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
The events of the past five years, culminating in the 2020 election and the January 6th attack on the U.S. Capitol, have posed a new and urgent set of questions for American constitutional theory.
The first is constitutional diagnosis: What has gone wrong with our constitutional system?
The second is constitutional repair: what can we do in the short run to repair the damage that has already occurred to our democracy?
The third is constitutional reform: What reforms are necessary, either through constitutional amendment or sub-constitutional means, to strengthen our constitutional democracy for the long run?
The fourth is constitutional maintenance: What institutions can we shore up or create to maintain our constitutional democracy as it meets the challenges ahead?
These questions emerged for many different reasons: elite and popular polarization, the unravelling of the New Deal Settlement, increasing constitutional dysfunction, democratic backsliding, and accelerating constitutional rot.
My recent book, The Cycles of Constitutional Time, engages with these new sets of questions, and especially the question of constitutional diagnosis. Its use of cycles is heuristic. It focuses on the rise and fall of constitutional regimes, increasing and decreasing political polarization, and episodes of constitutional rot and renewal in order to understand the interaction of political agency and political structure that generates constitutional development over time.
The analysis in The Cycles of Constitutional Time ends in early 2020. The remainder of this essay discusses developments since the book was written: the old order's attempts to maintain political power through minority rule, and what it would take for a new constitutional regime to form. The essay briefly outlines three possible paths of future constitutional development.
The cycle of rot and renewal in American constitutional history is not an iron law of politics. Rather, it is a sign of the remarkable durability of our constitutional system -- that it keeps bouncing back from the forms of democratic decay that have done in many other republics before it.
Yet this durability comes with a price. It makes the system unwieldy and it prevents a great deal of potentially valuable change, including the very changes that might be necessary to reverse the growing decay in our institutions. A central question for constitutional theory is whether our system’s resistance to rapid change will finally be its undoing, or whether pent-up frustrations will produce mobilizations that successfully renew American democracy.