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
This essay discusses the 2020 election and its aftermath in terms of the theory of constitutional cycles described in my book The Cycles of Constitutional Time. The book argues that we can understand American constitutional development in terms of three kinds of cycles. The first involves the rise and fall of political regimes featuring dominant political parties. The second is a long cycle of polarization and depolarization that stretches from the Civil War through the present. The third cycle is a series of episodes of constitutional rot and constitutional renewal. Constitutional rot is the process by which a constitutional republic becomes less democratic and less republican over time.
I draw three conclusions from the 2020 election and the Capitol Hill insurrection of January 6th, 2021. First, although the Reagan regime that has structured American politics since the 1980s is nearing its end, we cannot yet be certain that it has reached its conclusion. The COVID-19 pandemic and the economic contraction that accompanied it have handed the Democrats an opportunity to forge a new political regime, but whether they will successfully capitalize on these possibilities is yet to be determined. The book points out, for example that the Democrats missed an opportunity to begin a new regime in 1896, and proved unable to do so in 2008. Years later, we may retroactively identify the end of the Reagan regime with the 2020 election and the Capitol Hill insurrection that followed it. But we cannot say for sure at present.
Second, our deeply polarized politics, which is currently organized around issues of identity and status conflict, will continue until party coalitions slowly begin to change, leading the parties to face off over a new set of issues. Those changes are already in motion, but the transformations will take time.
Third, the gravest threat we face today is not political polarization but constitutional rot — a deepening decay in our political and legal institutions. This decay began well before the election of President Donald Trump. But Trump accelerated constitutional rot in the United States, by his creation of a cult of personality, by his abuses of power, and by his refusal to accept the legitimacy of the 2020 election and the opposition party’s ascension to power through democratic means.