Balkinization   |
Balkinization
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 Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Electoral Math And The New Gilded Age
|
Thursday, September 24, 2020
Electoral Math And The New Gilded Age
Guest Blogger
For the Symposium on Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020). Sam Wang For the last few years, my examination of U.S. election data and electoral mechanisms has led to a growing realization that as a nation, we've been here before. Commonplaces of our era - close national elections, minoritarian government, and deep partisanship – were also features of a previous time: the Gilded Age in the 19th Century. Jack Balkin's new book The Cycles of Constitutional Time argues convincingly, from a historical perspective, that we are in a second Gilded Age. This insight puts the mathematical evidence into context. This parallel is a source of optimism – if enough of our institutions can make it through the next 5 to 10 years.
The central
feature of this graph is that the popular-vote winner usually prevails, and usually
by a lot. On the whole, presidential elections have not been all that close. For
example, the horizontal gray line from 1900 to 1984 indicates an average win of
15 percentage points. Across the 49 elections in this graph, the median popular-vote
margin was a 7 percentage point win. Until our lifetimes, the failure of
popular-vote winners to become President has not been a significant issue. However, two
exceptions stick out: the period from 1876 to 1896, and the period from 2000 to
2016. During these intervals, 10 out of 11 elections had a popular-vote margin that
was smaller than the historical median. During the Gilded Age, two of the five popular
vote losers became president, Rutherford B. Hayes and Benjamin Harrison. And in
our current period we have two popular-vote losers, George W. Bush and Donald
Trump.
Presidents
who lose the popular vote are not the only hallmark of closely divided parties.
The concept applies to Congress as well. Control of Congress was
split or switched several times during the first Gilded Age, and has done so in
our time as well. Such close contests lead to bitter battles that can spill
into courts: see Bush v. Gore, Gill v.
Whitford, and Rucho v. Common Cause. The
original Gilded Age had several additional reverse-echoes (preverberations?) of
our new Gilded Age. The first Gilded Age was a time of technological disruption
such as telegraphy. The Gettysburg address is handwritten because, among other
reasons, the typewriter was not invented until 1867. The advent of railroads
and other industries led to the rise of a new middle class but also to large
economic disruptions. Then, as now, we had
considerable racial tension. I hesitate to bring this last point up because
inequality between the races is such a central problem in our country. Racial
tensions took the form of oppression of black people in the form of Jim Crow
laws, lynchings, and many forms of racism that were considered acceptable by
the white majority until the Civil Rights Era. Today we have police killings, the
Black Lives Matter movement, and anti-immigrant policies, all of which have put
racial justice on the front burner for many citizens. As Prof. Balkin
writes, multiple cycles can work in different ways, and the particular
convergence of cycles in our time is unique, with its own challenges and distressing
features. One is the nature of modern partisan polarization. In the Gilded Age,
the issue stands of the Democrats and Republicans were not that different. By
1896 both candidates for President were in favor of a stronger central
government. They differed on what that role such a government should play.
Today, after several decades of divergence the issue stands of the major
parties are far apart, and common ground on big questions is hard to foresee at
the moment. In a domain that I have
studied, representational fairness, today’s tensions don’t look as bad as last
time around. In the original Gilded Age, representation for Black people was
suppressed in a fairly crude manner by nearly eliminating the individual right
to vote. This led to all-white Congressional delegations throughout the South.
Today, racial gerrymandering can reduce minority representation, but cannot
eliminate it. And there are judicial remedies. In the Bethune-Hill case in
Virginia, 12 legislative districts packed to be majority-black (all more than
55% black voting-age population) were redrawn to become 17 ability-to-elect
districts, with 9 districts in the range of 30% to 50% black voting-age
population. So, in terms of voting and representational rights, our starting
point today includes considerably more protection for minority groups. Can this
status quo can be protected? We’ll see. In the absence of a new Voting Rights
Act, racial gerrymandering doctrine seems fated for tough sledding in
increasingly hostile courts. A central
theme of Prof. Balkin’s book is that of constitutional rot. Constitutional rot
consists of degradations of legal principles that can erode both democratic
ideals, in the sense of electing representatives that reflect the opinion of the
people in a reasonably proportionate manner; and republican ideals, the
establishment of institutions that act for the good of the citizens in a
responsive manner. Much of the
book focuses on constitutional rot as expressed in federal courts. Prof. Balkin
identifies the current period of Supreme Court jurisprudence and starting in
the 1980s, the time of transition between what he calls the New Deal/Civil Rights
Supreme Court and the modern Reagan-era Supreme Court. Although
we are now entering a pitched battle over a
Supreme Court seat in the wake of the passing of Justice Ruth Bader Ginsburg,
this is just the latest step in cementing a right-wing majority that is already
dominant.
|
Books by Balkinization Bloggers Jack M. Balkin, Memory and Authority: The Uses of History in Constitutional Interpretation (Yale University Press, 2024) Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University of Kansas Press, 2023) Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision - Revised Edition (NYU Press, 2023) Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, 2022) Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022) Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022) Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021). Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021). Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020) Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020) Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020) Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020). Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020) Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020) Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020) Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019) Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018) Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018) Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018) Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017) Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017) Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016) Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015) Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015) Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015) Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014) Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014) Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013) John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013) Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013) Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013) Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013) James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013) Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013) Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012) Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012) Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012) Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012) Jack M. Balkin, Living Originalism (Harvard University Press, 2011) Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011) Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011) Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011) Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011) Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010) Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010) Balkinization Symposium on The Decline and Fall of the American Republic Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010) Mark Tushnet, Why the Constitution Matters (Yale University Press 2010) Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010) Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009) Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009) Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009) Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009) Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009) Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008) David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007) Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007) Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007) Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006) Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006) Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006) Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006) Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006) Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005) Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004) Balkin.com homepage Bibliography Conlaw.net Cultural Software Writings Opeds The Information Society Project BrownvBoard.com Useful Links Syllabi and Exams |