy support in the streets, or among mercenary
soldiers. Leveling movements, civil strife, and fights over the bounds of the
existing “constitution” (not typically a written “basic law” like ours but a
regime of authoritative practices and, perhaps, foundational public
legislation) lead to ad hoc emergency measures by new
politicians. These self-proclaimed democrats
clamor to speak for the rising people, over and above the established elites
and tired institutions. From classical political theory – and from Roman
history, taken as a model for Star Wars and much else – we know where this
cycle ends: in a societal breakdown which no existing constitutional machinery
can arrest. Civil violence, or at least fear of it, becomes the means of
collective advance: riots as reform; “movements” without and against
institutions. But the many cannot exercise the power they demand it: they (we)
are too diffuse, distracted, diverse—a multitude, not a body politic, since
they have thrown off even the institutional shackles of formal assembly. So one
rises, to do what they cannot; one rises, to answer history’s many refusals by
doing what had seemed impossible; one rises, to the relief of both the few and
the many… The despot stands alone, victor over others but not victor over
himself…. This is the cycle of political time. Please adapt as you will
the standard tripartite division of regimes known since Herodotus, and whatever
crenellations of Roman history most appeal to you. It was, for instance, a
simple application of the last stage of this model that led Edmund Burke to his
famous prophecy of Napoleon’s rise from the ashes of the French revolution.
Readers will recall Burke’s forecast that, in an “ignoble oligarchy” of
shifting parliamentary majorities dominated by ambitious new men, “In the
weakness of one kind of authority [parliamentary], and in the fluctuation of
all, the officers of an army will remain for some time mutinous and full of
faction, until some popular general, who understands the art of conciliating
the soldiery, and who possesses the true spirit of command, shall draw the eyes
of all men upon himself … the master of your Assembly, the master of your republic.”
A lot of silly praise has been heaped on this sometimes unhinged polemic for
ostensibly forecasting the horrors of twenty-century totalitarianism, but this
haunting passage simply assumes that the cycle of political time continues into
modernity, and sets out, with a practicing politician’s feel for power, what
ends a disorderly, oligarchic soi-disant republic: the Caesar of a
revolutionary mob. (There is even, one might note, something oddly like a
miniaturized Roman history in the tumultuous decade and a half following 1789:
the overthrow of the king, the establishment of an elite republic (les Girondins), its liquidation by the
demotic mob, chaos and the rise of the dictator, later crowned emperor, whose
lasting legacy – in both the Roman and the French cases – was the conversion of
a wounded republic into an empire of law.) (2) And what is “linear” time? It is political progression that
expands and evolves but does not repeat (or rhyme). Jack names this early on as
the common commitment of modern constitutionalism, whether “originalist” or
“living” (and, might one add, “living originalist”?) But, in fact, modern constitutionalism is not distinguished by a
theory of time, but by a mode of collective will-formation. It is an attempt to
escape from the cycles theory of ancient constitutionalism precisely by
providing instead a praxis of will, by which a people (always an artificial,
politically grounded entity) can make the terms of its common life by
legislating its own basic law. The modern constitution is an effort to institutionalize
democratic will-formation. It thus provides a theory of the legitimacy of the
agent speaking law, establishing “the People” as an actually possible
sovereign, rather than the political deus absconditus to which any
opportunist may appeal. Centered on the problem of sovereign will, modern
constitutionalism only backs into the problem of time as a secondary problem
for the jurists, when the popular sovereign does not speak continuously (as the
ancient democratic assembly did). The problem of time becomes acute when the
constitution makes amendment, i.e., further sovereign action, all but
impossible, as Article V does under modern conditions. In such cases, it is
unclear when, if ever, the sovereign people will affirm, repudiate, or revise a
basic law whose most important text stands from long ago (in the US, dating
back 150-230 years). We have argued elsewhere that the major divisions of U.S. constitutional law and theory
are symptoms of this problem: a constitution that depends on the articulation
of popular will for its legitimacy and, indeed, for its legibility as basic
law, but which freezes the development of that law, transforming a charter for
the self-rule of the living into one for rule by ancestors. Originalism and
living constitutionalism represent fragments of modern constitutionalism, which
Article V has broken apart into, respectively, the popular authorship of the
past, explicit but increasingly remote, and the inarticulate but current
attitudes of the living, converted into “constitutional law” by judicial
hermeneutics. A central concern with time is thus a malady of certain modern
constitutional cultures, not a defining characteristic of modern
constitutionalism.
(3) There is, however, a modern conception of temporality that is linear, and which
is the proper counter to the ancient theory of regime cyclicity. That is the
theory of history articulated in classical political economy, which culminated
in the nineteenth-century theory of capitalism. (After the marginalist
revolution focused attention on the moment of commercial transaction, twentieth-century
political economy lost express interest in historicizing the emergence of
commercial society; nevertheless, a version of this progressivist history
informs modern economics and economic history, as seen in the focus on “growth”
as a central problematic across time.) The political theory of political
economy takes the market as the natural, enduring form of human society, on top
of which many different regimes can subsist, so long as they respect its
fundamental dictates; it thus reimagines the problem of politics as that of the
compatibility of different forms of rule with the dynamics of commercial
society. On this new account, the advent of commercial society fundamentally
shifted the terms of human history through the construction of immense
institutional and cultural path dependence (with network effects that would
pull in the whole world). The first commercial society would, in a sense, bring
others into the terms of its social ordering; and the totality of commercial
societies would inaugurate a new political order in which governmental
differences would be reduced in keeping with the dictates of the exchange
economy. Theories differ as to how this will happen, but the presupposition is
of some functionalist selection, possibly military competition. On one prominent and much-elaborated theory of this kind, Karl Marx’s theory of
capitalism, the motor of history is class conflict, which is realized differently
in different settings, in a progressively evolving history that is now reaching
its apogee. Underlying it all are two basic dynamics of commercial society,
which together contribute to what Jack calls “linearity” in its theory of time:
first, automation (the constantly increasing ratio of constant to variable
capital, in Marx’s technical terms) and accumulation (given by the only
enduring cycle in the theory, the cycle M – C – M’). But a simpler version is
just the linear increase in population size and in human wants (the two going
together) that drives the stage-theoretic progression in Adam Smith’s famous
account of history (in both the Lectures
on Jurisprudence and Wealth of
Nations). This is not history as cycles; this is history as economy,
meaning the release from cyclicity through the mobilization of ever-greater
quantities of that stuff that creates history: human labor. More labor; more
commerce; more commerce, more labor. The bourgeoisie don’t go in for the
decadence of aristocratic cycling (with all the drama of generations rising and
falling). Interest doesn’t cycle; it compounds. If the economy at least disciplines which political institutions can arise (or,
more boldly, generates them in a Marxian base/superstructure relationship),
then the flotsam and jetsam of Jack’s eddies are not contribution to cycles (in
the ancient sense) but statistical noise, akin to the business cycle, that
should not obscure the basic trajectory of (global) capitalism. On this view
(which is not entirely ours), it is in an analysis of capitalism and its
possible futures that Jack should search out the meaning of the American
republic, past, present, and future. On
one take, this approach would suggest that eighteenth-century constitutions are
predictably old hat under twenty-first century capitalism. The imperatives of
capital accumulation will sweep away whatever is distinctly local (as 20th
century commerce clause jurisprudence did, explicitly in service of the
functional requirements of a national economy) and, increasingly, national,
handing off vital functions to global regimes of trade (e.g., the World Trade
Organization) and the maintenance of capital stability (e.g., the Federal
Reserve, which in the latest crisis has expanded its role as emergency support
for creditor classes in both hemispheres). If we want to understand the basic
disposition of power and terms of collective life—the ostensible domain of
constitutionalism—on this linear view, history is a swift arrow moving away
from the architecture of old charters of government, except when they can be
conveniently adapted to the needs of automation and accumulation. A self-aware
constitutionalist would also have to be a candid antiquarian.
(4) We would suggest that to understand today’s political situation, one must combine
these three basic insights – ancient theories of the cycle of political time, the
modern theory of constitutionalism as democratic will-formation, and the
political economy view of modern capitalism as the decisive, and increasingly
exclusive, world-historical force in a unique path of linear time. We all have our parochialisms and our faiths. We are students of law and
politics, and we do not believe that “the political”—meaning, collective will-formation
aimed at constituting, legitimating, and directing the state—is an
epiphenomenon of political economy, whether the latter is taken in a Marxian
sense or as the kind of liberal-capitalist functionalism that figures like
Thomas Friedman invoked to predict global convergence back in the Long 1990s. If
you allow the relative autonomy of the political from the economic, then you
have to think of politics in relation to capitalism without assuming capitalism
necessarily does all the work. It strikes us as worthwhile, then, to ask, too,
how the cyclical theory of political time might operate in a quasi-democratic
capitalist society such as ours. The U.S. constitutional scheme proves
perversely fertile ground for this troublesome political disposition. Because
we are caught in an old constitutional order that overlays multiple republics
on one another within a persistent set of inflexible institutions, electoral
minorities like the one that brought Trump to power can rule the rest through
the presidency, the senate, and the supreme court. It is no wonder that those
who are subjected to this rule, making up actual pluralities and majorities of
the country, experience themselves as under a kind of occupation. By the same
token, because we have no functional and agreed-upon means of constitutional
change, it is always possible for conservatives to insist, including on
good-faith grounds, that the present order is a kind of usurpation, by invoking
the principles of a prior republic, never yet repealed. The structural failings
in our system of self-rule make us one another’s occupiers in ways that leave
us regularly vulnerable to the charge of usurpation. Charges of usurpation are
preludes to delegitimization and the transvaluation of values: standard moves
in the cycle of political regimes.
This makes us a bit more worried than Jack who, as ever, seems to play it cool.
If you take the cycles theory seriously, and add capitalism as an accelerant,
then things don’t look great. With these bleaker alternatives in mind, we
certainly hope Jack is right that a decade of crisis is the worst we should
expect (as he seems to suggest). Jack does note at the end of the book the
stakes of the current class conflict, with neoliberal elites in the donor class
of both parties putting the brakes on a clean-out of “constitutional rot.”
Nevertheless, he seems to think we’ll get the republic tottering along again
quickly enough. Jack
thus proves himself thoroughly modern in his idea of constitutionalism. That
wouldn’t be news to him. Again, we hope he’s right. Jed Britton-Purdy is William S. Beinecke Professor of Law at Columbia Law School. You can reach him by e-mail at <jpurdy@law.columbia.edu>. David Singh Grewal is Professor of Law at Berkeley Law School. You can reach him by e-mail at <david.grewal@berkeley.edu>.
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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. 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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. 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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 |