Monday, September 21, 2020

Balkin on The Cycles of Constitutional Time

Stephen Griffin

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

What time is it in American history?  Jack Balkin’s superb book should help raise everyone’s “time” IQ.  Presuming that the past can illuminate the present, he asks where we are.  Still in the Reagan era?  Trapped in a second Gilded Age and on the verge of a new progressive era?  Or, just perhaps, in unexplored territory?

Balkin employs Stephen Skowronek’s well-known analysis of “political time” to frame his inquiry.  On Skowronek’s account, at any given moment in American history presidents are in a relationship to the reigning political regime.  Skowronek refers to the space in which that relationship occurs as “political time.”  Yet with respect to the last few presidents, Balkin confronts an immediate problem in that Skowronek also contends that political time is “waning.” This means that amid a considerably different institutional context than has attended any of the past regime transitions (except possibly for Reagan’s), it is unlikely that we could ever again have presidents similar to Lincoln, FDR and Reagan – that is, presidents who literally “reconstruct” the political space around them.  In responding to Balkin’s work that led to this book, this problem concerned me.  Truly reconstructive presidencies may no longer be possible and Democrats should not make the mistake of seeing a Biden presidency in that light.

Balkin has come up with a persuasive answer to this objection.  He points out that Skowronek’s theory is one of presidential leadership and is not centrally concerned with the Constitution or constitutional development.  Going forward, this means presidents might be less central to the reconstruction of a political or constitutional regime.  But there will be a constitutional change, Balkin is sure of that.  As I believe we have begun to experience, the gender gap and demographics by themselves should yield a further alteration of the political space.  Balkin thus offers a theory of changing constitutional regimes which creates the framework for “constitutional time.”

Balkin has also hit on an insightful way to frame our current situation.  He contends we are experiencing “constitutional rot” – a wonderful, if odiferous, way to understand What Has Been Going On in the Age of Trump.  Constitutional rot is a relative term and is thus a more helpful way to understand the constitutional aspects of our current predicament than concepts like “constitutional crisis” (of which I am perhaps overly fond) or even “authoritarianism” (as in Michael Klarman’s forthcoming Harvard Foreword).  The relative nature of constitutional rot enables Balkin to encompass a variable I think quite important – the decline of political trust, especially trust in institutions.  Lack of trust has particularly insidious and pervasive effects on governance that Balkin usefully describes.  More generally, he describes constitutional rot as consisting of four elements – (1) political polarization; (2) increasing economic inequality; (3) loss of trust, particularly in governing institutions; and (4) policy disasters – as Balkin notes, an idea I advanced in my book Broken Trust.

I will pause for a moment on the last item.  While I certainly count myself a Trump opponent, it is in a distinctive lower-font size “p” for populist register.  The American people have not been the sole instigators and victims of political polarization.  They have been encouraged along the way by some particularly feckless behavior by political elites – in fact, by members of both political parties who, believe it or not, have sometimes basically agreed on policies that have led the nation to disaster – and all still within the memory of an understandably angry populace.  Examples of what I have termed “both-party failure” include approving the Iraq War, a conflict that continues to reverberate through American politics, the regulatory failures that helped produce the Great Recession of 2008-09, and failing to enact timely immigration reform.

 Balkin makes another important point about a world dominated by constitutional rot – that “constitutional hardball” has been normalized.  It’s just the way we do things in the constitutional system, but it is acting like a slow-moving acid eating away at both constitutional norms and the very process of norm formation.  But one puzzle suggested by Balkin’s analysis but left on the table is the curious way Democrats have approached judicial nominations in a hardball world.  Over the years Democrats advanced a variety of personally oriented complaints about nominees such as Samuel Alito, Neil Gorsuch and, notoriously, Brett Kavanaugh.  Whatever one thinks of their validity, what they have not done is articulate a substantive vision of the Constitution.  Judging by these hearings, no one can tell what the Democratic position is on constitutional interpretation, originalism, or much of anything else.  In this respect, then, there remains an unexplained asymmetry between how the parties implement “hardball” with respect to judicial nominations.

Finally, Balkin makes a signal contribution in reimagining how we might reform the Supreme Court to better fit our polarized constitutional universe.  He rejects packing the Court by increasing its size and endorses a number of eminently sensible proposals: (1) instituting regular Supreme Court appointments; (2) creating the practical equivalent of term limits for justices; (3) giving the Court less control over its own docket (an intriguing point as well as a worthy proposal); and (4) using sunrise provisions that encourage bipartisan reform.  Balkin’s third proposal may come as something of a surprise to some.  But scholars have known for some time that the present period of judicial activism was enabled by the Court acquiring total control over its docket – but only in the twentieth century.  This creates a situation in which the Supreme Court only works when it wants to.  Nice work if you can get it!  I hope Balkin’s advocacy of these proposals will turn the discussion over judicial reform in a more productive direction.



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