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.
Prof. Balkin argues for the cyclical nature of U.S. political regimes. An example can be found in presidential election results. Here I show a chart depicting the popular vote margin of the winning candidate since the popular vote began to be recorded systematically in 1824.
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.
These results are not mere numerology. They arise inevitably from laws of math and probability. The Electoral College has the curious property of usually, but not always, awarding the presidency to the popular-vote winner. Exceptions can occur when the major parties are closely divided, or when more than two parties win a substantial share of the votes, as occurred in 1824 with John Quincy Adams. The almost-popular-vote feature is a fundamental consequence of the fact that electors are awarded through dozens of winner-take-all popular elections. This arises even without the two-seat bonus that comes from Senate-based electors (see Grofman and Cervas).
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.
It is easy to think of symptoms of
constitutional rot – and of other seemingly related problems. The gulf between
the major parties, both substantive and emotional, has made it harder to make
policy at a national level, even causing government shutdowns. When policy
disputes spill over to court, judges appear more willing to change policy and
do away with precedents in ways often consistent with the ideology of the party
that appointed the judge.
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.
However, the book is not just a description of the
current situation. Prof. Balkin thinks that the next cycle is not too far off.
Just as the first Gilded Age gave rise to a Progressive era, he believes that
we are about to make a transition. In the next essay I will examine some
demographic trends that support his view, and place them in a framework that is
inspired by the science of complex systems. I will argue that we should always
think of our system of democracy not as a naturally-grown system, but a product
of mechanisms and feedbacks that, taken together, resemble a clockwork. How we alter
that clockwork in the next few years will determine whether we get a better
system, or whether we face some form of collapse.