an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.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
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto 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 princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Is Obama a reconstructive president? We'll only know later on.
I am very sympathetic to Gerard's continuing uncertainty about whether Obama counts as a transformational or reconstructive president. (Given the latest events, he now thinks that the odds have increased.) But there is a reason for this, which concerns a general feature of these kinds of theories of large-scale political change.
Theories like Stephen Skowronek's theory of political regimes, or, Bruce Ackerman's theory of constitutional moments, work best only in hindsight. They make sense of changes that have already occurred and whose significance has already become clear to us. These are narrative accounts of political or constitutional change, and as narrative accounts, they depend on later events that bestow meaning on earlier ones.
We know that Reagan is a reconstructive president after George H.W. Bush's election, and Bill Clinton's statement that "the era of Big Government is over." Then the elements of the narrative all seem to fit nicely together: we know that Bush is an affiliated president and Clinton is engaged in the politics of preemption. While Reagan's presidency was going on, we could certainly *guess* what would happen, but we couldn't be sure.
For example, if the economy had gone into recession in late 1987 or early 1988, the Democrats might have won the 1988 election, and Reagan's reputation would look quite different today. A recession in 1987 might also have gotten a different cast of characters to run for president in 1988, leading to a very different contest.
Any number of other things might have happened between 1987 and 1988 that would have put the Republicans in a worse position than they actually were. And if a second, steep, recession had arisen in 1986, Democrats might have tried to push harder on Iran-Contra, and then Reagan would look a bit more like Richard Nixon.
In short, Reagan's status as a transformative or reconstructive president is based on a narrative of events constructed with the benefit of hindsight-- a narrative that we have come to see as the best way of explaining the past. But the course of that narrative isn't always certain during a particular presidency, nor is it really fixed for many years afterwards.
What does this mean for Obama? Simply this. It's possible that the Democrats will win in 2016, in which case Obama's presidency will look much more important and consequential to later generations. People will point to Obama's various domestic accomplishments, the Iran deal, the changing demographics of the Democratic coalition, Hillary Clinton's election, and a federal judiciary filled with liberal Democrats, as a sign that we are in a new political era.
But suppose that the economy declines sharply in January 2016, Hillary's campaign is plagued by scandals and incompetence, and Jeb Bush, Marco Rubio, or Scott Walker-- or someone else-- steadily gathers steam, and marches to victory. Then Obama will look more like Bill Clinton and less like Ronald Reagan.
Our judgments of the kind of presidency that Obama has had, and will have had, in other words, still depend on the future.
The Yugoslavian politician and writer Milovan Djilas once remarked that "[t]he hardest thing about being a Communist is trying to predict the past." The same thing might be said about predicting reconstructive presidencies, not only while they are still ongoing, but even for years after they have ended.