Tuesday, September 15, 2020

All Things End

Guest Blogger

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

 Randall Kennedy

That one of the aims of Jack Balkin’s new book is to assuage feelings of despair highlights the extraordinary peril of the moment.

“My purpose,” he writes, “is to offer a bit of hope for people who read the news every day and fear that things are only going to get worse.”   

He seems to adopt this purpose as a matter in part of political strategy.  A dutiful liberal reformer, he seems to believe it important for him to lift the spirits of discouraged comrades.  People, he insists, “can’t allow themselves to be overcome by despair and paralyzed into inaction.”  Seeing hope as a staple of responsible political conduct, he maintains that while “hope does not guarantee action . . .  it makes beneficial action more likely.”   

Balkin’s hopeful message is that our present predicament, albeit awful, is transitory.  Better days are ahead.  So hold on.  Don’t give up.  The wheel turns.  Our present impasse, he assures us, is like an eclipse – momentarily frightening but over rather quickly. “ [O]ur recent unpleasantness,”  he writes, “is only a temporary condition.  We are in transition – a very difficult, agonizing, and humbling transition – but a transition nonetheless.”  “The fate of the United States, “ he assures us, “ is not going to be the same as that of Turkey, Brazil, Hungary or Poland.”  They might utterly fail.  But not the good old U.S.A.  “We are in our Second Gilded Age, and on the cusp of a Second Progressive Era.”

 Acknowledging the ubiquity of the foulness that seems to suffuse American life, he pays special attention to what he aptly terms “constitutional rot.”   According to Balkin, constitutional rot “is the process through which a constitutional system becomes less democratic and less republican over time.”  It is accompanied by the deterioration of norms of mutual forbearance and  fair political competition and a profound loss of trust between political adversaries and within the citizenry as a whole.  The constitutional rot produces and is mirrored by an electorate riven by economic inequality and tribal bigotries, a Congress that is stricken by polarization, a President who is a demagogue, and a Supreme Court that is unable or unwilling to address commendably even those issues that are, traditionally,  within its jurisdiction. Balkin’s portrayal of the Court and its subordinates is particularly mordant.  Its record is such, Balkin maintains, that “We should not expect the federal judiciary will be of much help in extricating the country from . . . constitutional rot.  At best, the federal judiciary will be impotent; at worst it will exacerbate polarization, increase inequality, legitimate rot, and throw obstacles in the way of reform.”    

Yet, amidst this bleakness,  Balkin somehow discerns renewal.  “I predict,”  he writes, “that we are slowly moving into our Second Progressive Era.”  The good news, he concludes, “is that the cycles of constitutional time are slowly turning.  Politics is re-forming.  The elements of renewal are available to us, if we have the courage to use them.”  

I enjoyed reading The Cycles of Constitutional Time as I enjoy reading most everything that Balkin writes.  He is lively, creative, wide-ranging, and independent-minded.  He crystalizes ideas memorably and coins useful concepts as in his depiction of federalism and separation of powers as an insurance policy for republican governance:

These structural features operate to dampen and limit the downside of inevitable decay in our republican institutions – to keep democracy afloat and republicanism running until the political system has a chance to renew and right itself.  The goal is to insure that although things may get bad  . . . the republic never completely falls apart, so that it can bottom out and renew itself eventually.  

I would like to embrace at least the contours of Balkin’s thesis.  After all, it proffers a story that is never-ending, in which good always emerges from the depths  (albeit only to be followed again by another period of rot).  

Alas, the book leaves me unconvinced.  

First, Balkin understates the danger of the present moment.  “We have been through these cycles before,”  he writes with attempted reassurance, asserting confidently that “we will ultimately get out of our present troubles.”  But I challenge him to present another time in the history of the United States when it was headed by a president who posed more of a danger to decent political practices and values than Donald Trump.  Balkin certainly realizes that Trump is awful, noting that he “engages in race baiting,”  “stokes fear of immigrants,” “finds new ways to divide . . . the public,”  “is utterly without shame,”  and is a corrupt  “moral and political hypocrite who systematically attributes his own failings to others.”  Trump is, Balkin avers, “a demagogue for our times” who has deliberately and repeatedly undermined key democratic and republican commitments.  The reality, however, is that Trump is even worse, much worse, than what Balkin depicts.  Balkin folds Trump into a cyclical history of America.   But Trump is quite singular.  Never before has an incumbent president acted in a fashion that has led to reasonable worry that he might, to retain power, posptpone or interfere with the election or, upon losing in the electoral competition, refuse to leave office on the grounds that the election was rigged.  I agree with Balkin that Trump “is a symptom of advanced constitutional rot and not its originating cause.”  But Trump has exacerbated the rot in extraordinary ways that have let lose toxins that will not be rinsed away.   Balkin talks about constitutional deterioration and renewal but he hardly ever alludes to that other key phase in the history of nations  – The END.  He never discusses constitutional death.  But in the fall of 2020 it is reasonable to do so.   

Second, although Balkin assures readers that we are already in transition, headed towards a second progressive era, he never identifies the vehicles that will accomplish that transition.  He says little about presidential contenders or the capacity of the presidency as a force for progressive change.  He pictures the parties as internally conflicted and ineffectual.  He dismisses the judiciary.  He portrays organized labor as a spent force.  He says little about social movements that could conceivably mobilize the energy, ideas, and popular support needed to decisively reorient the governing regime.  He says at various points that the citizenry should not be passive and expect historical cycles to turn on their own.  But his analysis actually replicates the attitude against which he warns.  He claims that wheels are turning but without identifying anything in particular that is moving the wheels.  The result is a quasi-religious appeal to constitutional resurrection.   The progress that Balkin promises is by no means linear.  But as a matter of faith he asserts it will certainly reappear. . . even without the aid of any force that he can identify.  

Third,  far from feeling comforted by Balkin’s invocation of mandatory ”hope,”  I feel distrustful of it.  When Balkin tells me that his book is motivated in part by a desire to shore up my morale,  I am left to wonder whether I am getting a straight dose of social analysis or a dose that is diluted by an officious concern with my psyche.  I would prefer social analysts to do their work coldly and clinically, while leaving clerics, therapists, and kindred helpers to do their work on a different register.  I am both weary and wary of obligatory optimism.  If  analysts believe that a situation is hopeless, they should say so.  To do otherwise is intellectually irresponsible.  I accept the sincerity of Balkin’s restrained optimism.  I just disagree with it.  I don’t see a path forward toward anything that deserves to be called “renewal.”  The most likely positive outcome  that I can see is mere avoidance of utter ruin in just a few weeks in the presidential election.  But even if Joe Biden and Kamala Harris prevail, the constitutional rot that Balkin describes will likely continue to fester.  And then we shall be revisited in four years or eight by a smoother, smarter, more competent Trump.   

All things end.  The American Dream is no exception.

Randall Kennedy is Michael R. Klein Professor of Law at Harvard Law School. You can reach him by e-mail at


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