For the Symposium on Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020).
Stephen Skowronek
The Cycles of Constitutional Time draws a bit on my own work on cycles of “political time,” but Balkin’s analytic lens is wider. “Constitutional time” is a composite of several different but intercurrent patterns of change, all of which are implicated in the moment at hand. After distinguishing these patterns, Balkin draws inferences about near term prospects from their contingent juxtapositions and mutual impingements. As a scholarly construction of where we are and whither we are tending, this is state of the art.
Balkin situates the current juncture within three cycles observable in our political history: a cycle of political decay and regime reordering, a cycle of polarization and bipartisanship, and a cycle of constitutional rot and renewal. On the face of it, the configuration of these elements in American government today appears about as debilitating as it can be. The conservative regime that took hold in the wake of the Reagan Revolution is in an advanced state of decay, and its degeneration coincides with a time of extreme polarization and constitutional rot. Balkin dwells on this seemingly dire convergence. By distinguishing its several aspects, and by reckoning with their interaction, he takes full measure of the gravity of our situation. Remarkably, however, the prognosis offered is cautiously optimistic.
Optimism follows from thinking cyclically. Balkin’s keen appreciation of this system’s regenerative capacities allows him to address the current malaise without recoiling and, in the process, to point the way out. If the past in any guide, Trump’s political intervention is unlikely to arrest, reverse, or otherwise surmount the crisis of the old order. The cycle of political decay and regime reordering points instead to a Trump misfire that will cut deeply against the conservative project and considerably brighten the prospects for a progressive reordering. Much of Balkin’s book is a sober assessment of the outlook for a new progressivism and its potential to overcome the degradations of polarization and rot.
I share Balkin’s assessment of Trump’s moment in political time, and although I am not by nature an optimist, I too think that the prospects for a progressive reordering are brightening. Cycles should inform and encourage practical work toward that end, for, as Balkin is careful to note, past patterns do not determine the future. Useful as it is to call attention to the rhythms and rhymes, there are no exact parallels. Specifying a variety of different cycles at work on our constitutional system and indicating how they interact in unique configurations is itself an important advance in conceptualizing themes and variations. Balkin’s response to the skepticism I have expressed in past work about the capacity of presidents to continue to serve as drivers of political reconstruction follows in the same spirit: he acknowledges emergent obstacles to another presidentially-led political reconstruction, but rather than give up on the prospects for reordering, he illuminates alternative pathways to a similar end.
All this said, Cycles passes lightly over an issue that is worth opening up. The conversation yet to be had is wedged between the diagnosis and the prognosis on offer. As I see it, the current interregnum, pregnant as it is with progressive possibilities, presents an especially severe test of the regenerative capacities of the American constitutional system. I take Balkin’s optimism as a prod to the rest of us to think more deeply about what lies behind the cycles we observe in our history. For all that has been said about these patterns, we know surprising little about why this system has periodically reordered itself. Faith in renewal has a lot of history to draw on, but I would feel more confident in that history if I had a firmer grasp of the features of the system that have been most essential to producing the regenerative effects.
The point is pressing because the periodic reordering of constitutional relationships has not been benign. Introducing sweeping substantive changes at every turn, the reordering associated with these cycles has repeatedly altered constitutional government itself. If we let the cyclic rhythms of change substitute for direct attention to the changes they actually brought about, we risk discounting political developments that might be complicating system dynamics and with them, the patterns we see so vividly displayed in the past. Substantive developments are unavoidable when accounting for variations observed from one cycle to the next. Balkin’s response to the concerns I have expressed about the presidents continuing to play their historic role is a case in point. The outstanding question is whether such developments might have an even more profound effect, whether the regenerative capacities on which this system has relied might be weakened, or washed out altogether, by its repeated reformulation and redeployment. I am a long way from drawing firm conclusions about this. I am willing to entertain the possibility that the effects of all this substantive reworking on the system’s regenerative capacities are minimal, but I don’t think we can assume this to be so, and even if things shake out again as our history would predict, it would be helpful to know why the cycles persist despite manifest transformations of the system itself.
Let me illustrate my concern with reference to three developments in particular. The first speaks to Balkin’s cycle of polarization and bipartisanship. As he observes, a period of relative bipartisanship spanning the middle decades of the twentieth century, was sandwiched between two periods of intense polarization. Balkin’s forecast of a new era bipartisanship harkens back to the earlier transition out of the stark polarization of the late-nineteenth century. Since we have worked our way out of polarization before, it not at all implausible that a similar transition is in the offing. But it seems to me no small caveat that those decades of relative bipartisan cooperation were themselves transformative. They witnessed the construction of an activist government and a vast administrative state.
It is not much of a stretch to imagine that the effective operation of an administrative state depends on a modicum of bipartisan consensus. It no stretch at all to see that the full development of America’s administrative state has put enormous strain on the consensus upon which it emerged. The current period of extreme polarization is unique not only because it has arisen in the presence of an administrative state but also because the intrusions of programmatic government have become a prime driver of polarization, pushing the parties farther apart. Projecting forward to a second modus vivendi, we need to imagine a new and sustainable relationship between partisanship and activist government. Balkin’s analysis anticipates a relatively moderate progressive consensus, and that might well do the job, but it seems hard to square with other developments in plain view. For instance, the unprecedented concentration of policy making authority at the center has abetted the rise of a permanent and well-endowed class of intense policy demanders who have no apparent interest in consensus and who pull at the administrative state from the right and the left. That has made it much harder to gain agreement on the rules that might stabilize operations one way or the other. Looked at somewhat differently, the modicum of national consensus necessary to sustain the administrative state today is likely to sorely test the patience of progressive interests looking to the EPA for a concerted assault on climate change, and to the Justice Department for a decisive assault on systemic racism, and to HHS for more comprehensive social supports.
My second concern is closely related to the first, but it may go more directly to the heart of the matter. Balkin calls attention to a cycle of constitutional rot and renewal, but there too, secular changes are at work that seem worthy of worthy of attention. That is to say, part and parcel of any conception of “constitutional time” are structural shifts that have eroded restraints categorically along the way. Consider a developmental dynamic that relates incremental social inclusion to the incremental relaxation of constitutional discipline. The Civil War brought about the abolition of slavery, and in the process, it liberated the national power from the straightjacket of state-contract theory. The New Deal incorporated working class interests into the high affairs of state, and in the process, it shattered the restraints of the Commerce Clause. The civil rights movement upended Jim Crow, and in the process, it broke the back of federalism. Each of these great democratic breakthroughs prompted a major reordering of constitutional relationships, and each reordering expanded political access to national power at the expense of former institutional restraints. Put another way, before the 1970s, reordering at the top was still a relatively contained exercise, constitutionally and socially. Every prior regime was built on the major social exclusions still remaining, exclusions anchored governmentally by localism and prior right.
Now, with those structurally-supported social exclusions all but eliminated, American politics has become fully nationalized, and reordering at the top has to proceed, for the first time, without any elite assurances regarding limits and restrictions. This newfound inclusiveness is, I suspect, no minor stipulation conditioning the traditional dynamics of constitutional renewal. I’m not sure “rot” is the right word for this, but democratization does seem to have made it harder for American government to sustain consensus on rules. The free-for-all quality of current institutional contests suggests a secular erosion at their foundations, an erosion that may prove difficult to repair. It is certainly no coincidence that the conservative reordering which took hold in the 1980s has been accompanied by a series of rather desperate efforts to throw up new barriers to access, and though the effect of those efforts should not be discounted, I think it is fair to say that containment is hard to reestablish once its old constitutional supports have been shattered. By the same token, we have no experience of a progressive reordering under conditions of full inclusion. As Ira Katznelson and his colleagues have documented, progressivism in 20th century government rested on an elite consensus regarding Jim Crow. Any new progressive order will have to carry in its train a much wider range of social interests, and it will have to stabilize a constitutional system shorn of fixed relationships by prior developments.
This leads to a final concern. The regime-based structure of American government so vividly displayed in our history rested in good measure on the development of new instruments of institutional cooperation and collective responsibility. Balkin calls our attention to the most glaring impediment to cooperation in a new progressive regime: the institutionalization of movement conservativism in the judiciary. The coming court battles will be true to form, characteristic of the politics of reordering. But changes on other fronts suggest novel challenges. In the past, political reordering has drawn on extra-constitutional institutions and arrangements that bridged the separation of powers, fostering mutual buy-in and cooperation between the president and the Congress and between the national and local governments. For example, through most of our history, governmental institutions were bound together by locally-based parties and the convention system of presidential nomination. Cooperation was also facilitated by arrangements that established common ground in national administration. That was true of both the spoils system, which fused national politics and national administration to localism, and of the progressive system, which insulated national administration from national political divisions with extensive protections for knowledge-based authority.
The modicum of inter-branch cooperation and collective responsibility once achieved through various arrangements of party and administration has been under severe strain since the 1970s. The demise of convention nomination and the rise of “presidential parties” have made presidents far more independent in political action, and doctrines like the “unitary executive” (on the right) and “presidential administration” (on the left) have fostered an executive branch more hierarchically organized under the president’s direct political control. Presidentialism of this sort is unlikely to recede anytime soon, and it too carries profound implications for a stable institutional reordering. Presidentialism turns control of the White House into the all-consuming preoccupation of the nation’s political interests. It reduces presidential incentives to buy in to new instruments of institutional cooperation, and it fosters confrontation and brinksmanship in inter-branch relations. Rather than binding things together in a new regime, presidentialism accentuates the whipsaw effect of change from one administration to the next.
None of this is to deny the many promising signs of a
progressive opening. The question is whether developments like the creation of
an administrative state, the democratization of the polity, and the rise of
presidentialism are just incidental complications to underlying processes of
renewal, or whether those processes have themselves been compromised by our
long history of constitutional adaptation. Common sense tells us that no
institutional system with any integrity of its own is going to be infinitely
adaptable. That is reason enough to try to identify the critical properties that
have facilitated this system’s repeated regeneration. Until we do that, the
cycles of constitutional time may stimulate more wonder than confidence.